The exam board rotates which topic gets the Section A source question each year. The UK judiciary has not been the source topic since 2021. Five years is a long time for any one topic to wait, so judiciary is overdue.
Four recent events make a question on judicial activism very likely this summer. First, the Supreme Court's November 2023 ruling that Rwanda was not a safe third country directly blocked a flagship government policy. Second, Parliament responded in 2024 with the Safety of Rwanda Act, which simply declared Rwanda safe by statute and overrode the Court's finding. Third, the use of Section 35 of the Scotland Act in 2023 to block Holyrood's Gender Recognition Reform Bill brought judicial-political tension back into the spotlight. Fourth, the 2025 examiner report praised answers that handled the Court / Parliament balance with named cases rather than general theory. All four point to a Q1(a) source question on this area.
This is a Section A source question worth 30 marks. Marks split roughly equally between AO1 (your knowledge of how the Supreme Court works), AO2 (analysis of what the SOURCE actually says, not just what you know), and AO3 (your judgement, where you pick a side and stick to it).
The source you get on the day will be similar in structure to this. It will carry TWO clearly-labelled views: one that agrees with the question's claim, and one that disagrees. Your job is to compare and contrast the two views, debate them in a balanced way, and reach your own judgement using only the information in the source.
The UK Supreme Court has crossed the line from law into politics. The 2017 Miller ruling forced the government to put the Article 50 notification to a parliamentary vote on a question voters had already decided in a referendum. The 2019 Miller / Cherry ruling on prorogation pulled the Court directly into the centre of a Brexit political dispute, and was decided eleven justices to nil against the government. The 2023 Rwanda ruling killed a flagship asylum policy the elected government had been pursuing for over a year. Lord Sumption's 2019 Reith Lectures warned that the judiciary was steadily expanding the territory it patrols and reducing the territory left for elected politicians. The Constitutional Reform Act 2005 was supposed to create a Supreme Court that did the same work as the old Law Lords more visibly. Instead the visibility has fed a new self-confidence. The Court now strikes at the heart of executive policy in a way it would not have done before 2009.
The Court strikes down executive action when ministers use prerogative powers unlawfully, and steps back the moment Parliament passes a statute. Miller 1 (2017) protected Parliament's right to legislate on Article 50, which is a defence of Parliament, not a power grab against it. Miller 2 (2019) was unanimous and decided narrowly on the constitutional limits of prerogative. In Begum (2021) the Court refused to second-guess the Home Secretary on national security, using the language of judicial deference. After the 2023 Rwanda ruling Parliament responded with the Safety of Rwanda Act 2024, and the Court accepted that response - proving Parliament still has the last word. The Court has never struck down primary legislation, and it cannot. The most it can do is issue a declaration of incompatibility under the HRA, which has no legal force. The Court is not policing politics; it is policing the boundary between executive prerogative and parliamentary sovereignty, which is the job the Constitutional Reform Act 2005 gave it.
This side argues that since the Constitutional Reform Act 2005 and the creation of the Supreme Court in 2009, the Court has steadily moved into territory that used to belong to elected politicians. The evidence falls into five areas: the visibility of the new Court, the Miller rulings, the Rwanda chain, the rise of public criticism by former Justices, and the rise of judicial review more generally.
The Constitutional Reform Act 2005 took the highest court out of the House of Lords and put it across Parliament Square in Middlesex Guildhall. It began work in October 2009. Lord Sumption (a former Supreme Court Justice) argued in his 2019 BBC Reith Lectures that visibility changed everything - a Court visibly separate from Parliament feels free to act separately from Parliament. The institutional design encouraged the activism. Critics call this the "judicialisation of politics".
Gina Miller successfully argued the government could not trigger Article 50 by royal prerogative alone. The Court ruled 8-3 that an Act of Parliament was required. Critics said this overrode a referendum result. Defenders said the Court was protecting Parliament from the executive. Either way, the ruling forced the government into the European Union (Notification of Withdrawal) Act 2017 just to start the Brexit process. The point is that the Court inserted itself into the procedural design of Brexit.
The Court ruled unanimously - 11-0 - that Boris Johnson's advice to the Queen to prorogue Parliament for five weeks was unlawful because it frustrated Parliament's constitutional functions during a Brexit crisis. The unanimity is the activism case's biggest weakness, because it is hard to call a 11-0 ruling political. But the ruling was the first time in history the Court had ruled directly on the exercise of a personal royal prerogative. Critics called it overreach. James Eadie KC, the government's barrister, argued the matter was non-justiciable. The Court disagreed.
In November 2023 the Supreme Court ruled that Rwanda was not a safe third country for asylum seekers, under the Refugee Convention and Article 3 ECHR. The ruling killed the government's flagship asylum policy. Suella Braverman, recently sacked as Home Secretary, openly accused the Court of frustrating the will of the elected government. The Sunak government responded with the Safety of Rwanda Act 2024, which declared Rwanda safe by statute. View 1 reads this as proof of the conflict: the elected government had to write a statute to undo what the Court had done.
Lord Sumption's 2019 Trials of the State and the 2019 Reith Lectures are the canonical case for View 1 from inside the senior judiciary. Sumption argues that the Court has reduced the space for democratic politics by treating more and more questions as questions of law. Several Conservative MPs, including former Lord Chancellor Robert Buckland, have made the case for a reformed Judicial Review Act to rein in the Court. Truss's brief Bill of Rights Bill (2022, withdrawn) was part of the same tradition.
| Case / Event | Year | What it shows |
|---|---|---|
| Miller 1 | 2017 | Article 50 needs an Act of Parliament; Court inserts itself into Brexit procedure |
| Miller 2 / Cherry | 2019 | 11-0 ruling prorogation unlawful; first ruling on personal royal prerogative |
| Rwanda | 2023 | Killed flagship asylum policy on safety grounds |
| Sumption Reith Lectures | 2019 | Former Justice publicly warning against judicial overreach |
This side argues that what looks like activism is the Court doing exactly the job the Constitutional Reform Act 2005 gave it - policing the boundary between unlawful executive action and lawful parliamentary action. The evidence falls into five areas: the limits the Court itself has accepted, Begum, the Safety of Rwanda Act, Section 35, and the underlying fact that the Court cannot strike down statute.
The most important constitutional fact in this debate is the simplest one. The Supreme Court has never struck down primary legislation, and it cannot. Under the HRA 1998 it can issue a declaration of incompatibility, but that has no legal force - Parliament can ignore it. Compare that to the US Supreme Court, which can and does strike down federal statutes. The UK Court is not a US-style constitutional court. Calling it "too willing" is hard when its most extreme power is a declaration that does nothing in law.
Shamima Begum challenged the Home Secretary's decision to revoke her British citizenship. The Supreme Court ruled unanimously against her. The judgement used the explicit language of judicial deference - national security decisions are for the Home Secretary, not for the judges. A Court that was "too willing to constrain the executive" would not have ruled this way. The case is the single best counter to the Sumption thesis.
After the 2023 Rwanda ruling, Parliament passed the Safety of Rwanda Act in April 2024. The Act declared Rwanda safe in primary legislation and disapplied parts of the HRA in Rwanda removal cases. The Supreme Court did not push back. It accepted the statute. This proves the constitutional point - when Parliament speaks clearly, the Court steps back. View 1 reads the Rwanda chain as proof of conflict; View 2 reads it as proof of who has the last word.
The UK government used Section 35 of the Scotland Act 1998 for the first time in January 2023 to block the Scottish Gender Recognition Reform Bill. The Scottish government challenged the order in the Court of Session and lost in December 2023. The Court did not rule for the devolved legislature against Westminster. A "too willing" Court would have. The Court accepted that Section 35 is a power Parliament gave Westminster, and Westminster used it lawfully.
The Miller 2 / Cherry ruling itself uses the language of constitutional principle, not the language of policy. The Court did not say Brexit should be stopped. It said a five-week prorogation in the middle of a Brexit crisis was an unlawful use of the prerogative because it frustrated Parliament. That is a narrow legal ruling on the limits of executive power. Defenders argue it actually strengthened Parliament, which is the body the activist critique says is being undermined.
| Case / Event | Year | What it shows |
|---|---|---|
| Begum | 2021 | Court deferred unanimously to Home Secretary on national security |
| Safety of Rwanda Act | 2024 | Parliament overrode the 2023 ruling by statute; Court accepted it |
| Section 35 / GRR Bill | 2023 | Court did not strike down Westminster's use of statutory power over Holyrood |
| HRA declaration of incompatibility | From 1998 | Court's only HRA remedy has no legal force - Parliament can ignore it |
Edexcel mark schemes and examiner reports are clear on this point. Top-band answers commit to one of the two views and defend it the whole way through. Answers that say "both views have a point" or "it depends" are marked down for fence-sitting. The view in the question is either right or it is wrong.
For this question, the stronger side is View 2: the Court has NOT become too willing to constrain the executive. The Court has never struck down primary legislation, the Safety of Rwanda Act 2024 proves Parliament still has the last word, and Begum (2021) shows the Court using the language of deference on national security. Miller 2 was unanimous (11-0) and rooted in the limits of prerogative, not in opposition to a policy. What looks like activism is the Court doing the constitutional job the 2005 Act gave it.
So the answer is no, the view in the question is wrong. The Court is not too willing to constrain the executive. Use View 1's evidence (Miller 2, Rwanda 2023) to build the counter-arguments, then knock them down by pointing to the Safety of Rwanda Act, Begum and the no-strike-down rule.
The view in the question is wrong: the Supreme Court has not become too willing to constrain the executive. It polices prerogative power firmly (Miller 1, Miller 2, Rwanda 2023) but defers to Parliament once a statute is in play (Safety of Rwanda Act 2024) and uses the language of deference on national security (Begum 2021). The Court is doing the constitutional job the Constitutional Reform Act 2005 created it to do. View 2 wins.