The judiciary and the court system - The Supreme Court

Learning Outcomes

After reading this article, you will be able to explain the constitutional status and jurisdiction of the Supreme Court of the United Kingdom, identify its appellate and constitutional functions, outline its composition and appointment process, and apply the doctrine of precedent as it relates to the Supreme Court’s decisions. You will also be able to recognise the Supreme Court’s role in devolution issues and its impact on legal development for SQE1.

SQE1 Syllabus

For SQE1, you are required to understand the role and function of the Supreme Court within the court hierarchy, its jurisdiction, and its significance in the development of law. In your revision, focus on:

  • the constitutional status and creation of the Supreme Court
  • the Supreme Court’s appellate jurisdiction in civil and criminal cases
  • the Supreme Court’s role in constitutional and devolution matters
  • the composition and appointment of Justices
  • the doctrine of precedent as it applies to Supreme Court decisions
  • the Supreme Court’s relationship with Parliament and the executive

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

  1. What is the constitutional status of the Supreme Court, and how was it established?
  2. From which courts does the Supreme Court hear appeals in civil and criminal matters?
  3. What is the significance of the Supreme Court’s decisions for lower courts?
  4. How does the Supreme Court handle devolution issues?
  5. What is the process for appointing Justices to the Supreme Court?

Introduction

The Supreme Court of the United Kingdom is the highest appellate court in the UK. Created by the Constitutional Reform Act 2005 and operational since 2009, it replaced the judicial functions of the House of Lords. The Supreme Court ensures the consistent interpretation and application of law across England, Wales, Scotland, and Northern Ireland. Its decisions are binding on all lower courts and play a central role in the development of legal principles and constitutional law.

The Constitutional Status and Creation of the Supreme Court

The Supreme Court was established to separate the highest court of appeal from the legislature, reinforcing the independence of the judiciary. It is a statutory body, created by the Constitutional Reform Act 2005, and began operating in 2009. The Court is independent of Parliament and the executive, and its judgments are final in most legal matters.

Key Term: Supreme Court of the United Kingdom
The Supreme Court is the highest appellate court in the UK, hearing cases of major legal or constitutional importance and setting binding precedents for all other courts.

Jurisdiction and Appellate Role

The Supreme Court acts as the final court of appeal in both civil and criminal cases, but its jurisdiction varies depending on the part of the UK and the type of case.

Civil Appeals

The Supreme Court hears civil appeals from:

  • the Court of Appeal (Civil Division) in England and Wales
  • the Court of Session in Scotland
  • the Court of Appeal in Northern Ireland

In some cases, it may hear a "leapfrog" appeal directly from the High Court in England and Wales or the High Court in Northern Ireland, bypassing the Court of Appeal, if the case involves a point of law of general public importance.

Criminal Appeals

The Supreme Court hears criminal appeals from:

  • the Court of Appeal (Criminal Division) in England and Wales
  • the Court of Appeal in Northern Ireland

In Scotland, the High Court of Justiciary is the final court for most criminal cases. The Supreme Court may only hear Scottish criminal appeals if a "devolution issue" or a compatibility issue under human rights law arises.

Key Term: appellate jurisdiction
The authority of a court to review and decide appeals from lower courts.

Constitutional and Devolution Matters

The Supreme Court plays a key role in constitutional interpretation and in resolving disputes about the powers of the devolved governments of Scotland, Wales, and Northern Ireland.

Constitutional Interpretation

The Court provides authoritative rulings on constitutional questions, including the distribution of powers between Parliament and the executive, and the interpretation of statutes with constitutional significance.

Devolution Issues

The Supreme Court determines whether legislation or actions by the devolved governments are within their legal powers. It hears references and appeals concerning the legislative competence of the Scottish Parliament, Senedd Cymru (Welsh Parliament), and Northern Ireland Assembly.

Key Term: devolution issue
A legal question about whether a devolved government or legislature has acted within its powers under the relevant devolution statutes.

Composition and Appointment of Justices

The Supreme Court consists of up to 12 Justices, including a President and Deputy President. Justices are appointed based on legal proficiency and experience.

Eligibility

To be eligible for appointment, a candidate must have:

  • held high judicial office for at least two years, or
  • been a qualified legal practitioner for at least 15 years

Appointment Process

  1. A vacancy is announced.
  2. A selection commission is formed, including senior judges and representatives from the judicial appointment bodies of the UK.
  3. The commission consults senior judges and political leaders, including the Lord Chancellor and First Ministers of Scotland, Wales, and Northern Ireland.
  4. The commission recommends a candidate to the Lord Chancellor.
  5. The Lord Chancellor may accept, reject, or require reconsideration of the recommendation.
  6. Upon acceptance, the appointment is formalised by the Monarch.

Key Term: selection commission
A panel convened to recommend candidates for appointment as Justices of the Supreme Court.

The Doctrine of Precedent and the Supreme Court

The Supreme Court’s decisions are binding on all lower courts in the UK. This ensures consistency and certainty in the law.

Key Term: binding precedent
A legal principle established in a higher court’s decision that must be followed by lower courts in future cases with similar facts.

The Supreme Court is generally bound by its own previous decisions but may depart from them "when it appears right to do so." This allows the Court to adjust the law to changing circumstances or correct past errors.

Worked Example 1.1

A party loses a contract dispute in the Court of Appeal (Civil Division) and wishes to appeal to the Supreme Court. The case involves a novel point of law affecting many future contracts.

Question: Can the Supreme Court hear the appeal, and what is the significance of its decision?

Answer: The Supreme Court may grant permission to appeal if the case raises a point of law of general public importance. If it hears the appeal and decides the issue, its ruling will set a binding precedent for all lower courts.

The Supreme Court’s Role in Legal Development

The Supreme Court interprets statutes, develops common law, and ensures that executive actions comply with the law. It may review the legality of government actions (judicial review) and determine the compatibility of legislation with human rights obligations.

Constitutional Oversight

The Supreme Court maintains the balance of power between Parliament, the executive, and the judiciary. It cannot strike down Acts of Parliament but may issue declarations of incompatibility under the Human Rights Act 1998 if legislation conflicts with the European Convention on Human Rights.

Worked Example 1.2

The government seeks to implement a major constitutional change using prerogative powers alone. A legal challenge is brought, arguing that an Act of Parliament is required.

Question: How would the Supreme Court approach this issue?

Answer: The Supreme Court would consider whether the government’s action alters domestic law or affects rights. If so, it may rule that only Parliament can authorise such changes, as in the Miller case, affirming parliamentary sovereignty.

The Supreme Court and Precedent: Key Principles

  • Supreme Court decisions are binding on all lower courts.
  • The Court may depart from its own previous decisions in rare cases.
  • Its rulings clarify or develop legal principles, especially in areas of uncertainty.
  • The Supreme Court’s interpretation of retained EU law and human rights law is authoritative for all UK courts.

Exam Warning

The Supreme Court cannot strike down Acts of Parliament. Its power is limited to interpreting legislation and issuing declarations of incompatibility under the Human Rights Act 1998. Do not confuse this with the US Supreme Court’s power to invalidate statutes.

Revision Tip

For SQE1, focus on the Supreme Court’s appellate jurisdiction, its role in constitutional and devolution matters, and the doctrine of precedent. Know the process for appointing Justices and the significance of its decisions for legal practice.

Key Point Checklist

This article has covered the following key knowledge points:

  • The Supreme Court is the highest appellate court in the UK, created by the Constitutional Reform Act 2005.
  • It hears civil appeals from England and Wales, Scotland, and Northern Ireland, and criminal appeals from England, Wales, and Northern Ireland.
  • The Supreme Court’s decisions are binding precedents for all lower courts.
  • The Court plays a central role in constitutional interpretation and devolution issues.
  • Justices are appointed through a selection commission and formalised by the Monarch.
  • The Supreme Court cannot strike down Acts of Parliament but may issue declarations of incompatibility under the Human Rights Act 1998.

Key Terms and Concepts

  • Supreme Court of the United Kingdom
  • appellate jurisdiction
  • devolution issue
  • selection commission
  • binding precedent
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