• 1 R (Miller & others) v Secretary of State for Exiting the European Union [2017] UKSC 5 (Miller 1); R (...)

1Among the institutions that have been the focus of scrutiny by French experts on the United Kingdom since the referendum of 23 June 2016, the Supreme Court does not appear in the foreground. While the spotlight was cast on the highest court of the realm at the time of the landmark judgments of 2017 and 2019 (the first concerning the Government’s intention to notify the withdrawal from the EU without prior parliamentary approval, and the second concerning the five-week prorogation of Parliament),1 no broader reflection on the Court’s work since 2016 has yet been produced in France no broader reflection on the Court’s work since 2016 has yet been produced in France no broader reflection on the Court’s work since 2016 has yet been produced in France.

• 2 John Finnis, “‘Changing the ground rules’ of our Constitution”, The Supreme Court Yearbook, 2018-20 (...)
• 3 James Slack, “Enemies of the people: Fury over ‘out of touch’ judges who have ‘declared war on demo (...)
• 4 For a critical point of view of these approaches, see Joshua Rozenberg, Enemies of the People? How (...)

2The tenth anniversary of the Brexit referendum and the completion of a five-year period since the United Kingdom was a third country under EU law provide an opportunity to take a step back and assess the Supreme Court’s case law. Such distance is all the more necessary given that the Court stood at the very centre of the confrontation between Government and Parliament at the height of the Brexit crisis, to the point of being subjected to fierce criticism from some Conservatives, tabloids, and even prominent lawyers who went so far as to describe the Miller rulings as “a revolutionary error”.2 For the record, in Miller 1, the UKSC considers that the exercise by ministers of any power to withdraw from the EU Treaties without authorisation by a prior Act of Parliament is inconsistent with domestic law. As for the Miller 2 decision, the Court has concluded that the Prime Minister’s advice to Her Majesty II to prorogue Parliament while discussions on the terms of the UK’s withdrawal from the EU were ongoing was unlawful, void and of no effect. The attacks reached a zenith on the front page of the Daily Mail on 4 November 2016, the day after the High Court’s judgment preceding the Supreme Court’s Miller 1 ruling. Branded as “enemies of the people”,3 the judges were targeted in a rare public manner that went far beyond the traditionallyreserved confines of the British judicial community. This media storm, which left a lasting mark, should not, however, overshadow a parallel movement of theorisation among several jurists, who questioned the role of courts that, in their view, overstepped their proper office - not only in the exceptional circumstances of the Brexit crisis, but also more structurally, in light of a number of significant cases over the past decade.4

• 5 https://judicialpowerproject.org.uk/ : “The focus of this project is on the proper scope of the jud (...)
• 6 John Finnis, op. cit. ; Judicial Power and the Balance of Our Constitution (London, Policy Exchange(...)
• 7 John Finnis, Judicial Power and the Balance of Our Constitution, op. cit., p. 40.
• 8 “In Praise of Politics”, op. cit.

3Two intellectual figures and a think tank stand out as the main critics of this evolution: a professor of law, John Finnis, a former Supreme Court Justice, Lord Sumption, and the Judicial Power Project5. In their view, judges have gradually succeeded in altering the very essence of English common law and the sovereignty of Parliament.6 By expanding their role, they are said to have exceeded the prerogatives traditionally conferred upon them, creating law beyond what the tradition of common law would allow. Above all, they are accused of thereby undermining the separation of powers and democracy itself, by engaging in political activity without the legitimacy to do so. John Finnis denounces “decisions that confuse the rule of law and legality with the rule of judges”.7Lord Sumption, while acknowledging that judges do create law, observes that “in the last three decades … there has been a noticeable change in judicial mood. The courts have developed a broader concept of the rule of law, which greatly enlarges their own constitutional role’.8

• 9 Factortame v Secretary of State for Transport (n° 2) [1991] AC 603.
• 10 Lord Bridge, para. 107-108.

4Lord Sumption’s remarks, made in 2019, suggest that the two Miller judgments were merely the culmination of a process that had been developing for three decades, beginning in the late 1980s or the very early 1990s. This starting point corresponds to the famous Factortame case law, through which the Appellate Committee of the House of Lords - then the highest court of the realm - imposed a restriction on parliamentary sovereignty.9 From that decision onwards, European Union law was afforded a specific protection compared with other legislation. The House of Lords ruled that “it is the duty of the United Kingdom courts, when delivering final judgment, to override any rule of national law found to be in conflict with any directly enforceable rule of Community law”.10 The primacy of Community law enforced via the European Communities Act (ECA) 1972 was thus acknowledged by a voluntary acceptance by Parliament, together with the impossibility of its implicit repeal (implied repeal).

• 11 R v Offen [2001] 1 Cr App R 372; R v A (No 2) [2001] UKHL 25; R (GC) v Commissioner of Police of th (...)
• 12 R v Home Secretary, ex parte Simms [1999] UKHL 33, [2000] 2 AC 115, para. 131-132, Lord Hoffman: “P (...)

6A very similar observation applies regarding the European Convention on Human Rights. The Convention was incorporated into British law through an Act of Parliament, the Human Rights Act 1998. This Act gives individuals the possibility of challenging a statute law in the course of litigation. Section 3 of the HRA provides that legislation must be interpreted, where possible, in a way that is compatible with the Convention.11 This method of conforming interpretation is then supplemented by a mechanism of declaration of incompatibility (section 4). Under this provision, a court may declare a piece of legislation incompatible, which must then be addressed by the adoption of a new Act of Parliament or by a remedial order issued by the Government. While the courts cannot alter the legal order, they are nonetheless able to impose a politico-legal constraint on Parliament12. Finally, section 2 requires the courts to take account of the judgments of the European Court of Human Rights. Since the legislator provided new tools for the courts to ensure compliance with international commitments implemented into domestic law, it is hardly surprising that they have made use of them.

• 13 Marbury v Madison, 5 U.S. 137 (1803).
• 14 Constitution of the Federal Republic of Germany (1949), art. 94(1°, n° 3.
• 15 AXA General Insurance Ltd &Ors v Lord Advocate &Ors (Scotland) [2011] UKSC 46, Lord Hope, para. 151

7In addition to EU law and ECHR related law, the process of devolution has significantly contributed to strengthening the constitutional role of the courts. Any legal system organised across multiple levels (whether federal, regional, European or international) must provide for the allocation of competences, which inevitably raises interpretative difficulties requiring the intervention of an arbiter. Federal states are well acquainted with this configuration, which has led to the emergence of a strong supreme judicial function - whether through a voluntary act of the judiciary, as in the United States,13 or explicitly through the Basic Law, as in Germany.14 In the United Kingdom, which is not a federal state, devolution statutes entrust the Supreme Court with the role of resolving conflicts of competence. The court determines the powers of the Scottish Parliament “by applying the principles of statutory interpretation, taking into account the nature and purpose of the statute under consideration.”15

• 16 Thoburn v Sunderland City Council [2003] QB 151.
• 17 R (HS2 Action Alliance Ltd) v The Secretary of State for Transport [2014] UKSC 3.
• 18 “Thing said by the way” (Glanville Williams, Salmond on Jurisprudence (London, Sweet & Maxwell Ltd, (...)
• 19 R (Jackson) v Attorney General [2005] UKHL 56, [2006] 1 AC 262, para. 103. It is on this occasion t (...)

10The opinion according to which there are “constitutional” statutes protected from implied repeal was expressed by Lord Justice Laws in the 2003 Thoburn case16. This view appears to have been embraced by the Supreme Court in the 2014 HS2 case,17 as well as in the litigation surrounding Brexit in 2017-2019. The case law explicitly recognises the existence of constitutional instruments which, following the reasoning in Factortame, cannot be subject to implied repeal. This recognition of the specific nature of certain statutes merely gives formal legal expression to their major political and historical value. It has not brought an end to parliamentary sovereignty, but rather partially put it into perspective. From a strictly legal standpoint, nothing prevents Westminster from expressly repealing such texts. However, in political terms, for some of them, such an option would seem highly unlikely, except in the advent of a new constitutional order. This is why, in 2006, Lord Steyn considered in an obiter dictum18 that provisions of a statute seeking to abolish the procedure of judicial review - that is, the remedy that “involves the courts reviewing the lawfulness of an enactment or a decision, action, or failure to act in relation to the exercise of a public function” - could be set aside by a court.19

• 20 On these discussions, see Mark Elliott, Robert Thomas, Public Law (Oxford, OUP, 5^th ed, 2024).

11The words used by Lord Steyn at the time reflected genuine caution, but the legal research papers that followed his opinion were abundant.20 The former judge’s remarks are systematically discussed whenever Parliament seeks to restrict or exclude judicial review (ouster clauses). The idea that parliamentary sovereignty derives from the common law and is, therefore, the work of the courts - capable of interpreting its scope at will - is far from universally accepted. Lord Steyn’s position belongs to common law constitutionalism legal theory. Although relatively dominant among judges and legal scholars, this legal doctrine is neither unanimously shared nor explicitly endorsed by the Supreme Court with respect to parliamentary sovereignty. From a concrete analysis of positive law, we would simply note that while the Supreme Court has consistently sought to limit the effects of ouster clauses, it has not curtailed their expansion in recent decades in the name of the rule of law overriding parliamentary sovereignty. Lord Steyn’s position is by no means gospel truth, but merely a hypothesis expressed in the context of litigation.

• 21 Practice Statement (Judicial precedent) [1966] 1 WLR 1234.
• 22 London Tramways v London County Council [1898] AC 375, HL.

14Contextualisation also reminds us that British judges have frequently been targeted by the Executive. In non-democratic times under the “Ancient Constitution,” the confrontation between the Stuarts and Lord Coke remains one of the most famous examples of such conflictual relations. Under democratic rule, and without claiming to be exhaustive, the 1966 decision mentioned above caused a major stir.21 The House of Lords abandoned the strict adherence to the principle of stare decisis to which it had bound itself since the London Tramways case of 1898.22

• 23 “Un adoucissement de la théorie du stare decisis à la Chambre des Lords”, Rev. internationale de dr (...)

15The analyses of that period resonate strongly with today’s debates. A young Gerald Dworkin strongly reflected this in a paper published in 1967. He first recalled that “according to the declaratory theory of the common law, judges do not create a law which has not yet been in force, but merely declare what the rule has been present since time immemorial. The fact that this rule of law has never yet been stated is not incompatible with the theory that it has always existed. Likewise, the separation of the functions of the judiciary and the legislature reinforced the idea that the supreme appellate court of the country should not be able to depart from its own precedent, which would, in reality, amount to legislating through judicial means.”23

• 24 Charles Eisenmann, “L’Esprit des lois et la séparation des pouvoirs”, Mélanges Carré de Malberg, Pa (...)

16Gerald Dworkin’s description of the role of the judge in the English tradition of common law was consistent with the views expressed today by Lord Sumption or the Judicial Power Project. However, a careful reading of the remainder of the 1967 article shows that this conception was already outdated in 1966. The decision of the House of Lords to relax the rule of precedent set an essential attribute of the judicial function: its participation in the creation of law. This role had long been denied by an overly formalist understanding of the “separation of powers”24 - a questionable expression, better replaced by that of a balance of powers.

• 25 See also Lord Reid’s opinion in Myers v D.P.P. [1965] A.C. 1001, para. 1021-1022.

17Gerald Dworkin raised a question that has never ceased to be asked in a liberal system of checks and balances: “One now simply has to ask whether there is not a danger in granting the House (in its judicial function) too great a degree of quasi-legislative freedom of action.”25 This interrogation could only gain momentum after 1966 under the combined effect of three developments: the inflation of legal norms (particularly those arising from legal globalisation itself, a phenomenon largely supported by successive British Governments), the transfer of the executive power from the monarch to a Government democratically elected and backed by a majority in Parliament (which makes the triggering of accountability more difficult), and the progress of democratic rules, which, in turn, strengthened the judiciary’s role as arbiter.

• 26 “Parliament and the courts: strangers, foes or friends?”, The UK Supreme Court Yearbook, 2014-2015, (...)

21The most relevant and objective analytical framework for guiding the demonstration is established by Philip Norton, who established a few years ago a typology of the nature of the relationship between the judiciary and the two political powers.26 It seems to us the most appropriate to understand, without passion, the reality of institutional relations, both in their horizontal and vertical dimensions. According to the renowned scholar - who is also a Conservative peer - the relationship between Parliament and the courts can be described through three models.

• 27 Mark Elliott, Robert Thomas, Public Law (Oxford, Oxford University Press, 2024).
• 28 See Mark Elliott, Jack Williams, Alion Young (eds.), The UK Constitution after Miller. Brexit and B (...)

29The Miller cases stand as the most emblematic decisions of the decade and of contemporary British public law.27 Never before had the case law of the Supreme Court of the United Kingdom - operational since 1 October 2009 - attracted such resonance. In the present analysis, which seeks to take a step back from the heated exchanges of 2019-2020, the aim is not to revisit in detail the contributions of these rulings,28 but rather to advance the argument that the Court did not engage in judicial activism, and that any departure from orthodoxy was at most contingent upon the exceptional circumstances of the time.

• 29 Aurélien Antoine, “Le Brexit, la prérogative royale et la Cour suprême”, Rev. fra. de droit adminis (...)

30Before turning to this argument, a preliminary clarification regarding Miller 2 is necessary. In several scholarly contributions intended primarily for a Francophone readership, we accepted that this judgment was open to criticism on a number of substantive and procedural grounds, and that a position favourable to the Government was, in law, persuasive.29 The shortcomings of the judgment - its sometimes cursory reasoning, its unusually peremptory tone, the discovery of a new standard of review, its limited reliance on stare decisis, and the absence of explicit reference to the principle of the rule of law - could be perceived as revealing subjective or even political considerations. Such an interpretation fuelled the argument that the Court had engaged in a pro-European stance that overstepped its judicial remit. In this respect, Miller 1 appears more restrained (despite the media criticism being even more virulent at the time), in that it conformed to the form and substance to common law, and included the notable dissent of Lord Reed.

• 30 The EUCJ decided after Miller 1 that the notification referred to in Article 50 TEU can unilaterall (...)

31With this caveat in mind, the combined effect of Miller 1 and Miller 2 should not be overstated as representing the ultimate realisation of a “judicial takeover” against the Government. The first and most fundamental reason is that both decisions were entirely consistent with the deep-seated logic that underpins the British Constitution. In 2017, the Court ensured that Parliament would have the final word in giving effect to a decision regarded at the time as non- revocable - namely, the notification of the United Kingdom’s intention to withdraw from the European Union30 - a decision which would deprive both the UK and its citizens of rights and liberties incorporated into domestic law. In 2019, the Supreme Court acted in the same spirit: the momentous issues at stake in the negotiations of the withdrawal agreement could not legitimately be conducted without robust parliamentary debate. In both instances, it was the authority of Westminster that was preserved, in line with the core place it occupies in the British institutional framework. It is paradoxical that the Brexiters who denounced the Supreme Court’s rulings as an encroachment upon governmental power were, at the same time, those who accused the European Union of undermining the Parliament’s legal sovereignty.

• 31 We dispense with the overly rich literature on the matter. As far as the United Kingdom is concerne (...)

36After the political clashes surrounding the United Kingdom’s withdrawal from the EU, another crisis provided an opportunity to test these two criteria. The Covid-19 pandemic gave rise to intense debates across European democracies (and beyond) regarding the powers granted to governments to deal with the emergency.31 Like its neighbours, the UK had to adopt emergency legislation in order to respond quickly to the unprecedented circumstances of a pandemic spreading rapidly throughout the general population (Coronavirus Act 2020). In the UK context, and only a few months after Miller 2, this presented an occasion to determine whether the Supreme Court would engage in consistent and strict scrutiny of government action. The conclusions that can be drawn from this period - which overlapped with the negotiation of the UK-EU Trade and Cooperation Agreement - are threefold.

• 32 [2020] EWHC 1786 (Admin) (in the Governement favour) and [2022] EWHC 967 (Admin) (against Governmen (...)
• 33 For a full account of Covid-19 litigation, see Richard Mackenzie-Gray Scott, Judicial Scrutiny of C (...)
• 34 See Conseil d’État, Étude annuelle. Les états d’urgence. La démocratie sous contraintes (Paris, La (...)
• 35 Aurélie Duffy, “La lutte contre le Coronavirus et les droits et libertés au Royaume-Uni. La démocra (...)

37First, judicial reviews were limited, both quantitatively and in terms of substantive importance, with most judgments being favourable to the administration. Second, and as a logical implication of the above, no case reached the Supreme Court (including some of the most notable, such as Dolan v Secretary of State for Health and Social Care or Gardner and Harris v Secretary of State for Health and Social Care32). Despite the fundamental questions raised by the exceptional circumstances, as well as the Parliament’s limited ability to exercise its oversight functions during the pandemic, the Court handed down no ruling that clarified or restricted the scope of executive power.33 This stands in sharp contrast with the more substantial case laws produced by other supreme jurisdictions, such as the Conseil constitutionnel and the Conseil d’État in France.34 Yet the legislation remained rather vague on certain points. Third, observers have highlighted the striking contrast between the Court’s role during Brexit and its approach during the pandemic.35 From a continental European or American perspective - where commentators tend to discern a coherent judicial policy of a supreme court to present its case law over time - such divergence may appear unusual. It must therefore be acknowledged that British case law remains faithful to the context-specific nature of common law adjudication, rooted in casuistry rather than in any form of judicial activism.

• 36 See Bruce Chen, “COVID-19 Stay at Home Restrictions and the Interpretation of Emergency Powers: A C (...)

38The litigious dimension of the pandemic - marked by the Supreme Court’s remarkable absence from case law and by the self-restraint of the judiciary (sometimes criticised by academics in relation to the Dolan case36) - can be explained by two factors identified by Tom Hickman and Joe Tomlinson. The specificities of the judicial review procedure leave room for negotiation between public authorities charged with implementing government decisions and affected individuals. As the two authors stress, ‘the parties and their legal representatives (…) in most cases, find a resolution and often achieve meaningful change without a judge becoming involved.

• 37 Tom Hickman, Joe Tomlinson, “What role did judicial review play during the pandemic?”, U.K. Const. (...)

39From the Government’s side, Hickman and Tomlinson also emphasise that the very threat of litigation could influence public bodies’ decision-making, leading to frequent adaptations through guidance issued to public services in order to account for specific situations and to prevent risks of discriminatory treatment. We share our colleagues’ view that “the ability to threaten or commence judicial review claims provided an important and empowering lever for affected persons and companies to seek to alter policies”.37

• 38 See Paul Craig, English Administrative Law from 1550: Continuity and Change (Oxford, Oxford Univers (...)
• 39 See e.g. the Review conducted by YouGov for University College, 8 February 2023 (https://www.ucl.ac (...)

42Aside from the Miller cases, the period between 2016 and 2025 witnessed other landmark judgments of the Supreme Court concerning conflicts between institutions and, more importantly, the relationship between public authorities and citizens. This case law forms part of a longer historical course rather than a deliberate political project pursued by the Supreme Court over only a few years. It is rooted in the steady growth of judicial review proceedings, which has gone hand in hand with the rise of the Welfare State and of democracy in the United Kingdom since the mid-nineteenth century38. The movement accelerated from the 1970s onwards for reasons already noted - namely, accession to the European Communities and the strengthening of human rights - even prior to the adoption of the Human Rights Act 1998. The past decade has followed this trajectory, one that is, moreover, consistent with the rule of law, a principle deeply entrenched in British legal and political culture, as reflected in the high level of public confidence in the judiciary, which consistently exceeds that placed in Parliament or Government.39

• 40 Tigere v Secretary of State for Business, Innovation and Skills [2015] UKSC 57. Breach of appellant (...)
• 41 UNISON v Lord Chancellor [2017] UKSC 51.
• 42 Director of Public Prosecutions v Ziegler [2021] UKSC 23
• 43 Privacy International v Investigatory Powers Tribunal [2019] UKSC 22.

43Among the most significant rulings of the Court - beyond those already discussed - many concern the rights and freedoms of individuals engaging with public authorities: violation of the right of access to education due to rules denying a student loan on grounds of immigration status;40 unlawful restriction of access to justice through tribunal fees;41incompatibility of criminal law with the rights to freedom of expression and freedom of peaceful assembly;42or invalidity of ouster clauses in light of the rule of law.43 These cases had a considerable impact in legal circles, often raising the question of how to reconcile parliamentary sovereignty with the rule of law, whose interpretation by the courts may at times relativise the scope of the former. Yet none of these judgments gave rise to political controversy. It should be noted, however, that Lady Hale played a crucial role in almost all of them. Her orientation in favour of rights, particularly those of minorities, and her conviction that no institution should be exempt from the duty to respect the law and the constitutional principles of the British legal order, clearly exerted influence. That said, it would be mistaken to infer - as Boris Johnson somewhat caricatured - that she alone determined the outcome of these cases, or that she deliberately steered the Court’s case law in order to counteract government policy.

• 44 https://www.gov.uk/government/collections/migration-and-economic-development-partnership-with-rwand

45The partnership with Rwanda to outsource the management of asylum seekers who had entered the United Kingdom illegally was initiated in April 2022 (Migration and Economic Development Partnership) and formed part of the continuation of a restrictive immigration policy (Nationality and Borders Act 2022 and Illegal Migration Act 2023). According to official government communication,44 the objective was to relocate to Rwanda persons who had entered the UK illegally by dangerous routes after 1 January 2022 and who had no right to remain on British territory. Nevertheless, those concerned were to be offered legal assistance. Once in Rwanda, the government stressed that their needs would be adequately met, with provisions made for all essential requirements.

• 45 ECHR, 14 June 2022, N.S.K. v the United Kingdom (application n° 28774/22).
• 46 AAA (Syria) &Ors v Secretary of State for the Home Department [2023] UKSC 42.

46On 14 June 2022, the ECHR adopted interim measures against the UK in relation to the implementation of the protocol with Rwanda regarding asylum seekers whose applications had been rejected by the British authorities.45 The Court required that a minimum delay of three weeks be respected. The Supreme Court Justices held that Rwanda was not a safe State46. Until the deficiencies in its asylum system were remedied, deportation to Rwanda was to be considered unlawful under section 6 of the Human Rights Act 1998. The Court further underlined that the principle of non-refoulement - prohibiting the return of individuals to a country where they face a real risk of inhuman or degrading treatment - was not only guaranteed by the European Convention on Human Rights, but also, and more importantly, by domestic law and other international instruments to which the UK is a party. Lord Reed and Lord Lloyd-Jones emphasised that, according to consistent case law, the courts had a duty “to reach their own assessment as to whether there are substantial grounds for believing that there is a real risk of unlawful refoulement” (para. 52). The Court concluded that Rwanda could, of course, improve its reception and treatment of asylum seekers (para. 105).

• 47 Mark Elliott, “Could the Supreme Court reject the Rwanda Bill as unconstitutional?”, Public Law for (...)

47Rishi Sunak’s government responded by concluding a new agreement with Rwanda designed to strengthen the protection of expelled migrants’ rights and by introducing a Bill certifying Rwanda as a safe country, a qualification that could not be challenged by the judicial review (Safety of Rwanda (Asylum and Immigration) Act 2024). This amounted to an ouster clause restricting access to justice and thereby undermining the rule of law.47

• 48 See Thomas Bingham, The Rule of Law (London, Pinguin Global, 2010).
• 49 See Kirtsy Hugues, “The meaning of ‘safe’ and the UK and Rwanda asylum partnership arrangement”, Th (...)

49First, the legal sources relied upon by the Supreme Court in rejecting the government’s scheme were not confined to European law. They were rooted above all in common law and in the rule of law, which requires the State to respect its international obligations.48 Secondly, the judges did not rule out revisiting their conclusions, provided that the Executive could demonstrate, in good faith, that Rwanda had become a safe country. Thirdly, the Court did not prevent the government from resorting to the legislative route to certify Rwanda’s safety49 and thus shield this assessment from judicial scrutiny in accordance with the principle of parliamentary sovereignty. It was indeed this channel that the government pursued through the adoption of the Safety of Rwanda (Asylum and Immigration) Act 2024. As irony would have it, it was the House of Lords - an institution whose reform the Conservatives generally seek to prevent - that slowed down the passage of the Bill. Even more, one of the peers who was the most involved in scrutinising the Bill and tabling amendments designed to strip it of substance was Lady Hale.

• 50 Yannick Lecuyer, “La diabolisation de la Cour européenne des droits de l’Homme”, Rev. des Droits et (...)

50This legislation would not survive the political shift. The return of Labour to power prevented its implementation. Yet while Prime Minister Keir Starmer’s early decisions seemed to mark a pause in hostilities against the European human rights system, the migration crisis made such restraint untenable. Unable to find structural solutions to an issue that is politically exploited by Reform UK and that is electorally advantageous to it, the government turned directly against the European Court of Human Rights - following a broader trend across Council of Europe member states.50

• 51 Alice Donald, Joelle Grogan, “The UK’s ECHR record: how common are Rule 39 orders and how often is (...)
• 52 ECHR, Annual Report (Strasbourg, Council of Europe, 2024).
• 53 Alice Donald, Joelle Grogan, “Compliance with the European Convention on Human Rights: the UK and E (...)
• 54 Robert Reed, Response to a Call for Evidence produced by the Independent Human Rights Act Review, U (...)

51Such attacks do not withstand scrutiny. Statistics undermine the claim that the UK is disproportionately targeted by adverse rulings from the Strasbourg Court. The Court itself publishes readily available data. Between 2017 and 2023, the UK was subject to only 15 interim measures of the kind issued in relation to the Rwandan scheme.51 More broadly, the Court’s 2024 annual report showed the UK among the six least-condemned states.52 Since 2001 and the incorporation of the ECHR into domestic law, the downward trend has been particularly marked - unsurprising perhaps, but not the case for all member states. Between 2016 and 2024, the UK averaged only around four condemnations per year.53 British courts themselves issued approximately forty declarations of incompatibility against UK legislation under the HRA between 2000 and 2024.54 This does not suggest a surge of hostility toward the Parliament and the Government. The usual judicial approach has been to interpret legislation compatibly with the HRA wherever possible, thereby avoiding clashes with parliamentary sovereignty.

• 55 See Aurélien Antoine, “Les idées reçues dans les autres États parties à la CEDH. Le cas du Royaume- (...)

52Finally, it is important to note that the HRA’s political and media visibility far exceeds its day-to-day legal impact. Although it has undoubtedly provided counsels with stronger tools to challenge public authority decisions, it has not prevented the steady multiplication of restrictive laws in criminal justice and immigration - an evolution accelerating since the late 1970s.55 The political focus on asylum-related litigation thus distorts the reality of human rights case law and the Supreme Court’s measured role. Political actors frequently draw sweeping conclusions from isolated cases, while remaining silent when judgments favour their own positions. One emblematic case of the decade illustrates this dynamic: For Women Scotland.

• 56 For Women Scotland Ltd v Lord Advocate [2022] SC 150.
• 57 This statute was adopted after the famous Goodwin case before the ECHR (Christine Goodwin v United (...)
• 58 For Women Scotland Ltd v The Scottish Ministers [2025] UKSC 16.

54The dispute dealt with the Scottish Parliament’s legislation. The Gender Representation on Public Boards (Scotland) Act 2018 introduced positive action measures to promote women’s representation on the boards of certain public authorities in Scotland. Section 2 of the Act extended these measures to persons born male but identifying and living as women, and who had undergone, were undergoing, or were about to undergo gender reassignment surgery. This section was struck down by the Court of Session, which found that it exceeded devolved powers.56 In response, the Scottish Government issued statutory guidance providing for the possibility of obtaining an administrative certificate under the Gender Recognition Act 2004 (GRA).57Securing such a document did not require the completion of the transition. The Scottish Government argued that, since the Equality Act 2010 (EA 2010) did not define “woman,” it retained some discretion in applying the 2004 Act. This statutory guidance sparked litigation that eventually reached the Supreme Court, which was thus compelled to define “woman.”58

• 59 There is no mention of intersex people in the judgement (see Robert Mullins, “For Women Scotland: F (...)
• 60 Equality and Human Rights Commission, An interim update on the practical implications of the UK Sup (...)
• 61 See Isabelle Rorive, “Qu’est-ce qu’une femme”, Esprit, Juin 2025, p. 21.

63From a strictly legal standpoint, however, the Court’s biological approach also raises difficulties. It tends to disregard intermediate gender identities in both law and practice.59 Advocacy groups quickly highlighted concrete examples showing that the judgment created as many problems as it sought to resolve.60 Public services that had previously accommodated users according to gender identity were compelled to revert to a strict biological approach, exposing trans individuals to precarious situations. The ruling also encouraged invasive verification practices to determine biological sex - otherwise leaving service providers to rely on appearance-based judgments, often tainted by prejudice.61

• 62 Manon Beury, Lena Holzer, Electra Zacharias, “The UK Supreme Court’s Unworkable Sex Definitions in (...)
• 63 Crash Wigley, “For Women Scotland: a legal critic”, Translegal Project.org, 2025, 17 p.

64Thus, the judgment risks suggesting that a trans woman is either a form of “third sex” or, worse, must still be regarded as male, thereby undermining the value of GRCs.62 This outcome arguably negates medical and legal advances in the field (notably section 7 of the EA 2010, which refers to “reassigned sex,” implicitly recognising that biological sex at birth may change). Unsurprisingly, the decision has already been challenged before the European Court of Human Rights, particularly since the HRA was barely invoked by the Supreme Court in its reasoning.63

• 64 See Aurélien Antoine, “Définir la femme en droit britannique : l’inextricable contentieux ‘For Wome (...)

65What does this case tell us about the Court’s jurisprudence in the period studied in this paper? Between two equally unsatisfactory options considering an incoherent statutory framework, the Justices opted for a conservative stance consistent with the logic of the common law: to interpret legislation in the way Parliament appeared to have intended when it was adopted, taking into account undeniable practical difficulties64. The opposite interpretation was equally defensible but carried the same risk of incoherence. However, given that the Court is already a frequent target of Conservative criticism, a more activist reading of such a socially and politically charged issue would have exposed it to even harsher attacks.

• 65 Lucy Knight, “Court ruling on legal definition of a woman ‘misinterpreted’, Lady Hale says”, The Gu (...)

66In this case, we can conclude by saying that it was for the political institutions - not the judiciary - to clarify the law. Yet in For Women Scotland, Labour carefully avoided taking a stance, while the Conservatives were explicit politically but refused to implement a new statute. Once again, as during the Brexit crisis, the judiciary was left to resolve matters that should have been settled by the political process. This issue is far from closed, and the Supreme Court’s ruling is not final if Parliament revisits the matter. As Lady Hale herself remarked in connection with For Women Scotland, society must continue debating in order to find a viable solution that protects all minorities.65 The Court’s cautiousness when faced with societal issues, or more broadly those involving choices about the country’s political future, can also be observed in matters of devolution.

• 66 W. John Hopkins, Devolution in Context Regional, Federal and Devolved Government in the EU (London, (...)

67Whether in times of acute crisis or during periods of relative institutional calm, one overarching issue has run consistently through the decade: the relationship between London and the devolved nations. Brexit tested these relations severely, and they are difficult to summarise, given the complexity of the British state. The asymmetry of devolution is the main reason. The United Kingdom is neither a fully unitary state nor one uniformly decentralised, and it is far removed from federalism.66 It is, in many respects, a sui generis system.

• 67 Further powers have been devolved since these original acts, most recently through the Scotland Act (...)

68The three devolution statutes of 1998, subsequently amended on several occasions (the Scotland Act 1998, the Northern Ireland Act 1998, and the Government of Wales Act 1998, later effectively superseded by the Government of Wales Act 2006),67 attempted to define the division of powers with precision and entrusted the Supreme Court with a crucial function in resolving conflicts between devolved authorities and the central government. Brexit, supported by majorities in England and Wales (though only narrowly in Wales and against the will of the Welsh Government), but rejected in Scotland and Northern Ireland, strained these relations further still.

• 68 Laura Kuenssberg, “Boris Johnson ‘called Scottish devolution disaster’”, BBC News, 17 November 2020

69Moreover, parts of the Conservative Party remained openly resistant to devolution, notably Boris Johnson, who famously described the process as “a disaster” with respect to Scotland.68 The political dominance of the Scottish National Party (SNP) inevitably clashed with the stance taken by the Tory government, which paid little heed to the devolved nations in its Brexit negotiations. As for Northern Ireland, its unique constitutional position, rooted in the peace process and the 1998 Belfast Agreement, was profoundly unsettled by the EU withdrawal, especially given the Republic of Ireland’s continuing membership of the EU. The Democratic Unionist Party (DUP) vehemently opposed the Brexit arrangements, which they viewed as driving too great a wedge between Northern Ireland and Great Britain. In practice, this hostility translated into prolonged political deadlock within the devolved institutions.

• 69 David Torrence, The Sewel Convention and legislative consent (London, House of Commons Library, 202 (...)
• 70 Albert V. Dicey, op. cit.; Ivor Jennings, The Law and the Constitution (London, University of Londo (...)
• 71 Albert Venn Dicey, Introduction to the study of the Law of the Constitution, (London, Macmillan 196 (...)
• 72 Attorney-General v Jonathan Cape Ltd [1976] QB 752.

71The Sewel Convention is a political norm - a concept much debated in constitutional theory.69 Two authors often serve as the starting point for scholarly analyses: Dicey and Jennings.70For Dicey, conventions stand in contrast to strict legal rules. The latter are enforceable before a court, whereas the former encompasses “understandings, habits or practices”71which, although not capable of being invoked in litigation, nevertheless are one of the most important parts of the Constitution. So, their violation may entail political responsibility. British judges have always recognised the political significance of conventions. Yet this does not mean that they lack any legal relevance: “the fact that courts may take them into account in explaining or interpreting legislation is evidence that conventions are legal objects often inseparable from statute”.72

• 73 Ivor Jennings, The Law and the Constitution, op. cit.
• 74 Geoffrey Marshall, Constitutional Conventions. The Rules and Forms of Political Accountability (Oxf (...)

72Ivor Jennings theorised this subtlety by rejecting a sharp separation between law and convention, between the legal and the political. In his view, conventions are not opposed to the laws of the Constitution; rather, both form a coherent whole, since the latter cannot be implemented without the former. More vividly, Jennings described conventions as “the flesh which clothes the dry bones of the law; they make the legal constitution work”,73thereby rejecting a strict dichotomy between law and politics. As Geoffrey Marshall later put it, drawing on Jennings, “Without conventions, legislation and case law are quite unintelligible”.74

• 75 Resolution to Amend the Constitution [1981] 1 SCR 753.

75Supporters of a stronger approach to the convention often cited a Canadian precedent. In 1982, the Supreme Court of Canada held that the federal government’s choice to proceed without securing provincial consent for constitutional reform was legally permissible, but politically unconstitutional given its breach of established conventions. This ruling compelled the federal executive to reopen negotiations with the provinces.75 The judgment confirmed that conventions lack the force of law yet also underscored that constitutional legitimacy transcends mere legality.

• 76 “The Supreme Court’s Judgment in Miller. In Search of Constitutional Principle”, Cambridge Law Jour (...)

78This conclusion was criticised as excessively cautious, even contra legem. As Mark Elliott observed, “the Court’s view of the role of constitutional conventions - and of their relationship with law - is notably conservative. Judicial reticence in respect of convention chimes, of course, with Diceyan orthodoxy, and the notion that courts cannot enforce conventions is generally, albeit not universally, accepted.”76Yet the controversy remained mainly academic. For the purposes of this study, it is sufficient to note that the Court adhered to a classically moderate conclusion, one that confirmed its reluctance to engage in judicial activism. A similar observation applies to subsequent disputes over the division of competences between London and Edinburgh.

• 77 Martin v Her Majesty’s Advocate [2010] UKSC 10; AXA General Insurance Ltd v The Lord Advocate [2011 (...)

79The past decade has been memorable for the remarkable number of legal disputes between the UK and Scottish governments. Between 2009 and 2016, the Supreme Court heard only four such cases.77 By contrast, between 2017 and 2025, six significant judgments were handed down, ending several clashes between central and devolved authorities. Apart from Miller 1 and For Women Scotland, four further rulings stand out, as they concerned the allocation of competences in relation to international law, European Union law, and constitutional law.

• 78 Scotch Whisky Association & Ors v The Lord Advocate & Anor (Scotland) [2017] UKSC 76.
• 79 A Reference by the Attorney General and the Advocate General for Scotland “Scottish Continuity Bill (...)

80Among the EU-related cases, only the second reflects the tensions between London and Edinburgh regarding power sharing.78 The Scottish Continuity Bill case arose at the height of the Brexit crisis.79 In 2018, the UK Parliament passed the European Union (Withdrawal) Act, which amended Schedule 4 of the Scotland Act to include itself among the provisions immune from modification by the devolved legislature. Opposed both to Brexit and to the conditions imposed by the 2018 Act, the Scottish Government introduced a bill mirroring its objectives: to secure a smooth legal transition following withdrawal from the EU. The Attorney General and the Advocate General for Scotland asked the Court whether the Scottish Bill was within devolved competence. Section 17 of the Scottish Bill sought to create a form of suspensive veto for devolved authorities over UK subordinate legislation adopted under the Withdrawal Act 2018, insofar as such legislation might affect devolved competences. In practice, the application of the contested statutory instruments would have been suspended until expressly approved by Holyrood.

• 80 UK Supreme Court, Press summary, 13 December 2018, https://supremecourt.uk/uploads/uksc_2018_0080_p (...)

81The Court, presided over by Lady Hale, delivered the following unanimous judgment: “Section 17 would be outside the legislative competence of the Parliament because it would modify the Scotland Act and, at least in part, the sections referred to in the final paragraph below would be outside the competence of the Scottish Parliament because they would modify provisions of the UK Withdrawal Act.”80 The outcome was unsurprising. What did attract wider comment, however, was the Court’s approach to devolution, which was later developed in another case - this time in the field of international law.

• 81 United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill [2021] UKSC 42

82In 2021, a case related to the United Nations Convention on the Rights of the Child and the European Charter of Local Self-government arose.81 The Scottish Parliament had sought to incorporate both treaties into Scots law, while Westminster had chosen not to extend them to the UK. The legal issue was whether Holyrood could transpose these treaties into the devolved legal order without their incorporation into the UK legal system. The Court held that, while some provisions of these conventions clearly fell into the devolved competence, others did not. For instance, they might require courts to interpret Westminster legislation in ways that conflicted with the Parliament’s will, or to issue declarations of incompatibility against provisions of UK statutes contrary to the two international instruments. The Court ruled that the Scottish Bill exceeded devolved powers by providing that public authorities acting in violation of the UNCRC would be acting unlawfully and could be subject to judicial proceedings. This mechanism, directly inspired by the HRA, could only be introduced by a Westminster statute. The Court thus confirmed that the Scottish Parliament may incorporate international treaties into Scots law, provided their provisions remain within devolved fields - something not the case where incorporation creates mechanisms for challenging UK legislation.

• 82 Scotland Act 1998, Section (28)7.

83The ruling is understandable, but its reasoning was contested, for it deepened the logic of the 2018 judgment on the Continuity Bill, which relied on an ambiguous expression that might in future constrain devolved legislative powers more tightly than intended by the 1998 devolution statutes. In the Continuity Bill case, the Court had held that parliamentary sovereignty reflected the “essence of devolution,” and that Westminster retained, notwithstanding devolution, an “unqualified legislative power” over Scotland (paras 41 and 52). This meant that Westminster legislation could never be made conditional upon the consent of the Scottish Government. In other words, the “unqualified legislative power” doctrine arguably imposes a stricter conception of sovereignty than a softer conception, which - through the Sewel Convention - at least allowed Westminster to act with the consent of devolved authorities.82 Applied in the Incorporation Reference case, this doctrine excludes the possibility that devolved legislatures might legislate in ways placing “pressure” on the UK Parliament.

• 83 See e. g. Stephanie Gillibrand, Somsubhra Banerjee, Eoin Carolan, “Cracks in the foundations? Explo (...)
• 84 AXA General Insurance Ltd. ; Robinson v Secretary of State for Northern Ireland [2002] UKHL 32.
• 85 Gregory Davies, “The UK Supreme Court and Devolution: Guardian of the Passive Revolution?”, Public (...)
• 86 In the matter of an application by Mary McKenna for Judicial Review (Northern Ireland) (n° 1 and 2)(...)
• 87 See Josep M. Tirapu-Sanuy, “Devolution, National Pluralism and the Role of the UK Supreme Court”, O (...)

84Without entering into the technical disputes that followed,83 it is clear that the Court’s reasoning departed from earlier case law, which had left room to see devolution as tempering parliamentary sovereignty.84 It is therefore unsurprising that several Scottish,85 and also Northern Irish,86 scholars should now argue that the Court promotes a more centralising conception of sovereignty, leaving devolved institutions with little scope to shape the legal framework for the protection of human rights. The Incorporation Reference case has not yet revealed all its implications, but it may well mark part of a broader trend: the stagnation of devolution.87 Within this context, the Court has remained cautious, even conservative, regarding the constitutional weight to be attached to the 1998 settlement. The 2021 and 2022 cases thus align with Miller 1 and 2 in reaffirming parliamentary sovereignty.

• 88 Reference by the Lord Advocate of devolution issues under paragraph 34 of Schedule 6 to the Scotlan (...)
• 89 Contra see e. g. Lea Raible, “Self-determination at the UK Supreme Court and the failure of interna (...)

85The landmark 2022 ruling on Indyref 2 must also be read in this light.88 Two aspects of that decision confirm Lord Norton’s hypothesis of institutional dialogue as a key to understanding the Court’s self-conception. First, while the ruling was widely reported as rejecting Holyrood’s competence to legislate for a consultative independence referendum without Westminster’s agreement, the more complex legal issue concerned the Court’s jurisdiction to hear a reference at such an early stage in the legislative process. Unanimously, the Court held that it could, thereby further opening its doors to devolved authorities, despite the absence of clear statutory wording authorising a Law Officer (here the Lord Advocate) to refer to a mere draft Bill. On the merits, the Court’s position was strict and largely uncontroversial:89 devolved authorities could not legislate unilaterally on a constitutional matter, even if the referendum was only consultative. While Conservative governments have often displayed distance, or even disdain, towards devolution, it should nonetheless be acknowledged that the SNP sought to exploit conflict to bolster its political advantage through this risky project. Its predictable defeat before the Supreme Court ultimately weakened its position.

• 90 James Hugh Allister and others and Clifford Peeples v the Secretary of State for Northern Ireland a (...)
• 91 By the virtue of the European Union (Withdrawal) Act 2018 amended by the European Union (Withdrawal (...)

87During the Brexit negotiations, the status of Northern Ireland generated a significant volume of litigation. The Miller 1 case itself originated partly from disputes arising in Northern Ireland. Another landmark judgment of the Supreme Court in the 2016-2025 period addressed more directly the consequences of Brexit for the Union between Great Britain and Northern Ireland: the James Hugh Allister v the Secretary of State for Northern Ireland case.90It put to an end the legal challenges brought by Northern Irish unionists against the Protocol on Ireland/Northern Ireland annexed to the UK-EU Withdrawal Agreement. According to the unionists, the Protocol, once translated into domestic law,91 was incompatible with legislation governing relations between Northern Ireland and Great Britain (notably Article VI of the 1800 Acts of Union).The Court rejected this claim, holding that Article VI, like any other part of the 1800 settlement, must be set aside for as long as the Protocol remains in force. The justices further emphasised that the people of Northern Ireland could only be consulted on the binary choice between remaining in the Union or joining a united Ireland, and not on more specific trade arrangements. They also underlined that the Protocol was fully capable of modifying the law in force, and that any regulations legally enacted under it could not be struck down for inconsistency with earlier legislation. The Court firmly rejected the notion of supra-legislative norms constraining Parliament because of their constitutional character. The judgment stated that “the debate as to whether Article VI created fundamental rights in relation to trade, whether the Acts of Union are statutes of a constitutional character, whether the 2018 and 2020 Acts are also statutes of a constitutional character, and as to the correct interpretative approach when considering such statutes or any fundamental rights, is academic”. (Para. 66)

• 92 David A. Green, “Is it, at last, time to say ‘good bye’ to Thoburn and the idea of ‘constitutional (...)
• 93 John Bell, “The Supreme Court judgment in Re Allister et al. Constitutional statutes, quo vadis?”, (...)
• 94 Contra Oliver Garner, “The UK Supreme Court Northern Ireland Protocol Judgment: A Return to Pre-EU (...)

88Through this reasoning, the Court dealt sharply with a subject that has fuelled intense debate in academic circles - namely, the recognition of constitutional statutes shielded from implied repeal.92 Much like in the Scottish cases, the Allister judgment again suggests a return to the classical conception of parliamentary sovereignty.93 Some commentators link this shift to a change in Supreme Court leadership, arguing that Lady Hale’s departure encouraged “opposition to any legal doctrine, which it sees as a constraint upon the will of Parliament”. Yet it should not be overlooked that Lady Hale herself sat in the Continuity Bill case, which had already affirmed Westminster’s “unqualified legislative power.” Moreover, in Allister, the issue of implied repeal was not directly at stake, and therefore the Court had no reason to evoke it. The reference to an “academic debate” may appear clumsy but was justifiable in this context.94

• 95 See Lady Hale, With the Law on Our Side (London, Penguin, 2025) and Penny Darbyshire, “The Supreme (...)

91In Lord Norton’s terms, it is “dialogue” that best characterises the relationship between the Supreme Court and other institutions. The criticism occasionally opposed to the Court frequently stems either from misunderstanding, or from a strategy of deflection aimed at avoiding acknowledgement of the (sometimes predictable) illegality of political choices. Like all intellectual constructions, the Court’s rulings are open to dissent, but such critique must engage with the Court on its own ground, the legal one. It should not, therefore, lead to a radical opposition against an institution whose primary vocation remains to ensure, through the law, the pacification of institutional and social relations for the benefit of all citizens.95