It was dreamt up over a glass of whisky or on the back of a cigarette packet.
That, at least, is the prevailing myth as to how the Supreme Court of the
United Kingdom came about. Now, six years on, this landmark reform finally
takes effect and today the court opens its doors for business.
What will it all mean? For a start, the public will know where its highest
court sits, see the judges at work and, in a first for any court in England
and Wales, watch cases broadcast on television.
Transparency, visibility and constitutional clarity. Lord Phillips of Worth
Matravers, its first president, says: “The object is to give formal effect
to an important constitutional principle — the separation of powers, by
transferring the function of the [highest] court from technically being a
function carried out by Parliament to a function carried out by a court of
judges.”
Until now, the highest court in the land was a committee of the House of Lords
known as the law lords. They were hidden from public view in an obscure
corridor in the depths of the Palace of Westminster and the public scarcely
knew they existed.
So the idea of giving the 12 law lords their own building and distinct
identity as supreme court justices quite separate from the legislature has
constitutional logic. Why, though, this reform now — after more than 100
years?
From the beginning, the embryo court has been dogged by questions as to its
purpose and squabbles over its location — even down to its address and
postcode, because of the botched way it came about.
It was not a new notion. But the way it was sprung by Tony Blair, then Prime
Minister, with no consultation — even with the judges — raised hackles.
Ministers have since apologised. It is “now accepted on all sides”, Lord
Phillips says, that “it was not the best way of doing things”. He adds: “The
process by which the decision was reached has never been made public but it
was not a process of wide consultation.”
Professor Andrew Le Sueur, in his contribution to The Judicial House of
Lords 1876-2009 (OUP), says that its impetus “had little to do with
constitutional reform aspirations per se and everything to do with
continuing concerns about the future shape and management of two government
departments — the Home Office (led at the time by David Blunkett, MP) and
the Lord Chancellor’s Department (led by Lord Irvine of Lairg).
Lord Irvine would not sign up to the package of a Ministry of Justice and
supreme court. So the announcement in June 2003 came with a Cabinet
reshuffle — and his demise. A supreme court meant putting clear water
between the apex of the judiciary and executive and scrapping the Lord
Chancellor’s multiple hats: speaker of the House of Lords, a minister and
head of the judiciary who could, and did, sit with the law lords. Instead,
there would be a Secretary of State for Justice in the Commons.
Things did not turn out quite like that. Blair found that he had to keep the
historic role of Lord Chancellor, albeit stripped of its judicial-speaker
functions. And many law lords, whom he thought favoured a supreme court,
were suddenly against it.
So what do they feel now? Most of the doubters are now onside. Those who
originally strongly opposed or had doubts (Lords Nicholls, Hoffmann, Hope of
Craighead, Hutton, Millett and Rodger of Earlsferry) have mostly (but not
all) retired. But views remain split, among judiciary and lawyers as well as
politicians.
Lord Falconer of Thoroton, who took over from Lord Irvine as Lord Chancellor
and first Justice Minister, argues that the reform was inevitable. “We could
never go on having, in a liberal democracy, our courts become even more
important, operating as a committee of the second chamber of the legislature
whose acts of Parliament it was not only ruling on but from time to time,
voting on. It was an unsustainable position.”
The policy, he adds, which was the Prime Minister’s choice, was driven by the
need to act before a “crisis” overtook this muddled constitutional
arrangement. It had come close, when the House of Lords had to re-hear an
appeal in the Pinochet extradition case, after Lord Hoffmann had failed to
declare his family links with Amnesty International.
So was the Pinochet-Hoffmann debacle the reason for the reform? “It was not
the trigger — the idea of a supreme court had been discussed over a long
period — but it contributed to a sense of never knowing where the next
crisis was coming from.”
The Conservatives take a different view. Dominic Grieve, QC, the Shadow
Justice Secretary, says: “We were against the creation of the Supreme Court.
We think it will prove to be a very costly exercise with capital costs in
excess of £100 million, adding in the cost of relocating the criminal courts
from Middlesex Guildhall and PFI costs, with running costs rising from what
was £3 million on the law lords to £14 million a year. So we believe it is
not money well spent. That said, it is up and running and we wish it
success.”
Edward Garnier, QC, the Shadow Attorney-General, points out that the court is
not a supreme court as most people understood that name in other
jurisdictions. “It was designed by Tony Blair to give the impression of
seismic constitutional change but was really just an expensive P45 for Lord
Irvine.”
Alison Foster, QC, a leading public lawyer with 39 Essex Street, who has taken
landmark cases before the Lords, feels strongly about the way the decision
was reached without public debate — and, as she sees it, so as to deflect
tough questions about the old, less easily justifiable, arrangement.
“It’s the emblematic quality that strikes me — along with other changes made
in recent years. I do think it’s dangerous to make changes of this sort, and
spending this sort of money, when it’s accepted that nothing will or ought
to change. I do deprecate what seems to be window dressing of something this
important.”
Whether the reform is seen as costly, needless rebranding or needed
constitutional reform, what impact will it have? There will be changes to
procedure: Lord Phillips favours more sittings of bigger panels (seven or
nine) and more single or majority judgments rather than each judge giving
his own. Those moves will force more discussion and, ultimately, more
clarity in the voice of the highest court.
Enhanced visibility will mean greater public scrutiny — not just of judgments,
but of the judges themselves and their selection process. Pressure may grow
for more outside involvement. Lord Phillips accepts there will greater
interest in who the justices are. But any move towards US-style confirmation
hearings will be strongly resisted.
Above all, many believe that giving the top court its own building and
identity will do more than make it visible — that over time, it will subtly
alter the balance of power between judges and ministers, in favour of the
former. As Lord Bingham of Cornhill puts it: will they become more
assertive, interventionist, less respectful of governmental authority?
Lord Neuberger of Abbotsbury, who has stepped down as a law lord to become
Master of the Rolls, warned on BBC Radio 4 of the peril of the “unintended
consequences” of messing about with the constitution, saying that the
creation of the court verged on “frivolous tinkering”. The danger, he said,
was that the move would influence the judges’ approach to their life and
their functions . . . that “subconsciously perhaps” they would arrogate
greater power to themselves than they have now.
The new supreme court differs fundamentally, despite its name, from its US
counterpart; it is not a constitutional court where judges can strike down
legislation. Nor, Lord Phillips insists, is that ever likely to happen.
Parliament, he says, is supreme but subject to European law. Parliament had
also decided that judges should review its statutes to ensure that they are
human rights-compliant.
“It’s very difficult to predict what the effect of the change will be. I don’t
think that it’s likely to alter our approach to a review of government
action.” The law lords had already demonstrated a “very firm approach to
upholding the rule of law”. Lord Bingham, his predecessor, similarly, does
not think that the justices will enjoy a “sudden rush of blood to the head”.
But John Wadham, legal director of the Equality and Human Rights Commission,
which expects to have an increased role in cases before the court, says:
“Our democracy will be enhanced by its creation because it will be
institutionally independent and need to be seen as separate from other parts
of the state.” The judges, he adds, had an excellent record. “Constitutional
separation will give them even more confidence to uphold the law and
principles that make us justifiably proud of them.”
Hugh Tomlinson, QC, of Matrix Chambers, the public law silk, agrees. “The
Supreme Court will have a profound long-term impact on the way in which the
judicial branch of government operates in our constitution. The symbolic
significance of the physical and formal separation of judges should not be
underestimated. In a modern political system, clarity and transparency are
fundamental values. They are enhanced by the new court.”
So a building and a name can make a difference. Judicial review, and the Human
Rights Act 1998, have already given the judiciary more power. But if the new
justices are clearly identifiable as guardians of the constitution, that
will — predicts Lord Falconer — change the way they think. “Not a startling
change, but over time, a greater boldness in asserting themselves and a
strengthening of the role of the court in protecting the rights of citizens.”
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