How does the UK Supreme Court work, and how does it compare to the SCOTUS?

[smurfy]

Everyone knows how the Supreme Court of the United States (SCOTUS) works:

9 justices (by convention), 1 of them is chief justice
Nominated by the President, confirmed by the Senate
Life terms unless they resign or are impeached

but what about literally any other Supreme Court in the world? No idea right? I live in the UK and I don't know that much about how our Supreme Court (UKSC) works. Is it better or worse than the SCOTUS? Could my Supreme Court kick your Supreme Court's ass? Join me as I google it and write up my findings.

History

https://upload.wikimedia.org/wikipedia/en/8/83/Supreme_court_crest_%28official%29.svg

First thing's first. The US Supreme Court was established in 1789 with the adoption of the US Constitution, but we took a little bit longer to get there. We finally established our Supreme Court in... 2009.

Before that, the highest legal body in the land was the House of Lords, which is also the upper house of Parliament. Separation of powers? Lol, more like separation of Powers. Since the 19th century, the Lords would appoint legally-qualified "Law Lords" to hear appeals, and it kinda worked like a regular court.

In the early 2000s, Tony Blair's Labour government reviewed the situation and found that although it worked fine, it was kind of confusing and weird. They decided to set up a Supreme Court instead, and so they did.

Appointments

This bit's pretty longwinded so TLDR there are always 12 justices on the court, and when there's a vacancy, three legal professionals from around the country join with the President and Deputy President of the Court to consider job applications from senior judges and very senior lawyers. They interview the candidates and pick someone. There are pretty high qualification requirements specified by law.

Long version: In the UK, there are three Judicial Appointments Commissions (England+Wales, Scotland, NI) which choose candidates for judicial office through an open selection procedure - they literally post judge vacancies on their website and you can apply for the job. The Commissions are made up of judges, barristers, and also 'lay members' (professionals from other fields). England+Wales's commission has 15 members, Scotland's has 12, NI's has 10. The members themselves are mostly appointed through open selection, with a minority of them chosen by bodies like the Judges' Council.

The Supreme Court consists of 10 regular justices, 1 President and 1 Deputy President. The total number is fixed at 12, and if a vacancy opens up there's a legal duty for the Lord Chancellor to convene a selection commission to fill the spot. The selection commission is made up of 1 representative from each of the three Judicial Appointments Commissions I mentioned before, plus the Pres and Deputy Pres of the Court.

Again, they use an open selection procedure - unfortunately, today was the deadline to apply for President of the Supreme Court, sorry if you missed it. You probably wouldn't get the job anyway though tbh - you can only apply if you've held high judicial office for two years or practiced law for 15 years.

Tenure and procedure

Our judgybois are appointed to life terms 'in good behaviour', and can be removed by a vote in both Houses of Parliament. This has never happened, but the court's only existed for 10 years after all.

An example of something that would probably get a justice removed from office: chapter three of the Guide for Judicial Conduct in England and Wales says that 'a judge must forego any kind of political activity and on appointment sever all ties with political parties'.

The Court has 12 justices, but most cases are only heard by a panel of 5 of them. The panel could have anywhere between 3 and 11 judges on it, as long as it's an odd number, but usually they go with 5. They did whip out the maximum 11 judges in 2017 for the most high-stakes Supreme Court case of all time, the Article 50 Brexit appeal, and they ultimately ruled against the government by a majority of 8-3.

What can the Supreme Court do?

I'll tell you what they can't do: strike down legislation! We don't have a codified constitution in the UK, so there's nothing for the Supreme Court to compare law against to determine whether it's "constitutional" or not.

The closest thing they can do is compare a law against the Human Rights Act 1998, which is our implementation of the European Convention on Human Rights. For example earlier today, the High Court (two levels below the UKSC) found that a scheme which required landlords to check the immigration status of tenants was unlawful because it breached the Human Rights Act. The law still exists on paper but it's basically unenforceable, and the government will have to appeal the case or get rid of the law.

The UKSC also has to settle disputes over what the law actually says, like in the aforementioned Article 50 appeal.

Here's a weird thing: the Supreme Court isn't always supreme. In cases involving human rights you can appeal a step further, up to the European Court of Human Rights in Strasbourg. They have the final say on whether something breaches the European Convention.

But here's something even weirder. In 2005, the European Court of Human Rights ruled that the UK could not continue to ban all prisoners from voting in elections - they had to allow at least some prisoners to vote. The UK government said they would consider the ruling and find a solution. And then 13 years (and three general elections) passed. Finally in September 2018, the UK government agreed to let some prisoners vote.

This is an example of how, when it comes down to it, the judiciary in the UK is still significantly less powerful than the judiciary of the US. When the SCOTUS ruled that it was unconstitutional to deny equal marriage, that shit came into effect immediately. In the UK system there would have probably been years of slow-walking before anything actually changed.

Politicisation

The UKSC is without a doubt way less politicised than the SCOTUS. When a SCOTUS seat opens up it's huge news for months/years. When a UKSC seat opens up, nobody outside the legal profession even notices. The SCOTUS is literally talked about in terms of a partisan split, whereas UKSC judges are banned from engaging in politics. The open selection procedure isolates the judiciary from the political world, and I think that's a good thing.

But I was talking to my boi @Borealis the other day, and he pointed out that this is probably also because the UKSC is way less powerful than the SCOTUS. The fact that Parliament could basically overrule them at any time, or just ignore them for ages, means that there's a lot less reason to politicise the Court itself. And that's kind of scary, because we are essentially relying on the government to have the decency to not do that.

Like, what if the government just decided to repeal the Human Rights Act? What if that had been Conservative Party policy for years? What if the only reason they'd not done it was because they were in a coalition for five years and are now distracted by Brexit? Oh shit: all those hypotheticals I just described are actually true! Their 2015 manifesto says they will repeal the Human Rights Act, and their 2017 one says they will pause that while Brexit goes through.

So now I'm interested in other Supreme Courts. Most countries do have a codified constitution, and plenty of countries have a stronger separation of powers than we do, so does that mean that most countries have a hyper-politicised Supreme Court like in the US? And how do other countries appoint their justices? To what extent is America's system of having politicians directly appoint justices to the Supreme Court responsible for the court's politicisation?

One thing's for sure: it really makes u think.

[Borealis]

The Supreme Court of Canada by law must have 1/3 of it's members be from Quebec, to handle Quebec law which is descended from French civil law, compared to the rest of the country which uses English
common law.

[Sableye]

oof that's a problem you don't think about, common and civil law are fundamentally different implementations even if both systems tend to use elements of the other.

[elix]

Gee, who'd expect Quebec to act like a special snowflake and demand special treatment?

But yeah, a lot of things like contests have a line barring Quebec residents from participating, somewhere in the legalese fine print, because of the considerable difference in provincial laws between Quebec and the rest of the country causing non-compliance. I imagine lots of things in Quebec say they're invalid outside Quebec for the same reason but I've never been.

[Mike Hunt]

The Supreme Court of Ireland is made up of about 9 ordinary members and headed by a Chief Justice. They're appointed by the president and they, like in most western countries, read over laws and amendments to the constitution. In Ireland, it's mandatory for an amendment to be ratified and sent through by both the Dáil and the people. For example, the abortion referendum was to repeal the 8th Amendment which itself was an amendment to institute the fundamental right to life. The most infamous, and landmark case was the X Case, wherein a 14 year old girl was raped and denied an abortion so the case was taken to the Supreme Court. This established the right to an abortion if the mother's life was in danger. This basically laid the groundwork for the abortion referendum in 2018 to repeal the 8th amendment. Also worth noting is that Judges have to retire at age 70 and a Chief Justice's term is 7 years.

https://en.wikipedia.org/wiki/Attorney_General_v._X

[EmperorScorpious]

Curious that in the US, it's SCOTUS but in the UK it's UKSC and not SCOUK.

I prefer my government acronyms to be pronounceable as words.

[GHOST!!!!]

SCOTUK you mean.

Saying scotus though sounds like an offensive word to me.

[Mort Strudel]

Suck my scotuk