Compared with the Supreme Court in the United States – which has the power to strike down law passed by Congress and which has exercised its power to make striking legal changes – it seems obvious that the UK Supreme Court plays a less significant role in the UK political system. Having said this, the growing independence of the judiciary, their increased powers under the Human Rights Act and their expanded role in applying EU law mean that the UK Supreme Court has displayed an ability to stand up to the government when they’ve acted beyond their power (ultra vires) and when law has been passed that is incompatible with the Human Rights Act. Even given this, however, many have argued that the court has too little power because its decisions are easily overturned by parliament, an argument that will be strengthened when the UK leaves the EU as there will then cease to be any higher law in the UK judicial system.
The most obvious feature of the justices that make up the UK Supreme Court, especially when contrasted with their American peers, is their independence and neutrality, which allows them to exercise their power in a manner that is seen to be legitimate, thereby increasing their authority and power. Unlike in the US, where the appointment of judges is fundamentally a political process, UK Supreme Court Justices are appointed by an independent ad hoc committee of five senior judges, who make a recommendation to the Lord Chancellor. They are selected on the basis of their qualifications and experience and must have either already practised law at the highest level for 15 years or sat as a senior judge for 2 years in order to qualify for selection. This means that Supreme Court Justices have the intellectual capacity and the disposition to make judgements on the basis of the law rather than being swayed by prejudice or emotion. Furthermore, once selected, their pay is guaranteed to be paid out of the consolidated fund and they have security of tenure, which prevents politicians from interfering in the judicial branch by removing senior judges from their roles or by threatening to lower their pay in response to judgements that go against the government.
However, it must be pointed out that the Supreme Court and the judiciary in general is still drawn from an incredibly narrow social background, with only 1 in 20 judges coming from black and minority ethnic (BME) backgrounds and less than a quarter being women. This suggests that their decisions may be biased, which may undermine the legitimacy of their judgements and so hinder the role of the judiciary in the UK political system. A possible case in point was the 2010 Supreme Court ruling, which gave prenuptial agreements greater weight in divorce proceedings. In this case, the court split 8-1 in favour of the judgement, with the only dissenting justice being Lady Hale, who was the only female justice on the court at the time. She argued that prenuptial agreements tended to harm the interests of women, who were usually in a less powerful position when entering into a marriage. This case seems to suggest that the court doesn’t behave in an entirely neutral and independent manner, as the split in the court was a on gender lines, suggesting that the male justices may have lacked Lady Hale’s perspective as a woman, thus biasing their judgement.
However, even if one takes the above case as a counter-example, it is still the case that the neutrality and independence of the UK judiciary is a relative strength. This means that the Supreme Court’s decisions are seen to be legitimate, which gives the court more power to reach judgements that are seen as authoritative. The relative independence and neutrality of UK judges therefore enhances the power of the Supreme Court in the UK political system.
A second important development in the power of the court was the passage of the Human Rights Act in 1998, which gave statutory force to the long established European Convention on Human Rights 1953. This empowered the court to issue declarations of incompatibility where legislation passed by parliament contravenes a provision set out in the Human Rights Act. A recent example of this was a 2018 case, where the court found that the Civil Partnerships Act 2004 discriminated against opposite-sex couples as the Act only allowed same-sex couples to have Civil Partnerships. In response, the Prime Minister announced that the government would legislate to allow heterosexual couples to have Civil Partnerships in the near future, thereby demonstrating the power of the court to force the government to bring legislation in line with the Human Rights Act.
It must be pointed out, however, that the government is under no legal obligation to comply with a declaration of incompatibility, a fact that undermines the court’s power in this area. Having said this, whilst it is, in theory, possible for the government to ignore a judgement of this nature, they would come under enormous political pressure to do so and ignoring the judgement of the court would be seen as illegitimate in the eyes of the public. It is therefore highly unlikely that the government would ignore a judgement of this type in practise, which gives the court a lot of power to uphold and defend human rights. Therefore, the Human Rights Act, by allowing for a more activist judiciary, enhances the power of the Supreme Court in the UK political system.
Thridly, the UK Supreme Court has substantial power whilst we remain in the European Union because the Factortame Case 1990 established that EU law takes priority over UK law, which means that UK courts will not apply law that is in conflict with EU law, which has the effect of suspending UK law. Given the increased scope of EU law following the ratification of the Maasticht Treaty in 1992, this gives the Supreme Court a significant amount of power in areas of law where there is European Union jurisdiction.
However, it is still the case that the UK Parliament retains sovereignty over most areas of law and our exit from the European Union will restore sovereignty to parliament over all areas not devolved to Scotland, Wales and Northern Ireland. This will empower the UK Supreme Court in some senses, as cases will no longer be referred to the European Court of Justice (ECJ) for a decision. But, it will weaken the UK Supreme Court in a more significant sense because the UK will no longer be subject to higher law. This will mean that UK Supreme Court judgements will be more easily overturned by parliament. An example of this was the government’s response to the 2010 Supreme Court ruling that the government had acted beyond their power when they froze the assets of terrorist suspects. In response to the judgement, the government passed a temporary Act of Parliament, which retrospectively made their actions lawful. This demonstrates the extent to which parliamentary sovereignty trumps judicial activism in the UK political system, thereby demonstrating that our exit from the EU will further weaken the power of the court in the UK political system.
In conclusion, whilst the court does not have an expansive role in the UK political system it is still a vital check on the power of the government. However, the Supreme Court remains at the apex of the weakest of the three branches of government due to the fact that an executive with a majority in parliament can achieve much of what it wants to achieve, even in the event of judicial interference.