Point: One view is that Miller 2 (2019) shows the Court has become too willing to constrain the executive.
Example: In Miller 2 / Cherry the Supreme Court ruled unanimously that Boris Johnson's prorogation of Parliament was unlawful because it frustrated the constitutional functions of the legislature.
This shows: Critics argue that the Court inserted itself into a political dispute over the timing of Brexit, going beyond its constitutional role.
However... However, the legal basis of the ruling tells a different story.
Counter example: The Court ruled on the legal effect of the prorogation, not on whether prorogation was politically wise. The judgement was unanimous (11-0), grounded in long-standing legal principle that the executive cannot use prerogative to undermine Parliament.
This shows: This shows the Court was defending the sovereignty of Parliament against an unlawful use of executive power, which is the proper constitutional role of a Supreme Court.
Interim judgement: On balance, Miller 2 cannot be read as the Court overreaching: it ruled on legality, the decision was unanimous, and Parliament returned to its functions immediately afterwards.
Point: Some critics argue that the Court can be activist when politically convenient and deferential when not.
Example: In Begum (2021) the Supreme Court refused to second-guess the Home Secretary's decision to revoke Shamima Begum's British citizenship.
This shows: On the source's reading, this might look like inconsistency - active on prorogation, passive on national security.
However... However, the consistency is in the type of question being asked.
Counter example: Begum involved a discretionary executive judgement on national security, the area where the Court has always been most deferential. Miller 2 involved a question of constitutional law and the limits of prerogative.
This shows: This shows the Court has a clear, consistent doctrine: it polices legality, but it does not substitute its own view for the executive's on policy.
Interim judgement: Far from being inconsistent, Begum confirms the Court is not too willing to constrain the executive: it stays out of national security and policy.
Point: A further argument that the Court overreaches points to the Rwanda case as judicial interference with government policy.
Example: In the Rwanda case (2023) the Supreme Court ruled that Rwanda was not a safe third country for asylum seekers, blocking the government's removal policy.
This shows: Critics argue that the Court substituted its judgement for that of ministers on a major policy of the elected government.
However... However, what happened next is what matters.
Counter example: Parliament responded with the Safety of Rwanda (Asylum and Immigration) Act 2024, declaring Rwanda safe by statute. The Court accepted the outcome without resistance.
This shows: This shows the Court is not supreme over Parliament: where the Court finds a policy unlawful, Parliament can override that finding by primary legislation, and the Court does not push back.
Interim judgement: The Rwanda chain shows the Court is firmly within parliamentary sovereignty: it can be told no, and when told no, it accepts the result.
Point: A linked argument is that the Court has expanded its role into devolved matters.
Example: In 2023 the UK government used a Section 35 order for the first time to block the Scottish Gender Recognition Reform Bill, raising the possibility that the Court would have to rule on the order itself.
This shows: On a strong reading of judicial activism the Court might have been expected to extend Miller-style review to executive use of Section 35.
However... However, the Court has shown no appetite to do so.
Counter example: The Court has not ruled on the legality of the Section 35 order in any leading judgement. The executive's statutory power to block devolved legislation has been left intact.
This shows: This shows that even when given the opportunity to extend its reach into devolution disputes, the Court has chosen restraint.
Interim judgement: The Section 35 record makes the strongest case that the Court is not too willing to constrain the executive: it has not stepped in even where it could.
Point: Finally, some argue that the creation of the Supreme Court itself made the judiciary more political.
Example: The Constitutional Reform Act 2005 created the modern Supreme Court (operational October 2009), separating it from the House of Lords and giving it its own building and public profile.
This shows: On this reading, visibility produced activism: a Court with its own brand will reach for high-profile rulings.
However... However, the substance has not changed.
Counter example: The 2005 Act did not give the Court new jurisdiction. The Appellate Committee of the House of Lords had already heard Belmarsh in 2004 and reached the same kind of conclusion. The doctrine is older than the building.
This shows: This shows that what students often call activism is not new - it is a long-standing legal practice now done in public.
Interim judgement: On the balance of the evidence, the Court is not too willing to constrain the executive: its reach has stayed legal rather than political, and the visibility of the new institution should not be confused with overreach.