The Economist June 4th 2 022 19
BritainThe Supreme CourtSeparation anxiety
I
n 2015 theConservative government an-
nounced that it would restrict child-ben-
efit payments to two children per family in
order to trim budgets. That was challenged
by two mothers, who argued it breached
their legal rights to privacy and a family
life. When the case reached the Supreme
Court in July 2021, it was dismissed by Rob-
ert Reed, the president, and six of his col-
leagues with a striking brusqueness.
The case was part of a trend of lobbyists
turning to the courts after failing to get
their way through politics, he remarked in
his judgment, which found that the gener-
osity of welfare systems is a question for
lawmakers alone. “There is no basis, con-
sistent with the separation of powers un-
der our constitution, on which the courts
could properly overturn Parliament’s judg-
ment that the measure was an appropriate
means of achieving its aims,” he wrote.
That judgment met with warm approval
from the British government, which de-
clared it a welcome part of “the ebb and
flow of case law, between more and less ac-
tivist approaches”. In truth, the tide has
been going in one direction for a while. Ananalysis of data by Lewis Graham of the
University of Oxford suggests a trend to-
wards a more “executive-minded” Su-
preme Court. In the first two years of Lord
Reed’s presidency, the court has rejected
more human-rights claims and sided with
public bodies more frequently (see chart 1).
Polling conducted for The Economistby
Ipsos suggests that Britons are in a state ofhappy ignorance about the Supreme Court:
just 29% say they are familiar with its work
(see chart 2). Unlike America’s Supreme
Court, it cannot strike down primary legis-
lation but only ministerial decisions, so it
has a limited role in deciding questions
such as abortion or free speech. But its
short history shows how much it matters.
The Supreme Court was opened in 2009
by the Labour government. It took on the
job of Britain’s highest appeal court, previ-
ously performed by judges sitting in the
House of Lords. A new constitutional land-
scape—which included devolution in Scot-
land, Northern Ireland and Wales, and the
introduction of a human-rights law—de-
manded a high-profile body to oversee it.
That has made Britain’s most senior
judges bolder and more independent-
minded, argues Charles Falconer, a former
justice secretary who designed the over-
haul. “In the old days you would see the
Law Lords hanging around the chamber,
and eating in the Lords’ dining room, and
they’d be picking up currents which they’d
reflect quite frequently in the way they
dealt with public law.”
Others were less convinced. Many Con-
servatives thought the reforms vandalism.
Their sense that something was amiss was
reinforced in September 2019 when the
judges, among them Lord Reed, ruled
unanimously that Boris Johnson’s suspen-
sion (or “prorogation”) of Parliament dur-
ing the Brexit saga had been unlawful. The
then president, Brenda Hale, became a
folk-hero to Remainers. Cabinet ministersBritain’s highest court takes a conservative turn→Also in this section
20 Boris Johnson’s future
21 Victorian market halls
22 Child offender, adult criminal
22 The queue for the electricity grid
24 Lessons from covid for the fluReed and rights
Britain, Supreme Court cases, %Source: UK Constitutional Law Association1806040200
2120181614122010Cases won by public bodiesSuccessful human-rights casesPhillips Neuberger Hale ReedPresident of the Supreme Court:— Bagehot is away