The role of the Supreme Court UK
The 'New' Supreme Court
Before the UK Supreme Court began its work in October 2009, the highest court of appeal in the UK comprised the 12 Law Lords who sat in the Appellate Committee of the House of Lords. The UK Supreme Court was established under the Constitutional Reform Act (CRA) 2005 in response to a number of longstanding concerns:
■ concerns over the incomplete separation of powers, or partial ‘fusion of powers’, present in the UK system; specifically, the position of the lord chancellor and the presence of the Law Lords in the upper chamber of the legislature
■ criticisms of the opaque system under which senior judges, such as the Law Lords, were appointed
■ confusion over the work of the Law Lords — specifically, a widespread failure to understand the distinction between the House of Lords’ legislative and judicial functions
Constitutional Reform Act was mainly designed to guarantee the independence of the judiciary in the UK.
Its main provisions
1 The Lord Chancellor was no longer head of the UK judiciary as had been the case for centuries. This was now the Lord Chief Justice, a non-political figure and a senior judge. The Lord Chief Justice is also known as the President of the Courts of England and Wales (Scotland and Northern Ireland have their own chief judges).
2 The position of Lord Chancellor still exists and the holder combines the position with that of justice secretary in the cabinet. However, he or she is no longer an active member of the judiciary.
3 The Lord Chancellor was no longer to be the Speaker of the House of Lords and ceased to sit in the House of Lords.
4 The Supreme Court was established. It contains 12 senior judges known as Justices of the Supreme Court.
5 The head of the Supreme Court is known as the President of the Supreme Court.
6 When there is a vacancy in the court, a Selection Commission is established, consisting of a number of senior law officers from the whole of the UK. The commission recommends a candidate to the Lord Chancellor.
7 In theory the Lord Chancellor can question whether a candidate is suitable but he or she does not have an absolute veto.
8 The Act reaffirmed the principle that a Supreme Court judge can only be removed by a vote in both houses of Parliament and only for misconduct, not as a result of their decisions. The salary of the judges is also guaranteed. This means they have security of both tenure and salary.
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.
In this video, produced for Constitutional Law Matters’ ‘The role of the judiciary in the UK Constitution’ event, Lady Hale, former President of the UK Supreme Court, explores the judiciary from a legal perspective. She considers the role of Parliament, the rule of law, the role of the higher courts, judicial review and the tension between the Government and the Courts. She also explores the recent Independent Human Rights Act Review and Independent Review of Administrative Law. This video is part of the Constitutional Law Matters project of the Centre for Public Law, at the University of Cambridge. For more information see: https://constitutionallawmatters.org/
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.