Law, Politics and Constitutional Tension: Reflecting on the Supreme Court After the Election

The Supreme Court: structure and constitutional position

Before 2009, the UK’s most senior judges sat as Law Lords within the House of Lords, illustrating a fusion between the legislative and judicial branches.

The Constitutional Reform Act 2005 authorised the creation of the UK Supreme Court, which formally opened in 2009. This separation strengthened judicial independence and clarified the boundaries between Parliament and the courts.

The Court comprises 12 Justices and serves as the highest criminal appellate court for the entire UK and the highest civil appellate court for England, Wales and Northern Ireland. It hears appeals only on matters of constitutional significance or those affecting the wider public.

Lady Hale, who was due to step down the following year, served as President of the Court. She is widely recognised for her contributions to family law, her commitment to modernising legal practice and her role in delivering the landmark prorogation judgment.

The Court hears around 100 appeals annually, sitting in panels of odd numbers to avoid tied decisions. Proceedings are open to the public and broadcast online to promote transparency.

A notable example of the Court’s constitutional influence is Commissioner of Police of the Metropolis v DSD and Anor [2018] UKSC 11, in which the Court held that the police breached Article 3 of the European Convention on Human Rights (ECHR) by failing to properly investigate allegations against taxi driver John Worboys. The ruling “continues to claim a presence in the news” following further sentencing.

Because the UK has an uncodified constitution, parliamentary sovereignty remains central. The Court cannot strike down Acts of Parliament or executive decisions. However, it may declare actions ultra vires or legislation incompatible with the Human Rights Act 1998 (HRA 1998), signalling that review is required. This contrasts with the US Supreme Court, which may invalidate legislation under its codified constitution.

Judicial–political relations: cooperation and challenge

Although the Supreme Court cannot overturn Acts of Parliament, it has issued significant constitutional rulings affecting government policy.

Civil partnerships and equality

In R (Steinfeld and Keiden) v Secretary of State for International Development [2018] UKSC 32, the Court held that sections of the Civil Partnership Act 2004 were incompatible with Articles 8 and 14 of the ECHR.

The appellants argued that opposite‑sex couples were unfairly excluded from civil partnerships. Parliament had not yet decided whether to abolish civil partnerships or extend them. The Court unanimously held that a temporary period of unequal treatment was unjustifiable and strongly recommended legislative reform.

The prorogation judgment

In 2019, Boris Johnson advised the Queen to prorogue Parliament shortly before the Brexit deadline. Although prorogation is a standard procedure before a Queen’s Speech, the timing raised concerns that MPs would be prevented from scrutinising the government’s Brexit plans.

Legal challenges followed, and the Supreme Court delivered a unanimous ruling. The Court held that the prorogation was “unlawful,” “null” and “void,” stating that it had the effect of “stymying” Parliament’s ability to carry out its constitutional functions. MPs returned to the Commons immediately. The government accepted the ruling, although debate continued over the Court’s role.

Post‑election analysis: constitutional questions ahead

Did the Court overstep?

Some critics argued that prorogation was a political matter rather than a legal one. However, the Court emphasised that its ruling did not concern Brexit policy but the legality and constitutional effect of suspending Parliament. As your attached document states, the Justices maintained that the case was not about “when and on what terms” the UK would leave the EU, but about the limits of executive power.

Others argued that unelected judges should not intervene in political disputes. Yet the Court’s role as final arbiter of constitutional matters provides a clear basis for its involvement.

Will future conflict arise?

During the election campaign, the Conservative Party signalled interest in reviewing constitutional arrangements, including the role of the senior judiciary. Some commentators interpreted this as political retaliation for the prorogation ruling.

Proposals to “update” the HRA 1998 also raised concerns, given the Court’s ability to assess government actions against Convention rights.

Should the UK adopt a codified constitution?

The recurring tension between law and politics has revived debate about whether the UK should adopt a written constitution.

A codified constitution could provide clarity during crises, such as Brexit. However, it could also grant judges greater power to strike down legislation, raising questions about democratic accountability. The US experience illustrates both the benefits and challenges of such a model.

Final thoughts

The interaction between the judiciary and the political branches is complex and evolving.

For student lawyers, understanding these constitutional dynamics is essential. As your attached document concludes, “we will soon be back with posts on the crossover between the law and politics,” and these debates will undoubtedly continue as the UK navigates new political and legal landscapes.