Ultimate Power? What the UK Supreme Court Actually Does

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The separation of powers and human rights protections are unsettled issues in the UK. In light of recent attempts abroad to limit the power of the judiciary by the executive, and recurrent attempts to repeal the Human Rights Act—most recently in the form of the government’s attempt last year to replace it with a British Bill of Rights—it is important to discuss the role of the Supreme Court of the United Kingdom.

This article will begin by discussing the way the Supreme Court has developed over time. The significance of the creation of an independent Supreme Court is perhaps less significant than it appears. The fact that the Supreme Court does not have a power of veto will then be explained with reference to the continued significance of parliamentary sovereignty. Finally, the strength of the Supreme Court through mechanisms like Declarations of Incompatibility under the Human Rights Act will be used to show how checks and balances work between the branches of government in the contemporary constitution.

Reform and Review

The Constitutional Reform Act altered the position of the highest court in the United Kingdom, but perhaps not as much as it appears. The creation of a distinct and definitively separate Supreme Court, and the accompanying removal of the Law Lords from the upper house of Parliament, affirmed a long-held British constitutional principle: the independence of the judiciary. Long before the creation of the Supreme Court, the Law Lords had been scrutinizing the activities of the other branches of government in much the same way the current court does today, with the High Court ruling that the King was subject to the rule of law as long ago as the seventeenth century.[1]

In the UK, Parliament, rather than the Supreme Court, is empowered to ‘have the final word’ on constitutional and human rights matters while enabling the court to effectively scrutinize the other branches of government.

It has frequently been argued that a far more significant reform for the empowerment of the Supreme Court was the Human Rights Act, according to which the court can make rulings of incompatibility if legislation passed by Parliament does not adhere to the European Convention on Human Rights.[2] Despite the fact that these rulings have ‘no impact on the validity or effect of the legislation under scrutiny’ and place ‘no legal obligation on Parliament to change the law’,[3] they have always been followed.

The Supreme Court can also hold the other branches of government to account by ruling their actions unlawful, even if ultimately they do not have the ability to strike down legislation like the US Supreme Court. This difference between the two supreme courts is an important one in the realm of common law constitutionalism.

American legal scholar Mark Tushnet has argued that the US uses ‘strong-form’ judicial review, whereas the UK and other Commonwealth nations use ‘weak-form’ judicial review. Strong-form review ‘insists that the courts’ reasonable constitutional interpretations prevail over the legislatures’ reasonable ones’, whereas weak-form review ‘provides mechanisms for the people to respond to decisions that they reasonably believe mistaken, which can be deployed more rapidly than the constitutional amendment or judicial appointment process.’[4]

In a similar statement, British constitutional scholar David Feldman has said the UK system under the HRA is a ‘compromise between a number of different values and aspirations’.[5] This system falls somewhere between the strict power to strike down legislation possessed by the US Supreme Court and the inviolable supremacy traditionally attributed to the British Parliament.

In the UK, parliament, rather than the Supreme Court, is empowered to ‘have the final word’ on constitutional and human rights matters while enabling the court to effectively scrutinize the other branches of government.[6] The fact that parliament retains the final say on these matters is an important point for understanding the British constitution. All constitutions contain political as well as legal elements. In Britain, however, the political constitution is uniquely significant.

Political Power – Why Parliamentary Sovereignty is Still Important

When the Supreme Court makes a ruling of incompatibility, it is perhaps best understood in political rather than legal terms, as the reputational damage incurred by ignoring a ruling of incompatibility with the European Convention on Human Rights provides a strong disincentive for the government to propose legislation infringing upon our rights. As Kavanagh says, it is difficult to ‘present a declaration of incompatibility as anything other than a straightforward failure by the Government to protect human rights.’[7]

The Human Rights Act is a step in a direction that has precedent in Britain in the form of the Bill of Rights, the Claim of Right, and arguably, Magna Carta, but it is a step away from the unlimited sovereignty of one part of the government and towards codified rights protections. Rights charters in Britain can be passed within the bounds of parliamentary sovereignty, but they are clearly intended to be an effective constraint in practice. The implication of giving the court the authority to rule that legislation is incompatible with the European Convention is that such rulings ought to be acted upon; otherwise, there would be no point in the court making them.

Middlesex Guildhall in Parliament Square, home of the UK Supreme Court (via victorianweb.org)

However, this does not mean that a situation has emerged where parliament must abide by every ruling the Court makes about the compatibility of legislation with the HRA. Parliament’s ability to ignore declarations of incompatibility conveniently ensures that the institution with a democratic mandate has the ability to overturn court rulings that are mistaken or against the national interest.

In a system nominally still operating on the principle of parliamentary sovereignty, legally preserving parliament’s ‘final word’ in terms of human rights is important. Should any future bill or charter of rights invest power in the Supreme Court to undertake similar checks over other kinds of legislation, the de jure (official) ability of parliament to decline declarations should be retained to maintain parliamentary sovereignty. So-called ‘constitutional legislation’ provides an example of such legislation.[8] A more restrained form of the ‘special role’ to protect the constitution under a ‘new constitutional statute’ envisaged for a new upper house of parliament to replace the House of Lords by the former prime minister Gordon Brown could be applied to the Supreme Court on the model of the HRA.[9]

Protecting Parliament

Since the 1970s, concerns have been raised about the potential dominance of Parliament by the government, with Lord Hailsham labelling the British system an ‘elective dictatorship’.[10] When the government commands a substantial majority of seats in Parliament, it is able to rapidly pass legislation, raising doubts about Parliament’s ability to scrutinize new laws.

Until 2005, the House of Lords discharged its judicial function in tandem with its duty to scrutinize the other branches of government as a deliberative legislative chamber.[11] This scrutinizing function has not been lost, though it is arguable that separating the Supreme Court changed the nature of judicial scrutiny. Previously, the House of Lords was exposed to political pressures as a component of Parliament, risking unwanted interference in judicial matters by politicians, but the intimate connection between judges, legislators, and executives also (theoretically) facilitated a much closer judicial examination of the other branches. This marginal benefit was lost when the Court became independent.

The backbench rebellions during the Brexit negotiations under May and the final days of the Johnson and Truss premierships have gone some way to proving that government-whipped MPs still possess a certain level of agency in times of political upheaval. There is a conversation to be had about the relative power the government has over Parliament, one that falls outside the scope of this article.

However, balancing the reduced capacity of Parliament to check the power of the government when it is dominated by a government majority is an important function of the Supreme Court. As things currently stand, the Court does this by issuing declarations of incompatibility, which politically flatten unlawful contradictions of the HRA. This is not to say that this is the only way the Supreme Court scrutinizes other branches of government—far from it—but this is the main way the imbalance created by large government-aligned majorities is redressed by the Court. The empowerment of the Supreme Court under the HRA provides a much-needed check on the power of an often-dominant executive.

Conclusions – Party Politics, Declarations of Incompatibility, and the Power of the Supreme Court

Declarations of incompatibility would be less effective if a bill contradicting the HRA were non-partisan, i.e., backed by both major parties. As Kavanagh has said, opposition MPs and the Joint Committee on Human Rights use declarations of incompatibility to elevate the political profile of legislation contradicting the HRA.[12] Opposition MPs would have no motive to express outrage, and the Joint Committee on Human Rights would likely have far less purchase in the unlikely event that politicians broke party lines to approve a bill violating the Human Rights Act.

Nevertheless, what is demonstrated is the party-political angle of UK Supreme Court ‘weak-form’ review. In an unlikely situation where inter-party cooperation proliferates, declarations of incompatibility rulings could reasonably be overturned with a sufficient democratic mandate stretching between the Parliamentary benches. Where this cooperation does not exist, opposition MPs, who are otherwise limited in their ability to scrutinize the government, are presented with a powerful rhetorical tool when it tries to pass legislation that is incompatible with the ECHR. This check on the power of the executive would not be possible without an empowered Supreme Court under the HRA.

The declarations of incompatibility made under the Human Rights Act are the product of effective scrutiny of government activity; they are not illegitimate or undemocratic. They redress a significant imbalance in the ability of Parliament to scrutinize the government when it is dominated by a significant government majority. The government would risk irreparable political damage if it ignored Court rulings, though legally it is able to do so. This ability allows Parliament to have the final say, rather than the unelected Supreme Court. In the future, it is conceivable that judicial review could be extended to other kinds of legislation, such as constitutional legislation, through an act of constitutional significance akin to the HRA. Incorporating judicial oversight into the intricate system of checks and balances maintaining the balance of power between government institutions is not against British constitutional principles—it is a core component of them.

[1] Case of Proclamations [1610] EWHC KB J22.

[2] Human Rights Act 1998c.42, §4.

[3] Kavanagh, ‘What’s so weak’, p.1009.

[4] Tushnet, Weak Courts, pp.21-3.

[5] Feldman, ‘The Human Rights Act’, p.168.

[6] Gardbaum, ‘New Commonwealth’, p.709.

[7] Kavanagh, ‘What’s so weak’, p.1023.

[8] The status of ‘constitutional legislation’, unconvincingly coined in Thoburn v Sunderland City Council [2002] EWHC 195 Admin., remains unsettled.

[9] Labour Party, A New Britain, p.69, 140.

[10] Lord Hailsham, ‘Elective Dictatopship’.

[11] Walters, ‘House of Lords’, p.189.

[12] Kavanagh, ‘What’s so Weak’, p.1025.

Cases

• Case of Proclamations,77 ER 1352, [1610] EWHC KB J22, (1611) 12 Co Rep 74.
• Thoburn v Sunderland City Council [2002] EWHC 195 Admin.

Legislation

• Bill of Rights [1688]c.2.
• Bill of Rights Bill (Withdrawn) 2023.
• Claim of Right Act 1689c.28.
• Constitutional Reform Act 2005c.4.
• European Convention on Human Rights.
• Human Rights Act 1998c.42.
• Magna Carta 1215.

Publications

• Berg, Raffi, ‘Israel Judicial Reform Explained: What is the Crisis About?’ BBC News, (11 September 2023), <https://www.bbc.co.uk/news/world-middle-east-65086871> [accessed: 26/01/2024].
• Feldman, David, ‘The Human Rights Act 1998 and Constitutional Principles’, Legal Studies, 19:2, (1999), pp.165-206.
• Hailsham, Lord, ‘Elective Dictatorship’, 1976-10 – 1976-11, GBR/0014/HLSM 3/6/51, Churchill Archives Centre, <https://archivesearch.lib.cam.ac.uk/repositories/9/archival_objects/443861> [accessed: 25/01/2024].
• Gardbaum, Stephen, ‘The New Commonwealth Model of Constitutionalism’, The American Journal of Comparative Law, 49:4, (2001), pp.707-760.
• Kavanagh, Aileen, ‘What’s so Weak about “Weakform Review”? The case of the UK human Rights Act 1998’, International Journal of Constitutional Law, 13:4, (2015), pp.1008-1039.
• Labour Party,
• Tushnet, Mark V., Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative Constitutional Law, (Princeton: Princeton University Press, 2008).
• UK Parliament, ‘Bill of Rights Bill. Government Bill’, Parliamentary Bills,
• Walters, Rhodri, ‘The House of Lords’, in Vernon Bogdanor (ed.), The British Constitution in the Twentieth Century, (Oxford: Oxford University Press, 2004), pp.189-236.