The Supreme Court

Lord Norton

Adrian Kidney and Handj have asked for my comments on the new Supreme Court.  In October 2009, the law lords (pictured) are scheduled to move out of the Palace of Westminster and take up residence in the old Middlesex Guildhall, where they will form the Supreme Court. 

I opposed the creation of the new Court.  The proposal was essentially a ‘back of the envelope’ proposal announced in June 2003 at the time of a Cabinet reshuffle.   There was no compelling case made for the change.  The judicial function of the House of Lords as the highest domestic court of appeal is performed by the Appellate Committee, comprising the law lords and such lords as have held high judicial office.  No one doubted that it was doing its job well (if it wasn’t, then presumably the law lords would not have been selected to form the new court).  The only argument advanced for the change was that people didn’t understand the distinction between the Lords in its legislative capacity (all lords) and the Lords in its judicial capacity (law lords).  No evidence was advanced to show that this was true and that, if it was, that it had any adverse consequences.  The Government proceeded, as I pointed out at the time, on the basis of a perception of a perception.  When the Lord Chief Justice appeared before the Lords Constitution Committee last year, I asked him the reason for the change; he said it was because people didn’t understand what the House of Lords was in terms of its judicial capacity.  I asked him if people would understand what was entailed in the Supreme Court: his answer, basically, was ‘oh no, they’ll assume it is like the American Supreme Court’.

There are potential problems arising from the the change, for both the court and Parliament.  The law lords do not usually take part in debates or votes in the Lords, but they do attend some debates and occasionally have some involvement in the work of the House; by tradition, for example, a law lord chairs Sub-Committee E (law and institutions) of the European Union Committee.  As a result, members of the House get to see the law lords and have some appreciation of their work.  I am one of those who is particularly aware of their worth, as I have been a long-serving member of Sub-Committee E and my office adjoins the offices of the law lords.   At the same time, the law lords have some appreciation of the work of the House.  This is to the benefit of both sides.  The House to some extent can act as a buffer at times of a clash between the executive and the judiciary.  My fear is that when the law lords are isolated in Middlesex Guildhall – it may only be a few hundred yards away physically from the Palace but politically it will be miles away – they are likely to be more vulnerable to attacks from ministers.   Judges are able to give some margin of appreciation to Parliament as the legislature and this is facilitated by knowledge of the institution.  

If the problem is in the name, then the solution is much less drastic than the expensive one on which the Government has embarked.  The simple solution is to leave the law lords where they are and re-name the Appellate Committee of the House of Lords the Supreme Court.  The move across Parliament Square is, in my view, unnecessary; it is certainly expensive.  And who will pay for the running costs of this new court?  The litigants.

8 comments for “The Supreme Court

  1. Adrian Kidney
    12/07/2008 at 5:03 pm

    Another excellent post my Lord, and my thoughts exactly. It was quite a sudden reform which nobody expected. What do you think was the Government’s motivation?

    And more importantly, what do you think are the chances of it being repealed and the Law Lords being returned to Parliament?

    Will the Law Lords continue to sit in the Lords? And what about future appointments – will new Supreme Court judges be ennobled too?

  2. handj
    13/07/2008 at 6:19 pm

    Many thanks for the insightful post – looking on the brighter side I understand that there will be a cafe, toliets and some inscribed paving stones and obelisks!

    To address one of Adrian Kidney’s points, Section 137(3) of the Constitutional Reform Act 2005 will disqualify Justices of the Supreme Court from sitting in the Lords. However, once they pass the age of 75 (or earlier if they do not wish to serve as long as they can) then, if they have a peerage, they may sit and vote in the Lords. Lord Steyn’s pre- and post-retirement activity could be an example for the future – depending, of course, on any reform of the House.

  3. lordnorton
    13/07/2008 at 6:31 pm

    As handj notes, under the 2005 Act law lords are excluded from sitting in the Lords until they cease to serve in a judicial capacity. What happens to new appointees remains to be seen. I would expect Justices of the Supreme Court to be ennobled once they have ceased their judicial activity – though that assumes the House remains largely as it is. In terms of repeal, the obvious problem is one of undoing that which is already done. That applies even at the fairly mundane level of space and resources. Once the law lords have moved out, the space they occupy in the Palace will immediately be claimed for peers’ offices. The best outcome would be to prevent the move taking place, but the closer we come to October 2009 the less easy that is to achieve.

  4. 14/07/2008 at 9:55 pm

    Thanks for this. You are making perfect sense. Aside from all the reasons you give for it being a bad idea we will now have major confusion about the new Supreme Court where there was no confusion before. Sigh.

  5. guido
    27/09/2008 at 10:29 am

    guys, sincerely, you are the only country in the whole world in which top judges are legislator too. and in which judges were appointed discretionally by the chancellor withou any form of trasparence.
    I think It was time to change.
    as well as it was time to write a bill of rights which the Government did in 1998.
    as well as it was time to make, finally, government power accountable not only before the Parliament (which does what the gov. please) but also before the common law courts.

    you guys have the oldest democratic constitution, but that doesn’t mean that basic human rights are not violated by the government or by the parliament itself. (just look at the antiterrorism acts)

    i think it was time to establish the new supreme court
    and i hope it will take enaugh courage to invalidate legislation if the Parliament will pass a human rights breaching law.

    parliamentary supremacy has become Governmnt supremacy becouse it is the prime minister and his cabinet who control and direct the House of Commons. and the House of Lords is just a shadow of what it ude to be. (fortunately).

    so, you are based on a constitution in which the government does what it please. and i call it despotism.

    time has come for the new supreme court and the judiciary to take the role they deserve in a modern democracy.
    which is to balance the other two brances of the State’s power.

    Guido Pulcher

  6. lordnorton
    27/09/2008 at 11:03 am

    Guido: You rather confuse two aspects of change. One is the appointment of senior judges and the other is the creation of a distinct suipreme court. There was no particular objection to making the appointments process more transparent and judges are now appointed by open competition. The creation of a supreme court is different. There was no criticism of the work of the House of Lords in its judicial capacity. No one doubted, or doubts, the quality of the law lords and that the appellate committee was a court of the highest quality. Law lords did not engage in the legislative process. Being within the Palace of Westminster was educative for them and for members of the House of Lords who were not part of the judicial process. Moving the law lords out of the Palace of Westminster into a new building across the road delivers no obvious benefits in terms of the fulfilling the functions of the highest court (there is no change formally in what it does – you appear to assume otherwise) but has a number of disbenefits.

    On the point about the House of Lords, far from it being a shadow of its former self, it has achieved new vigour since 1999. The research of Meg Russell is extremely instructive, as detailed in other posts on the second chamber. The House of Lords has been doing a good job, both in its judicial and its legislative capacity. No one has yet made a compelling case for change.

  7. guizzomediatico
    14/10/2008 at 11:53 am

    dear lord nolan,

    i think the two aspects of the issue, that you consider separate and independent, are rather interdipendent. The dogma of the separation of powers, which regulate the relationship between the branches of the British State, and which is at the base of the trasparency of the appointment of judges, imposes a formal separation, in attition to the substantial separation.
    this reason justified the change in the role of the Lord Chancellor, and the end of his historical role.

    The ECHR in recent years adopted a very strict interpretation of the article 6.1 of the Convention, and the United Kingdom has been condamned many times on this point of law.
    the link below is an article written by a former judge of the ECHR and it explains perfectly the evolution of this interpretation.

    the separation of powers has become a common principle of the european community, so the UK has had two chances: do what it has done or leave the community. i’m happy that the government has chosen the first.

    “justice must not only be done; it has to be seen to be done”.

    Guido Pulcher

  8. lordnorton
    14/10/2008 at 3:04 pm

    quizzomediatico: The House of Lords in its judicial capacity operated, and operates, as a distinct entity from the House of Lords as a legislative body. Law lords are not involved in discussion of any legislation on which they may have to adjudicate and, pace the article you cite, the position could remain as it is. Had there been a proven need to change in order to comply with Article 6, I doubt if so many law lords would have opposed the change. The arguments advanced by Government for the 2005 Constitutional Reform Act rested primarily on public perception. The position in the UK could quite simply have been dealt with by styling the Appellate Committee of the House of Lords as the Supreme Court.

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