- As the final court of appeal in the UK, the judgements reached by the UK SC are of
profound importance.
- The highest court of appeal in the UK had been the HoL, where the 12 law lords
delivered judgements in the Appellate Committee. However as part of the constitutional
reform act 2005, the law lords were removed and in its place a SC was established.
- The work of the SC is more open to Public scrutiny than had been with the Appellate
Committee.
- The SC is the final court of appeal when there is a judicial review of how the government
has acted.
- Judges are expected to be neutral which means that their judgements should never be
influenced by any social or political prejudice.
In what ways can the SC claim to be independent and neutral?
● Judges in the UK are not permitted to be members of a political party. A barrister or
solicitor may be a member of a political party and may pursue a political career but once
appointed a judge must abandon any political ambitions and associations.
● Judges' salaries are not determined by Parliament. This mechanism ensures that no
government could seek to influence the judiciary through financial mechanisms.
● Since the Act of settlement in 1701, a senior judge can be removed only by a resolution
passed by both Houses of Parliament. Which means they have security of tenure and
cannot be removed from office by the government. As a result, judges can act according
to how they think the law should be interpreted without fearing the consequences of loss
of office.
● In the Constitutional reform act 2005 the JAC was introduced. The Judicial Appointments
Committee selects judges on their merit and good character.
● When a case is being heard, it is said to be ‘sub judice’. Meaning that Parliament cannot
express an opinion as this would breach the separation of power and undermine judicial
independence. If a member of the legislature or executive did express an opinion, this
would be contempt of court.
Criticisms of the Independence and neutrality of the SC
● Members of the SC are generally from such an elite background which has led to claims
that they tend to favour the establishment. E.g. Lord Denning on several occasions sided
with the conservative government.
● Its membership is so privileged that the decisions it makes are unlikely to reflect how the
law impacts on modern society. Most Justices of the SC have been privately educated
and attend Oxbridge uni’s and these rarefied experiences could make them ill-suited to
interpret the law in a contemporary setting.
● In short, Privileges and prejudices of their class hinder the justices of the SC maintaining
judicial neutrality. In 2022, Lady Rose was the only female judge. Men dominate.
, ● The constitutional reform act merged the position of the lord chancellor with the justice
secretary. They don’t need to have a legal background and are a member of the cabinet.
The selection committee must pass their recommendations to the Justice secretary, who
can request further information and retains the right to reject a nominee. This power can
only be used in exceptional circumstances and only one nomination can be rejected, but
it shows how there is not complete separation of powers in the UK.
● There is a risk of the SC being pulled in major political disputes, which could
compromise its neutrality. E.g. In 2019 Liz Truss, Justice secretary, failed to defend
judges when they were being vilified in the right-wing press for allegedly frustrating
Brexit. However, the SC is the final arbiter of the law and so has an obligation to
determine the legality of govt decisions.
In what ways does the SC limit the authority of the executive and Parliament?
- Since the UK does not have a codified constitution, the SC cannot refer to a higher
constitutional law when delivering its judgements. Despite this, UK judges may refer to
the ECHR, which was drafted by the Council of Europe and incorporated into British law
in the HRA 1998.
- However the HRA does not represent a higher law, since it was enacted by Parliament,
and a parliamentary statute can always be repealed.
- The SC remains important as it decides whether a public body, including the govt, has
acted beyond its authority (ultra vires). Establishes where sovereignty is located within
the UK. Declares when the govt has acted in defiance of the HRA. Determines the
meaning of law, so setting judicial precedents that must be followed in future cases.
- Although the SC cannot strike down statute law it can determine whether the actions of
the govt are in accordance with the law. It does this through judicial review.
1. Gina Miller case 2017: Following the EU referendum the government claimed that it
could begin the process of leaving the EU through the exercise of the royal prerogative.
The SC by a majority of 8-3, upheld an earlier decision taken in the High court to state
that the govt does not have authority to do this. As the Parliament in 1972 enacted
legislation which had taken the UK into the EU and so it was parliament's responsibility
to enact legislation to remove the UK from membership of the EU.
2. HJ and HT v Home Secretary 2010: 2 men from Iran and Cameron claimed asylum in
the UK because they were gay and consequently would suffer persecution in their home
country. The Home Office refused to allow them asylum on the grounds that if they
concealed their sexuality, they would not suffer persecution. When the case reached the
SC they unanimously voted against the Home Office.
3. R v Lord Chancellor 2017: In 2017 a trade union brought a case to the SC declaring that
the govt introduction of employment tribunal fees was unlawful. The SC agreed that the
fees risked denying justice to those of low incomes and so were discriminatory.
4. Shamima Begum 2021: In 2015, Begum left the UK with her 2 friends to join ISIS. in
2019, Sajid Javid, removed her British citizenship on the grounds that she was a threat
to national security. In 2020, the Court of Appeal judged that Shamima Begum be
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