CHIEF JUSTICE BEVERLEY McLACHLIN of Canada

The opening of the Supreme Court of the United Kingdom is for us, in Canada, a momentous and important occasion.

From 1867, when Canada was founded, until 1949, the Judicial Committee of the Privy Council, empanelled from members of the House of Lords, was Canada’s final court of appeal. The highest judicial tribunal of England, known to us simply as the House of Lords, was also our highest court. We may therefore be forgiven if we retain a certain sense of propriety in it, a sense that lingers to this day.

We owe a great debt to the work of the judges who have served in the House of Lords. Before 1949 they actively shaped our law and the constitutional parameters of our nation. After 1949 they have continued to influence and assist in the development of Canadian law.

The judges of the House of Lords over the centuries have represented for us the gold standard in judicial reasoning and writing. And although in name part of the legislative branch of governance, they came to epitomise the ideal of judicial independence — an ideal which we have come to view as the cornerstone of the rule of law.

This is the foundation on which the new Supreme Court stands: the highest traditions of judicial decision-making and an unfailing insistence on judicial independence. It is a firm foundation, and I am confident that the new court, in its new constitutional form, will continue to serve and inspire, not only the people of the United Kingdom, but peoples everywhere whose jurisprudence is rooted in the British legal tradition.

The author is the Chief Justice of Canada

JUSTICE KATE O'REGAN of the Constitutional Court of South Africa

On October 1 2009, the Supreme Court will replace the Appellate Committee of the House of Lords as the final court of appeal in the United Kingdom for civil cases, and as the final court of appeal in criminal cases from England, Northern Ireland and Wales. Although the court will take over some functions from the Judicial Committee of the Privy Council (those concerning devolution), the work to be performed by the Supreme Court is by and large the work that has been performed by the law lords. With only two exceptions, the very judges who sat as law lords will now sit as members of the 12-judge Supreme Court. One might be forgiven for wondering what is changing.

Viewed from South Africa, a country still freshly alive to the possibilities and meaning of constitutional change, the new Supreme Court is a tangible representation of what has been apparent from the Law Reports of the United Kingdom particularly since the celebrated decision of the House of Lords in Ridge v Baldwin. An ever-lengthening line of public law decisions, admired and cited around the Commonwealth, establishes principles of public law based on fairness, reasonableness and more recently, proportionality. Underlying this jurisprudence is the deep constitutional principle that courts, as a separate arm of government, must protect the rights of citizens against abuse. The adoption of the Human Rights Act in 1998 endorsed this principle and since October 2000, when it came into force, the Act has given rise to a rich jurisprudence on the protection of citizen's rights.

In a sense then substance has preceded form. The new name and the new building, with its elegant Portland stone façade, reflect in form the existing substantive, constitutional arrangements of the United Kingdom far more accurately than the Appellate Committee located deep in the corridors of the legislative arm of government did.

Yet challenges lie ahead. There is not as yet, and probably will never be, one firm answer to the question: where should the line of judicial authority be drawn? The answer must accommodate two countervailing principles: the first is the duty to protect citizens' rights and the second is the obligation to respect democratic institutions. Courts and lawyers all over the democratic world will look with interest at the answers that the new Supreme Court proposes.

The author is a justice of the Constitutional Court of South Africa

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