The Supreme Court

The Constitutional Reform Act 2005 is unnecessary. - Justin Santiago

The CRA 2005 that legislated for a separate Supreme Court outside the House of Lords was a lofty ideal to inspire transparency, openness and greater public confidence in Britain’s constitution through a stricter separation of powers between the Executive, Legislature and Judiciary Criticisms. The proposals have valid arguments in light of a lack of a written constitution as well as a lack of a true separation of powers.

The main criticisms were that the judicial capacity of the House of Lords had developed into a body of high standing and to dismantle that capacity would mean that the best legal minds would not be able to participate in the drawing up of legislation especially critical ones such as those dealing with personal liberties. By removing the independent judges from the House of Lords, there is no counterbalance in the form of a truly functioning Supreme Court that could challenge unlawful legislation.

Unfortunately the reforms were are merely the disguise for the Executive’s larger control of the Judiciary. Also the lack of consultation beforehand leads one to believe that the reforms were more of a political decision than anything else. The process by which the CRA 2005 was reached undermined public confidence in the political process.

The CRA 2005 attempted to sever the link between the judicial and legislative functions of the House of Lords by the establishment of a Supreme Court. The judicial functions of the House of Lords will no longer overlap with its legislative functions. The new, independent Supreme Court separate from the House of Lords will act as the highest court of appeal in the UK except for criminal cases from Scotland. The existing role of the Law Lords will be taken over by 12 judges of the Supreme Court to be known as Justices of the Supreme Court. There will be a President, a Deputy President and 10 Justices of the Supreme Court. They will be appointed by the monarch on the recommendation of the Judicial Appointments Commission.

The drive behind the setting up of the Supreme Court was purportedly to move UK’s highest court from under the shadow of the legislature and not to separate those responsible for interpreting the law from having a hand in drafting the law. The continuing ability of the Lords of Appeal in the Ordinary (Law Lords) to participate in the legislative process was seen as untenable. The role of the Lords, who historically have been hereditary, as both judge and legislator seem to be in conflict with this and is reflected in cases like Davidson v Scottish Ministers which ruled that the could be a risk of apparent bias in the mind of the observer as well as avoiding situations such as in R v Bow Street Metropolitan Magistrates ex p Pinochet Ugarte where there was an allegation of bias because Lord Hoffman was one of the judges sitting on the bench was the Chairman and a director of Amnesty International which had taken part in the earlier hearing against the defendant. A retrial had to be reordered.

The new, independent Supreme Court separate from the House of Lords will act as the highest court of appeal in the UK except for criminal cases from Scotland.
The proposal to reconstitute the House of Lords appears to increase the appearance of the separation of powers however the reverse is more correct. In other constitutional systems as in France not only is there a clear separation of powers between the judiciary, executive and the legislature, there is also a distinct Constitutional Court, which deals with such issues. In the US Supreme Court, judges can question legislation and the legislative process. The situation in the UK is quite different with no clear separation of powers and with possibly a second class Supreme Court that will not be able to debate or discuss constitutional matters because of the doctrine of parliamentary sovereignty which will remain unchallenged and which might also curtail judicial independence via legislation.

Lord Woolf the then Lord Chief Justice argued that he saw the move as government encroachment on judicial independence. In his own words, “ a first class appeal court (the House of Lords) would be replaced with a second class Supreme Court. According to Lord Woolf, one of the most important of the judiciary’s responsibilities was to uphold the rule of law, which prevented the government from abusing its powers.