To what extent is the Supreme Court too powerful? Flashcards
LoA
not too powerful
para 1 theme
sovereignty
para 2 theme
D of Is
para 3 theme
activism and restraint
para 1 - sovereignty
Parliament is legally sovereign ie. the Supreme Court cannot strike down an act of parliament as there is no ‘higher’ constitutional laws. Parliament could virtually pass any piece of legislation it wanted and the Supreme Court would have little power to oppose it.
para 1 however
- The Supreme Court can determine the location of sovereignty in the UK
EG Gina Miller case 2017: government claimed it could begin leaving EU through exercising royal prerogative however a 2017 SC ruling 8-3 majority ruled Parliament did not have the authority: reasoning was parliament had taken us into EU in 1972, so parliament should take us out
para 1 rebuttal
However, if parliament wanted, they don’t even have to listen to the rulings of the Supreme Court, as it is the sovereign body
para 2 - Declaration of Incompatibility
- The government does not have to obey declarations of incompatibility (although admittedly they have never been ignored)
Parliament can legislate to give a body legal power it did not have before
In the Belmarsh Case, the government accepted the ruling however they introduced control orders which enabled the government to monitor foreign terrorist suspects – evidence that parliament can circumvent the judiciary
para 2 - however
- The Supreme Court can declare a formal declaration of incompatibility should an Act of Parliament contradict the ECHR – exerts significant political pressure on the government to change the law
EG Belmarsh Case 2004:
Blair government used powers of Anti-Terrorism Crime and Security Act 2001 to indefinitely hold foreign terrorist suspects – ruled incompatible with ECHR
Supreme court can issue a body as acting ‘ultra vires’
EG Jeremy Hunt closing Lewisham Maternity Unit
para 2 - rebuttal
The fact that the Supreme Court does not have to listen to DofIs shows how the Supreme Court has little power in actuality. Furthermore, if Parliament wanted to, they have the power to remove the Supreme Court in its entirety, showing its dominance.
para 3 - activism and restraint
The Supreme Court cannot initiate cases but only determine cases brought to it therefore not pro-active which severely constrains influence. Whilst in the US, the SC can be activist in their actions, due to them protecting the sovereign constitution. Monumental cases like the Al Rawi Case v Security Service, R v Horncastle and Nicklinson v Ministry of Justice were all brought to them, rather than the SC looking for them.
para 3 however
The Supreme Court is the UK’s most senior court and final court of appeal – their interpretation of the meaning of the law is final
EG R v Jogee (2016) SC overturned the principle of ‘joint enterprise’ which was established by common law – stated that those who were part of a group which incited a murder could be convicted in same way as person who did the killing
para 3 rebuttal
As there are no higher constitutional laws, the Supreme Court cannot strike down statute law. Furthermore, they are limited in their power. They cannot make judgements beyond the law, even in the interests of natural justice. For example, in right to die cases.
