The influence of the Supreme Court on the Executive and Parliament
Until the 1970s the relationship between the UK judiciary and the UK government was very different from what it has become. The judiciary was seen as a largely conservative body whose members came from the same social and political background as members of successive Conservative governments. The judiciary usually showed support for the power of the state in relation to its citizens. Judges were not expected to challenge the authority of government in any significant way. They saw themselves as servants of the state rather than an equal partner. This relationship has changed considerably for a number of reasons:
● The growth of judicial review since the 1960s (see Ridge v Baldwin (1964) and M v Home Oﬃce (1993) which extended the principle of natural justice to tribunals
● The rise of liberal ideology in the UK from the 1960s onwards, including the growth of what is sometimes known as the ‘rights culture’
● The appointment of a series of liberal-minded senior judges since the 1990s
● The passage of the Human Rights Act in 1998, giving judges a codified statement of human rights which could be used to protect citizens against state power. Also the Freedom of Information Act.
● The Constitutional Reform Act of 2005, which improved the independence of the judiciary in general
One of the most important roles of the Supreme Court is to interpret the 1998 Human Rights Act. If it believes that an existing piece of UK legislation is in conflict with the European Convention on Human Rights, it can issue a 'declaration of incompatibility'. There is an expectation that Parliament will modify the law to bring it into line with the Convention. However, the doctrine of parliamentary sovereignty means that the Supreme Court does not have the power to strike down laws as its counterpart in the USA is entitled to do. In the UK there is no codified constitution against which the Supreme Court could test legislation. This is an important way in which the power of the Supreme Court is limited.
Instead the Supreme Court has the power of judicial review — the ability to review the actions of central government and other authorities, to check whether they have acted legally. The Court
can inquire whether ministers have followed correct procedures in the way that they implemented legislation. It can examine the actions of public bodies to investigate whether they have acted ultra vires, a Latin term that means 'beyond one's powers' — in other words, have they gone beyond the authority granted to them in law?
Sometimes the Supreme Court's rulings work in favour of the government and on other occasions they do not. (See Gina Miller, Abu Qatada cases)
Gina Miller won two famous cases. They are examples of the independence of the judicairy but do they suggest it is political rather than neutral?
In June 2016, Gina, Miller privately engaged the City of London law firm Mishcon de Reya to challenge the authority of the British Government to invoke Article 50 of the Treaty on European Union using prerogative powers, arguing that only Parliament can take away rights that Parliament has granted
On 3 November 2016, the High Court of Justice ruled that Parliament had to legislate before the Government could invoke Article 50. Miller said outside the High Court: "The judgment, I hope – when it's read by the Government and they contemplate the full judgment that they will make the wise decision of not appealing but pressing forward and having a proper debate in our sovereign Parliament, our mother of parliaments that we are so admired for all over the world" This case was greeted by the Daily Mail with the Headline 'Enemies of the People'
On 28 August 2019, Miller was one of a number of parties to launch legal proceedings against the Johnson government for prorogation of parliament, claiming to do so was unconstitutional. A similar case lodged before the Scottish Court of Session found several days later that prorogation was unlawful as it had "the effect of stymying Parliament", setting up a hearing before the Supreme Court for 17 September On 24 September 2019, the Supreme Court ruled unanimously that prorogation was unlawful.
2020 The Appeals Court blocked the deportation of 25 people to Jamaica BBC Jamaica deportations
So the UK judiciary no longer sees itself as subordinate to the executive. Judges are no longer reluctant to challenge state power and to assert the rights of citizens. In short, the judiciary has become something of a counterbalance to executive power. On the other hand, government does have a claim to greater authority than the judiciary. Furthermore, as long as it can control its majority in Parliament, it can use the sovereignty of Parliament to reverse any decisions made by the judiciary.
However, the judges must, by law, enforce the will of Parliament.
Is conflict between government and judiciary now inevitable?
There is an argument to say that because judges have a political role through judicial review, establishing precedents and making case law they will inevitably come into conflict with politicians. The is especially true if judges and politicians differ over their role in relation to protecting different types of liberty. Judges will tend to see their role as defending the liberty of the individual in terms of personal freedom whereas politicians will see freedom as best protected through security and safely. Judges will tend to see human rights as universal and rest with the individual, whereas politicians will see rights as part of a social contract which requires individuals to meet their wider social responsibilities. This conflict can be seen in the argument over the right of prisoners to vote. The British government has argued that the right to vote can be lost by committing a crime, but judges in the ECHR have ruled that it is a universal human right.
The events of 9/11 have led to more conflict since governments have responded by becoming more authoritarian and have extended the powers of the state to maintain security.
This has led to the development of a British doctrine of Judicial Activism which has been articulated by Judges Woolf and Bingham. Under this doctrine, judges should be more willing to defend the rights and liberties of citizens in the face of increasing authoritarianism. In 2001 Lord Nicholes explained his decision in the Belmarsh case by saying that anti-terrorism legislation was incompatible with the Rule of Law.
The 2017 Brexit case brought by Gina Miller is an example of the willingness of the Supreme Court to take on the role of protector of constitutional principles, in this case, The Sovereignty of Parliament. Increased use of Judicial Review has led to criticism of judges for being drawn into politics. e.g The Daily Mail 'Enemies of the People' headline. Greater willingness for judges to express concerns and opinions which is seen a decline in the strict observance of the Kilmuir Rules Lord Justice Thomas criticises Liz Truss
The adoption of the Human Rights Act 1998, has led to a big increase in the use of Judicial Review- Cases like Abu Qatada and the Belmarsh prisoners have been base on the HRA. Also the cases of illegal immigrants whose deportation has been blocked because the courts have agreed that they have a right to family life- under article 8 of the HRA. This has led to what has been called a 'rights culture' in the UK
The Freedom of Infomation Act has also led to more Judicial Review cases since conflicts between the Commissioner for Freedom of Infomation and the government are resolved in the courts. e.g The freedom of information request for the release of Prince Charle's letters to ministers.
Pressure groups have made greater use of the HRA and Judicial Review on the grounds of Ultra Vires. Attempts by campaigners and Green Peace to block the Heathrow extension.
Judges are a counter-majoritarian force in most democracies and have a role in protecting against the 'tyranny of the majority.' e.g Abu Qatada
However is can be argued that conflict is not inevitable:
The government wins the majority of Judicial Review cases and judges in the Uk are still less willing to grant reviews than in most democracies. This may be because:
Judges and politicians come from the same establishment social class
We do not have codified constitution so the judicial review is a weaker instrument than in most countries.
The Sovereignty of Parliament means that statute law is made by politicians who craft in such a way to avoid possible judicial reviews.
Politicians generally accept the principle of the Rule of Law and will seek to avoid conflicting with it. Where Judges are seen to be protecting the Rule of Law politician tend to accept the decision. Also, the judiciary as respected and seen as neutral and independent. This means politicians will hesitate to criticise them since there is a long established principle of judicial independence which is seen as one of the strengths of our constitution.
Parliament in the UK is sovereign. This means that the judiciary is a subordinate body. The judges are simply not in a position to defy the will of the UK Parliament. Furthermore, the UK Parliament is omnicompetent. This means it is able to do whatever it wants, to pass any law and to expect to have that law implemented and enforced. No matter how abhorrent or undesirable the judges may feel a law is, they must enforce it. They may pass an opinion on the law and they may recommend change, but that is as far as it goes.
If judges make a ruling of which government and/or Parliament does not approve, Parliament always has the option of amending a statute or passing a new one in order to correct what the judges have done. Such a circumstance occurred in 2010. The Supreme Court ruled that the government did not have the power to freeze the bank assets of terrorist suspects. Prime Minister Brown was incensed but had to accept the judgement temporarily. In the event, though, a new statute was passed later the same year (the Terrorist Asset-Freezing Act 2010) granting such a power to the government. The will of Parliament ultimately prevailed.
The most important source of conflict between the judges and Parliament, however, occurs in relation to the European Convention on Human Rights (ECHR). The ECHR became part of UK law in 1998 through the Human Rights Act.