The New Supreme Court of the United Kingdom - Essay Example

?The creation of a Supreme Court was an unnecessary and overly-expensive reform. The Appellate Committee of the House of Lords was independent, effective and was regarded as one of the finest courts in the world.’  Discuss. The New Supreme Court of the United Kingdom: Unnecessary and Costly Reform or Idea Whose Time Has Come? In 2009, a new innovation was introduced into the legal system of the United Kingdom. The Supreme Court was created, effectively replacing the House of Lords as the last court of appeal in the UK. It was created by virtue of the Constitutional Reform Act 2005, which made provisions for the same. Some critics have scorned this latest legal development as a cosmetic change that will burden the nation’s coffers, whilst some fear that it would lead to an American-style assertiveness wherein “the new top court will trump the role of legislators” (Bryan-Low and Bravin, 2009). Yet, there are many who laud it as a democratic development that will be in sync with modern politics and its plethora of challenges. This paper will evaluate the debate and determine whether or not the Supreme Court of the United Kingdom was a step in the right direction. It will argue that rather than being an unnecessary and overly-expensive reform, it actually is a legal innovation that must be lauded. This paper argues in the main that the creation of the Supreme Court is in sync with the time-honoured principle of separation of powers, and that this separation of powers is a way by which the judiciary can check on the parliament and counter possible abuses by the legislature and the executive. It then proceeds to make the point that it is in keeping with our commitment to human rights as a member of the European Union that a Supreme Court that is not attached to the parliament is an absolute imperative. Though the Appellate Committee of the House of Lords was indeed independent, effective and well-regarded, the demands of the present time are far different from the past and now more than ever, it becomes imperative that the judiciary not only be independent, but also appear independent. Separation of Powers The doctrine of separation of powers is a time-honoured doctrine in a democratic polity. This doctrine proposes that the state is divided into three co-equal branches: the executive, legislative and the judiciary, with each branch acting as “check and balance” against the possible excesses of the other. According to American scholar Malcolm Sharp, “the fear of power concentrated in the hands of a single class or group has, among other things, influenced the doctrine of the separation of powers among the various organs of government.”1 In the United Kingdom, however, this doctrine had not been followed. The members of the executive is drawn up from the Parliament, and in the Lord Chancellor (a position that dates back all the way to the 7th century) is reposed the three arms of the state, in that he is a Cabinet minister, a member of the House of Lords and the head of the Judiciary. However, many quarters felt that as long as the system was working, there was no need to change it or to hew closer to American counterparts. And certainly, there were mechanisms within the state to ensure judicial independence. For example, judges of the high court cannot be removed from office without an address that was passed by both Houses of Parliament. It is also exceedingly complex (and deliberately so) to sue or prosecute a judge for functions related to handing down decisions. Be that as it may, the demands of modern governance require that judges be independent from the executive. This independence certainly does not mean an uncoordinated bureaucracy, or a chaotic structure with no clear harmonised policy. Severing the nexus or removing the overlap between judicial functions and parliamentary functions does not, after all, mean keeping both bodies in blinders, oblivious to the needs of the country. It only means creating a separate office with distinct responsibilities. The first reason is that interpreting the law and crafting the law are two different functions, and each one should therefore be reposed in different and independent bodies. In the highly erudite words of Lord Bingham of Cornhill2: To modern eyes, it was always anomalous that a legislative body should exercise judicial power, save in very restricted circumstances. This anomaly may not have mattered in the past. But if the House of Lords is to be reformed, and even if it is not, the opportunity should be taken to reflect in institutional terms what is undoubtedly true in functional terms, that the law lords are judges not legislators, and do not belong in a House to whose business they can make no more than a slight contribution. Whilst certainly, the way by which the law is interpreted should be in accord with legislative intent, or to be more precise, the will of the Parliament, such can still be done with the judiciary and the Parliament working independently and co-equally. Indeed, in the vision of Lord Bingham of Cornhill, there should be a supreme court “established as a court in its own right, re-named and appropriately re-housed, properly equipped and resourced and affording facilities for litigants, judges and staff such as, in most countries in the world, are taken for granted.3” This court shall not burden itself with question of law-making, and only attend to the perplexing and increasingly complex questions of legal interpretation that confront it. When government needs to be checked Apart from the issue merely of function and clear delineation, the realities of modern politics call upon the judiciary to at times take a more confrontative position vis a vis the government. Let me know proceed with an example. The recent riots in London have exposed a simmering plethora of complex social and structural problems in this cosmopolitan city. The savage looting of establishments, the injuries caused to innocent civilians and the wanton destruction of property by masked thugs must be condemned, and their perpetrators should be prosecuted to the full extent of the law, but certainly the due process rights of the accused should not be left unheeded. In a strongly-worded speech, Prime Minister David Cameron bore down heavily on youth gangs and promised a criminal justice system that will clamp down heavily on them. He said, “We need a criminal justice system that scores a heavy line between right and wrong. In short, all the action necessary to help mend our broken society. At the heart of all the violence sits the issue of the street gangs. Territorial, hierarchical and incredibly violent, they are composed of young boys, mainly from dysfunctional homes.4” He then also stated in no uncertain terms that human rights legislation will not stop the prosecution of the perpetrators. In another interview, he was quoted as saying that “The truth is, the interpretation of human rights legislation has exerted a chilling effect on public-sector organisations, leading them to act in ways that fly in the face of common sense, offend our sense of right and wrong, and undermine responsibility.5” Here we see the possible conflict between the executive and the judiciary. Upon the executive is reposed the task of instilling peace and order and ensuring social harmony. But in so doing, it treads on tricky waters. There is indeed a very good chance that due process guarantees and human rights principles be abrogated in the name of law and order. The truth is that, since 1997, the New Labour introduced a panoply of new youth justice mechanisms designed to reflect the government’s tough new attitude against crime and disorder. The main objectives of the new policy were to reduce the number of first time entrants, to reduce re-offending, to reduce the amount of time between the arrest of an individual and his sentencing date, and to reduce the number of children in custody. The reforms that have been implemented appear to be more focused on retribution and public order, and have forgotten that criminal justice – particularly criminal justice involving children – need to have a restorative and rehabilitative component as well. In very strong words, Hogg called the Crime and Disorder Act 1998 “the latest step to enforce social cohesion by coercion6.” In similar vein, Walsh7 stated that “the Government’s youth justice policy is more concerned with maintaining order within the community than with the welfare of the child.” The over-all effect that this has is the creation of a punitive culture that will only result in children becoming even more hardened and even more embittered. Instead of providing a nurturing atmosphere so child offenders can learn and change their behaviour and integrate once more into society, they are treated as outcasts and are made to feel marginalized, thus heightening alienation from authority figures. This is helpful nether for the child nor for the society that these policies purport to protect. Moreover, an important issue that needs to be raised is the issue of procedural due process and human rights. For example, the government has set out to “pre-empt” crime by undertaking preemptive interventions. However, a consequence of that is that it brings to fore serious procedural due process, in particular presumption of innocence issues. As Goldson describes it, “It follows that the new modes of risk classification and pre-emptive intervention are unencumbered by such legal principles as 'the burden of proof', 'beyond reasonable doubt' and 'due legal process'. Instead intervention is triggered by assessment, discretion and the spurious logic of prediction and probability.”8 What this will result in – indeed, what it has resulted in – is profiling on the basis of preconceived notions and biases, thus allowing racist impulses to influence the application and enforcement of criminal justice. This is already manifest in the responses to the London riots, with early speculation being that the rioters were black young people, when in fact a good number of them were white, middle class Britons. Certainly, one can understand the executive branch for its zeal in prosecuting offenders and pushing for stricter laws to preserve social values and promote law and orders. But it is at this juncture that we see the absolute importance of an independent judiciary. An independent judiciary will be better situated to correct the executive or point out areas of overreaching. It will be able to more judiciously examine and investigate adherence of the government to human rights commitments that it has made, both in domestic legislation and in the realm of international law. It is a function of democracy that the actions of the different branches of government can be checked. Not only impartiality, but perception of impartiality By virtue of its adherence to the European Convention on Human Rights, which was incorporated into UK law under the Human Rights Act, the obligation of the state is not only to commit an independent judiciary but also a judiciary with the appearance of independence. Quoting once more from Lord Bingham, “(t)he Convention jurisprudence has encouraged a stricter view to be taken not only of anything which does or may in fact undermine the independence or impartiality of a judicial tribunal but also of anything which might, on its face, appear to do so.”9 In explaining this high threshold, the European Court stated that: In order to establish whether a tribunal can be considered as ‘independent’, regard must be had inter alia to the manner of appointment of its members and their term of office, the existence of guarantees against outside pressures and the question whether the body presents an appearance of independence. As to the question of ‘impartiality’, there are two aspects to this requirement. First, the tribunal must be subjectively free of personal prejudice or bias. Secondly, it must also be impartial from an objective viewpoint, that is, it must offer sufficient guarantees to exclude any legitimate doubt in this respect.10 Likewise, in the case of Piersack v Belgium11, it was held that “if an individual, after holding in the public prosecutor’s department an office whose nature is such that he may have to deal with a given matter in the course of his duties, subsequently sits in the same case as a Judge, the public are entitled to fear that he does not offer sufficient guarantees of impartiality”. This is not to say of course that there is never any conflict between Strasbourg and Britain. Indeed, Lord Chief Justice Lord Judge had been quoted as saying that UK courts should not be bound by rulings made by the ECHR. Statements of this nature are often made in the context of implementation of human rights directives, wherein the ECHR adopts a stricter construction of human rights prescriptions than the United Kingdom. Be that as it may, while the Human Rights Act is in force, the UK is compelled to take Strasbourg decisions into account. The best body to do so and to make sure that the lower courts comply with the ECHR is the Supreme Court, not the Law Lords which overlap with Parliament and which had a hand in setting the policy direction of the state. Certainly, one does not countenance an activist court, or a court that will become too big for its breaches. The branches of government must work together to provide a clear and coherent system of government for the British people, and squabbling co-equal bodies do not an efficient state make. On the other hand, there is merit to the assertion that an activist court is far superior than a rubber stamp court, especially in this day and age when questions confronting the state are almost never black and white but nuanced in many shades of gray. References Lord Bingham of Cornhill. ‘A New Supreme Court for the United Kingdom.’ (2002). The Constitution Unit. Available at http://www.ucl.ac.uk/spp/publications/unit-publications/90.pdf David Cameron. ‘Public Disorder.’ Address to the House of Commons. 11 August 2011. Full text available at http://www.publications.parliament.uk/pa/cm201011/cmhansrd/cm110811/debtext/110811-0001.htm B. Goldson. The New Youth Justice. (2000c). London: Russell House Publishing. J.G. Hogg. ‘Crime and Disorder Act: First Crack in the Threshold.’ (1999) 7 Family Law 574. M. Sharp. ‘The Classic American Doctrine of Separation of Powers’. (1935) University of Chicago Law Review. Vol. 2, No. 3. C. Walsh. ‘Imposing Order: Child Safety Orders and Local Child Curfew Schemes’. (1999) 21 Journal of Social Welfare and Family Law 2. 135-49. Cases Findlay v United Kingdom [1997] 24 EHRR 221. Piersack v. Belgium Application No. 8692/79, Judgement of 1 October 1982 Read More