Court on Camera

Lord Taylor of Warwick

I will never forget my first appearance as a young barrister, arguing an appeal case in the House of Lords.  Five of the six elderly men I was addressing listened to my submissions with a stony face that Buster Keaton could not have matched. But one  nodded occasionally and even smiled at me. I drew encouragement from his reaction and focused my speech on him, hoping he would persuade his noble and learned colleagues to grant my client’s appeal. When I finished speaking, the Law Lords rose to go and consider their Judgement. As this was happening, the friendly one stood up and said in a loud cockney voice, “Court Rise”. He was not one of the Law Lords. He was the Usher! We learn by experience.

This month the new Supreme Court took over the judicial functions of the House of Lords, a role which had previously been exercised by my Law Lord colleagues in parliament. Is this progress or prejudice, against a system which some say had been working perfectly well for centuries?

 You might ask yourself: when did the government make this decision, affecting the UK’s most powerful court? Why can I not remember the debate about it? Do not worry, you have not lost your memory. There was hardly any discussion about it. So why the change?

 The main argument for reform was to separate the House of Lords’ role as a legislator from its judicial role. It is said that former Prime Minister Tony Blair was concerned that our unified system did not conform to the requirements of the European Convention on Human Rights. Some critics believe that a judge who exercises both political and legal power cannot truly be seen as impartial when dispensing justice.

 We were one of the few democracies that did not have this separation of powers, between law and politics. The United States’ Judicial System has that divide. It appears to have created more transparency.. The judges of the American Supreme Court have a  high profile. When a new Supreme Court judge is appointed in America, the process is covered extensively in the media. By contrast, our top judges have very little public profile.

 The new UK Supreme Court hearings are far more accessible to the public and are available for television broadcast. However, I suspect it will never rival Strictly Come Dancing or The X Factor in viewer ratings. The reality is that the Law Lords have been transported to a building that is about 5 minutes walk away from the House of Lords, to what used to be Middlesex Crown Court. The Government say the cost of the whole project was 59 million pounds. The Opposition claims it was more like 100 million pounds. Who ever is correct, it is still a lot of money. But the new Court has now started and we are where we are. Only time will tell whether it was a sensible change or a supreme waste of money.    

 John Taylor,

Lord  Taylor of Warwick

12 October 2009

18 comments for “Court on Camera

  1. franksummers3ba
    12/10/2009 at 4:46 pm

    Lord Taylor,
    For reasons too numerous to fathom we have fewer jokes and funny anecdotes at the national level that turn on accents and dialect than the UK I think. However, there is one that is apropriate here. When asked about impartiality and separation of powers a politician was famed for saying (as I recall)”The Supreme Court follows the ‘lection returns in the papers too”.

    The Justices are still the least recgnizable very powerful people officeholders in our civilian society. We also have dual sovereignty. Justices in the highest courts of the States (sometimes called Supreme and sometimes not) are supreme in many matters which in analogous terms will come before the UK Supreme Court instead of anyone else. I think the separation of powers is a good principle each polity has to work out and apply. But legislation or executive power are sometimes the only things that are separated out. In states where Supremes are elected they are in a sense politicians (my grandfather was one) but usualy law and custom forbid them saying almost any of the things any other candidate for election would be expected to say when seeking an office. Despite the highly unique tone people get the elctoral fervor when there is no incumbent. So anomalies are not anomalous here. The EU is a separate issue…
    I think in Britain the role of Her Britanic Majesty as a long-standing unelected figure to whom Prime Ministers must issue reports and explain themselves has served many of the functions the US Supreme Court fulfills in our system and that will not show up on a flowchart easily.

    • Senex
      12/10/2009 at 9:11 pm

      Frank: “In states where Supremes are elected they are in a sense politicians”

      You make an interesting point. The US has a two tier Supreme Court system that is protected constitutionally. The Federal Supreme Court cannot act alone it must also have the agreement of the State too. The State Supreme Court has to have an awareness of things political because as you say members have to undergo re-election.

      When we talk of the United Kingdom, convention has it meaning the union of England, Scotland and the provinces. However, taking a historical perspective the ‘shires’ or counties themselves were once independent kingdoms. Had history turned out differently we could now have a Supreme Court of Lancashire, Herefordshire and so on.

      When I was reading the HoL library note I posted in BD’s blog spot the introduction said: “the failed attempt to create a life peerage for judicial purposes which occurred during the Wensleydale peerage case of 1856, followed by the statutory creation of judicial life peerages by the Appellate Jurisdiction Act 1876;”

      Yes! The Law Lords were the first life peers to appear in the house being there for over 150 years. Parliament has moved that they should now be a fully independent Supreme Court. Which brings me back to US State Supreme Courts; they are ‘political’ and have to perform the same juggling act that our own Law Lords once did. It works for America, the land of the free but not for us it seems.

      The Law Lords in a way have been the victim of globalisation. I think the global perspective is their next big challenge especially when it comes to matters of extradition. One thing that perplexes me about extradition treaties generally is that ‘felons’ as third parties have no protection or cannot seek protection under any applicable constitution.

      Their only protection comes from Human Rights conventions and they are not the same. The Tories wish to abolish certain Human Rights as do other political factions.

      Justice must take into account a global perspective if injustice is to be avoided. A domestic ‘felon’ with constitutional protection is not guilty until a court decides so. Why should a cross border one be treat any differently?

    12/10/2009 at 7:21 pm

    I personally tire of the endless reforms. We today have forgotten ur tradiions, and God. We want the Bishops ur pf the Lords, and the Lords to be elected. We have now a Supreme Court, and speak of “The Seperation Of Powers”.What next? Get rid of the Queen?

    Have any of these reforms given us what they have promised? A more transparent and fair society? The oposite seems true, yet when there is scandal we want more democracy and nroe modernism.

    The pay for Peerage scandal is a perfect example. When it came out, peopel rallied for the House of Lords ot be fully elected, this scandal provin it to be ineffective. Now is the itime, they argued, for getting rid of the Hereditary peers and making the House an all elected Chamber, for it has shown itself corrupt.

    The probelm is, noen of the remainign 92 Hereditary Lords were part of the SCandal. Those who were happened ot be life peers chosen by the Party in Power, Labour, so to ensure their own majorities in the Lords. Basiclaly, the Democratically elected office holders created the mess by Cronyism. Yet we need mroe democracy to fix it.

    And the same is said of other reforms, includign this one.

    Personally I dont think we need rid of the Law Lords role, and the Seperation of Powrs doenst ensure impartiality. The US Supreme Court is often accused of partisainship, and we are obsessed wiht it on this side of the Atlantic because of which judge holds what seat. When Sotomayor was appoitned it was out of political correcg concerns, and becaus the Democratsd wanted a woman and hispanic to be picked. This means hte Democrats get another feathe rin their cap because the firts Hispanic wa spicked by them. (Never midn that they bblocked a Republican Hispanic form the same office ebcause they wanted to be first.)

    Sotomayor is also liberal, so when replacign Souters, the ba;lance of the court wont be effected, we are told, but peopel fear, or hope for, a conservaive Judge to die or retire so the balance cna shift in favour of the “Nerw Progressive Era” as ushered in by Barrack Obama.

    How is that impartial?

    Its all just nonsense to think this will lead to political neutrality, especially if the Supreme Court is selected by politicians.

  3. 12/10/2009 at 10:01 pm

    I hear you, on the costs.

    What is the cost, from start to finish, of an Act of Parliament? As a simple example, what was the cost of the Hunting Act, 2004?

    • Senex
      13/10/2009 at 6:23 pm

      Tiz: The link below has a tantalising section called ‘Governing the Commons’. The prizewinners have demonstrated, at least to me, that we should issue ASBO’s to key members of New Labour.

      The acronym in this case stands for ‘Anti-Socialist Behaviour Orders’.

      You may find this surprising but I always had a soft spot for the now defunct clause 4 in Labours constitution in that it came from empirical observations over time by its members.

      The winner’s research has demonstrated that these observations had merit and New Labour was wrong to remove the clause. It’s a fascinating read as many of the points made are very relevant to Parliament.

      The section titled ‘Efficient conflict resolution’ says:

      “If two employees quarrel about the allocation of tasks or the distribution of revenues, a chief executive is entitled to decide.”

      For employees read both Houses and for chief executive read Monarch. We should consider a new layer to our constitution, a triumvirate, with appointments by all three entities.

      This as a prelude to restoring certain key powers back to the HoL least of which would be the ability to challenge Commons spending and its blatant bribery of the electorate something that serves no one well.

      What’s that I hear? “In your dreams!”

      Ref: The Prize in Economic Governance 2009

      • 14/10/2009 at 1:43 am

        I did take note, as I’m sure Lord Taylor did, that a 2009 Nobel laureate in economics had been won by a woman for the first time.

        A bit on the green side for me, but I’ll have a closer look after some sleep.

      • 14/10/2009 at 11:40 pm

        I’ll have to read the damn thing in toto at some point, I suppose. Two bits of worthless info, meanwhile.

        I was always fascinated by the dummy variable, so loved by mathematical and econometric modellers. It seemed to me they couldn’t get their head around the human factor.

        Secondly, I love the story, inevitably coming from Stephen Fry, on empirical evidence. When asked how big a heap of bees was he couldn’t answer. His professor then produced a number of bees – was that a heap? No. Adding a few more, each time he said no until the required number was reached. “Ah” said the professor, “so a heap of bees is precisely 28.”

  4. Bedd Gelert
    12/10/2009 at 10:32 pm

    Forgive the off–topic post, but someone has given your blog a 9 out of 10 rating !$1316028.htm

    High praise indeed and well deserved !

  5. franksummers3ba
    13/10/2009 at 1:32 am

    Tying in to the idea of media coverage and the US Supreme Court I recommend this:

  6. Bedd Gelert
    13/10/2009 at 12:19 pm

    Why aren’t you guys kicking up a stink over this ?

    This is absolutely disgraceful !! You should be going on telly to publicise this NOW !!

    • lordnorton
      14/10/2009 at 4:14 pm

      Bedd Gelert: It is coming up in the House tomorrow (Thursday) at Question Time. Lord Taverne ‘to ask Her Majesty’s Government what steps they are taking to preserve the right of newspapers to report proceedings in Parliament’.

  7. Mr Mulholland
    19/10/2009 at 5:04 pm

    Why won’t the Tories reverse this constitutional vandalism? Oh that’s right, there’s not a yardstick between them and New Labour. Anyone who thinks we have got a choice at the next general election is deluding themselves, Michael Gove even supports the condemnation of the poor to these ‘comprehensive’ schools. Instead of selecting by merit, these days we select by money.

  8. Lord Taylor of Warwick
    23/10/2009 at 4:15 pm

    Thank you all for your comments on this important issue.

    Franksummers3ba: I agree that the separation of powers is good in principle. More difficult is applying it in practice. The UK is not America and we have to be careful about simply transplanting their system onto ours. I believe the European Court is relevant, because it has an increasing influence on our domestic laws. Thank you for your link concerning media coverage of the US Supreme Court. I personally become uncomfortable seeing American Supreme Court Justices portrayed like media stars.

    Senex: There are positive features of globalization. The issue is about management. In some way, the Law Lords have become victims of European legislation. The Supreme Court may well prove to be an improvement on what we had before. But, a major issue will be how its decisions affect our identity and sovereignty. This will be tested by how it deals with such international issues as extradition.

    Zarove: We are where we are. So we should be positive about this change, but keep a careful eye on how it is working. As you said, the new Supreme Court will not guarantee impartiality, so we need to monitor how it develops. But this was a major reform. In the future we need to discuss such changes more deeply, before final decisions are made.

    Bedd Gelert: How kind you are! I really appreciate your supportive comments about my blog.

    Ladytizzy: There is still confusion as to whether the cost was nearer £100 million or £59 million. I suspect we will never know. You asked a specific question about the cost of the Hunting Act 2004. The cost of an individual Bill or Act is difficult to calculate. But apparently this legislation required 16 hours in the House of Commons and 22 hours in the House of Lords to debate. So it clearly cost several thousands of pounds.

  9. Wolfgang
    24/10/2009 at 1:01 pm

    It’s going to cost more isn’t it that thousands.

    107 million a year.

    164 days sitting, last year.

    So 2 days worth costs 1.3 million.

    ie. Your debate in the Lords if repeated today would cost well over a million.

    Why do you think it costs several thousands?

  10. Lord Taylor of Warwick
    30/10/2009 at 5:22 pm

    Wolfgang: Thank for your comment. Getting a precise figure for the cost of a bill is not easy. But whether we are talking about the cost of the new Supreme Court or new legislation, it is a costly exercise.

  11. Wolfgang
    30/10/2009 at 6:30 pm

    Well if you have debated the bill for two days, that is the cost of two days for the Lords.

    Don’t forget next year, we can add on the cost of the Supreme Court to the cost of the Lords.

    I doubt you will reduce the cost of the Lords by the cost of the Supreme court.

    It just shows the lack of control over costs. If the Lords think its costs a few thousands, when in reality it cost 1.3 million.

    The costs are pretty accurate. Lady Tizzy supplied the number for the overall cost of the Lords. A quick search shows the number of days you sat. Basic mathematics shows the answer.

    Pretty astonishing. So much money spent and so few results.

    The crucial part is the failure rate of the Lords. What laws you allowed through.

    For example, you’ve allowed through the abolishion of Habeas Corpus for some cases.

    You’ve abolished trial by jury for lots of cases.

    It’s not a good record and nothing to be proud of

  12. 31/10/2009 at 3:56 pm

    Peter Luff and Lembit Opik, co-chairs of the All Party Parliamentary Middle Way Group, have stated that more than 700 hours of parliamentary time was given to the Hunting Act.

    So many lawyers, not enough accountants.

  13. Wolfgang
    01/11/2009 at 8:53 pm

    Well, using your figures for the lords. 107 million a year. Now last year you sat 164 days. 10 hours a day. Probably generous. Total cost per hour of running the Lords, is 65,000 pounds.

    So if its 700 hours, it’s not cheap

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