• Ben Oswald

The Supreme Court: Unfit for Political Purpose

Last year’s highly publicised trial of Miller/Cherry, in which the Supreme Court, and Lady Hale, in particular, overruled Prime Minister Boris Johnson’s attempt to prorogue Parliament, was met with controversy. The decision raised eyebrows within the legal profession, with many believing the Court to have been flexible within the definition of what it considers “judicial”. Consequently, a selection of political commentators and legal professionals have begun to question the increased involvement of courts in the political sphere; an area in which it previously appeared to have had less jurisdiction.


Figures such as Wyatt QC have levelled damning criticisms against the Supreme Court. In his paper, “Should the Supreme Court Be Abolished”, he alludes to the accusation that the Supreme Court has been “guilty of creative legal accounting”. Due to the “elasticity” of the law, it appears that the Supreme Court can manufacture a pathway through which it is able to not only involve itself in political discourse but also shape it. Such “elasticity” enables judges to mould the law to suit a judgement which fits neatly with their own world view.


This prospect should fill us with worry. Such concern, however, does not originate from any disagreement with the outcome decided. Whether one agrees with the outcome given by the Supreme Court on the above issue is wholly irrelevant. Rather, this is a matter of process and how decisions are or should be made. Political commentator Peter Hitchens refers to the comments of former Labour Party member Tony Benn, and his five questions of democracy:

  1. What power have you got?

  2. Where did you get it from?

  3. In whose interests do you use it?

  4. To whom are you accountable?

  5. How do we get rid of you?

The answers to such questions fail to alleviate any worries, but rather accentuate them. It appears that, through its ability to overrule the government in the case of Miller/Cherry, the Supreme Court has been awarded a great deal of power. The assignees of such power? Certainly not the public. As the highest court in the land, it appears to be accountable to nobody but itself. Nor is it entirely clear how, or even whether, we can get rid of them. As Hitchens posits, the Supreme Court seems to be “as significant as the Cabinet, but its members are for the most part a mystery to us”.


One remedy in response to such criticism is offered by Wyatt who suggests structural reform to overcome the issue of accountability. He calls for the Supreme Court to be replaced by “panels of five or more judges” who are selected on an ad hoc basis by the Court of Appeal of England and Wales, the Court of Appeal in Northern Ireland, and Scotland’s Inner House of the Court of Session. This, Wyatt forecasts, would provide a more diverse “judicial base of the final court of appeal”, adding that because such judges are familiar with ruling on cases at lower levels, they would also be “accustomed to the discipline of writing judgements which would be subject to the scrutiny of their fellow judges”.


Whilst such a proposal does appear to rein such judges in from the stratospheric heights of authority currently afforded to them by the Supreme Court, this success is superficial. Wyatt’s proposal, it can be argued, fails to deal with the crux of the issue: the figures who decide matters of law are neither appointed by, nor accountable to, the electorate. We cannot, surely, allow such figures to utilise the law as a gateway to decide wider matters of policy.


Sceptics of this view would argue that the aforementioned “elasticity” of the law is overstated and that Courts only interfere where they are legally entitled and obliged to do so. This debate is, after all, plagued by disagreement within the profession. However, aside from the question of whether it is consistent with the democratic process for the law to involve itself in steering the political direction of this country, it appears that the very nature of the law renders it wholly unsuitable to do so.


Of course, one may argue that the law, which is governed by clarity and logic, is a perfect mode of political decision-making. The judgements are cogent and consistent; qualities which the electorate have surely craved in recent political climates plagued by uncertainty. This viewpoint, again appealing upon first glance, is flawed. The voice of such criticism is led by Lord Sumption (himself a former member of the Supreme Court), who posits that the aforementioned alluring legal qualities of consistency and clarity are the exact grounds on which the courts are unsuitable for such a pursuit. He argues that such consistency embodies the law’s inability to enact compromise.


Compromise, he asserts, is the very commodity which enables us to accommodate and represent differing political interests of the electorate; a feature which forms the bedrock of any harmonious society. Such compromise, he adds, cannot be achieved through the exact and absolute rulings of the court. The ruling of a judge must, necessarily, be clear, logical, and absolute in nature. While the law itself may be elastic, a final set judgement is ultimately always enacted. This allows no room for compromise; one side is judged as right, and other alternative opinions are wholly dismissed as wrong. The law thus cannot effectively perform the act of mediation. Only the political process, he posits, which includes the consultation of the electorate in order to help form decisions and elect those who make it, can fully do justice to this notion of compromise and represent the rich and nuanced variety of views possessed by the public.


The government should represent and, therefore, to a large extent, mirror, the varied (and even at times, confused) opinions of its voters. This may appear somewhat illogical and counterproductive on the surface, but in reality, is how an atmosphere of political inclusion, and thus harmony, is achieved. Yet a society of harmony must not be mistaken for one of perfect consistency. Not everyone will agree with a certain political view, nor should we want them to. Enforcing political conformity, as the courts would necessitate, holds dangerous implications to the liberty of citizens which we should guard against at all costs. It appears that we must, therefore, recognise the Supreme Courts’ intrusion into politics whilst calling it out for what it is; undemocratic and unsuitable.