Relations between the Branches - Topic 4.1

Question 1

What is the role and composition of the Supreme Court?

Answer 1

The Supreme Court is the highest appellate court in the country for all civil cases, with its reach crossing the entire nation. It is the final court of appeal, where there is a judicial review of how the government has acted but also has the authority to determine whether an issue ought to be under the jurisdiction of the British government or devolved body.

The 12 most senior judges in the UK sit in the Supreme Court and are its justices. The court’s membership is determined by a five-member selection commission made up of the most senior judges in the UK. Their nominations are passed for approval to the justice secretary, who has the opportunity to reject one. Once agreed, the PM asks the monarch to make the appointment.

Question 2

What preceded the Supreme Court before its establishment in 2009?

Answer 2

The House of Lords used to hold the 12 Law Lords who would be the highest appellate court. They delivered judgements in the Appellate Committee.

The Constitutional Reorm Act os 2005 revoked the Lords’ ability to judge on civil cases, and in 2009, the Supreme Court was established to take its place, promoting transparency and independence.

The Supreme Court sit in Middlesex Guildhall, and directly faces Parliament.

Question 3

In what ways is the Supreme Court maintain judicial independence?

Answer 3

• Judges’ salaries are not determined by Parlaiment and are instead paid directly by the Consolidated Fund, which follows recommendations from the Senior Salaries Review Body all under government execution
• The Judges cannot be removed by the government and only by resolution passing in both houses. Judges can act accordingly without fearing the consequences of their actions and possible loss of office
• The Constitutional Reform Act of 2005 removing the Law Lords from the House of Lords promoted independence and removed the influence of the legislative on the judiciary

Question 4

In what ways can the Supreme Court claim judicial neutrality?

Answer 4

• Judges in the UK aren’t permitted to be members of a political party. Barristers and solicitors are, however, judges must abandon their political associations
• Appointments to the Supreme Court are decided by a specially summoned five-person selection committee comrposing the lord president of the Supreme Court, a senior judge and representatives of the Judicial Appointments Commission of England and Wales, Scotland, and Northern Ireland. If candidates of the Supreme Court are deemed to be of equal merity, then the selection committee may ‘prefer one cadidate over the other for the purpose of increasing diversity within the group of persons who are judges in the court’.

Question 5

What are the functions of the Supreme Court?

Answer 5

• Decides whether a public body has acted beyond its authority¹
• Establishes where sovereignty is located within the UK
• Declares when government has acted in defiance of the HRA
• Determines the meaning of law, so setting judicial precedents that must be followed in future cases

¹ - Ultra vires

Question 6

How can the Supreme Court limit the government?

Answer 6

It can determine whether the actions of the government are in accordance with the law, doing so through judicial review, whereby a judge can review the actions of a public body, including the government and decide whether it was lawful. If unlawful, that decision can be quashed.

In recent years, the Supreme Court has been against the government. The court provides a necessary safeguard for the principle of limited government in a liberal democracy.

Question 7

What recent examples have there been of the Supreme Court reviewing the actions of the government?

EU-related cases

Answer 7

• Gina Miller case (1) (2017): Following the EU Referendum, the government claimed it could begin the process to leave the EU, however, the Supreme Court ruled 8-3, that the government doesn’t have the authority to do this without the consent of Parliament as Parliament voted to join the EEC in 1972
• Joanna Cherry/Gina Miller case (2) (2019): Boris Johnson accounced he would prorogue Parliament for 5 weeks in the autumn, however the length of time that Parliament would not be sitting caused accussations that the PM was trying to limit parliamentary opposition to his EU withdrawl proposals and so his actions were motivated by political self-interest. 11 justices unanimously found the PM had acted illegally by suspending Parliament for that length of time

Question 8

What recent examples have there been of the Supreme Court reviewing the actions of the government?

Immigration & asylum-related cases

Answer 8

• HJ & HT v Home Secretary (2010): Two men from Iran and Cameroon resepctively claimed asylum in the UK because both were gay. The Home Office refused their requests on the grounds of, if they concealed their sexuality, they wouldn’t suffer persecution. The court ruled in favour of the two men
• Al Rawi and others v The Security Service and others (2011): When former detainees of Guantanamo Bay claimed that the British security services shared responsibility for their imprisonment and ill treatment, the British government argued that the evidence of the heads of security shouldn’t be given in public in case it breached national security. The Supreme Court decided in favour of the detainees

Question 9

How well does the Supreme Court limit through the HRA?

Answer 9

Both primary and subordinate legislation must be compatible with the ECHR, as a result, there is an expectation that Parliament should legislate in accordance with the Convention. If this isn’t possible, the judges can issue a formal statement of incompatability, which will put significant pressure on the government to amend the law. However, since Parliament is sovereign, no Parliament may bind its successor and the new law would still stand despute conflicting with the principlies of the HRA.

This flaw in the HRA is seen. And as the UK has no higher constitutional law, the Supreme Court cannot use the HRA to strick down legislation. If the Supreme Court state the government had acted beyond authority, the government could ask Parliament to legislate to give it these powers.

Question 10

What recent examples are there of the Supreme Court attempting to limit the Executive through the ECHR/HRA?

Answer 10

• The Belmarsh Case (2004): In 2004, the Blair government used the powers given to it by the Anti-terrorism Crime and Security Act of 2001 to hold foreign terrorist suspects indefinitely without trial. The Law Lords declared that this was discriminatory according to the ECHR since British terrorist suspects were not being treated in the same way. The government introduced legislation into Parliament to monitor the whereabouts of these and other foreign terrorist suspects using control orders. This shows that although a declaration of incompatability can have significant moral influence, the executive’s ability to circumvent the judiciary is still great.