Supreme Court Too Powerful Flashcards
(8 cards)
Introduction
In the evolving constitutional landscape of the UK, the Supreme Court has emerged as a visible guardian of legality and rights in an un-codified system. Critics argue that the Court now wields quasi-political authority, intervening in areas once left to Parliament and the executive- suggesting a drift towards judicial supremacy. Yet this view misconstrues the Court’s institutional role. The more persuasive analysis is that the UK Supreme Court acts within a restrained constitutional mandate, upholding foundational principles such as the rule of law, legality, while deferring to parliamentary sovereignty and political accountability. Far from becoming too powerful, it occupies a vital space in a system defined by flexible yet fragile constitutional checks.
1: constitutional assertiveness vs parliamentary sovereignty and legal restraint
It could be argued that the Court has become too powerful by asserting itself in fundamental constitutional disputes, thereby intruding upon Parliament’s prerogatives.
In Miller (No. 1) (2017), the Court overruled the government’s reliance on royal prerogative to trigger Article 50, affirming that rights granted under domestic law could not be nullified without explicit legislative authorisation.
Similarly, Miller (No. 2) (2019) marked an unprecedented moment where the judiciary intervened in parliamentary scheduling, ruling Johnson’s five-week prorogation unlawful as it frustrated the constitutional role of Parliament.
These interventions, though legally reasoned, effectively reset political processes—leading some to accuse the Court of displacing political accountability with judicial activism.
Likewise, R v Attorney General (2015), where the Court invalidated a ministerial veto preventing disclosure of Prince Charles’s letters, appeared to elevate judicial oversight above executive discretion, challenging the political conventions of ministerial responsibility.
1: constitutional assertiveness v parliamentary sovereignty and legal restraint
However, a more convincing argument is that these cases reaffirm constitutional fundamentals- namely parliamentary sovereignty and executive accountability- without transgressing legal boundaries.
Miller (No. 1) did not block Brexit; it ensured democratic legitimacy by requiring Parliament to legislate—a procedural, not policy, imposition. Miller (No. 2), although far-reaching, drew a line between political tactics and constitutional abuse, reinforcing the foundational principle that executive power must operate within legal limits.
In R v Attorney General, the Court checked an opaque use of executive veto that circumvented an Upper Tribunal order, reinforcing transparency and legality without displacing executive power wholesale. Crucially, the Court cannot strike down Acts of Parliament and has shown repeated deference to politically sensitive matters.
Its decisions often rely on narrow statutory interpretation and procedural review—powerful, yes, but constitutionally confined.
2: civil liberties enforcement v declarations of incompatibility and institutional restraint
It could be argued that the UK Supreme Court has accumulated excessive influence through its role in adjudicating human rights claims, and thereby shaping social policy and limiting legislative autonomy
In R (on the application of FB) (2023), the Court’s ruling against the Rwanda deportation scheme for breaching Article 3 of the ECHR (risk of torture or inhumane treatment) temporarily derailed a flagship government immigration strategy.
In R (on the application of SG) (2016), the Court declared the bedroom tax discriminatory against disabled people, and in R (on the application of Steinfeld & Keidan) (2018), the Court’s declaration of incompatibility forced the expansion of civil partnerships to opposite-sex couples—highlighting the Court’s capacity to influence social reform.
These judgments arguably empower unelected judges to define the moral contours of public policy, especially in contexts where elected representatives have resisted change.
2: civil liberties enforcements v declarations of incompatibility and institutional restraint
However, a more convincing argument is that the Court’s human rights role is structurally limited by section 4 of the Human Rights Act 1998: it may declare legislation incompatible, but cannot invalidate it.
In the Rwanda ruling, Parliament retained ultimate control—responding not with repeal, but with the Safety of Rwanda Bill 2024 and a revised treaty. The Court’s role was to ensure the executive respected binding legal obligations; it did not outlaw deportation in principle.
Even in SG, the government retained the cap, merely refining the rules for certain groups. And in civil partnership reform, it was sustained public and legal pressure—not judicial command—that prompted legislative change.
The Court enhances deliberative democracy by highlighting where laws may breach fundamental rights but consistently defers the final say to Parliament. Its power lies in persuasion, not imposition.
3: rule of law interventions v non-retroactivity, political deference and pragmatic restraint
It could be argued that the Court has become too dominant by reinterpreting long-standing doctrines and asserting itself even in matters of national security and criminal justice.
In R v Jogee (2016), it overturned decades of joint enterprise law, ruling that mere foresight of a crime was insufficient for criminal liability—redefining the basis of secondary culpability and prompting fears of destabilising legal precedent.
In R (on the application of Privacy International) (2019), the Court struck down a sweeping ouster clause in the Investigatory Powers Act that barred judicial review, reaffirming its jurisdiction even over national security decisions.
These rulings suggest that the Court not only protects procedural fairness but also challenges the boundaries of executive and legislative insulation—potentially undermining the effectiveness of government in sensitive areas.
3: rule of law interventions v non-retroactivity, political deference and pragmatic restraint
However, a more convincing argument is that these interventions demonstrate principled restraint not judicial dominance.
Jogee corrected a misapplication of the law without creating a floodgate—previous convictions were not automatically overturned and required appeal, preserving finality in criminal justice.
In the IPT ruling, the Court’s objection was narrow, targeting only the exclusion of judicial review—not the legitimacy of surveillance or intelligence powers.
Even in landmark national security cases like Belmarsh (2004), while the Court found indefinite detention of foreign terror suspects unlawful, it accepted the replacement policy of control orders, and later TPIMs—showing that it does not block executive aims, but channels them through proportional legal scrutiny.
This reflects a sophisticated balance: upholding rule of law principles while accommodating legitimate governmental interests. The Supreme Court has not become too powerful—it has become constitutionally necessary in preserving legality in an era of increasingly assertive executive power.
Conclusion
While the UK Supreme Court has become more prominent in adjudicating constitutional and human rights matters, this should not be mistaken for overreach. Its powers are constitutionally delimited- it cannot invalidate primary legislation, must respect parliamentary sovereignty and has repeatedly deferred to elected institutions on matters of policy. Far from being too powerful, the Court acts as a crucial arbiter of legality in an un-codified constitution, protecting rights, constraining abuse and reinforcing democratic accountability. Its assertiveness reflects the demands or modern governance, not judicial supremacy.
