Supreme Court

• The Supreme Court was established by the Constitutional Reform Act of 2005 but didn't Begin work until four years later in October 2009
• Fusion of powers


  The highest court in the country (the House of Lords) was part of the legislature, executive and judiciary
• Separation of powers


  The creation of the Supreme Court moved towards a separation of powers, with the highest court being clearly separate from Parliament
• The Constitutional Reform Act downgraded the role of the Lord Chancellor, who previously had legislative, executive and judicial roles</b>
• The Supreme Court is the final court of appeal for rulings made by lower courts such as the high court
• The Supreme Court hears cases of public and constitutional importance, including judging whether the government has acted Ultra vires, judging what the devolved bodies have acted within their powers, and judging whether acts of parliament contravene the Human Rights Act
• Supreme Court


  • Consists of 12 members
  • Cases are always heard by an odd number of justices (5, 7 or 9)
  • Judges have to have served as a senior judge for two years or been a qualified lawyer for at least 15 years
  • The most senior member is designated as president
  • Judges have to retire at 70 and then enter the House of Lords
• The Supreme Court has been criticised for being highly unrepresentative in terms of race, gender, class, education and age
• How Supreme Court Justices are chosen

  1. Nominated by an independent five-member selection commission

  2. The Lord Chancellor either confirms or rejects the nominated judge (can only reject 3 times before having to choose one)

  3. Appointment is then confirmed by the Monarch
• Judicial neutrality


  The idea that judges will exercise their functions without being influenced by their own personal bias or political opinions
• How judicial neutrality is safeguarded in the Supreme Court

  • Judges remain anonymous and avoid commenting on rulings or airing political views
  • Judges must base decisions in law and provide full explanations
  • Supreme Court decisions are published and cases are televised for transparency
  • Conflicts of interest are avoided by preventing judges from sitting on cases involving family/friends
• Judicial neutrality has been questioned due to the Supreme Court's narrow composition and in relation to Brexit cases
• The Supreme Court's narrow composition

  Leads to limited perspectives and potentially an inability to fully understand certain issues or situations of certain individuals
• The Supreme Court ruling in the Radmacher v Granatino case


  The majority upheld the principle that prenuptial agreements should limit claims made in the event of divorce, with only the lone female justice dissenting on the basis that this would disproportionately impact women
• The Supreme Court rulings on Brexit

  Have led to accusations that the judges were influenced by their personal political views rather than being neutral
• The neutrality of the Supreme Court has been questioned, with debates over the extent to which judicial neutrality still applies
• Judges have been criticised as Arch remainers, suggesting the Supreme Court judges were influenced by their personal political views on Brexit rather than being neutral
• There are two recent key criticisms in relation to the Supreme Court's neutrality: its composition and its actions in relation to Brexit
• Judicial neutrality


  The idea that judges must not allow their personal political beliefs or opinions to influence their decisions
• Examining judicial neutrality


  1. Ways in which judicial neutrality is safeguarded

  2. Criticisms about the extent of judicial neutrality
• Judicial independence


  The idea that judges must be free from political interference, particularly from the government
• Ways judicial independence is safeguarded in the Supreme Court

  • Security of tenure
  • Pay
  • Appointment process
  • Physical separation from Parliament
  • Sub-judice rules
• The media and politicians have increasingly criticised Supreme Court decisions, posing a challenge to the court's independence and image of impartiality
• Interpreting the Human Rights Act

  The Supreme Court can declare acts of Parliament incompatible with the Human Rights Act and urge Parliament to change them, but cannot compel Parliament to do so
• The Supreme Court declares an act incompatible with the Human Rights Act


  Parliament usually has to address the declaration and may amend the act
• Judicial review


  The Supreme Court's power to ensure the government has not acted beyond its legal authority (ultra vires)
• Key judicial review cases

  • The 2019 prorogation case
  • The 2016 Article 50 case
  • The 2022 Scottish independence referendum case
• The Supreme Court can check the power of government and uphold parliamentary sovereignty through judicial review
• Parliament


  Has power to give approval for the government to make or unmake treaties with foreign governments
• Government


  Has executive powers to make or unmake treaties with foreign governments
• Parliament did not give approval


  Government argued it could use executive powers to make or unmake treaties
• Supreme Court ruled by 8-3 majority that the process of leaving the EU would involve the removal of rights confirmed by Parliament, therefore Parliament had to give consent to initiating Article 50
• Supreme Court was able to check the power of the executive and uphold parliamentary sovereignty
• UK Constitution is uncodified, leading to lack of clarity on who can legislate for a Scottish independence referendum
• First Scottish independence referendum in 2014 was legislated for by agreement between UK and Scottish governments
• UK Parliament and government did not consent to a second Scottish independence referendum
• Supreme Court ruled Scottish Parliament did not have power to unilaterally legislate for a second independence referendum, as this power was reserved for UK Parliament
• Supreme Court upheld the power of UK Parliament and government against the devolved Scottish government
• In the 2014 agricultural sector Wales case, the Supreme Court sided with the Welsh assembly, upholding the power of the devolved body against the UK government
• In the 2014 HS2 case, the Supreme Court rejected the idea of courts monitoring parliamentary debates, upholding the principle of non-interference with Parliament