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In a democratic country, there are three branches of government, the legislature, the executive, and the judiciary. Their roles are to create laws, execute laws, and clarify laws respectively. Judiciaries also have the important role of interpreting the constitution and rights of a country, which is known as judicial review. In both parliamentary and presidential systems, the judicial branch is usually independent. This is to allow for impartial interpretations of the law and to ensure that court cases are not politicised or ideologically affected by the other two branches. This article will explain the origins of the British judiciary, the law that separated it from the House of Lords, its current characteristics, and recent controversies.
Before the judicial branch was formally established as the Supreme Court, the judicial branch was in the form of a committee in the House of Lords, called the House of Lords Appellate Committee. Inside this committee, the justices were called the Lords of Appeal in Ordinary, which were more commonly referred to as the Law Lords. This was created by the Appellate Jurisdiction Act in 1876, which not only formed the committee and the titles of the justices, but also gave the power of appointing justices to the House of Lords via a special committee. This committee originally had the power to give rulings on devolution cases. On a structural level, this meant that there was overlap between the legislature and the judiciary, which could have affected its ability to make independent rulings. Originally, Law Lords were appointed by the monarch with advice from the Lord Chancellor, a high ranking member of the Cabinet who gives advice to the Prime Minister on legal issues. The Lord Chancellor sitting in Cabinet also means that there was some overlap between the judiciary and the executive.
The current Supreme Court was created by the Constitutional Reform Act in 2005. This act created the independent Supreme Court and relocated them to a separate building away from Parliament, Middlesex Guildhall in Westminster. The Law Lords were moved out from the House of Lords to the new building. The act also changed the appointment system for justices, creating the Judicial Appointments Commission which appoints justices independently. There are guidelines that the Commission must follow, ensuring impartiality and a high degree of professionalism in the Supreme Court. This act passed in 2005, and the Supreme Court first came into session in 2009.
The Supreme Court now serves as the final court of appeal for the United Kingdom. They interpret constitutional laws and rights, which affect the British constitution in varying degrees as it is both uncodified and flexible. It contains 12 members appointed from the House of Lords, and chosen by the Judicial Appointments Commission. Due to the principle of parliamentary sovereignty, which means that parliaments’ laws, acts, and constitutional amendments are only able to be overruled by itself, the Supreme Court does not have the power to strike down acts of parliament. This means that their judicial review is less powerful compared to other countries such as the United States. The UK Supreme Court can only issue a declaration of incompatibility, creating political pressure on the legislature. As the justices are chosen by a commission and not by politicians, they are more impartial compared to supreme courts in other countries.
The main controversy that the court saw itself facing was amidst the Brexit referendum. The controversy started in 2017, when the court ruled that Boris Johnson was unable to prorogue, or suspend, Parliament using the royal prerogative. This case questioned whether Johnson’s advice to Queen Elizabeth II to suspend Parliament was lawful or not, with the court ruling against the Prime Minister. The ruling caused controversy, with the Supreme Court receiving huge criticism from supporters of Johnson. They argued that the court's judgement on the case was outside of their powers originally allocated to them in the Constitutional Reform Act. One such critic was Lord Howard, a previous Tory leader, who accused the Supreme Court of distorting cases using unconstitutional powers.
To summarise, the judiciary before the Constitution Reform Act in 2005 was within the House of Lords as a committee, but it was separated and made independent in 2009. This creation made the Supreme Court more independent and impartial, through the physical relocation of justices, but also through the creation of an independent commission for appointments. However, this does not completely prevent the Supreme Court from being at the centre of a controversy, with one notable instance being the prorogation case. This could affect the powers that the Supreme Court has, which is already limited due to the principle of parliamentary sovereignty.
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