The Judiciary, Supreme Court & Devolution
The Judiciary, the Supreme Court & Devolution
The Role of the Judiciary
The judiciary interprets and applies the law, ensuring that the government acts within its legal powers. In the UK's system of parliamentary sovereignty, the courts cannot strike down Acts of Parliament (unlike the US Supreme Court), but they play an increasingly important constitutional role.
Judicial Independence
Judicial independence means judges are free from political pressure when making decisions. It is protected by:
- Security of tenure: senior judges can only be removed by an address of both Houses of Parliament (never used)
- Guaranteed salaries: paid from the Consolidated Fund, not subject to annual parliamentary votes
- Appointments: the Judicial Appointments Commission (created 2005) selects judges on merit, reducing political patronage
- Sub judice rule: MPs cannot discuss cases that are before the courts
- Contempt of court: punishable interference with judicial proceedings
The Supreme Court
The Supreme Court of the United Kingdom was established on 1 October 2009 by the Constitutional Reform Act 2005, replacing the Appellate Committee of the House of Lords.
Why was it created?
- To provide a visible separation between the judiciary and the legislature (Law Lords previously sat in Parliament)
- To enhance judicial independence and transparency
- To create a court with a distinct identity and public profile
Composition: 12 Justices, appointed by an independent selection commission. The President is currently Baroness Reed (from 2024, following Lord Reed).
Key Supreme Court cases:
| Case | Year | Significance |
|---|---|---|
| R (Miller) v Secretary of State | 2017 | Government cannot trigger Article 50 (Brexit) using Royal Prerogative alone; an Act of Parliament is required. Established that major constitutional changes need parliamentary authorisation. |
| R (Miller) v The Prime Minister | 2019 | Boris Johnson's prorogation of Parliament for five weeks was unlawful, void, and of no effect. The court unanimously (11-0) ruled that prorogation cannot be used to prevent Parliament from performing its scrutiny function. |
| R (UNISON) v Lord Chancellor | 2017 | Employment tribunal fees were unlawful as they prevented access to justice. |
| Gina Miller & Others | 2017 | Affirmed parliamentary sovereignty in the Brexit process. |
| AAA v Secretary of State | 2023 | The Rwanda deportation policy was unlawful because Rwanda was not a safe third country under the ECHR. Government responded with the Safety of Rwanda Act 2024. |
Judicial Review
Judicial review allows courts to examine whether government decisions and actions are lawful. Courts assess whether the decision-maker:
- Had the legal power (ultra vires) to act
- Followed proper procedures (procedural fairness)
- Acted reasonably (Wednesbury unreasonableness — so unreasonable no reasonable authority could have made the decision)
Growth of judicial review:
- Applications for judicial review have risen dramatically: from around 500 per year in the 1980s to over 3,000 by the 2020s
- The Human Rights Act 1998 gave courts the power to declare legislation "incompatible" with ECHR rights (a declaration of incompatibility — Parliament is not legally obliged to change the law, but always has done so)
- This has led to accusations of judicial activism — that unelected judges are making political decisions
The Judiciary and Politics
Arguments that the judiciary is too political:
- The Miller cases were criticised by the Daily Mail, which labelled the judges "Enemies of the People" (November 2016)
- Judicial review of government policy (e.g. Rwanda) effectively constrains elected politicians
- Judges are disproportionately drawn from privileged backgrounds (private school, Oxbridge) — unrepresentative
- The HRA allows judges to challenge Parliament, undermining sovereignty
Arguments that judicial independence is vital:
- The rule of law requires an independent judiciary to hold the executive to account
- Without judicial review, government could act arbitrarily and beyond its legal powers
- Judges do not make political choices — they apply the law as written by Parliament
- Attacks on judges ("Enemies of the People") undermine democratic accountability
Key Thinker: A.V. Dicey (1835-1922)
Dicey's concept of the rule of law has three components:
1. No one is punished except for a definite breach of law
2. Everyone is subject to the same law regardless of status
3. Constitutional principles arise from judicial decisions protecting individual rights
Dicey would likely be troubled by the expansion of executive prerogative and the use of Henry VIII powers (allowing ministers to amend primary legislation by secondary legislation without full parliamentary scrutiny).
Devolution
Devolution is the transfer of powers from Westminster to elected bodies in Scotland, Wales, and Northern Ireland. It began in earnest under the Blair government after referendums in 1997 (Scotland and Wales) and the Good Friday Agreement (1998, Northern Ireland).
| Institution | Created | Key Powers |
|---|---|---|
| Scottish Parliament (Holyrood) | 1999 (Scotland Act 1998) | Health, education, law and order, transport, environment, some tax-varying powers (expanded by Scotland Acts 2012 and 2016) |
| Welsh Senedd (Cardiff) | 1999 (Government of Wales Act 1998) | Health, education, housing, local government; gained primary legislative powers in 2011 referendum; tax powers from 2018 |
| Northern Ireland Assembly (Stormont) | 1999 (Northern Ireland Act 1998) | Health, education, agriculture, environment; power-sharing executive (consociational model); suspended multiple times |
| Greater London Authority | 2000 | Strategic planning, transport (TfL), policing, fire services; directly elected Mayor |
Devolution is not federalism:
- Westminster retains legal sovereignty — it could theoretically abolish the devolved bodies (though the Sewel Convention means it would not normally legislate on devolved matters without consent)
- Devolution creates asymmetry: Scotland has more powers than Wales; England has no devolved parliament
The West Lothian Question
Posed by Tam Dalyell (MP for West Lothian) in 1977: Why should Scottish MPs vote on English matters (e.g. English health policy) when English MPs cannot vote on Scottish health policy (devolved to Holyrood)?
Attempted solutions:
- English Votes for English Laws (EVEL): introduced 2015, abolished 2021. Gave English MPs a veto on England-only legislation. Criticised as complex and creating two classes of MP.
- English Parliament: proposed but rejected as likely to dominate the UK federation
- Regional devolution: rejected in a 2004 Northeast England referendum (78% No)
Should There be Further Devolution?
For:
- Brings government closer to the people
- Allows policy to reflect regional differences (e.g. Scotland's free university tuition)
- Strengthens democratic participation and accountability
- England remains over-centralised compared to other European countries
Against:
- Creates inconsistency across the UK (postcode lottery)
- Fuels nationalist sentiment and may lead to the break-up of the UK
- The West Lothian Question remains unresolved
- Uneven devolution creates an asymmetric and confusing constitutional settlement
Exam Tips
- The Miller cases (2017 and 2019) are essential for any question on judicial power or the constitution
- Know the difference between judicial review and judicial activism
- Use Dicey's rule of law framework when evaluating the judiciary
- Be able to compare the powers of devolved bodies and explain asymmetric devolution
- Link devolution to broader questions about sovereignty, constitutional reform, and the union