Is the Supreme Court independent and neutral

Question 1

Question

Answer 1

Evaluate the view that the British Supreme Court remains independent and neutral.

Question 2

3 paragraph topics

Answer 2

• Neutrality
• Independence: supported by MPs?
• Independence: supported by judges?

Question 3

Judgement

Answer 3

The Supreme Court does not remain independent and neutral.

Question 4

Weaker argument neutrality

Answer 4

→ Judicial oath: “I will do right to all manner of people after the laws and usages of this Realm, without fear or favour, affection or ill-will.”
→ The Supreme Court is live streamed so that it’s accessible to everyone.
→ The judiciary is slowly becoming more diverse and this will increase the diversity of the Supreme Court over time:
- Lady Hale, (President of the SC between 2017-2020) said when she joined the Law Lords in 2004 she was the only women and the only state-educated judge. By the time she stepped down she was one of 3 female justices and one of 3 who were state-education.
- Since the establishment of the Judicial Appointments Commission the proportion of women recommended for the High Court increased from 13% pre-JAC to 29% in 2017-2018.

Question 5

Stronger argument neutrality

Answer 5

→ Increasing attack by the media on the character of judges:.
- After the Miller v Secretary of State for Exiting the EU (2017) ruling about Article 50 the press began analysing the justices’ backgrounds - they argued that 4 justices had formal links to the EU courts or institutions, 5 have expressed EU sympathies and 6 have personal relationships with “Remainers”.
→ Lord Neuburg (a former president of the SC) has criticised the attacks by the media.
→ Within senior judicial positions, at the high court and above, both women (30%) and fewer BAME members (5%) are underrepresented.
→ The Supreme Court in 2020 had only 2 female justices out of 12, no justice from an ethnic minority background and the majority were Oxbridge-educated.
→ As of 2022 the Supreme Court has returned to having just one female justice.

Question 6

Weaker argument independence supported by MPs

Answer 6

→ There are constitutional conventional that protect the independence of the Supreme Court these include:
○ Government should not use its contacts within the judiciary to influence decisions.
○ Ministers should exercise restrained when commenting on decisions by the Supreme Court.
→ Case that shows politicians support of the judiciary:
○ R (Miller) v The Prime Minister (2019) - Johnson, although unhappy with the ruling, did not attempt to undermine the legitimacy of the Supreme Court’s decision publicly.

Question 7

Stronger argument independence supported by MPs

Answer 7

→ The conventions are not enforceable rules that have consequences.
→ Despite Johnson not openly criticising the Supreme Court after the Miller ruling others did - Jacob Rees-Mogg called the ruling a “constitutional coup”.
→ Starmer questioned a Supreme Court decision over a family seeking asylum - his comments were subsequently criticised by Lady Chief Justice Baroness Sue Carr for not being neutral.
→ In 2013, Theresa May (Home Secretary) accused judges of making the UK dangerous by ignoring the rules aimed at deporting foreign criminals, because they felt Article 8 could not be curbed.
→ The decisions around Article 50 and prorogation of Parliament saw a growing willingness to criticise the courts.
→ High Court Ruling on Rwanda Deportation Scheme (2022–2023): Suella Braverman criticized “foreign judges” and said the government must “take back control” of immigration.

Question 8

Weaker argument argument independence supported by judges

Answer 8

→ R (Nicklinson) v Ministry of Justice (2014) - this case exemplifies the Supreme Court not getting involved in policy decisions.
→ R (SC, CB & 8 children) v Secretary of State for Work and Pensions [2021] UKSC 26 - Court upheld the benefit cap, even though it affected lone parents and children disproportionately. The court accepted that social and economic policy decisions lie with Parliament.
→ Lord Reed (current President of the Supreme Court) is widely seen as a proponent of judicial restraint. He often emphasizes: Respect for democratic institutions and limits of judicial authority in policy matters.

Question 9

Stronger argument argument independence supported by judges

Answer 9

→ This has been made more difficult since the passing of the HRA as more political questions have been bought before the court.
→ As a result the rulings of the Supreme Court have pushed Parliament to legislate:
○ R (Steinfeld and Keidan) v Secretary of State for International Development [2018] - pushed Parliament to legislate on civil partnerships.
○ R (on the application of GC) v The Commissioner of Police of the Metropolis (2011) - Parliament had to legislate on data.
→ There has been a rise in the number of cases of judicial review - the number of cases rose from 4,240 in 2000 to around 15,600 in 2013 with the vast majority being immigration/asylum cases.
→ In response to the comments made by Starmer and Badenoch in PMQs Baroness Sue Carr broke the “rules” on judicial restraint and criticised the PM and Leader of the Opposition for commenting in Supreme Court decisions.