Is Supreme Court neutral and independent?

Structure of essay?

• P1 - How judicial neutrality is protected

• P2 - How judicial independence is protected

• P3 - The creation of the court

P1 - How judicial neutrality is protected - does operate with enough neutrality and independence

• It can be argued that the Supreme Court operates with sufficient

  judicial neutrality, as judges are highly experienced and are trained to

  apply the law with restraint, basing all its decisions on legal

  considerations and not playing a political role.

• Crucially, under the doctrine of parliamentary sovereignty, the UK Supreme

  Court does not have the power to strike down primary legislation. This is a

  major constitutional safeguard of neutrality because it prevents judges from

  overriding Parliament and creating law themselves.

  • The Supreme Court is limited to legal judgement rather than political

    decision-making, helping protect its neutrality.

• In Allister & others v Secretary of State for Northern Ireland (2023), the

  Supreme Court unanimously dismissed an appeal from the DUP that

  challenged the lawfulness of the Northern Ireland Protocol.

  • The Court ruled that the Protocol was legally compatible with the Acts of

    Union 1800 and the Northern Ireland Act 1998, stating that the “clearly

    expressed will of Parliament” could not be overridden.

• This therefore shows how the Supreme Court is neutral, because it

  demonstrates how judges defer to the will of Parliament as set out in

  statute.

P1 - How judicial neutrality is protected - does not operate either enough neutrality and independence

• On the other hand, it can be argued that the Supreme Court does not

  operate with sufficient neutrality because its narrow and socially

  unrepresentative composition undermines its ability to rule

  impartiality, due to unconscious bias.

• The UK Supreme Court has been criticised or being socially and demographically unrepresentative in terms of tender, age, education, class, and race. It is argued that the Court’s narrow composition potentially to an inability to fully understand issues pertaining to certain individuals.

  • Of the current 12 judges, 11 are white, 10 are male, 11 have studied ad Oxbridge, 12 are 60 or over, and majority were privately educated.

  • This led to The Times, in 2011, naming the Supreme Court as ‘pale, male, and stale’

• Can further be seen in the significant case in the case of R v Brown in 1994 where the Supreme Court held that legally aged homosexuals could not consent to sadomasochistic acts due to consent not being a valid defence.

  • Critics, then, and now, argue that the ruling was insensitive to more socially acceptable sexual practice in society, especially within homosexual culture.

• This shows how the Court’s narrow composition, can weaken neutrality as judges may not be able to fully understand the groups affected by their decisions, and therefore their rulings can be seen in their own unconscious bias in favour/ against a sect.

P2 - How judicial independence is protected - does operate with enough neutrality and independence

• On the one hand, it can be argued that the Supreme Court does operate

  with sufficient judicial independence, because this is guaranteed by a

  number of important measures including security of tenure, protection

  of pay and sub judice rules.

• Structural protections help ensure the Supreme Court can make decisions

  independently, without fear of punishment or political retaliation. Even if the

  government disagrees with a ruling, it cannot simply remove judges, reduce

  their pay, or put public pressure on the court mid-case.

  • This is especially important in cases where the Court may rule against the government. This strengthens the argument that the Supreme Court is independent and is able to uphold statute, constitutional principles, and legal precedent.

• Judges can't be removed from office unless they break the law or are

  impeached by a vote in both houses of parliament. The only limit on their

  service is an official retirement age of 70, which is known as a security of

  tenure.

  • This ensures they are protected from being dismissed for unpopular

    rulings.

• Judges' salaries are paid automatically from an independent budget known

  as the consolidation funds, which can’t be manipulated by the government

  and they are paid well so that there is less incentive for them to be influenced

  by financial pressure from political actors.

  • The current salary of Supreme Court justices is £269,530.

• Sub judice rules prevent members of parliament, government ministers and

  the media from publicly speaking about impending or ongoing legal

  proceedings.

  • This is intended to prevent the media and politicians from influencing

    the outcome of court cases.

• These protections reinforce judicial independence because they allow judges

  to make decisions based on law rather than political consequences. Even if

  the government dislikes a ruling, it cannot simply sack judges, cut their pay,

  or interfere mid-case.

P2 - How judicial independence is protected - does not operate with enough neutrality or independence

• The Supreme Court’s independence and neutrality has also been

  threatened in recent years by growing media scrutiny, which weakens

  structural protections by damaging public trust and increasing

  pressure on judges.

• In recent years, judges have become far less anonymous and have

  increasingly been drawn into public controversy, particularly in relation to

  Brexit and immigration cases. Media coverage framing decisions as political

  rather than legal damages the perception that the Supreme Court is neutral

  arbiter and politicises the Court.

  • This threatens both neutrality (the perception that judges are impartial) and

    independence (the ability to make rulings without political influence).

• After the Supreme Court ruled in 2019 that Boris Johnson’s prorogation of Parliament was unlawful, various right wing commentators and Johnson allied described the Supreme Court judges as ‘arch-reaminers’, suggesting it was politically motivated.

• Further, in February 2025, head of the judiciary, Lady Sue Carr, wrote to th government to express concern about comments made in PMQs

  • Starmer had agreed that the resettlement of a Gazan family in the UK was a ‘completely wrong decision’

  • Carr said that Starmer failed to respect and protect the independence of the judiciary, and any dissent should be made through the appellate process.

• This shows that judicial independence and neutrality has been threatened,

  as the judiciary has become a target of political and media pressure. Even if

  judges remain legally protected, repeated attacks can weaken the Court’s

  neutrality, as it undermines the perception that judges exercise their

  functions without being influenced by their own personal bias or political

  opinions.

P3 - The creation of the Supreme Court - operates with enough independence and neutrality

• Finally, it can be argued that the Supreme Court does operate with

  sufficient judicial independence, because it was deliberately created

  to be institutionally separate from the executive and legislature,

  reducing the risk of political influence over judges.

• Before the creation of the Supreme Court, the UK’s highest court was the

  Appellate Committee of the House of Lords, made up of the Law Lords.

  This raised concerns about judicial independence because the Law Lords

  were formally part of the legislature, creating a fusion of powers.

  • This is significant because judicial independence relies not only on judges

    making impartial decisions, but also on the public having confidence that

    judges are not influenced by political institutions.

• Labour passed the Constitutional Reform Act (CRA) 2005, which created

  the UK Supreme Court in 2009. This increased the independence of the

  judiciary by separating the Supreme Court from Parliament, ending the

  system where the Law Lords sat inside the House of Lords.

  • The Court was also physically separated from Parliament, moving

    into its own building in Parliament Square, reinforcing its visible

    independence and autonomy from other branches of government.

• This shows how the Supreme Court’s independence is protected both

  legally and publicly, by creating a clearer separation of powers.

P3 - The creation of the Supreme Court - does not operate with enough independence and neutrality

• On the other hand, it can be argued that the creation of the Supreme

  Court didn’t make it sufficiently neutral, as the court became

  increasingly politicised since the passage of the Human Rights Act,

  which was done at a similar time by Blair’s government.

• Since the passage of the Human Rights Act 1998, the Supreme Court (and

  previously the Law Lords) has been given a much more assertive role in

  protecting rights and challenging the actions of the elected branches.

  • Section 3 requires judges to interpret legislation “as far as possible” in

    a way that is compatible with the European Convention on Human

    Rights (ECHR). This can encourage judges to reinterpret legislation in

    ways Parliament may not have intended.

  • Section 4 allows the Court to issue a declaration of incompatibility,

    effectively stating that an Act of Parliament breaches human rights.

    This draws it into the political fray, asking the court to judge the merits

    of legislation passed by Parliament rather than simply ensuring this

    legislation is effectively implemented.

• In Jackson and Simpson v Secretary of State for Work and Pensions (2020), the Supreme Court issued a declaration of incompatibility, finding the UK’s bereavement benefit rules denying higher payments to unmarried couples incompatible with Article 14 and Article 8 of the ECHR, which covers right to family life.

  • Following the ruling, Parliament passed the Bereavements Benefit Order in 2023 to address the ruling.