Prime Minister Boris Johnson had maintained that the five-week suspension was a routine break between parliamentary sessions ahead of the launch of a new legislative program. The Supreme Court disagreed. It accepted the arguments of the legal challengers — including 78 parliamentarians — who denounced the move as a pretext obscuring Johnson’s true (and unlawful) motivation: to restrict Parliament from preventing a “no-deal” Brexit on Oct. 31.
The UKSC avoided ruling on Johnson’s motivation, but it declared the decision unlawful. This was because there was no justification for its “extreme effect” on Parliament’s ability to oversee the Executive government in the “exceptional circumstances” leading up to 31st October.
These appeals have drawn the courts into the intense conflict between the executive and legislature over control of when and how — and even whether — to implement the outcome of the 2016 vote for the U.K. to leave the European Union. Commentators have already started to denounce the court’s decision.
This is an uncomfortable place for courts to be — but our survey research suggests that it will not damage the UKSC’s long-term legitimacy. Here’s what you need to know.
It’s unusual for courts to be so involved in the political process
Politically charged rulings about what Parliament or the executive government can and cannot do are relatively uncommon in the U.K. Under the uncodified U.K. constitution, Parliament is supreme and the courts cannot challenge its decisions. Since the 2016 referendum, however, groups opposed to the government’s handling of Brexit have repeatedly turned to the courts to resolve disputes about who has the final say over a process that will change both the U.K.’s foreign relations — which is supposed to be the purview of the executive government — and the content of individual rights — which Parliament is supposed to determine.
Some earlier Brexit-related judgments prompted accusations of judicial bias and overreach. Here’s an example: One newspaper featured a photo of three high court judges on its front page, with a headline calling them “enemies of the people” who had “declared war on democracy.” This followed the judges’ November 2016 ruling that the government required Parliament’s approval before formally notifying the E.U. of the U.K.’s intention to leave. Legal commentators responded to these attacks with serious concern, saying that they undermine judicial independence and the rule of law.
The court’s legitimacy is not likely to be affected
Such controversies have the potential to shape what the public views as the UKSC’s proper role in public life. In fact, the way the UKSC approached this case suggests that it is is aware of this possibility.
The appeals were heard by 11 Justices. This is the highest number possible on the UKSC and prevents suggestions that the panel members were selected because of their politics. The Justices reached a unanimous decision, ensuring that today’s ruling has the highest possible authority. During the hearings (which were live streamed) and in the ruling, the Justices repeatedly emphasized that their task was to judge the legality of prorogation – not the merits of Brexit.
The key question for the UKSC is whether these politically consequential decisions threaten its legitimacy in the eyes of the public.
There are at least two ways to think about courts’ legitimacy. The first is about what the court does — does the public think that the court’s decisions are authoritative and should be obeyed? The second approach considers whether the public is willing to defend the court as an institution and protect it from changes that might undermine its jurisdiction or water down the autonomy of judges.
The key takeaway from our work on public attitudes toward the UKSC is that short-term public dissatisfaction over politically controversial decisions is unlikely to significantly undermine the court’s perceived legitimacy under both these definitions.
How legitimate is the U.K. Supreme Court?
In April, we conducted a poll of 1,436 U.K. adults, a group that was reasonably representative of the U.K. population as a whole, during a brief lull in the furor over Brexit. We asked respondents how much they agreed or disagreed with a series of statements about the UKSC. These were general statements — unconnected with Brexit or the UKSC’s handling of any specific case.
Our snapshot suggests the legitimacy of the UKSC is remarkably strong — 81 percent of respondents agreed that the court’s decisions should be viewed as final and authoritative, 78 percent believe people should comply with its decisions even if a majority disagrees with the decision itself, and 65 percent think the court should have the authority to overrule the government even if the majority disagrees with its decision. Perhaps most importantly, 82 percent of respondents agreed that there is an obligation to press government ministers to comply with UKSC decisions.
These high levels of legitimacy were recorded less than three years after the “enemies of the people” headline. Although our one-time survey cannot tell us how the UKSC’s legitimacy has changed over time, it suggests that any significant impact of those public attacks on judicial legitimacy were short-lived.
And there’s further evidence that U.K. citizens have faith in the judicial system. The Hansard Society’s 2019 audit of political engagement, for instance, shows survey respondents expressed significantly greater confidence in judges than in politicians to act in the public interest, and to handle Brexit.
Given today’s decision, some commentators aligned with the Executive no doubt will criticize the UKSC and suggest that it has stepped beyond its proper role. However, our data suggest the overall legitimacy of Britain’s highest court will remain intact. The data suggest that the U.K. public views the UKSC as legitimate — and these attitudes will shield the court from criticism in the aftermath of the prorogation battle.
Claire Sigsworth (@clairsigsworth) is a PhD candidate in the Department of Political Science at the Maxwell School of Citizenship and Public Affairs at Syracuse University and a research associate in the Campbell Public Affairs Institute. Originally from the U.K., she also holds an LLB degree from Robert Gordon University in Scotland.
Nathan T. Carrington is a PhD candidate in the Department of Political Science at the Maxwell School of Citizenship and Public Affairs at Syracuse University and a research associate in the Campbell Public Affairs Institute. Find him on Twitter @NateCarrington.
This analysis is based on data collected as part of a grant from the Campbell Public Affairs Institute. The authors would like to thank the Institute for their financial support of the project..