First published in October 2019.

The UK Supreme Court took its place at the pinnacle of the UK’s judicial system ten years ago, on October 1, 2009. And its recent unanimous ruling that Prime Minister Boris Johnson’s five-week prorogation of parliament was unlawful has put in squarely in the limelight.

The court was created by the Constitutional Reform Act 2005 and (apart from the majority of criminal cases in Scotland) it has jurisdiction to hear appeals from all four home countries (England, Wales, Scotland and Northern Ireland).

The court replaced the opaquely named Appellate Committee of the House of Lords and the rationale for its creation was a clearer distinction between the legislative and judicial functions of state. The previous court sat in the House of Lords and its judges were entitled to speak and vote on proposed legislation. Consequently, there was an overlap of power that could have suggested a lack of independence or impartiality.

A modern illustration of this was the litigation arising from the Hunting Act 2004. On that occasion, the law lords were asked to consider the validity of legislation that parliament had enacted to introduce a ban on fox hunting. Two law lords had voted on the act – as members of the House of Lords – and were therefore unable to judge the cases as they might not be considered impartial. A more general criticism was that it was wrong for judges even to have the opportunity to be involved in the making of laws that they might later be asked to interpret in their judicial role.

The title “Supreme Court” is common to many of the most senior courts around the world. The most well-known of these is that in the US. A clear distinction can be drawn between this court and the UK version, however.

The US court is a product of a written, codified constitution from which it derives power even over Acts of Congress. In the UK, however, parliamentary sovereignty is of central importance within the constitution. As the UK parliament is supreme, therefore, the court lacks the power to strike down parliamentary legislation. This means that the court is supreme within the judicial branch of state but not necessarily within the overall constitutional arrangement.

The duty of the US Supreme Court to safeguard the Constitution and its Bill of Rights has taken it into controversial areas, such as abortion, which have been considered as much political as legal. Consequently, its prospective justices are subject to a high level of public and political scrutiny before appointment. Conversely, this type of public scrutiny is not part of the selection process for the UK Supreme Court.

Recently, however, there have been calls for senior UK judges to face greater scrutiny on the basis that they are concerned more and more with political issues.

In previous decades, the courts more generally had already become increasingly involved in the judicial review of the actions of executive government – and with the introduction of the Human Rights Act 1998 they have been given increased powers not just in relation to government action but also over legislation itself. While these powers do not go so far as in US, where the Supreme Court can strike down legislation, UK courts now have powers to reinterpret a statute or declare it “incompatible” with human rights.

A recent example was the Supreme Court’s 2018 finding that it was an infringement of human rights to prevent opposite sex couples from entering into civil partnerships – and, as a result, it declared the relevant legislation incompatible. Importantly, this declaration did not affect the continuing validity of the statute itself – but, in an example of the UK’s separation of powers working effectively, the government followed the court’s lead and introduced legislation removing the incompatibility, which was duly passed by parliament.

Another potentially political issue occurring within the court’s first ten years was that of assisted dying. However, in 2014, it decided that, at that particular time, it would be “institutionally inappropriate” to issue a declaration of incompatibility on a complex matter that parliament was actively considering.

And so to Brexit …

While the court attempts to tread this fine line in seemingly political cases, there are times when it is faced with a stark choice. The Brexit cases brought by the activist and anti-Brexit campaigner Gina Miller are examples of this.

In the first case, in 2017, judges had to decide whether the government had the power to notify the EU of withdrawal without parliamentary approval. In the second, just recently, it had to consider the extent of the prime minister’s power to advise the Queen to prorogue parliament.

In many ways, there is nothing new in this supervision of the executive – over 400 years ago, in 1610, a court had ruled that King James had only that power which the law allowed him. When the more junior High Court ruled against the government in the first Brexit case, however, it faced severe criticism from sections of the media, including the Daily Mail’s infamous “Enemies of the People” headline.

Interestingly, when the Supreme Court reached similar conclusions in both cases – in the first, it decided that the government could not trigger Article 50 without parliamentary approval, and in the second, that the advice on prorogation was unlawful – it did not face the same level of criticism. Indeed, newspapers were largely careful not to make their own criticisms of the court’s decision, instead preferring to quote othersin particular, their readers and in some cases members of the government unhappy with the court’s decision.

While there could be many reasons for this, one may be that its rebranding and relocation to a prominent position on the opposite side of Parliament Square has given its decisions a more apparent legitimacy – it now has a obvious public identity that was previously missing.

While unelected judges are always susceptible to accusations of an excess of authority, the Supreme Court enters its second decade with a more conspicuous, more independent place in the constitutional architecture than its predecessor. And being called “Supreme” can only help in this regard.🔷

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[This piece was originally published on The Conversation and re-published in PMP Magazine on 1 October 2019, with the author’s consent. | The author writes in a personal capacity.]

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