The new Justices

Lord Norton

One change in the ceremony for the Queen’s Speech yesterday was the arrival of the Justices of the Supreme Court in their new robes.  They occupied the two rows in the middle of the chamber right at the front – ahead of peers but behind the senior judges who attend each year.  The High Court and Appeal Court judges sit in their robes and wigs.  They constitute a small number of the judges of the senior courts of England and Wales.  I gather they are selected by ballot.   The new Justices sit without wigs.   Those that were law lords (that is, virtually all of them) previously attended State Opening but they sat in their ermine robes with other peers.  They now have their own distinct robes and specified seats.

23 comments for “The new Justices

  1. Gareth Howell
    19/11/2009 at 2:26 pm

    My own experience of the Law Lords whilst they sat in the Lords Chambers at the end of the Committee corridor was not good, and I know Lord Browne Wilkinson will grant me further indulgence if I relate his excellent chairmanship of the Pinochet hearings in 1998(?)

    It was easy to forget, for one still uninitiated in the procedures of the HofL,
    but familiar with the corridors of the palace, that these peers sitting in committee
    were the court of appeal.

    I was specially fortunate to be invited by the noble lord to assist in the commencement of the proceedings after I had delivered a request, by way of the Society of Doorman’s silver plate, to make a comment on the composition of the law lords bench.

    I suggested that a head of state of a foreign power really should be tried by his own peers
    ie other heads of state if possible, and failing that at least a duke (a leader) of these islands of ours to represent the monarch.

    A gracious duke duly arrived and the proceedings got under way.

    I regret to say that the informality, and a good many delightful south American Indians in the audience, towards the end of the hearings, induced me to forget the absolutely essential requirement of the noble lords, to make a request in writing in the proper way that I had done at the start.

    I forgot and stood up…… and was very nearly charged along with the South American dictator myself, for having interrupted the last day of the noble law lords sitting.

    Thanks to the effective chairmanship of the noble lord, I was glad to be sent packing rather than to be clapped in the potentially very painful irons of the HofL.

    May I be permitted to congratulate the Law Lords on their arrival in their new Courts, and may their deliberations be wise. May the separation of powers, so effectively organized by Lord Falconer,whom I have so much admired, for his determination in putting the reforms through, be long lasting and thoroughly effective.

  2. woolfgangkleidung
    19/11/2009 at 2:33 pm

    Didn’t I read that a set of robes costs 10,000 pounds?

    11 of them, that’s 110,000 pounds.

    So just to fund their dress has taken 44 people on the poverty like working for an entire year, whilst consuming no public services.

    It’s not a coincidence that today the October 2009 public borrowing figures have been published. 11.4 billion. This is the overspend for 1 month alone.

  3. lordnorton
    19/11/2009 at 4:41 pm

    Gareth Howell: The new Justices have been keen to maintain the level of informality that characterised their sittings in the House of Lords. That is why the three new courts in the Supreme Court building have been kept small, with counsel sitting close to the Justices. Incidentally, I am sure Lord Falconer will be grateful for your concluding paragraph, although the decision to create the new court was taken in 10 Downing Street. The events surrounding the decision have been well revealed by Lord Irvine in his recent memorandum to the Constitution Committee.

  4. Gareth Howell
    19/11/2009 at 7:01 pm

    My Lord Norton

    Thanks you for your courteous reply.
    Yes an intimidating atmospehere does nothing whatsoever for justice or the truth.

    I have not been in Westmister for some time so I merely watched Lord Falconer justifying his decisions to a select committee in your lordships place, I believe, on screen,and I was amazed at the level of aggression and stress involved in explaining his highly rational decisions to the committee.

    Lord Facloner is a tough individual, who was needed for a difficult task, and he did it in exemplary fashion. I would not even have envied assisting him in doing it!

    Obviously it was not just a matter of creating the new court but all the other changes as well, opinion about which….I do not know your lordship’s ‘side’ !!

    I don’t think it actually matters now. There is surely a forward look to the noble house which there certainly was not when Lord Carnborne was haggling so desperately in the 1990s.

    May business be brisk!

    I would be glad to see City mayors in the Lords as of right, as they are in France, but that is another matter all together…. and what for.

    • lordnorton
      21/11/2009 at 11:29 am

      Gareth Howell: I was one of those who opposed the move from the Lords to the Supreme Court. As you will have noted from my recent post on Lord Irvine, the decision to create a new court and to abolish the substance of the office of Lord Chancellor was, as Lord Irvine argued, botched. The Constitutional Reform Bill was at least subject to detailed scrutiny by a select committee in the Lords. Though the Government resisted it being sent to a select committee, Lord Falconer did concede that the Bill was much improved as a result of the committee’s work.

      • Gareth Howell
        21/11/2009 at 12:49 pm

        I expect that the noble Lord Norton’s objections were based on the impossibility of turning the clock back once the new court was established, which even worried me!

        The form,at least,of the Office of LC, has not gone.

        All the changes, excluding the electoral college of Hereditary peers, leaves the crown a little exposed, but I feel sure the conservatives will do something to provide more ‘cover’ whenever they are elected.

        Restoring hereditary styles would be the simplest way, and I can think of a number who would be happy to accept them!

        It would make the chamber no more effective.
        Setting an age limit might be.

        Going through the Order paper for the week, I am always glad to see the number of Delegated Legislation committees, for EP directives.

        That is the main task, perhaps to leave constitution well alone for a good long time, especially with the new European one, hot off the presses.

        The quasi-presidential status of Lord Speaker is best left undiscussed, by me.

        Sorry I have gone way off “Justice” topic!

        I did think that Lord Irvine’s comment about
        the exercice being botched was based mainly on his entirely commendable pride in having been one in a 300 year line of the office, albeit nearly the last.

        He does have an excellent sense of humor about these matters.

        Lord Falconer’s task must have been very discouraging. I don’t quite recall whether he sat on the wool sack whilst he abolished the power of office… of the “sitter”.


        Would Lord Norton have left it exactly as it was?

  5. Senex
    20/11/2009 at 6:21 pm

    I watched this TV documentary, linked below, a while ago and thought it was an outstandingly good presentation of what the US Supreme Court does. It’s building and internal rooms burst at the seams with historical metaphor in much the same way as the HoL does. This documentary throws down the gauntlet to our own Supreme Court and their new building and I hope the challenge is taken up.

    I must say I’m becoming obsessed with the stripes on the American Flag. It seems in perpetuity that the US must remind all and sundry that they once kicked the ass of the British Empire. Even more indignantly the main chamber of the US Supreme Court has a draped flag at either end of the mahogany bench that whispers this from a motionless sobriety.

    I look forward to the day when all Supreme Courts everywhere can rise above their national symbols to deliver justice for all, a mark of their political independence. Perhaps then the world will move forward to a newer and higher form of justice.

    Ref: The US Supreme Court: A ‘Temple’ of Justice

  6. Gareth Howell
    20/11/2009 at 8:42 pm

    That is the Federal Supreme Court.
    I am not sure whether each state does not have a supreme court;
    Supreme court of Kentucky and so on.

    We now have European Courts of Justice which should match what the US federal govt has to offer, remembering that whilst the UK is a very populous state,about 1/8 of the EU population, it is only one of the 27 in the European Union.

    US Federal Law is probably rather more highly developed than European law, but we have had some famous cases already.

    • Gareth Howell
      20/11/2009 at 8:48 pm

      The Lord Norton’s comment abut the level of IN-formality is exactly the same in the small state of KY.

      I exagerate to make my point about the meaning of “Supreme” in the context, but Iowa, California, New York and possibly Florida, also have supreme courts about which I would not be exagerating, (or making light of!) to make a comparison.

      Please don’t obsess about the Stars and stripes! There is no need.

      • Senex
        22/11/2009 at 1:22 pm

        Gareth Howell: “Please don’t obsess about the Stars and stripes!”

        Its not the stars that fixate me because they represent something quite wonderful. A Union of 50 ‘countries’ united under one purpose as a federation; each ‘country’ has its own legislature and no federal judge can act without the consent of that legislature.

        There was a short time leading up to the American revolution when the block now filled with stars was filled by the symbol of another union that of England and Scotland in the form of the Union Jack. The stripes represent the 13 founding colonies of a British America. For Americans the stripes represent the founding colonies of the United States.

        If PBO in his inaugural speech found it appropriate to make reference to the counter attack by General Washington on Christmas day 1776 against the British, he only served to raise an eyebrow on my part by reaffirming that the US cannot let go of its violent past, or present.

        If Americans now feel they are part of something bigger, world citizens, let this be reflected in a new national flag, something gives vitality to this notion, this aspiration and let ‘Old Glory’ rest in peace.

      • Gareth Howell
        22/11/2009 at 3:06 pm

        Ah well Senex we now have our own Judicial systems in the EU, all based on Roman and post-Roman law, French and English law being the two nearest.

        Even Eastern EU countries, such a Czech, and Hungary surely enjoy Roman Law as well and then what?

        Having enjoyed/suffered 70 years or more of Soviet domination there must be a sprinkling of Law based on Russian principles, and Judicial systems based on an INDEPENDENT supreme court, the same as we have now in the nation state of the UK.

        As an exercice in Comparative Law, about which Lord Norton, or a university law prof, certainly knows far more than I, we have in this country moved further towards
        a socialist or ‘Republican’ system of Law,
        which most conservatives object to.

        Perhaps I will be able look it up for you, but there is so much going on with the evolution of Law in a United Europe and not in a United States at this moment, that I am rather enthused by European Law in general and not US Law, in particular!

        So the 27 supreme courts of a United Europe (EU) may have several widely varying structures.

        I don’t quite know again (I forget all these things!) whether the EU has a Supreme court.
        It certainly has a European court for Human rights, but those human rights laws have been handed down to the state Judiciaries/Supreme courts in the form of UN Convention now incorporated in to UK law.

        The ECHR may have been an interim measure, and that appeal to it, is no longer necessary.

      • Gareth Howell
        22/11/2009 at 3:22 pm

        Here is a moderately easy answer to the question of the United Europe supreme courts; that lord Falconer, in his wisdom, was almost certainly greatly guided by.

        I have of course forgotten German Law in recent history, but that too has been of a socialist or republican ilk.

        The harmonisation of EU supreme courts is surely not to be dealt with lightly merely because US Supreme courts hold a greater consistency amongst themselves, through being united for longer!

        Kind regards

  7. Carl Holbrough
    20/11/2009 at 10:09 pm

    Senex said “It seems in perpetuity that the US must remind all and sundry that they once kicked the ass of the British Empire.”

    Absolutely, proving that terrorism and hit and run works. Well done the US for giving the World yet another great thing.

  8. Gareth Howell
    21/11/2009 at 1:10 pm


    Dwelling on ceremony is a lost cause, but this particular view is confusing. The senior judges who are not peers surely do not attend with ballot or without it?

    It may be that those peers who are QC/judges but NOT Law lords are probably the ones who are not garbed in the new way.

    I have not presumed to enquire how Law Lords are selected over the years, whether one has to be a Peer first and then a Law lord or whether it is directly to the Law lords bench from the High courts.

    The Lawyers’ skills of such as Noble Lords Neal or Anderson are not the same at all as those of Craigie or B-Wilkinson. They have very different knowledge indeed, although Anderson may well have the power to sit as Judge in the high court. I doubt whether Lord Neale (Laws of the Air) does.

    The careers of the ICTY judges in the Hague
    are interesting, but those are broader issues.

    • lordnorton
      21/11/2009 at 3:42 pm

      Gareth Howell: Senior judges do indeed attend the State Opening of Parliament. We had High Court and Court of Appeal judges sat in their finery on Wednesday. What was different this time was the attendance of Justices of the Supreme Court in their capacity as Justices and not, as in the past, as members of the House. Law lords were selected because they were seen as the finest legal brains and upon appointment became law lords. (The law lords were the earliest form of life peers.) Nominations for senior judicial appointments are now made by a Judicial Appointments Commission.

  9. Gareth Howell
    21/11/2009 at 5:24 pm

    I did not know that.

    So the High court Judges,although they are not peers, attend the state opening.

    You say “in their capacity” about the former Law Lords, and they have no other capacity of peerage?

    Lord Woolf who was sitting on the Crossbench when I was Below Bar t’other day, must have retired from the Supreme court.

    On a different subject rather, I think I am right in saying that the Law Lords do generally “divide” in their own committee decisions, although how they divide at any time I would not know, so their presence as a group at state opening has nothing whatsoever to do with their political point of view.

    It would be weird if it did!

    • lordnorton
      22/11/2009 at 5:44 pm

      Gareth Howell: Like the US Supreme Court, the new Justices – as they did as law lords – proceed on the basis of majority decision. One can, and does, get dissenting opinions.

  10. lordnorton
    22/11/2009 at 5:39 pm

    Gareth Howell: On your other post regarding courts in the EU, the EU has the European Court of Justice, based in Luxembourg. It does not have the European Court on Human Rights. The ECtHR is based in Strasbourg and is the product of the Council of Europe.

  11. Gareth Howell
    22/11/2009 at 6:22 pm

    Such search wbeiste can be lsightly intimidating but the recent case button reveals the work done by the ECJ.

    The problem with explaining Us federal Law is that you really need to be there to ‘experience’ (people saying ah oh that is federal law) the law before you can have a feel for what it is. Some people might say
    Federal law only becomes noticeable in the context of not paying federal tax!

    The ECJ, European (Union) Court of Justice has one member judge from every nation state. Perhaps the US (Federal) Supreme court does too, from every state.

    We are quite a long way from the state opening robes now!

  12. Gareth Howell
    22/11/2009 at 6:31 pm

    Thank you for the correction again miLord.

    The fact that all the 27 EU states are members of the 47 member state Council of Europe means that ECtHR law is also EU law.

    So the ECtHR is an independent body.

    • lordnorton
      23/11/2009 at 12:13 pm

      Gareth Howell: No, the ECHR has not been EU law. The member states of the EU are subject to the ECHR but the EU is not or rather has not been. It only comes within the ECHR as a result of the Lisbon Treaty.

      • Gareth Howell
        23/11/2009 at 12:20 pm

        Quite so.

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