THE INSTITUTIONAL FOUNDATIONS OF SUPREME COURT POWER IN BRITAIN'S REPRESENTATIVE DEMOCRACY

Abstract

The Constitutional Reform Act 2005 erected an institutional ‘firewall’ designed to substantially insulate the courts of the United Kingdom from undue political interference. Nevertheless, the new Supreme Court, its enhanced independence in recruitment and decision-making under the Act notwithstanding, have above all insisted on maintaining a deferential stance towards parliament, leaving to the people's elected representatives the ‘last word’ in defining the most fundamental legal norms. This article seeks to explain this counter-intuitive phenomenon by examining certain pressures that parliament and the electorate can place on the Court, from which the Act as it currently stands has not protected it.

Notes

1. The Supreme Court Annual Report and Accounts 2009–2010.

2. Department for Constitutional Affairs, A Supreme Court for the United Kingdom (CP 11/03, July 2003).

3. Ibid.

4. See R v. Horncastle [2009] UKSC 14.

Additional information

Eric C. Ip is an Assistant Professor of Law at the Chinese University of Hong Kong Faculty of Law. He holds a DPhil from the University of Oxford. His research interests include administrative law, constitutional law, law and economics, and empirical legal studies. His work has appeared or will appear in The American Journal of Comparative Law, International Journal of Constitutional Law, International Review of Administrative Sciences and European Journal of Law and Economics.