Dr. Ram Manohar Lohiya National Law University.

Lucknow.

ACADEMIC SESSION: 2016-2017

WORLD LEGAL SYSTEM

FINAL DRAFT
TOPIC: A Comparative Study between powers of Supreme Court of UK & US.

Submitted to: Submitted by:

Dr. Malay Pandey Vishal Singh
Assistant Professor (Law) B.A. LL.B. 1st Semester
Dr. Ram Manohar Lohiya Section-B
National Law University, Roll No. 170
Lucknow
 Table of Contents

1. ACKNOWLEDGEMENT..............................................................................................................3

2. SUPREME COURT (INTRODUCTION AND HISTORICAL BACKGROUND).........................4

2.1. UNITED KINGDOM:.............................................................................................................4

2.2. UNITED STATES OF AMERICA:.........................................................................................6

3. THE ROLE AND POWER OF THE US & UK SUPREME COURTS...........................................8

4. POWER OF JUDICIAL REVIEW................................................................................................10

4.1. JUDICIAL REVIEW:............................................................................................................10

4.2. JUDICIAL REVIEW IN UNITED STATES OF AMERICA:................................................11

4.3. JUDICIAL REVIEW IN UNITED KINGDOM....................................................................12

5. JUDGES AND THEIR FUNCTION.............................................................................................13

5.1. APPOINTMENT OF JUDGES.............................................................................................13

6. JUDICIAL INDEPENDENCE......................................................................................................14

6.1. UNITED KINGDOM:...........................................................................................................14

6.2. UNITED STATES OF AMERICA........................................................................................14

7. CONCLUSION.............................................................................................................................16

8. BIBLIOGRAPHY.........................................................................................................................16

1.
 ACKNOWLEDGEMENT
It is a great opportunity for me research on a subject A Comparative study
between the powers of Supreme Court of UK & US which is one of the
most debatable topic in the present era. At the time of preparing this paper I had
gone through many different websites and different books that leads to many
different opinions and points related to my topic.

I acknowledge my gratitude to assistant professor of law Mr. Malay Pandey,

my respective teacher, who has always been very helpful through the making of
this project.

Apart from me this project will certainly be immense importance for those who
are interesting to know about this subject. I hope they will find it
comprehensible.

I have tried my hard & soul to gather relevant information for this project. I do
not know how far I am able to do that. Furthermore, I do not claim all the
information included in this project is perfect. There may be shortcomings,
factual error, mistaken opinion which are all mine and I alone am responsible
for these but I will try to give a better volume in future.

Thank You

Vishal Singh
SUPREME COURT (INTRODUCTION AND HISTORICAL
BACKGROUND)
UNITED KINGDOM: On October 1, 2009 the Supreme Court of the United
Kingdom replaced the Appellate Committee of the House of Lords as the
highest court in the United Kingdom. This change was brought by the
Constitutional Reform Act 2005. By s.49(1) of the Act, the Supreme Court is the
superior court of record. There was seamless transition with the judges in the
House of lords, the LAW LORDS, becoming the first justices of the Supreme
Court.12 judges appointed as members of the House of Lords to carry out its
judicial business. Its jurisdiction over devolution matters had previously been
exercised by the Judicial Committee of the Privy Council

The Supreme Court of the United Kingdom is the supreme court in all
matters under English and Welsh law, Northern Ireland law and Scottish civil
law. It is the court of last resort and the highest appellate court in the United
Kingdom, although the High Court of Justiciary remains the court of last resort
for criminal law in Scotland. The Supreme Court also has jurisdiction to resolve
disputes relating to devolution in the United Kingdom and concerning the legal
powers of the three devolved governments (in Scotland, Wales and Northern
Ireland) or laws made by the devolved legislatures.

Because of the doctrine of parliamentary sovereignty, the Supreme Court is

much more limited in its powers of judicial review than the constitutional or
supreme courts of some other countries. It cannot overturn any primary
legislation made by Parliament. However, it can overturn secondary
legislation if, for example, that legislation is found to be ultra vires to the
powers in primary legislation allowing it to be made.

The current President of the Supreme Court is Lord Neuberger of Abbotsbury,

and its Deputy President is Baroness Hale of Richmond.
Reason for its creation: The Appellate Committee of the House of Lords was
located in the palace of Westminster, alongside the legislature and the judges,
the law lords, sat in the legislative chamber of the House of Lords. There was
no physical or legal separation of legislative and judicial functions and the
doctrine of separation of powers was not clearly observed in the British
Constitution. While it was considered that there was not a problem, in that the
integrity and independence of the law lords was not questioned, this lack of
separation gave the appearance that the House of Lords in its judicial capacity
was not independent and gave rise to fears that there was a lack of compliance
with Article 6 of the European Convention on Human Rights, the right to fair
trial.

The creation of the Supreme Court of the United Kingdom, addressed these
concerns by,

Physically separating the court from the legislative chamber, the Supreme Court is
located in the former Midddlesex Guildhall in Parliament Square, Westminster.
By removing the right of the law lords to take part in the business of the House of
Lords as a legislative chamber.
UNITED STATES OF AMERICA: The US Supreme Court is at the top of a
hierarchically organized, though somewhat complex, judicial system. There are
two sub-systems of courts: one in the states and other for the national
government1. The US Supreme Court has appellate (and largely discretion)
jurisdiction over all other federal courts and over state courts cases involving
federal law, plus original jurisdiction over small range of cases.

Article III of the constitution places the judicial power of the federal
government in One Supreme Court, and in such inferior courts as the
congress might decide to establish. The constitution grants the Supreme Court
original jurisdiction in cases in which states are a party and those involving
diplomats, but leaves for congress to determine the size and responsibilities of
the Court that is the capstone of the federal judiciary. The Judiciary Act of 1789
established a Supreme Court with one chief justice and five associate justices.
The act further defined the jurisdiction in larger civil cases and the cases in
which state courts ruled on federal statutes.

The size of the Supreme Court grew to accommodate the establishment of new
circuits as the nation expanded. In 1807 a seventh justice was added to the
court, and in 1837 an eighth and ninth justice joined the Supreme Court. The
size of the Court reached its highest point in 1863 with the creation of a Tenth
Circuit on the west coast and the appointment of a tenth justice. In 1866,
Congress reduced the size of the Court to seven justices and provided that no
vacant seats be filled until that number was reached. The number of sitting
justices fell to eight before an act of 1869 provided for nine justices, one for
each of the judicial circuits established in 1866. The size of the Court has since
remained the same.

1 The Written Constitution requires that there be a Supreme Court, and gives
Congress discretion to create lower-level national courts. Congress created lower
level court in the First Judiciary Act, enacted in 1789.
Throughout its first century, the Supreme Court was responsible for deciding
most civil appeals, and the justices had little control over a docket that was
increasingly overcrowded. The act establishing the circuit courts of appeals in
1891 authorized the justices to grant review through certiorari and allowed the
courts of appeals to certify other cases for appeal to the high Court at the same
time that it restricted the right of automatic appeal to the Supreme Court. The
Judges Bill of 1925 further increased the justices discretion in determining
what cases to hear, and in 1988 Congress eliminated almost all types of
mandatory jurisdiction.

The Supreme Court has exercised only limited administrative authority over the
federal courts. In 1922 the act creating the Conference of Senior Circuit Judges
required the Chief Justice or an associate justice to convene the conference, and
the Chief Justice continues to preside over the Judicial Conference. Congress in
1934 granted the Supreme Court responsibility for drafting rules of federal
procedure. The 1939 law creating the Administrative Office of the U.S. Courts
provided that the Supreme Court would appoint its director. Congress changed
the law in 1990, vesting that authority in the Chief Justice, in consultation with
the Judicial Conference. The Chief Justice also chairs the board of the Federal
Judicial Center.
THE ROLE AND POWER OF THE US & UK SUPREME
COURTS
As one may expect, the US and UK Supreme Courts share a number of
similarities. Both serve as the highest appellate court in their jurisdiction on
crucial matters of domestic law. Both hear only a limited number of cases, with
those which come before them tending to concern questions of great legal
importance. And both issue judgments which are binding on inferior courts
across their respective jurisdiction.

Yet omnipotence is not always the order of the day. Indeed, it is important to
recognize that neither court enjoys unlimited jurisdiction. The US Supreme
Court is the final arbiter on questions of federal constitutional law, and enjoys
appellate jurisdiction over federal courts and over state courts insofar as the
cases before the latter concern matters of federal law. However, it does not have
jurisdiction over matters of State Law; State Supreme Courts have the final say
in that sphere.

Similarly, the UK Supreme Court enjoys wide powers as the final court of
appeal for all civil cases in the United Kingdom and for all criminal cases from
England, Wales and Northern Ireland. However, the UK Supreme Courts
jurisdiction is limited in Scottish criminal cases, with the court enjoying
jurisdiction only insofar as a devolution or compatibility issue arises. In
addition, the power of the UK Supreme Court is limited by the obligation to
make a preliminary reference to the Court of Justice of the European Union
where any of EU law arises. The only instance in which the UK Supreme Court
may decide a point of EU law is so obvious as to leave no scope for reasonable
doubt (the acte clair doctrine).

The US Supreme Court tends to enjoys higher domestic profile that does the
UK Supreme Court. This can be attributed to a number of factors. First, the US
Supreme Court is a fully fledged constitutional court. The United States is
possessed of a written constitution which enjoys a degree of popular legitimacy
bordering on reverence. This constitution sets the parameters within which
executive and legislative may occur. As the court with the final say on matters
of constitutional interpretation, the US Supreme Court often finds itself cast in
the role constitutional umpire.

Following the establishment of devolved institutions in Scotland, Wales and

Northern Ireland and the incorporation of the European Convention on Human
Rights into domestic law, the UK Supreme Court often assumes the mantle of a
constitutional court. But in the absence of a written constitution setting out clear
constraints on the role of UK Parliament, this constitutional role is limited in
comparison to its American Counterpart.

The longevity of the respective courts is further differentiating factor. In many

respects the UK Supreme Court is in fact the older institution. In its previous
guises the UK Supreme Court has been playing a key role in the development of
the common law since long before the United States of America was a twinkle
in George Washingtons eye. However, in other words UK Supreme Court is
younger intuition, having only arrived on the judicial scene in 2009. By
comparison US Supreme Court was established in 1790. Its role is firmly
established in the consciousness of the American Public. Its existence is
specifically provided for in the founding documents of the USA.
POWER OF JUDICIAL REVIEW
JUDICIAL REVIEW: Supremacy of law is essence of Judicial Review. It is power
of the court to review the actions of legislative and executive and also review
the actions of judiciary, it is the power to scrutinize the validity of law or any
action whether it is valid or not. It is a concept of Rule of Law. Judicial Review
is the check and balance mechanism to maintain the separation of powers.
Separation of power has rooted the scope of Judicial Review. It is the great
weapon in the hands of the court to hold unconstitutional and unenforceable any
law and order which is inconsistent or in conflict with the basic law of the land.
The two principal basis of judicial review are Theory of Limited Government
and Supremacy of constitution with the requirement that ordinary law must
confirm to the Constitutional law. Judicial Review is a mechanism and therefore
the Concept of Judicial Activism is a part of this mechanism.

The concept of Judicial Review is basically originated in USA in the historic

landmark case Marbury vs. Madison2. But originally Lord Coke decision in,
Dr. Bonham vs. Cambridge University had rooted the scope of judicial review
first time in 1610 in England.

To determine the unconstitutionality of legislative Acts is the fundamental

objects of judicial review. It adjusts constitution to the new condition and needs
of the time. To uphold the supremacy of constitutional law and to protect the
fundamental rights of the citizens and also to maintain federal equilibrium
between Centre and the States are the main concerns of objectives of judicial
review in India. Legislative and administrative powers between Centre and the
State of constitution are also the main concern of judicial review.

22. 5 U.S. 137

JUDICIAL REVIEW IN UNITED STATES OF AMERICA: The American Constitution,
which is written and federal democratic in spirit, is based on the Rule of law and
the individual liberty is protected. It provides separation of powers with check
and balances which are the heart and soul of the American Constitution. One of
the fundamental process in the America to determine the validity of law is
Judicial Review. In USA, the judiciary can check the actions of Congress and
the action of the President, if it is contrary to the Constitution then the judiciary
will declare null and void. The Constitution of the USA doesnt provide express
provisions for Judicial Review. But, the power of judicial review to declare the
laws unconstitutional and to scrutinize the validity of law implicitly
incorporated in the Art.III and IV.

According to the Bernard Schwartz The decision on the question of

constitutionality of a legislative Act is the essence of the judicial power under
the Constitution of America.

Justice Frankfurter in Gobitiz case Judicial review is a limitation on popular

government and is a part of the Constitutional scheme of America.

American judicial review is a peculiar government feature among the nation of

the world. The concept of judicial review has its foundation on the doctrine that
the constitution is the Supreme law.

Objects of Judicial Review in USA: The main objectives of Judicial Review in USA

are as follows:

1. To declare the laws unconstitutional if they are contrary to the Constitution.

2. To defend the valid laws which are challenged to be unconstitutional.
3. To protect and uphold the Supremacy of the Constitution by interpreting its
provision.
4. To save the legislative function of Congress being encroached by other
departments of the Government.
JUDICIAL REVIEW IN UNITED KINGDOM: The Doctrine of Judicial Review
was prevalent in England also. Dr. Bonham vs. Cambridge University was
decided in 1610 by Lord Coke was the foundation of judicial review in
England. But in the case of City London vs. Wood, Chief Justice Holt
remarked that An Act of Parliament can do no wrong, though it may do
several things that look pretty odd. This remark establishes the Doctrine of
Parliamentary Sovereignty which means that the court has no power to
determine the legality of Parliamentary enactments. 109 In UK there is a
system which is based on Legislative Supremacy and Parliamentary
Sovereignty. Earlier, there was no scope of judicial review in UK, but after the
formation European Convention of Human. Rights, the scope of judicial review
become wider. The enactment of Human Rights Act 1998 also requires
domestic Courts to protect the rights of individuals. In UK, there is no written
Constitution and Parliamentary Supremacy is the foundation in UK. Principle
of Parliamentary Sovereignty dominates the constitutional democracy in UK.

PARLIAMENTARY SOVEREIGNITY IN UK: In England, people are the source

of all the powers and they are also the sovereign power. But, the people
snatching all essential powers from the Monarch respond to them in
Parliament. This is the great constitutional fiction of the English Constitution.
Thus, powers, originally vesting in the people, are the true sovereign powers.
Due to this, Parliament can legislate any matter and Constitution assigns no
limitations to enact any legislation. The Act of the Parliament cannot be
answerable to any authority whether it is unjust or contrary, no matter how it is.
There is unlimited power of Parliament in UK. There is no scope of judicial
review of legislative Act in UK. The legislative Act of Parliament is also
known as Primary Legislation and the delegation by the Parliament to the
executive with adequate legislative guidance are known as Secondary
legislation, secondary legislation is administrative in nature, therefore it is
subject to judicial review in UK.

JUDGES AND THEIR FUNCTION

APPOINTMENT OF JUDGES: Selection of Judges in United States Supreme
Court involved a process called POLITICAL. The contours of politics of
Supreme Court have varied over US history. Merit has only rarely played the
dominant role. This is the area in which UK sharply differs from American
approach in judicial appointments. For appointment of judges to the SC of UK,
a selection committee has been set up especially for above purpose which
includes President & Deputy President of the Supreme Court along with
members of Judicial Appointment Commission(JAC) for England & Wales,
Scotland and Northern Ireland. Selection Committee has to submit its choices to
Lord Chancellor & Lord Chancellor has the power to either accept (in
consultation with senior judges and retired judges) or reject (on certain grounds)
the recommendations. On the other hand, in USA the process is therefore
somewhat politicised, with Justices often labelled as liberal or conservative.
The Justices can be chosen from a large pool and their backgrounds can be
varied. Many have never been trial judges. There is no distinction between
lawyers in the USA they are all attorneys.

Justices, who are nominated by the President are confirmed with the
"advice and consent" (majority vote) of the Senate.

Tenure: A further difference between the UK and US Supreme Courts is that in

the United States judges are appointed for life; there is no retirement age. In the
United Kingdom judges are statutorily required to hang up the gavel at the
tender age of 70. The few still serving who were appointed before 31 March
1995 may continue in judicial office until the ripe old age of 75.
JUDICIAL INDEPENDENCE
UNITED KINGDOM: Despite some perceived lack of Independence in Judiciary
arising as a result of the way in which they were appointed, prior to the
Constitutional Reform Act, 2005, the independence of judges in fact provided in
number of ways. As it has been difficult to remove judges from their office,
which seeks to ensure that their decision making remains unaffected by external
political pressure or something else. They get substantial amount of salary as it
maintains the quality of Judges. Judges are paid from consolidated fund which
is not subject to annual parliamentary vote. So judicial Salary is not the matter
of Parliamentary debates.

Judges are immune from being sued in connection with exercise of their
jurisdiction. On a personal level, to maintain their independence, judges must
not engage in activities which might affect, be thought to affect, their
independence. A judge should disqualify himself/herself from sitting in a
particular case if the question of biasedness arises.

But to maintain check & balance and to prevent the judiciary from misusing its
powers the constitution has given some powers to legislative and executive.
Parliament has the power to impeach any judge but under very specific
circumstances. To summarize the position regarding removal of judges, only the
Queen, on the petition of both the houses of Parliament can remove the Judges
of High Court or Supreme Court.

Constitution has given power to parliament regarding appointment of Judges

which checks the power given to Judiciary.

UNITED STATES OF AMERICA: The Supreme Court is the final judge in all
cases involving laws of Congress, and the highest law of all the Constitution.
Section 2 of Article Three of the United States Constitution outlines the jurisdiction of
the federal courts of the United States:

The judicial Power shall extend to all Cases, in Law and Equity, arising under
this Constitution, the Laws of the United States, and Treaties made, or which
shall be made, under their Authority; to all Cases affecting Ambassadors, other
public Ministers and Consuls; to all Cases of admiralty and maritime
Jurisdiction; to Controversies to which the United States shall be a Party; to
Controversies between two or more States; between a State and Citizens of
another State; between Citizens of different States; between Citizens of the same
State claiming Lands under Grants of different States, and between a State, or
the Citizens thereof, and foreign States, Citizens or Subjects.

The Supreme Court of US, however, is far from all-powerful. Its power is
limited by the other two branches of government. The President nominates
justices to the court. The Senate must vote its approval of the nominations.
Whether and how the courts are coordinated with the political branches are
descriptive and normative e questions. Federal judges serve during good
behavior and can be removed from office by impeachment for Treason,
Bribery, or other high crimes or Misdemeanors. The combination has been
taken to establish that judges have tenure for life unless they are removed by
impeachment.

Some Political and Doctrinal Constraints are established in order to put some
checks and balance on the wide range of powers of Supreme Courts such as
removal of Judges through impeachment, Congress can manipulate the size of
the court and restrict the jurisdiction of court. Strategic Nominations also plays
a very important role.
CONCLUSION
Supreme Courts of both US & UK are highest court in hierarchy in their
respective territorial jurisdiction. Both courts exercise wide range of powers.
They both share some similarities as well as differences. As Supreme court of
US has the special role to play in United States system of government. The
Constitution gives it power to check, if necessary, the actions of the president
and the congress. It has the power to declare any law void if that law violates
the US Constitution. If we talk about the Supreme Court of US, we can say that:

The Supreme Court is like a referee on a football field. The Congress, the
President, the state police, and other government officials are the players. Some
can pass laws, and others can enforce laws. But all exercise power within
certain boundaries. These boundaries are set by the Constitution. As the
"referee" in the U.S. system of government, it is the Supreme Court's job to say
when government officials step out-of-bounds.3

And UK being a country with Parliamentary Sovereignty, the Supreme Court of

UK is not as powerful as the Supreme court of US in many aspects such as
Constitutional Power, Judicial Review etc. From the above discussion, one can
easily conclude that constitution of both the countries has vested their highest
court with very wide powers but has also put some restrictions on their power in
some form to maintain some checks and balance.

3 The Presidency, Congress, and the Supreme Court, Scholastic Inc., 1989
 BIBLIOGRAPHY
BOOKS:
1. English Legal System; Steve Wilson, Helen Rutherford, Tony Storey,
Natalie Wortley; Oxford University Press; 2014.
WEBSITES:
1. www.supremecourt.uk
2. www.journalonline.co.uk
3. www.ehow.com
4. en.wikipedia.org
5. www.historylearningsite.co.uk
6. www.scholastic.com
7. www.uscourts.gov
8. www.supremecourt.gov