The Supreme Court is too powerful

Question 1

Question

Answer 1

Evaluate the view that the Supreme Court has become too powerful.

Question 2

Factors

Answer 2

• Judicial review
• Human Rights Act
• Judicial activism

Question 3

Judgement

Answer 3

The Supreme Court is not TOO powerful.

Question 4

Weaker argument judicial review

Answer 4

→ Judicial review takes up time: In 2014 the Supreme Court dismissed the appeals brought before it in relation to the building of HS2 in regard to the governments’ assessment of its environmental impacts.
→ In the UNISON case of 2017, the Fees Order was rule ultra vires. The government immediately ceased collecting them and pledged to reimburse the fees it had already collected.
→ The number of judicial review cases reached a peak in 2013 with 15,594 cases initiated. Critics argue that many of these cases were weak and clogging the system.

Question 5

Stronger argument judicial review

Answer 5

→ Judicial review improves decisions making and ensures public bodies including government departments are aware of their legal obligations. Between 2000 and 2011 success rate in judicial review cases averaged around 40%.
→ In the of the Treasury v Mohammed Jabar Ahmed (2010) the Supreme Court ordered that the Terror Order to freeze assets of suspected international terrorists based on a UN resolution was beyond the powers of government. (In response the Government put emergency legislation in front of the Commons - the Terrorist Asset-Freezing Act was passed later in 2010).
→ 2014: only 4,062 judicial reviews issued because immigration cases were transferred to the Upper Tribunal for Immigration and Asylum Chamber in November of that year.

Question 6

Weaker argument Human Rights Act

Answer 6

→ A and Others v Home Department (2004) - SC ruled that the clause of the Anti-terrorism, Crime and Security Act 2001 was incompatible with Articles and 14 of the ECHR. In response the government passed the Prevention of Terrorism Act (2005).
→ R (AAA) v Secretary of State for the Home Department 2023 - “Non-refoulement” clause is important as Rwanda was seen as putting those “in danger” with non-refoulement being established in both UK and our adopted form of the international human rights laws.
→ After 9/11 the Supreme Court challenged government legislation that wanted access to people’s information - the Supreme Court ruled this was in violation of people’s rights, therefore protecting UK citizens.

Question 7

Stronger argument Human Rights Act

Answer 7

→ Under the HRA, the courts cannot strike down primary legislation - they can only issue a declaration of incompatibility under Section 4.
→ Because of Parliamentary Sovereignty, UK Parliament can pass legislation that overrides or reverses judicial interpretations:
- In the Belmarsh case, the Anti-Terrorism, Crime and Security Act 2001 was not invalidated; the Government and Parliament chose to change the law.
- R (AAA) v Secretary of State for the Home Department 2023.
→ From 2000-2023, fewer than 50 declarations of incompatibility were issued.

Question 8

Weaker argument judicial activism

Answer 8

→ Parliament being forced to legislate as a result of rulings:
- R (Steinfeld and Keidan) v Secretary of State for International Development [2018] - pushed Parliament to legislate on civil partnerships.
- R (on the application of GC) v The Commissioner of Police of the Metropolis (2011) - Parliament had to legislate on data.
→ 2025 - there has been a dispute between Baroness Carr and Starmer/Badenoch. They criticised a Supreme Court ruling, she criticised them discussing the ruling in PMQs.

Question 9

Stronger argument judicial activism

Answer 9

→ Miller v Secretary for Exiting the European Union (2017) and R (Miller) v The Prime Minister (2019). Both of these cases were answering questions about the separation of powers.
→ Scotch Whisky Association and others (Appellants) v The Lord Advocate and another (Respondents) (Scotland) [2017] UKSC76 - the Supreme Court ruled on an appeal that the 2012 Alcohol Act which set a minimum pricing regum for alcohol in Scotland, broke EU law. The Court dismissed the appeal stating the Act did not break EU law, and minimum pricing was a proportionate means to achieving a legitimate aim.
→ R (Nicklinson) v Ministry of Justice (2014) - this case exemplifies the Supreme Court not getting involved in policy decisions.
→ R (SC, CB & 8 children) v Secretary of State for Work and Pensions [2021] UKSC 26 - Court upheld the benefit cap, even though it affected lone parents and children disproportionately. The court accepted that social and economic policy decisions lie with Parliament.