Executive
Ineffective
- The substantial increase in judicial review in recent years suggests the SC now has too
much influence over the exec. This stemmed primarily from the March 2005 Constitutional
Reform Act, which removed the Law Lords and stipulated the establishment of the
independent SC in 2009. In turn, the judiciary became more assertive, and arguably an
ineffective check in exercising judicial review: in 1982 there were just 685 applications for
judicial review; however, this soared to 15,700 in 2013. Arguably, this slows down the
process of a democratically elected government by causing delays to policies, meaning the
SC is exercising unwarranted and excessive influence and is therefore an ineffective check.
- Many questions that were once non-justiciable, because they raised policy questions best
left to Parliament, have become justiciable because of their human rights implications.
(Miller) v Secretary of State for Exiting the European Union (2017): newspapers branded the
SC ‘enemies of the people’ for delaying the mandate-backed decision to exit the EU.
Ineffective as arguably an example of judicial activism.
- Equally, critics argue that the government as often had to contend with court decisions that
have found their policies in breach of individual rights, frustrating their attempts to mitigate
against terrorism and illegal immigration. The SC has used broad interpretations of human
rights derived from the HRA to challenge the government on terrorism cases – e.g. HM
Treasury v Ahmed (2010). Raab highlighted in December 2021 that illegal immigrants often
rely on Article 8 of the HRA – the right to family life – to circumvent deportation from the
country. Such claims make up 70% of all successful human rights challenges by foreign
nationals. E.g. the judiciary upheld suspected terrorist Abu Qatada’s appeal against
deportation.
- 2019 prorogation case – straying into political matters such as Brexit.
Effective
- However, this argument fails to acknowledge the critical importance of judicial review in
protecting rights and holding the executive accountable. Firstly, the influence of judicial
review is moderate and balanced rather than inordinate as there is roughly a 50/50 split in
the number of cases won by the executive and Supreme Court. The SC has even
demonstrated an ability to regulate its own influence: in the February 2021 case of Begum v.
Secretary of State for the Home Department (2021), it ruled that the Court of Appeal had
failed to give the Home Secretary’s assessment of the risks posed by Shamima Begum’s
return ‘the respect which it should have received’, demonstrating how judicial review is used
moderately. There is also substantial evidence of judicial restraint: the SC overturned the
court of Appeal’s decision in December 2020 to prevent the government’s Heathrow
expansion.
- Moreover, although there has been a substantial increase in applications, the protection of
rights is essential to an effective democracy. Judicial review has delivered a number of high-
profile cases which protect rights; for instance, in March 2019 the Supreme Court
overturned a previous finding that an asylum seeker from Sri Lanka organised his own
torture to strengthen his claim to stay in Britain. This is expected to make it harder for the
Home Office to say that accounts of torture are not credible where there is strong medical
evidence to the contrary. Without the influence of the Supreme Court in moderating
government decisions, there would, as suggested by this case, be reduced safeguards to
rights, which are essential to a functional democracy.
Ineffective
- The substantial increase in judicial review in recent years suggests the SC now has too
much influence over the exec. This stemmed primarily from the March 2005 Constitutional
Reform Act, which removed the Law Lords and stipulated the establishment of the
independent SC in 2009. In turn, the judiciary became more assertive, and arguably an
ineffective check in exercising judicial review: in 1982 there were just 685 applications for
judicial review; however, this soared to 15,700 in 2013. Arguably, this slows down the
process of a democratically elected government by causing delays to policies, meaning the
SC is exercising unwarranted and excessive influence and is therefore an ineffective check.
- Many questions that were once non-justiciable, because they raised policy questions best
left to Parliament, have become justiciable because of their human rights implications.
(Miller) v Secretary of State for Exiting the European Union (2017): newspapers branded the
SC ‘enemies of the people’ for delaying the mandate-backed decision to exit the EU.
Ineffective as arguably an example of judicial activism.
- Equally, critics argue that the government as often had to contend with court decisions that
have found their policies in breach of individual rights, frustrating their attempts to mitigate
against terrorism and illegal immigration. The SC has used broad interpretations of human
rights derived from the HRA to challenge the government on terrorism cases – e.g. HM
Treasury v Ahmed (2010). Raab highlighted in December 2021 that illegal immigrants often
rely on Article 8 of the HRA – the right to family life – to circumvent deportation from the
country. Such claims make up 70% of all successful human rights challenges by foreign
nationals. E.g. the judiciary upheld suspected terrorist Abu Qatada’s appeal against
deportation.
- 2019 prorogation case – straying into political matters such as Brexit.
Effective
- However, this argument fails to acknowledge the critical importance of judicial review in
protecting rights and holding the executive accountable. Firstly, the influence of judicial
review is moderate and balanced rather than inordinate as there is roughly a 50/50 split in
the number of cases won by the executive and Supreme Court. The SC has even
demonstrated an ability to regulate its own influence: in the February 2021 case of Begum v.
Secretary of State for the Home Department (2021), it ruled that the Court of Appeal had
failed to give the Home Secretary’s assessment of the risks posed by Shamima Begum’s
return ‘the respect which it should have received’, demonstrating how judicial review is used
moderately. There is also substantial evidence of judicial restraint: the SC overturned the
court of Appeal’s decision in December 2020 to prevent the government’s Heathrow
expansion.
- Moreover, although there has been a substantial increase in applications, the protection of
rights is essential to an effective democracy. Judicial review has delivered a number of high-
profile cases which protect rights; for instance, in March 2019 the Supreme Court
overturned a previous finding that an asylum seeker from Sri Lanka organised his own
torture to strengthen his claim to stay in Britain. This is expected to make it harder for the
Home Office to say that accounts of torture are not credible where there is strong medical
evidence to the contrary. Without the influence of the Supreme Court in moderating
government decisions, there would, as suggested by this case, be reduced safeguards to
rights, which are essential to a functional democracy.
