Accused by critics of political activism, the UK Supreme Court is under more pressure than ever before, raising the question: what should the umpire in a democracy look like?by Alex Dean / January 20, 2020 / Leave a comment
In the autumn, millions of people went online to watch a live-streamed event. This was not some sporting tournament but the proceedings of the UK Supreme Court. Detailed legal arguments were put forward and considered; opposing views were heard on constitutional precedent stretching back to the 1600s. I watched the viewer tally tick up and up. Yes, these are unusual times for the UK judiciary. And in many ways, they are frightening ones.
There is no question our highest court is in the public eye more than ever. In the wake of recent judgments its fame has rocketed. The case on Article 50 in 2017, led by Gina Miller, caught the public imagination like no other case beforehand. The second Miller case on Boris Johnson suspending parliament in September 2019 hit another level of interest.
Lady Hale, then the court’s president, became a superstar. In October I even went to the launch of an illustrated children’s book called Equal to everything: Judge Brenda and the Supreme Court. The spider broach became iconic, as did her self-designation as a “girly swot,” a response to Johnson’s disparaging description of David Cameron. Progressives, who see Hale as one of their own, quickly took up the label with pride.
So the court is more prominent. But it is also far more controversial. Indeed the judges have been at the centre of a political firestorm in recent months and the future of the court is uncertain. Some commentators, especially on the conservative side, accuse the judges of judicial overreach. They say they have strayed into the political sphere, where they do not belong, and are taking decisions that under our constitution should properly be left to politicians.
If judges become celebrities in their own right (the thinking runs), the subject of tributes and even children’s books, that is a sure sign they have grown too big for their boots.
Shortly before Hale stepped down, Lord Dyson, an impressive former Supreme Court judge who overlapped with her, told me “maybe I shouldn’t say this but I will. I do think Brenda, who I’m extremely fond of and know very well, I think she’s beginning to see herself as a bit of a media star. And once she’s ceased to be a judge that’s OK… But while still in post, once she…