In ten years there has been no shortage of actionby Raphael Hogarth / January 24, 2020 / Leave a comment
As the UK’s final court of appeal, the Supreme Court only hears disputes about points of law that are “of general public importance.” Some of the 600-plus cases the court has decided since it was established in 2009 might nevertheless strike non-lawyers as obscure: those about the interpretation of commercial contracts, the rights of landowners to use each other’s property, or the rules on who should pay whose costs in legal disputes. Challenges to the decisions of government, however, never fail to command public attention. On this front, there has been no shortage of entertainment for followers of their lordships and ladyships.
Miller v The Prime Minister 2019
In August 2019 Boris Johnson advised the Queen to prorogue parliament for five weeks. Campaigner Gina Miller and SNP politician Joanna Cherry challenged the PM’s advice in court. They argued the prorogation was for an “improper purpose”: to avoid parliamentary scrutiny in the run-up to Brexit. Eleven Supreme Court judges unanimously ruled that there was no reasonable justification for such a long prorogation, which had “an extreme effect” on parliamentary democracy. The court declared the prorogation of no effect, and MPs returned to Westminster the next day.
UNISON v Lord Chancellor 2017
In 2013 justice secretary Chris Grayling introduced fees for anyone taking a case against their employer, arguing this would deter vexatious claims. Trade union Unison challenged the fees, and seven Supreme Court judges unanimously ruled that they were unlawful. The fees priced some people out of the tribunal, and so unjustifiably interfered with the constitutional right of access to the courts, which the court said was “inherent in the rule of law.”
Miller v Secretary of State for Exiting the EU 2017
Theresa May wanted to kick off the Brexit process by serving notice on the European Council, under Article 50 of the Treaty on European Union, of the UK’s intention to leave. The government argued it could do so without getting parliament’s permission, using ancient “royal prerogative” powers to manage international relations. A majority at the Supreme Court decided otherwise. Sending the Article 50 notice would lead to changes in the law and a loss of rights. Only parliament could authorise that.
Evans v Attorney General 2015
Prince Charles sent several missives to ministers on his pet causes, nicknamed the “black spider memos” for his bad handwriting. Rob Evans, a Guardian journalist, requested them under Freedom of Information laws. The government refused and, after a tribunal ordered disclosure in the public interest, Attorney General Dominic Grieve wielded a power of veto to block the release.
The Supreme Court ruled that Grieve’s decision was unlawful. If a minister could overturn the decision of a tribunal just because he disagreed with it, that would undermine the constitutional principles that a court’s decision is binding, and that actions of the executive are reviewable by the court. The memos were published—though the Guardian concluded that they exposed the prince more as a bore than a “wannabe feudal tyrant.”
Nicklinson v Ministry of Justice 2014
Tony Nicklinson was paralysed from the neck down. His life, he said, was a “living nightmare.” He wanted to die, but he needed help—and assisted suicide was illegal.
Nicklinson asked the High Court to declare that the law on assisted dying was incompatible with the human right to a private and family life. After losing, he refused all food and died. His wife took his case up to the Supreme Court, but lost again. Several judges said that this was an issue for parliament, not the courts, to decide: a judicial decision would “lack all constitutional legitimacy.”
Assange v Swedish Prosecution Authority 2012
In 2010 Julian Assange, the WikiLeaks founder, was accused of rape in Sweden. The Swedish Prosecution Authority issued a European Arrest Warrant, which has effect in all EU member states
Assange was in England and challenged the warrant’s validity. He argued that, under UK legislation, the warrant had to be issued by an impartial court, not a prosecutor. He lost at the Supreme Court, where the majority said that the UK legislation had to be interpreted in a way that gave effect to the UK’s obligations under EU law. Weeks later, he sought asylum at the Ecuadorean embassy, where he would remain in self-imposed confinement until April 2019, when the Ecuadorean government kicked him out.