The Influence of the Supreme Court on the Executive

Judicial review: this is the judiciary’s ability to review whether the actions of government are compatible with existing laws. This is often used in relation to human rights issues. If the court finds that a government action or law conflicts with the principles of the Human Rights Act, it issues a ‘declaration of incompatibility’. Following this, the government is expected to modify their action or legislation. The same is true for EU laws, although in both of these examples the court cannot compel a government to act. The court may decide through a judicial review that a government minister or institution has acted beyond the remit of their power- this is known as ‘ultra vires’ (‘beyond the power’). For example, in 2010 __the court ruled that the government had not acted lawfully when insisting that convicted sex offenders should be registered with the police for life. This breached the offenders’ human rights, so instead, they should be given the right to appeal against the registration after 15 years since leaving prison. Sometimes, the court finds in the government’s favour. For example, in __2014, the court dismissed an appeal by campaigners against the construction of the HS2 high-speed rail link from London to Birmingham, on the grounds that Parliament had not reached a final decision on the project.

Is the supreme court influential and does it effectively challenge the government?

Arguments in favour include:

Their position as ‘final court of appeal’ means they only deal with the most significant matters
Declarations of incompatibility puts pressure on the government to act
The increasing degree of judicial activism reflects an increasing willingness to challenge government
The court’s independence makes it hard for the government to control (for example, the appointments, pay and security of tenure
The introduction of the Human Rights Act makes it more possible for the court to uphold liberties and challenge government

Arguments against include:

They are bound by the law passed by Parliament- they cannot make law themselves. The government could use Parliament to change law to suit its own needs/actions
A declaration of incompatibility cannot be used to strike down a law, just recommend that it be changed
The court cannot be proactive- it must wait for cases to come to them
There have been concerns raised over the extent to which the court is neutral and independent (e.g. the narrow social background, the fact that the Lord Chancellor still has some say in appointments)
The Human Rights Act is not fully entrenched, so could be set aside by governments

Evaluate the extent to which the Supreme Court is neutral and independent of the UK government. (30 marks - at least 3 arguments for, 3 against): Your answer should include: Selection / Committee / Tenure / Government / Comment / Judges / Impartial / Lord Chancellor / Social Representation