The era of Conservative Party government from 2015–2024 was one of great constitutional turmoil in the United Kingdom. In addition to (and partly because of) the controversies surrounding the UK’s withdrawal from the European Union, this was also a period of heightened debate about the role of the judiciary, fuelling an unprecedented movement within and around the Conservative Party to curb the courts’ common law powers of judicial review. The UK is no stranger to court curbing—legislating to reverse individual judicial review decisions or ousting review with respect to certain decision-makers are well-established practices here. What was unprecedented about the recent movement was the breadth of its ambition. Following the Conservative Party’s 2019 Manifesto pledge to reconsider “the relationship between the Government, Parliament and the courts,” the government proposed a slate of broadly targeted reforms—to codify exhaustively the grounds of judicial review, to designate a range of issues as non-justiciable, and to limit courts’ remedial powers in public law disputes. The Independent Review of Administrative Law (IRAL) was established in 2020 to advise on (and presumably legitimate) these proposals. Unofficially, even more radical proposals were floated: political vetting of judicial appointments to filter out applicants perceived as judicial activists; an open-ended ministerial power to reverse unwelcome decisions on an annual basis; and even the abolition of the UK Supreme Court. Ultimately, however, only a few narrowly targeted measures were enacted, limiting judicial review or reversing judicial decisions in discrete areas of concern.

Now that this era of Conservative government is behind us, we can take stock of what lessons might be gleaned from the UK’s recent experience of court curbing. In my recently published article in the American Journal of Comparative Law, I identify two features of the British context that help explain why this bout of court curbing was ultimately so mild. The first is counter-intuitive: parliamentary sovereignty will tend to temper the scope of court curbing because it facilitates narrowly targeted reforms. The second is more intuitive and more generalizable: mobilizing populist antipathy against the judiciary from within an otherwise “establishment” political party is an uphill battle.

The Moderating Tendency of Parliamentary Sovereignty

At first blush, one might think parliamentary sovereignty would tend to encourage court curbing—in the absence of formal limits on what Parliament can do to restrict judicial power or judicial independence, courts would seem especially vulnerable. But the absence of formal constitutional constraints also affords British governments, via their usual control of the legislature, great flexibility: grievances with judicial power can be defused on a narrow and relatively cheap “retail” basis via ordinary legislation. In this way, parliamentary sovereignty undercuts the impetus for more radical and politically costly “wholesale” reforms.

This moderating tendency appears to have had a palpable effect on the recent episode. Seven UK Supreme Court decisions, including the two Miller cases, featured prominently as putative evidence of judicial overreach in the arguments of those who advocated for radical reforms: Miller I; Miller II/Cherry; Cart; Evans; UNISON; Privacy International; and Adams. Of these seven, UNISON was the only one for which a targeted legislative response was neither enacted, attempted, nor selected for future enactment.

The Miller decisions raised concerns about the justiciability of prerogative powers—partly addressed by an ouster clause in the Dissolution and Calling of Parliament Act 2022. Cart imposed burdens on government by making otherwise unappealable Upper Tribunal decisions judicially reviewable on a limited basis, generating a (supposed) deluge of “Cart judicial reviews”; that decision was effectively reversed by an ouster clause in the Judicial Review and Courts Act 2022. Evans neutralized a ministerial veto over Upper Tribunal information disclosure orders, but a legislative reversal was subsequently considered (though ultimately abandoned, in part because of disagreement within the Conservative Party). Adams opened the door to compensation claims relating to interim custody orders made during the Northern Ireland conflict, but that effect was deliberately reversed by the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 (see also the Northern Ireland Troubles Bill). Privacy International prompted a proposal to codify and restrict the courts’ approach to ouster clauses, but that proposal was eventually shelved in favour of a statute-by-statute approach (the immediate concerns raised by the decision had already been rendered effectively moot by the introduction of a right of appeal against the Investigatory Powers Tribunal). In short, most of the costs imposed on government by the decisions held up as emblematic of judicial overreach could be mitigated through narrowly tailored legislative interventions—and, in most instances, they were..

Establishment Inhibitions and Populist Discourse

The second stumbling block for the movement came from within the Conservative Party itself. In the context of an “establishment” party with longstanding ties to elite institutions, there are limits to what can comfortably be said in support for court curbing. Populist vilification of the judiciary—often an effective device in other contexts—will tend to go against the grain of the beliefs, narratives, and values that underpin and legitimise the existing configuration of judicial power.

To be sure, some Conservative politicians did indulge in populist anti-court rhetoric. In 2020, for example, Suella Braverman MP wrote, in support of a broad court-curbing agenda:

[I]f a small number of unelected, unaccountable judges continue to determine wider public policy, putting them at odds with elected decision-makers, our democracy cannot be said to be representative. Parliament’s legitimacy is unrivalled and the reason why we must take back control, not just from the EU, but from the judiciary.

Though such statements were attention-grabbing, they were the exception rather than the norm. Instead of adopting a populist framing—casting reform as part of a struggle between the virtuous people and an obstructive elite judiciary—the Government repeatedly displaced responsibility away from judges and softened any suggestion of conflict. The 2019 Manifesto implied that litigants or lawyers (not judges) were deploying judicial review “to conduct politics by other means” and, when IRAL was launched, the Government framed the problem it sought to address primarily in terms of “doctrinal trends,” accompanied by a statement of support for the UK’s “world-class and independent” judiciary. This approach continued. In its first response to IRAL (March 2021), the Government presented its plans as clarifying the appropriate bounds of judicial review; criticism of the courts was heavily hedged, and the “expansion” of judicial review was framed as a joint product of Parliament and the judiciary. The same conciliatory posture shaped the parliamentary presentation of what became the Judicial Review and Courts Act 2022. Dominic Raab introduced the legislation as a means for preventing “abuse” and improving efficiency, omitting references to rebalancing constitutional relationships or confronting judicial activism. Conservative MPs likewise resisted claims that the reforms constituted an attack on judicial power. Sir Robert Neill, for example, insisted that judicial review is integral to both the British constitutional tradition and the Conservative Party’s identity: “Judicial review—I say this to the wider public as well as to colleagues—is in the DNA not just of our British constitutional arrangements, but of the Conservative party”. Attitudes like this are plainly at odds with the kind of populist rhetoric that has been used to justify radical court-curbing policies elsewhere.

Conclusion

The UK is a competitive democracy, and democratic competition is widely thought to motivate political actors to support independent judicial power—if only because courts will also constrain political rivals when electoral fortunes shift. Against this backdrop, however, the two factors identified here appear to have had a notable moderating influence—shaping the choices available to incumbents and the discursive boundaries within which those choices could be justified.

The Conservative Party is currently in the throes of an existential crisis, having suffered its worst-ever election defeat. Even before that loss, elements within the Party had pushed for a more radical and populist direction with some success. Those elements now seem ascendent and may yet succeed in refashioning the Party into a force no longer constrained by traditional establishment inhibitions. Meanwhile, Reform UK is certainly not an establishment party, and a Reform government would almost certainly be less constrained by an establishment orientation. That being said, parliamentary sovereignty seems very likely to survive into the foreseeable future and it may continue to play a moderating role—so long as ordinary legislation remains a viable means for correcting or containing particular judicial decisions on a narrow retail basis, the political incentives for pursuing wholesale attacks on judicial power will remain limited.

Alex Schwartz is a senior lecturer in Public Law, School of Law, University of Glasgow.

(Suggested citation: A. Schwartz, ‘Recent Attempts to Curb Judicial Power in the United Kingdom’, U.K. Const. L. Blog (8th December 2025) (available at https://ukconstitutionallaw.org/))