Flexing its muscles asserting the primacy of parliament, it is now a constitutional court

Next Tuesday, 1 October, marks the 10th anniversary of the supreme court. Over the past decade, its neo-gothic entrance, through which lawyers, litigants, protesters and politicians parade, has become an increasingly recognisable feature of national life.

In the aftermath of its devastating ruling declaring the prime minister’s suspension of parliament to be “unlawful”, the role of the UK’s highest court within the state’s unwritten constitution has gained added lustre – or, for its critics, notoriety.

Lady Hale, the court’s straight-talking first female president, who sports sparkling wildlife brooches, has obtained almost celebrity media status. She is the heroine of a children’s book, Judge Brenda and the Supreme Court, to be published next month.

The enhanced prominence of the court, partially a product of the protracted Brexit crisis, comes amid calls for far-reaching reform of the country’s governing institutions, political selection of judges, renewed interest in proportional representation and questions over the role of referendums.

Addressing lawyers earlier this month, John Bercow, the speaker of the House of Commons, proposed a royal commission or Speaker’s conference to explore the “desirability of a written constitution for the UK” in order to resist “executive malpractices”.

Facebook Twitter Pinterest The president of the supreme court, Lady Hale, delivering the judgment on Tuesday on the prorogation of parliament. Photograph: Supreme court

On Wednesday, the attorney general, Geoffrey Cox QC, warned MPs “there may very well need to be parliamentary scrutiny of judicial appointments in some manner”. At the same time, the leader of the House of Commons, Jacob Rees-Mogg, was alleged to have told colleagues the ruling was a “constitutional coup”.

Is the supreme court, which sits in Westminster directly opposite the Commons and Lords, developing into a more powerful, constitutional court? What might its role become if there were future institutional re-arrangements? And would that require political confirmation hearings for its dozen justices?

Despite warnings by the recently retired supreme court justice Jonathan Sumption in the BBC Reith lectures about the dangers of excessive judicial intervention, his former colleagues produced a judgment that upended the political establishment.

But the decision of the supreme court, while focusing on a novel circumstance, re-asserted key, traditional legal principles: the primacy of parliament and that no one is above the law.

Supreme court justices have not shrunk in the past from sensitive decisions simply because they involve political matters. In 2015, five of them, sitting as the privy council, overturned the introduction of fresh constituency boundaries in the Caribbean nation of St Kitts and Nevis a few days before its general election.

The court, through devolution, has also already transformed itself into a form of constitutional court. In 2012, it heard its first case assessing whether Welsh assembly legislation was compatible with UK law.

Lord Reed, who becomes the next president of the supreme court in January, accepted in a speech this year that its existing role makes it a constitutional court. “It is … the final court of appeal in relation to other devolution issues, questions of EU law, questions of human rights and other questions of a constitutional character,” he said. “This makes it effectively the constitutional court of the United Kingdom.”

Calls for US-style confirmation hearings for supreme court justices were considered and rejected by the Lords constitution select committee in 2012 on the grounds that it would undermine their independence. “Political considerations would undoubtedly influence both the parliamentarians chosen to sit on the panels and the questions put to candidates,” the report said.

Moving the UK’s most senior judges out of the House of Lords into their own supreme court building in October 2009 was intended to demonstrate their independence and the clear separation of judicial and political powers.

With heightened visibility, however, has come greater danger. On Tuesday, when Hale delivered judgment, for the first time the building’s security officer was standing up and scanning the back of the court for potential disruptions. Gina Miller, the victorious legal campaigner, was escorted to hearings by two burly personal guards.

Prof Vernon Bogdanor of King’s College London told the Guardian: “The [prorogation] decision by the supreme court is politically and constitutionally significant, but it’s not a huge jump and won’t turn us into countries like the United States or Germany, where they have constitutional courts that can strike down legislation. Our courts are already, in effect, constitutional courts that enforce EU law.

“… Brexit will leave a gap in our constitution in terms of the protection of human rights. This gap could well be filled by the judges. If that happens, Brexit will increase the danger of a clash between the judges and parliament.”

Robert Hazell, professor of government and the constitution at University College London, said: “The court has come a long way in the past 10 years. It has plugged a gap [in the UK’s unwritten constitution]: it would be a brave prime minister in future who sought an excessively long prorogation. The court has set boundaries around that area.”

The real problem Brexit exposed, he added, was “what is the place of referendums in our system”?

Assessing the significance of the prorogation ruling, Mark Elliott, professor of public law at Cambridge University, concluded: “The various factors that are at work in this judgment paint a picture of a supreme court judiciary that is prepared to serve as a guardian of constitutional principle in a way and to an extent that previous generations of apex court judges in the UK were not.”

On 16 October, the supreme court will hold an open day to celebrate its 10th anniversary. Anyone will be able to explore the architectural splendour of its courtrooms and its colourful, swirling carpets – incorporating a Welsh leek, English rose, Scottish thistle and Northern Irish flax – designed by the artist Sir Peter Blake. The justices hope the the public will be appreciative.

• This article was corrected on 27 September 2019 to remove a description of the entrance to the supreme court as a “portico” (a colonnaded porch).