Supreme Court Influence

Question 1

what is judicial review

Answer 1

power of the judiciary to decide whether actions by the government and by Parliament break existing laws.

Question 2

what happens if the SC rules that a government action or act of parliement is unlawful

Answer 2

The government policy or law should be changed

Question 3

what is a core part of the power of judicial review

Answer 3

As part of the power of judicial review the Supreme Court can rule whether the government, or a government organisation, has acted ultra vires.

Question 4

what is ultra vires

Answer 4

‘beyond one’s powers’ - doing something the law does not authorise you to do

Question 5

judicial review examples

Answer 5

1. Jones v Commisoner of Police
2. Miller V Secretary of State for Exiting the EU
3. Steinfeld and Keidan V Secretary of State 2018
4. Miller V The Prime Minister

Question 6

summary of judical review cases

Answer 6

Jones v Commisoner of Poice - Met Police banned extinction rebellion - a pressure group from protesting as they made use of direct action which disrupted activities in london, SC ruled that it was unlawful
Steinfeld and Keidan - SC ruled in favour of S and K that the Civil Partnership Act contradicts the freedom from discrimination on the basis of sexuality clause of the HRA as it did not give straight couples the right to civil partnership. Parliament amended the CPA in 2019 allowing it
Miller v PM - PM could not prorogue parliament outside of the scheduled holidays or prorogation period

Question 7

consequence of judicial review for the government

Answer 7

If the courts rule that a government policy breaks the law, the government has to stop that policy immediately. The government is not above the law (rule of law)

Question 8

consequence of judicial review for parliament

Answer 8

If the courts rule that an Act of Parliament breaks the law, this is a suggestion for Parliament to change the law. The law is not
immediately scrapped, it is left to Parliament to sort out the contradiction due to parliamentary sovereignty

Question 9

argument in favour of the view that the SC is too powerful - judicial review

Answer 9

The power of judicial review gives unelected judges the ability to overrule the elected branches of government legislature and executive. This is undemocratic.
It can declare government actions ultra vires
It can declare Acts of Parliament incompatible with existing laws and suggest it to make changes

Question 10

arguments in favour - HRA

Answer 10

The introduction of the Human Rights Act in 1998 has given the Supreme Court more opportunities to overrule the government.
Many of the judicial review cases where the courts have overruled the government are based on breaches of the Human Rights Act 1998

Question 11

arguments in favour - rule of law

Answer 11

The rule of law requires everybody is treated equally before the law, and there is some evidence of bias amongst judges, e.g. through their social background.

Question 12

arguments against judicial review

Answer 12

In the end it is parliament that makes the law judges are applying. If the government is seen to break the law, they could simply change the law with their majority in the HoC.
In 2010 the Supreme Court ruled the government was freezing the bank assets of terrorist suspects, without having the power to do so. Parliament passed the Terrorist Asset-Freezing Act 2010 to give the government that power.

Question 13

argument against - rule of law

Answer 13

It is important that the Supreme Court has significant powers, to enforce the rule of law and ensure the government
is not above the law

Question 14

argument against - HRA

Answer 14

Those rights are not entrenched. The Human Rights Act was established by Parliament and can be amended or abolished by Parliament.
The 3 most recent Conservative Party manifestos have pledged to repeal or amend the HRA 1998. British Bill of rights would repeal the HRA though its still in the second reading stage. The Current Policy Bill passed by parliament under B.J undermines article 11 of the HRA which grants the right to freedom of association and peaceful assembly aka protests, as it placed a ban on protest and gave police the right to disrupt protests

Question 15

argument against - parliamentary soveriengty

Answer 15

The courts can overrule the government, but can not overrule Parliament; they cannot force Parliament to change the law
This confirms the principle of parliamentary sovereignty

Question 16

arguments in favour - parliament

Answer 16

In most cases Parliament does follow the Supreme Court’s suggestion to change the law.