The role of the Supreme Court UK

The 'New' Supreme Court

Constitutional Reform Act was mainly designed to  guarantee the independence of the judiciary in the UK. 

Its main provisions

The Supreme Court's role

The UK does not have a single unified legal system. There are three different systems: one for England and Wales, one for Scotland and a third for Northern Ireland. The Supreme Court is the only UK-wide court and it acts as a final court of appeal for rulings made by the lower courts. The Supreme Court is the final court of appeal for criminal cases in England, Wales and Northern Ireland, and for civil cases across the whole of the UK.

The Supreme Court also hears appeals on arguable points of law where matters of wider public

and constitutional importance are involved. Until the UK leaves the European Union, the court has a responsibility to interpret law passed by the EU. The Court also makes rulings on cases where the devolved authorities in Scotland, Wales and Northern Ireland may not have acted within their powers.

There are three ways in which judges are involved in developing the meaning and application of laws. These are as follows:

Declaring common law

A great deal of law is unwritten but is commonly believed to exist and to be enforceable. This is known as common law. Some common law — referring to the prime minister's powers or the status of individual rights, for example — has political importance. Where it is not clear what the common law is, judges may make a judgement on what the common law means and how it applies. Once a senior court has declared the meaning of common law, that interpretation is binding on all other lower courts.

Interpreting statute law

Even laws drafted in government and passed by Parliament — statutes — may r of be clear. In some appeals the judges will declare what they believe the statute Law means. Eg Can the Scottish government hold an independence referendum? 

Developing case law

Even if the wording of a statute is clear, it may not always be obvious how it should be applied in particular circumstances. Judgement of this kind are known as case law — law as applied to particular kinds of case. Once a piece of case law has been declared, it is binding on all lower courts when they consider very similar cases. By interpreting the law judges are making law creating precedents which will be used to guide future cases.

Applying the rule of law

The rule of law  is a principle that all should be treated equally under the law. Judges are charged with the responsibility of ensuring that the rule of law applies. There are two main examples:

·      Courts may conduct a judicial review of a decision made by a public body, especially a government department or local authority.

·      Appeal courts may hear claims that a decision of a lower court treated an individual unequally.

Asserting civil liberties

Individuals and groups may claim that their rights have been abused by others or by a public body. The courts will normally consider three possible 'proofs' that this has occurred:

1 The first consideration will be whether the ECHR (European Convention on Human Rights)has been breached. This may entail interpreting the convention and deciding how it has been applied in the case they are considering.

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2 The courts will then examine UK statute law, particularly the Human Rights Act to see whether there has been a breach.

3 Third, they may consider whether the case is covered by (unwritten) common law. Here the courts must decide whether there is any relevant common law and, if there is, how it applies to the particular case.

Controlling abuses of power by government

Sometimes a citizen, a group of citizens or an association of some kind may claim to have suffered because the government has exceeded or abused its power. This may also be the subject of judicial review. The courts may apply a number of considerations:

·   Ultra vires — has a public body acted within its legal powers?

·   Where the action is taken by the prime minister under his or her prerogative powers, there may be a claim that the PM has exceeded those powers. Again, if the court decides the prime minister has exceeded his or her power, it can declare the action ultra vires.  e.g 2017 The Supreme Court rules that there must be a vote in Parliament to trigger Article 50 and the government did not have the power to do this with prerogative powers alone.

·   A senior court may decide that an action by a public body is unjust or unfair and that the public body has therefore abused its power against a citizen. In this case the court may recommend a reversal of the initial decision.

How are Supreme Court justices appointed?

Appointments to all positions in the senior judiciary were traditionally made by the monarch on the advice of the prime minister and the lord chancellor. The lord chancellor would consult existing senior judges through a process known as secret soundings. It was said that this system lacked transparency, undermined the separation of powers, and resulted in a senior judiciary drawn almost exclusively from a very narrow social circle: public school and Oxbridge educated, white, male and beyond middle age. Such criticisms were at the heart of the 2005 Constitutional Reform Act.

The founding justices of the new Supreme Court were those working Law Lords in post on 1 October 2009. Although these individuals remained members of the House of Lords, they were barred from sitting and voting in the upper chamber for as long as they remained justices of the new Supreme Court. Under the Constitutional Reform Act 2005 those appointed to the court after 1 October 2009 are not automatically awarded peerages.

Does the Supreme Court ‘look like the UK’?

Although one would hardly expect a superior court such as the UK Supreme Court to be entirely socially representative of the broader population — due to the qualifications for office and the importance of the role — the membership of the court has left it open to accusations of elitism. Such concerns have not been dispelled by appointments to the court between 2009 and 2016. Currently two women preside in the court. All the judges are white and have been largely been educated in private schools.