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.