A full 30/30 A* essay which evaluates the view that the Supreme Court exercises too much influence over the executive. Reaches a clearly-argued, nuanced conclusion w/ precise evidence.
This helped me to achieve 30/30 in a question on the Supreme Court in the June 2022 exam and a high A* overall...
To argue that the Supreme Court has too much influence over the executive is to suggest that the
judiciary excessively and unduly impacts government policy and decisions. Proponents of this
argument would point to the increase in judicial review, the Supreme Court’s power to issue
Declarations of Incompatibility and the rise in judicial activism. Conversely, those opposing this view
would argue that judicial review is essential for rights protection, the Supreme Court serves as a
necessary check on the government and that concerns over judicial activism are overstated. Overall,
whilst the Supreme Court’s influence over the executive has risen in recent years, this does not
constitute ‘too much influence’ as it is not actively and frequently shaping public policy and is
essential to upholding the protection of rights and the rule of law.
The most convincing argument is that the Supreme Court’s influence through judicial review is
justified as it protects rights and is balanced. However, A plausible, if ultimately flawed, case can be
made that the substantial increase in judicial review in recent years suggests the Supreme Court now
has too much influence over the executive. This stemmed primarily from the March 2005
Constitutional Reform Act, which removed the Law Lords and stipulated the establishment of the
independent Supreme Court in 2009. In turn, the judiciary became more assertive, and arguably too
influential, in exercising judicial review: in 1982, there were just 685 applications for judicial review;
however, this soared to 15,700 in 2013. Arguably, this slows down the process of a democratically
elected government by causing delays to policies, meaning the Supreme Court is exercising
unwarranted and excessive influence over the executive. However, this argument fails to
acknowledge the critical importance of judicial review in protecting rights and holding the executive
accountable. Firstly, the influence of judicial review is moderate and balanced rather than inordinate
as there is roughly a 50/50 split in the number of cases won by the executive and Supreme Court.
The SC has even demonstrated an ability to regulate its own influence: in the February 2021 case of
Begum v. Secretary of State for the Home Department (2021), it ruled that the Court of Appeal had
failed to give the Home Secretary’s assessment of the risks posed by Shamima Begum’s return ‘the
respect which it should have received’, demonstrating how judicial review is used moderately.
Moreover, although there has been a substantial increase in applications, the protection of rights is
essential to an effective democracy. Judicial review has delivered a number of high-profile cases
which protect rights; for instance, in March 2019 the Supreme Court overturned a previous finding
that an asylum seeker from Sri Lanka organised his own torture to strengthen his claim to stay in
Britain. This is expected to make it harder for the Home Office to say that accounts of torture are not
credible where there is strong medical evidence to the contrary. Without the influence of the
Supreme Court in moderating government decisions, there would, as suggested by this case, be
reduced safeguards to rights, which are essential to a functional democracy. Overall, the Supreme
Court has become more influential over the executive by virtue of increased judicial review; however,
this increase does not constitute ‘too much influence’, as judicial review is essential to rights
protection and there is a balance in the number of cases won.
The most cogent argument is that the Supreme Court’s influence over legislation in Parliament,
which stems from the executive, is necessary to ensure the power majority governments can exercise
through the legislature is tempered. However, the ability of the Supreme Court to exert political
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