Is the UK Supreme Court too political?
And too Powerful?
Judicial power has rarely been more contested than it is in the 2020s. Many people, including figures within the current Conservative government, believe the judicial branch has become too ‘expansive’, that is to say, that judges go beyond the legal and constitutional remit of an independent judiciary that settles disputes fairly. Instead, they have taken on the responsibility of overseeing parliament’s legislative actions and of supervising the executive’s exercise of its lawful powers — in the words of Prospect Magazine’s Alexander Horne (August 2021), ‘failing to respect the legislature’s final authority, or the executive’s exercise of its powers’.
Factors contributing to claims that judges have become ‘too powerful’ include:
■ Undermining parliament’s legislative supremacy. As a democratically elected institution, parliament is best placed to legislate in keeping with the rule of law. While governments and ministers are accountable to both parliament and the people, judges are not. Yet in 2017, the number of cases decided by the Supreme Court rose to a record 109, compared to just 75 in 2016 and 83 in 2015. While recent years have seen a fall in cases decided by the Supreme Court (to some extent as a consequence of the health crisis), in the aftermath ofthe highly contested Brexit vote, it appeared to many that the Supreme Court was seeking to assert itself in the face of an unstable and uncertain parliament that lacked its traditional authority.
■ Policing the executive’s use of its constitutional powers. While there are very few states with uncodified constitutions, where they do exist, responsibility and restraint are key characteristics of government. In the UK, some claim thatm the scope of judicial activity has widened to the extent that the judiciary has, at times, ‘policed’ what has traditionally been seen as the executive’s constitutional responsibility. For some, the precedent-setting role that the Supreme Court played in overturning Boris Johnson’s decision to prorogue parliament in 2019 reveals an inclination for judges to stray into territory that is ‘not for the courts’.
■ Following America’s ‘constitutional court’ model. The US Supreme Court has developed a tradition of judicial activism and self-confidence over several centuries. Critics of UK Supreme Court activity see a rapid acceleration towards a US-style constitutional court. Unlike the USA, the UK has neither a codified constitution nor a clear separation between the branches of government. A succession of relatively weak governments — coalitions, and ones with slender or non-existent majorities — has provided an environment for a judicial branch to assert itself, becoming, in the words of the Institute for Government’s Raphael Hogarth (2019), ‘a guardian of democracy in the UK, policing the boundaries of constitutionally proper behaviour’.
2019 The Government considers curbing judicial power.
The 2019 Conservative manifesto paved the way for future legislative activity to address the scope of judicial power. The Tory manifesto stated that ‘after Brexit we need to look at the relationship between the government, parliament and the courts’, and in July 2021, the government introduced the Judicial Review and Courts Bill in parliament.
Amongst other proposals, the Judicial Review and Courts Bill sought, in the government’s words, ‘to create a better balance between the rights of citizens to challenge executive decisions through judicial review and the need for effective government’. According to the lord chancellor, Robert Buckland, its main objective was to ensure that judges are ‘cautious in their decision-making and to ensure that their judgements properly reflect the intent of our elected parliament’. The implied criticism of judges is that they had failed to ‘keep pace’ with the ‘popular’ democratic changes that had delivered the Brexit vote and swept Boris Johnson to power.
A cross-party group of MPs and peers wrote to the lord chancellor in June 2021, saying that legislative moves to restrict judicial review were ‘an affront to the principles of fairness and government accountability’ and should be dropped
In 2020, the government set up an Independent Review of Administrative Law (IRAL), looking into the law that governs the actions and decisions of public bodies. The IRAL reported in 2021 that certain types of judicial review, especially those with a low success rate, should be discontinued. The review also recommended that the Court’s ability to ‘give public bodies a time-limited opportunity to remedy an unlawful act instead of immediately striking it down’ should be recognised in statute law.
In addition, the government’s appetite to reduce judicial scrutiny was revealed in the details of the recent UK Internal Market Bill. The power of the courts to identify and declare incompatible any ‘subordinate legislation’ (all ‘legislation’ below that of parliamentary statutes, such as food import and export regulations) which conflicts with non-UK law was reduced in extent by Clause 45 of the UK Internal Market Bill (as first introduced). This clause also compelled the courts to uphold subordinate legislation even if it conflicted with, for example, EU law. While the government pledged to ‘deactivate’ Clause 45 if a final deal with the EU was reached, it nevertheless permitted a breach of international law by seeking to change agreed import and export procedures for goods between Northern Ireland and the rest of the UK.