BY PETER WICKHAM
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If it ain’t broke, the saying goes, don’t fix it. So why the need for a UK Supreme Court? The claim that there was a need to supplant the House of Lords’ hundreds of years of tradition as Britain’s highest judicial body merely to create a court with the same powers and membership as the old one seems like a lot of fuss about nothing. To some, it even seemed like the whole proposal was the result of a political dispute between Tony Blair, the Prime Minister who proposed the change, and the head of the former Law Lords, the Lord Chancellor. Perhaps, though, we should not be so quick to condemn.
Aside from political arguments, the main impetus for change was that no one other than lawyers really understood what the final court of appeal was or who the elusive judges were; it existed in the shadow of the much more visible Royal Courts of Justice. Although it shared its name with the upper house of Parliament, the Law Lords consisted of 12 judges, and since 1945 had not heard cases in the chamber itself. The problem was that the Law Lords were still members of the legislature, with the Lord Chancellor in fact being the speaker of the upper house as well as a cabinet minister and the most senior judge. The old system was aloof and, like so much in a system without a written constitution, offered great (if, as it turned out, only theoretical) potential for abuse.
The new Supreme Court firmly establishes judicial independence. It is now housed close to, but separate from the Houses of Parliament. Most importantly though, members will no longer be elevated to the peerage, and, thus, become members of the legislative House of Lords. At the same time, the substance of the court will not change. It will carry on the all the work of the House of Lords as well as some functions of the Privy Council. The same Law Lords have been transformed into the new Justices and differ only in name, and it is hoped the same high standard of legal analysis and detachment from politics will remain.
This all sounds pretty good, save for the new court’s £90 million start-up check. Still, the old Law Lords maintained their judicial excellence by remaining rather aloof from the political scene. The danger is that with live TV feeds and a more public profile, the new court might lose this and become more like the U.S. Supreme Court. Deadlock in a partisan court is not good for the law. Politics harms legal reasoning, it stifles judicial law making and at its worst leads to injustice. The creation of a Supreme Court is to ensure that there can be no interference from the politicians. Thankfully, the appointment process gives the executive, and the legislature virtually no say, so the problems of the U.S. seem unlikely, and the same high calibre judicial minds will still be present. If the court is to be a success, though, the justices must remember that, first and foremost, they are lawyers. They should not be swayed by public opinion; a court based on this is no court at all.
The need to follow the law rather than the ebb and flow of the public mood should not mean that the court is dissuaded from developing the law. At present there is no jurisdiction to strike down statute yet many ask whether the new court might over time move in this direction. This would be a constitutional enormity, destroying the concept of parliamentary sovereignty, yet in days of little legislative scrutiny it is not a wholly bad thing. Our system has almost complete fusion of executive and legislature, the voting system leaves us with huge majorities, and the rule of law is often left in a precarious position. If the new court were to step into this accountability breach they should be welcomed, not castigated. Those who call for judges to apply the law, rather than to say what it should be, are at odds with the very nature of the common law and seem consumed in theories of mob justice rather than in legal reasoning. Judicial activism does not mean the end of the rule of law; in fact, a strong judiciary is necessary to give it effect. Given the choice of a judge or a politician, I know which one I’d pick.
Despite its garish emblem, its hideous building and its astonishing price tag, the new Supreme Court should be welcomed. It ensures true separation of powers. It buttresses judicial independence while offering the possibility of a more accountable executive. After the swearing in, as the Justices take off their new black and gold robes, they should be proud of themselves. In their own, relatively understated British way, they have created a truly independent final court, which became largely of their own design once the politicians became bored with the project. The name grates, parts of the court are rather tacky, and some of the old world charm has gone, but behind this we are left with a true and independent instrument of justice, and that’s something with which we shouldn’t quibble.
Peter Wickham is an LL.M. student from the United Kingdom.