The Supreme Court has an important constitutional relationship with the executive because it can scrutinise the actions of ministers and government departments and determine whether they have acted within the law. Through judicial review and the principle of ultra vires, the Court can place limits on executive power and require government to reconsider unlawful decisions. However, the Supreme Court does not normally determine government policy and must operate within the wider principles of parliamentary sovereignty and the separation of powers. Understanding the Supreme Court's interactions with and influence over the executive is important for A-Level Politics students because it demonstrates how the judiciary can act as a check on government while raising questions about the power of unelected judges.
Definitions
- Executive: The branch of government responsible for implementing and developing government policy and administering the country
- Judicial review: The process where courts examine whether government and public bodies have acted lawfully
- Ultra vires: The principle that public authorities must act within the legal powers granted to them
- Separation of powers: The principle that legislative, executive and judicial powers should be exercised by separate institutions
- Judicial independence: The ability of judges to make decisions without political interference or pressure
Key Features
Judicial Review of Government
The Supreme Court can interact with the executive through judicial review, allowing it to examine whether ministers and government departments have acted lawfully. Courts can consider whether government has exceeded its legal powers, failed to follow required procedures or acted irrationally. If government action is found to be unlawful, the courts can require the relevant authority to reconsider its decision. Judicial review therefore provides an important check on executive power and reinforces the principle that government must operate within the law. However, the Court generally considers the legality of government action rather than whether a policy is politically desirable.
The Supreme Court as a Check on Executive Power
The Supreme Court can significantly influence the executive when government action conflicts with constitutional principles or legal requirements. In Miller in 2017, the Supreme Court ruled that the government could not trigger Article 50 without an Act of Parliament. The decision limited the government's ability to act using prerogative powers and confirmed the importance of Parliament's role in major constitutional decisions. In the 2019 prorogation case, the Supreme Court also ruled that the government's advice to the monarch to prorogue Parliament was unlawful because it frustrated or prevented Parliament from carrying out its constitutional functions. These cases demonstrate that the Supreme Court can place significant legal limits on executive action.
Limits on Judicial Influence
Although the Supreme Court can constrain the executive, its influence has important limits. The judiciary does not normally decide what government policy should be and cannot replace an elected government's political programme with its own preferred policies. The Court determines questions of law and legality, while ministers remain responsible for political decisions. Parliament also remains sovereign, meaning that the courts cannot normally strike down primary legislation. These limits help maintain the separation of powers by allowing the judiciary to scrutinise executive action without becoming an alternative policy-making institution. However, because judicial decisions can have significant political consequences, the extent of judicial influence over government remains constitutionally controversial.
Evaluation
Advantages
- Checks executive power: The Supreme Court can prevent ministers from exceeding their legal powers, helping to ensure that government remains subject to the rule of law
- Protects Parliament: Judicial decisions can prevent the executive from bypassing Parliament or interfering with its constitutional functions, reinforcing parliamentary authority
- Provides independent scrutiny: The Supreme Court offers an independent check on government that is separate from party politics and can hold ministers accountable for unlawful actions
Disadvantages
- Unelected judges: Supreme Court Justices are not directly elected by the public, yet their decisions can have major political and constitutional consequences
- Constrains elected governments: Judicial decisions can prevent governments from carrying out particular actions despite having a democratic mandate
- Political controversy: Cases involving major constitutional issues can lead to accusations that judges are becoming too involved in political matters, particularly where decisions have significant consequences for government policy
Summary
- The Supreme Court can scrutinise government through judicial review
- Ultra vires prevents ministers and public bodies from exceeding their legal powers
- Miller and the prorogation case demonstrate the Court's ability to constrain executive power
- The Supreme Court generally determines legality rather than government policy
- Judicial influence over the executive provides an important constitutional check but raises questions about democratic accountability
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