ETV the UKSC is neutral and independent + others (UKSC)

Arguments

1. Structural independence vs Executive dominance

2. Legal neutrality vs Judicial activism and value judgements

3. Impartial constitutional check vs Bias, elitism and judicial deference

Structural independence

• Constitutional Reform Act (2005)

  • Created Supreme Court

  • Separated highest court from Parliament - removed Law Lords

• Independent Judicial reviews

  • Supreme Court judges not directly chosen by ministers

  • Merit based

  • Independent selection commissions

• Security of tenure:

  • Cannot be dismissed by government

  • Justices removed following address by both houses to the Monarch - never used before

• Protected salaries:

  • Executive cannot reduce a judge’s salary

  • Judicial salary protected by law

• Judicial immunity:

  • Judges cannot be sued for decisions made in judicial capacity

Executive dominance

Executive circumvent UKSC rulings:

• AAA v Secretary of State for Home Department (2023) - Court ruled unanimously Rwanda removal policy was unlawful as it then existed - risk of ‘refoulement’

  • UK and Rwanda negotiated new legally binding treaty - provisions on treatment of relocated asylum seekers and restrictions on removal from Rwanda etc

  • Safety of Rwanda Act (2024) - required courts to treat Rwanda as safe country

Political pressure:

• Daily Mail headline “Enemies of the people” (2016) - after High Court ruled Parliament had to authorise triggering Article 50

Legal neutrality

• Judicial review - assesses whether decisions were lawful

• Law of rule and consent of the people

• Uphold HRA:

  • P v Cheshire West and Chester Council (2014)

    • P adult with cerebral palsy and down syndrome living in staffed care setting

  • P and Q v Surrey CC (2014)

    • P and Q, two sisters living in foster and residential care arrangements

    • Supreme Court ruled all three individuals deprived of their liberty (Article 5 ECHR)

    • ‘Acid test’ created - Deprived of liberty is under continuous supervision and control and they are not free to leave

  • RM (Zimbabwe) (2020)

    • RM = foreign national offender facing immigration detention

    • Court ruled immigration detention only lawful within strict limits (Hardial Singh principles)

Judicial activism and value judgements

• Clashes between rights

  • For Women Scotland vs Scottish Ministers (2025) - Court unanimously held that ‘woman’, ‘man’ and ‘sex’ in Equality Act 2010 refer to biological sex

  • Trans people remain protected under Equality Act through gender reassignment characteristic

• Court intervention

  • Miller (1) (2017) - Court ruled (8-3) Parliament’s approval was required to trigger Article 50 - ministers could not used prerogative powers

  • Miller (2) (2019) - Court ruled courts could review legality of prorogation & prorogation is unlawful if frustrates or prevents Parliament from carrying out in constitutional functions without reasonable justification

    • Therefore prorogation was void - Parliament reconvened immediately

• Judicial activism

  • Finch vs Surrey CC (2024) - Supreme Court ruled (3-2) planning permission for oil extraction project was granted unlawfully - greenhouse gas emissions produced later by extracted oil should have been assessed within Environmental Impact Assessment (EIA)

Impartial constitutional check

• Scottish Referendum Case (2022)

  • Under Scotland Act 1998, UK Parliament reserved matters concerning union between Scotland and England

  • UKSC unanimously held that Scottish Parliament does not have competence to legislate proposed referendum

• Judicial Review: Liberty vs Home Secretary (2024)

  • High Court ruled for Liberty that Home Secretary exceeded powers of Parliament (ultra vires) - could not lower threshold for police intervention in protests from “serious disruption”

  • Court of Appeal upheld ruling in 2025

Bias, elitism and judicial deference

Social composition:

• 2/12 women

• Nearly all Oxbridge and private or grammar educated

• No ethnic minorities

• Average age 69 years

Under Lord Reed:

• 63% of judicial reviews favour government

• Parliamentary sovereignty over activism

Deference to gov:

• Shamima Begum (2021 & 2024)

  • 2021 - Court of Appeal ruled Begum could not effectively participate in her appeal for UK citizenship while detained in Syria thus should be allowed to return to the UK

  • UK gov appealed to UKSC

  • UKSC unanimously ruled against Begum

    • National security concerns take priority - decisions about national security are primarily for executive not judiciary

    • Right to fair hearing does not override national security concerns

    • UKSC criticised Court of Appeal - courts should show deference to Home Sec judgement when national security involved

    • Suggested postponing appeal rather than admitting person to the UK

  • 2023 - Special Immigration Appeals Commission dismissed her appeal

  • 2024 - Case went to Court of Appeal who upheld SIAC decision

  • 2024 - Supreme Court refused permission to appeal

Alternative UKSC questions

ETV the UKSC is politicised

ETV the UKSC has too much power over parliament and the government

ETV the UKSC provides effective and legitimate checks on the power of the executive

ETV UKSC is too politicised

1. Judicial activism vs Legal neutrality

2. Influence over constitutional changes vs parliamentary sovereignty / executive dominance

3. Political pressure/ executive dominance vs Independence safeguards/ separation of powers

ETV the UKSC has too much power over parliament and the government

1. Judicial review (ultra vires) vs Parliamentary sovereignty (judiciary cannot strike down primary legislation & Parliament can pass new legislation)

2. Declarations of incompatibility (under HRA) vs Structural limitations (non binding, unentrenched rights)

3. Judicial activism (value judgements, lack of accountability) vs legal neutrality (must examine legality)

ETV UKSC provides effective and legitimate check on power of executive

1. Judicial reviews (limit acts of ultra vires) vs Executive dominance (P passes new legislation, UKSC cannot strike down primary legislation)

2. Rebalances relationship between Parliament and Executive (Miller 1 and 2) vs Judicial overreach (Rwanda ruling 2023

3. UKSC structural independence (CRA, JAC, unelected) vs Structural limitations (cannot initiate cases, bound by the law, parliamentary sovereignty)

ETV has too much power over Parliament

?

Evidence - cases

Rwanda (2023) → Rwanda Safety Act (2024)

Average 2500 JR applications per year (2020-25) - only 8% reached court - of these 50% successful - one day hearing costs £25,000-£40,000

Miller (1) (2017)

Miller (2) (2019)

Yvette Cooper (Home Sec) announced government reviewing how article 8 is applied in migration cases - concerned courts too willing to avoid deportation