Supreme Court has too much influence

• Theme 3: For Composition of the Supreme Court

  • Constitutional reform act of 2005 - supreme court has been granted a greater separation of pwoers mainly by abolishing the lord chancellor's position.
  • The appointment of the JAC underpins values of impartiality and interdependency. Rulings hold a democratic mandate, decisions are free from political control and thus hold no bias. Furthermore, the security of tenure ensures that judges hold their role for life, they do not live out of fear and can act on their own accord.
  • For example, the Lord chief justice Phillips strongly criticised the wider use of mandatory sentences, demonstrating judicial independence.
  • The Kilmuir guidelines no longer stand, and judges are consistently entering the political fray. There has also been an ongoing process of demystification, accompanying this power separation with a clear physical gap.
• Theme 3: Against Composition of the Supreme Court independence

  • this argument is weak as there are many limitations to the Supreme Court’s independence. The Lord Chancellor can still veto recommendations if it is given a direct reason. Instead, a non-elected check on the government is vital. The courts exercise a key role in protecting the rights of an individual; in an age of terror it is too easy for a government to claim a mandate for extending its power.
  • For example, following the Belmarsh cases Blair pushed for a 90-day detention without trial period, however this didn’t win over the judges support and got vetoed.
  • Even Theresa May, after criticising the judiciary for preventing the deportation of 177 foreign criminals on the grounds that their ‘right to family’ entitled them to remain in Britain, stated that she accepted the need for the power of government ministers to be reviewed and restrained by the judiciary.
• Theme 1: Declarations of incompatibility

  • On one hand its argued supreme court excercises too much power over the executive due to tis powers over the hRA
  • Bestoweed unprecedented powers on them, as they can now interpret whether laws and legislation are compatibile with the act. HRA has shifted the boundaries between political and legal decision making, even having a semi entrenched status as when issuing a declaration of incompatibility - parliament must revise and legislation that doesnt comply
  • Example: Belmarsh case 2004 -saw the supreme court rule the anti-terroism, crime, and security act incompatible with the hRA. Aimed to allow indefinite detention without trial of foregn nationals suspected of terror
  • HRA has given judges quasi-legislative power under which unelected judges can effectively alter the law and second guess parliament
• theme 1 counter: Parliamentary sovereignty

  • However - this argument is weak as parliament, not our courts, hold sovereignty
  • Supreme court cannot initiate judicial review or declare a law unconstitutional - meerly suggestions - governmetn can overrrule the judiciary through an Act of Parliament, passed by simply majority
  • To combat the belmarsh ruling by yhe supreme court, Gvoernemtn passed the prevention of terrorism act 2005, that allowed the home secretary to impose 'control orders' over terror suspects
  • This shows that the HRA gives the judges the right to issue a declaration of incompatibility, parliament is under no legal obligation to fall in line - when a decision is ruled ultra vires - the government can reverse it through legislating
• theme 2: Judicial activism

  • Whilst the SC constitutionally has no more power than the Law Lords, critics point to the judiciary’s growing activism and influence in political matters- being dubbed by some as ‘politicians in robes’.
  • There has been a blurring of the traditional distinction between the politicians who make the law, and the judges who apply it.
  • the Miller Case 2016 caused the Daily Mail to dub the Supreme Court the ‘enemies of the people’. They attracted criticism for their political involvement, even Javid arguing they frustrated the will of the people. 
  • Such activism seems to have reached unprecedented levels, as judges increasingly frustrate the wishes of the government. They make rulings on the basis of what they think the law ought to say, rather than what it does say. 
• theme 2 counter:

  • this argument is weak as the Supreme Court is not become more of as powerful activist, but simply fulfilling its role as the constitutional court for the UK by resolving key constitutional and legal questions.
  • Judges are required to interpret the law to some extent, when they do so it is done carefully and with huge experience 
  • For example, when parliament introduced the HRA in 1998, they voted to give the judiciary a greater role in checking the executive power.
  • Judges would not pass decisions which had the effect of making law in areas subject to legislative activity or on issues beyond the judge’s experience. Criticisms of the court’s powers spring mostly from those who disagree with their decisions. The power is deserved and useful to strengthen the people’s rights.