Guide: The UK Supreme Court
Updated: Jan 4, 2021
You've probably heard of the Supreme Court before, but do you know how it functions? Or exactly what powers it has?
If not, this guide will provide the answers.
The Supreme Court is the highest court in the UK and the final court of appeal, apart from criminal cases in Scotland. It has only been around in its current form since 2009, up until then the final court of appeal was formed by a committee of the most senior judges (known as Law Lords) meeting within the House of Lords. The House of Lords are a part of the Houses of Parliament and play a vital role in the creation of new laws. Since the highest court of appeal is making decisions on the interpretation and fair application of laws, and is completely independent of governments, it was decided that this should be done somewhere separate. The establishment of the Supreme Court in a new location demonstrates its independence from Parliament.
Location and link to Parliament
The location of the Supreme Court is directly opposite the Houses of Parliament (where MPs and the House of Lords sit). Its location is an important symbol of the relationship and distinction between the two. Parliament is where laws are made, and the Supreme Court ensures they are applied both correctly and fairly.
What about the judges?
The judges in the Supreme Court are known as justices, and there are 12 of them. However, they don’t all form a panel at once. Generally, around 5 is considered sufficient for hearing a case. For cases of huge national importance, there may be up to 11 sitting. There will always be an odd number to ensure there isn’t a tie when it comes to a decision.
How does it provide a check on UK laws?
Cases that reach the Supreme Court are initially heard in the lower courts. If one party wants to challenge the judgement, they may be allowed to appeal to a higher court dependent upon various circumstances. This process can continue up to the Supreme Court, however, many cases do not reach this point. Only cases of the greatest public and constitutional importance will be heard in the Supreme Court.
Can the Supreme Court overrule the UK Parliament?
No. In some parts of the world, Supreme Courts can go against laws which have been passed. However, the UK Supreme Court does not have the power to do this; it is the Court's role to interpret the law and develop it where required, not to revoke it.
A good example of the Supreme Court’s limitation is in the case which Tony Nicklinson raised with 2 others. In 2014, the 3 men went to the Supreme Court regarding being granted permission to undergo assisted suicide as they were unable to carry it out without help.
Despite great sympathy, the Supreme Court justices ruled against the men. This is because the law they had to interpret when making a decision (the 1961 Suicide Act) makes it illegal to encourage or aid another person to die by suicide. They reported that this case centred on a moral judgement which should be addressed by Parliament. They were essentially saying that without an amendment to the current law that takes into account these kinds of circumstances, they couldn’t find a way to grant these men the right to die without breaching the law as it stands.
Other key cases
The unlawful proroguing of Parliament
Proroguing Parliament is officially done by the Queen, but on the advice of the prime minister. What is proroguing? This is when the current “session” (a parliamentary year) ends to allow for a short break before the new session begins. During this period, MPs and peers cannot hold debates, or vote on laws.
A legal challenge was raised in 2019 due to the fact that Boris Johnson chose to prorogue Parliament for a longer period than normal, and close to the UKs Brexit deadline of 31st October. This decision significantly reduced the time available for MPs to try and pass laws amending the government’s Brexit plans. Boris Johnson described the suspension as routine political process, but critics felt this was the government’s attempt to avoid scrutiny or interference in their Brexit plans, so as to raise the chances of the UK’s departure from the EU on the planned deadline they had set.
The case went to the Supreme Court, which ruled that this suspension of Parliament was unlawful because it prevented Parliament’s ability to do its job without any reasonable justification. Following the ruling, Parliament was prorogued for just 6 days instead of the proposed 24 it would have been without the successful legal challenge.
The ‘gay cake’ case
This case involved Gareth Lee bringing a claim after Ashers bakery refused to make a cake with a message promoting same-sex marriage on the basis of the owners’ religious beliefs. Originally Gareth Lee won the case. It was decided that the bakery had discriminated against him on the grounds of his sexual orientation. However, Ashers appealed to the Supreme Court, and they overturned this decision. They said that Ashers had the right to not promote a message they personally disagreed with and agreed that they had refused to make the cake purely based on the message alone, not the sexual orientation of Lee. Gareth Lee has instructed his lawyers to challenge the Supreme Court decision at the European Court of Human Rights.
Does the European Court control the UK Supreme Court?
No, the European Court of Human Rights (ECHR) cannot overrule the Supreme Court in the UK. The British Courts do have to interpret existing legislation that is consistent with the ECHR although there are no legal consequences if the UK courts don’t comply.
The ECHR was set up to protect the rights of people across the European Union and to provide another option of appeal, but only in cases that possibly infringe on a European Human Right. The UK’s Human Rights Act of 1998 incorporated the European Convention on Human Rights. Individuals however, cannot go directly to the ECHR; they will first have to claim a breach of their rights in a UK Court before bringing a claim to the ECHR.
With the UK leaving the EU, it is possible that the relationship between the UK courts and ECHR will change.
For more guides like this one, head to our dedicated UK Politics section.