Today marks the 15th anniversary of the UK Supreme Court. When it opened its doors in 2009, it was argued that separating the country’s top judges from their historical home in parliament was a defining moment in the constitutional history of the UK. Fifteen years later, it’s hard to see whether anything significant has really changed.
The Supreme Court was proposed by the Blair Government in 2003, as part of a botched set of reforms to abolish the role of Lord Chancellor and reform judicial appointments. It came as a surprise, not only to the then-Lord Chancellor, Derry Irvine (who was replaced by Blair’s former flatmate, Charlie Falconer), but also to many senior judges and officials, who found out about the change on the news while at an away-day.
Progress was not swift. Legislation was required. The proposed reforms were not supported by all the Law Lords. A building proved hard to identify. Eventually the rather modest Middlesex Guildhall was selected. A rather appalling carpet ‘with symbols representing the four nations of the United Kingdom’ was installed. The move across Parliament Square took six years.
Supporters of the court were animated by the principle of separation of powers: that judges should not also be legislators. However, some, such as Baroness Hale, who became the first female president of the court, also advocated for something more like a constitutional court. This was probably ill-advised and led opponents to argue that the establishment of a Supreme Court risked inspiring increased levels of judicial activism.
Initially, it appeared that this prophesy might come true. The heart of the argument that was that senior judges were over-reaching: failing to respect the sovereignty of Parliament and the executive’s powers. Concerns were raised about the use of judicial review and the Human Rights Act. The think-tank Policy Exchange established a ‘judicial power project’ which argued that judges threatened the rule of law and effective democratic government.
Over the past 15 years, questions have increasingly been asked about these issues. Many of them were provoked by the constitutional upheavals caused by Brexit.
Both the court’s Miller judgments during the Brexit years were extraordinarily controversial. The first – which effectively ruled that an Act of parliament was needed to leave the EU – was arguably wrong. The decision of the court was predicated on the view that once the government had issued its Brexit notification to the EU, it would be impossible to recall it. This turned out to be an incorrect assumption.
The second Miller judgment (which ruled that Boris Johnson’s prorogation of Parliament was unlawful) turned out to be an entirely Pyrrhic victory for its proponents.
It had two clear results. First, it ensured that Parliament was reassembled in advance of Brexit – which only ended up revealing that there was no majority in parliament for any other Brexit solution.
Second, it allowed Dominic Cummings to claim that elites were lining up to stop Brexit. Only a vote for Boris Johnson would allow the country to ‘get Brexit done’ and move on. The result was a large Conservative majority in the 2019 election. Still, it could be argued that both judgments highlighted the fact that the court had rather limited powers to do much to thwart Brexit. It was principally a question for Parliament.
There have been other contentious judgments in recent years, although the number remains quite small. In November 2023, the Court found against the government’s proposed Rwanda scheme. Yet few who actually read its judgment doubt its conclusions. More recently, the Court ruled on an important case on fossil fuel extraction, which critics argue was overly expansionary and may make future projects much more difficult.
Yet, in truth, the claims of activism are rather overblown and it is hard to directly link any supposed change in approach by the judges to a change of venue.
One of the most notable attacks on parliamentary sovereignty actually came from the House of Lords in Jackson v Attorney General (the 2005 Hunting Act challenge). Three judges made non-legally binding comments on the question of parliamentary sovereignty. They suggested that it might not be absolute and that the courts might reject any future attempt to subvert the rule of law – for example, if the government sought to abolish judicial review. These views were decisively rejected by the former Senior Law Lord, Lord Bingham, in his well-known book The Rule of Law.
If you look more closely, you can also see push-back from the court against claims that it is pushing constitutional boundaries. The President of the court, Lord Reed, delivered a judgment which criticised organisations that brought legal challenges against the two-child benefit limit ‘as a means of continuing their campaign’.
Appearing before the Lords Constitution Committee, Reed accepted there was an issue with political cases being brought before the courts. Yet he argued that judges were ‘repelling them’ and that they were ‘careful to avoid straying into what are genuine political matters.’
Arguably a bigger misstep during the move to the Supreme Court was not legal, but rather an effort to make the senior judges better known, via speeches and appearances on television. This turned some of them into personalities and seems unwise – particularly when commentators began suggesting that Hale and Lord Sumption appeared to express competing judicial philosophies.
If senior judges are perceived to air their views when speaking – particularly out of court – they will discover people are rather more interested in who is appointed. They will also find it harder to step behind the veil of impartiality when politicians respond to adverse judgments. Happily the Reed-led court appears to have rowed back from this trend since 2020.
What would a visitor from the past make of the Supreme Court? Its approach to the law is little different from that of the former Law Lords. The quality of appointments remains high. There are some more women on the bench (although fewer than many will have hoped for – only two of the 12 Justices are women). Perhaps the most striking change was the installation of that atrocious carpet – which must now surely be due for replacement.
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