Mustafaen Kamal was shortlisted as a top five finalist for the UK Supreme Court Essay Prize. The prize was commissioned to mark the 15th anniversary of the Supreme Court of the United Kingdom. In October 2009, the Supreme Court of the United Kingdom replaced the Appellate Committee of the House of Lords as the highest appeal court in the United Kingdom. The prestigious essay competition was judged by Lady Simler, Justice of the Supreme Court. Entrants were asked to answer the question, “As the Supreme Court approaches its 15th anniversary, what reflections would you offer on its role and achievements?”
Mustafaen’s essay is an instructive read for anyone wishing to gain an understanding of the work of the court and its role in the English legal system.
As the Supreme Court approaches its 15th anniversary, what reflections would you offer on its role and achievements?
The Supreme Court (the “Court”) has successfully forged a role for itself in the latest layer of the palimpsest that comprises the UK constitution. Its foremost achievement lies in establishing itself as an independent institution, separate from the legislature, thereby fulfilling the objective of its inception. After considering the Court’s broader role, this essay will reflect on four of its key achievements: (i) upholding the principle of the separation of powers, (ii) enhancing the accessibility of the Court, (iii) contributing to constitutional stability, and (iv) reinforcing the UK’s standing as a global centre for court-based dispute resolution.
The role of the Court
The Court remains the highest appellate court in the land with a similar jurisdiction to its predecessor.[1] However, it has also assumed a symbolic role which distinguishes it from the former judicial role of the House of Lords. The Court was established to achieve a greater separation between the legislature and judiciary within the UK’s constitutional framework. The Law Lords were both members of the House of Lords and constituted the highest court in the land. These dual identities raised concerns about a perceived conflict of interest. For example, the case of R (Jackson) v Attorney General [2005][2] involved the Law Lords passing judgment on the respective powers of both houses of Parliament. In other words, they were judges in their own case. The Court’s current independence allows it to fulfil its legal function whilst extinguishing criticisms of undue influence from the legislature.
The achievements of the Supreme Court
In its fifteen years of existence, the Court has become an autonomous, accessible and stable branch of government with international stature.
Separation of powers
The Court has successfully cultivated a distinct identity for itself, reinforcing the judiciary’s role as an autonomous branch of government. The Court has achieved this by developing a unique physical and intellectual character that is not defined by an association with any other element of government. Physically, the Court’s existence outside of Parliament has provided it the requisite agency to spearhead initiatives more ably. For example, the Court has its own business plans, diversity strategies and accessibility policies. This independence has enabled the Court to achieve the outcomes discussed further below.
Intellectually, the Court has been independent minded in tackling constitutional transgressions. The two Miller judgments,[3] which are discussed further below, provide an example of the Court’s judicial decisiveness. This contrasts with the standard approach of the House of Lords, which exemplified a reluctance to assert constitutional limits on executive power. Liversidge v Anderson [1942][4] is often cited as an example of excessive judicial deference. Lord Atkin’s famous dissent argued that the courts should not simply accept the executive’s assertions at face value, an accusation that cannot be levelled at the Court in its current iteration. While the legal function of the Court has barely changed, its symbolic role as an independent institution with a distinct spatial and intellectual identity is a notable accomplishment.
Accessibility
The Court has successfully become an accessible institution. I will highlight three, non-exhaustive, means by which the Court has achieved this feat. The primary method has been to open proceedings to all, whereby anyone can watch the Court’s proceedings in-person or access archives online. At the time of writing, the UK Supreme Court YouTube Channel has amassed over 2.5 million views since its creation in 2012, and the Court welcomes over 50,000 visitors every year. Secondly, the justices provide brief and simple oral summaries of their findings, which serve as a great accompaniment to lengthier and more complex judgments. Such summaries have made important legal issues accessible to a larger portion of the population who might otherwise be reluctant to engage with dense legal arguments, and they are often distributed widely. Thirdly, the extensive efforts made by the Court to welcome younger visitors have helped to demystify the legal system and empower the younger generation to engage with, and potentially partake in, the UK’s legal system. Between 2022 and 2023, the Court received 5,000 students from 280 schools and universities. These visits were all conducted free of charge and frequently involved meeting with members of the Court. The Court is now more accessible than it has ever been.
Constitutional Stability
The Court has played a crucial role in maintaining constitutional stability by developing robust jurisprudence during a period of significant constitutional anxiety. In the fifteen years since its inception, the Court has operated amid considerable constitutional flux, marked by the UK’s withdrawal from the European Union, a global pandemic and unprecedented political turbulence. Many of the issues brought before the Court reflect public uncertainty over the UK’s constitutional arrangements. The Court has responded by balancing decisive action with judicial restraint. Notable interventions include the Miller cases. In Miller (No. 1), the Court ruled that the government could not trigger Article 50 to leave the EU without Parliament’s approval and in Miller (No. 2), the Court deemed the prorogation of Parliament unlawful. Both judgments (i) reinforced the primacy of parliamentary sovereignty and (ii) clarified the parameters of executive power. The Court’s clear reasoning and defence of core constitutional principles served as a stabilising contribution in a period of social upheaval.
At the same time, the Court has shown restraint in cases such as R (Nicklinson) v Ministry of Justice [2014],[5] where it upheld the prohibition on assisted suicide. The Court deferred to Parliament on this contentious issue. The Court recognised that while human rights were at stake, it was for the legislature, not the judiciary, to make such policy decisions. More recently, in R (SC) v Secretary of State for Work and Pensions [2021],[6] the Court declared that determining the level of social security benefits was “not only ill-suited to judges” but could “only be determined … through a political process.”[7] By recognising the limits of its own role, the Court has helped maintain a constitutional equilibrium.
International Stature
The Court has further buttressed the UK’s reputation as a global centre for court-based dispute resolution. The Court’s judgments regularly reinforce the UK courts’ reputation for “expertise, knowledge of the markets, their incorruptibility and their independence.”[8] A significant proportion of the cases heard in the Court involve international litigants who opt for their disputes to be heard under English law. For example, in The Law Debenture Trust Corporation plc v Ukraine,[9] Russia and Ukraine had nominated English courts to have exclusive jurisdiction. This exhibited a “striking level of confidence in British justice.”[10]
Furthermore, the Court’s judgments often have a significant bearing on the legal context of current affairs. For example, in Unicredit v RusChemAlliance,[11] the Court decided that an arbitration agreement was governed by English law and allowed an anti-suit injunction to prevent RusChemAlliance from pursuing litigation in Russia, favouring arbitration in Paris as per the contract. The judgment clarified that enforcing English law rights, even in cross-border disputes, does not conflict with international comity. This ruling is significant in the context of Russia’s invasion of Ukraine, whereby numerous parties are considering pursuing anti-suit injunctions against Russian entities. The judgment, like many others, promotes predictability in global commerce, supporting the UK’s status as a trusted jurisdiction for dispute resolution.
The Court has also exerted efforts to engage with different jurisdictions reflecting the increasingly international nature of the cases heard. For example, Justices attended a bilateral meeting with the Supreme Court of the Netherlands in March 2024, and Lord Reed visited the Supreme Court of Japan in November 2023. Such engagement is crucial for the Justices to share best practices, build awareness of the Court’s work, and allow the UK to remain a global centre of legal dispute resolution.
Conclusion
The Court has accumulated many achievements of note in its fifteen-year history. The foremost achievement has been to fulfil its raison d’être by reinforcing a separation of powers between the legislature and the judiciary. Beyond that, the court has improved accessibility, contributed to constitutional stability, and enhanced the UK’s international legal reputation. One area of improvement, despite recent advancements, remains the diversity of the Court. Lady Simler was only the fifth female justice appointed to the Court, and thus far, there has never been a non-white judge on the Court. Encouragingly, Lord Reed has made judicial diversity a strategic priority, signalling a commitment to making the Court more inclusive.
[1] The Court’s jurisdiction has expanded to hear devolution issues, including disputes about whether the devolved administrations have exceeded their legal powers.
[2] R (Jackson) v Attorney General [2005] UKHL 56, [2005] 3 WLR 733
[3] R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5, R (Miller) v The Prime Minister [2019] UKSC 4
[4] Liversidge v Anderson [1942] AC 206
[5] R (Nicklinson) v Ministry of Justice [2014] UKSC 38
[6] R (SC) v Secretary of State for Work and Pensions [2021] UKSC 26
[7] Ibid. at [208]
[8] Lord Hodge (2022), “The Rule of Law, the Courts and the British Economy”, p. 15
[9] The Law Debenture Trust Corporation plc v Ukraine [2023] UKSC 11
[10] Supreme Court of the United Kingdom (2023), “Annual report 2022-2023”, p. 22.
[11] Unicredit v RusChemAlliance [2024] UKSC 30
