The New British Supreme Court - Essay Example

Critically assess the impact of the introduction of the new British Supreme Court with particular emphasis on the constitutional implications. Could the new Supreme Court become more powerful than the House of Lords Committee that it replaces? The Constitutional Reform Act 2005 (the Act) was described by the Government as the “biggest constitutional shake up for years1” asserted determination “to put the relationship between Executive, Legislature and Judiciary on a modern footing, respecting the separation of powers between the three2.” Official debate regarding this pledge culminated in the implementation of the Act, which was approved by both Houses on March 21, 2005, receiving Royal Assent on 24 March 2005. Court. The Act provided for the implementation of a British Supreme Court for the United Kingdom to replace the current role of the Law Lords and the role of the Supreme Court has created polarity with regard to its constitutional implications. In particular, some commentators have expressed concern as to whether the British Supreme Court will become more powerful than the House of Lords Committee it replaces. For example, in a recent interview with former Law Lord Neuberger, Lord Neuberger expressed fears that the Supreme Court will become more powerful and could result in a verifiable risk of a power struggle with the government.3 Moreover, Lord Neuberger suggests that there is a risk of “judges arrogating to themselves greater power than they have at the moment”4. The focus of this paper is to critically evaluate extent to which the British Supreme Court could become more powerful than the House of Lords Committee it replaces. It is submitted that in considering this debate, it is imperative to consider the objectives behind the implementation of the Act in attempting to redress the imbalance in the constitutional convention of separation of powers5. Moreover, it is submitted that a central objective of the Act’s creation of the Supreme Court was to alleviate the imbalance. For example, the theoretical for justification for the separation of powers centres on its fundamental importance to the operation of democracy. The principle of separation of powers assumes that certain functions should be carried out by different institutions with neither impinging the other’s authority. As Montesquieu argued; “All would be lost if the same man or the same ruling body……were to exercise these powers.6” With regard to the UK position, the doctrine of the separation of powers has traditionally been limited and criticised for being somewhat unclear in comparison to other democracies7. Nevertheless, in the UK there has not been a clear separation of the branches of the state8, but rather a fusion. To address these inefficiencies, the Act implemented various measures impacting the relationship between the Executive, Legislative and the Judiciary powers in the United Kingdom, part of which is the implementation of the Supreme Court. Moreover, as mentioned above, the fusion of the Executive and Legislative has undermined the democratic ideal of separation of powers. Nowhere was this more evident than the fusion between Executive and Legislative, where the Executive is drawn from the Legislative, indeed from the leadership of the majority party in Parliament9. Furthermore, the Executive actually sit as members of the central legislative body of the House of Commons, effectively resulting in Executive domination of Parliament10. This is further compounded by the fact that as regards Parliamentary sovereignty, constitutional convention dictates that Parliament has ultimate authority over all affairs of government11, which again undermines the separation of powers. Moreover, it had been commented that the Lord Chancellor’s role is symbolic of the UK’s uneasy relationship with any notion of separation of powers. The Lord Chancellor’s role was multifarious, ranging from minister,12 Law Lord, head of judiciary13 and a member of the House of Lords in its legislative capacity14. Accordingly, “the traditional British disregard for the separation of powers was personified by the Lord Chancellor”.15 Furthermore, the presence and role of Law Lords in the House of Lords questioned the practically applicability of the separation of powers. By virtue of convention, Law Lords hear appeals and the Supreme Court of Judicature Act 1875 confirmed the role of the House of Lords as the highest jurisdictional body for appeal. This duality of purpose of the House of Lords as Legislature and Judiciary clearly supported Lloyd of Berwick’s assertions that “we do not in this country have what is often referred to as the separation of Powers”.16 Indeed, it was precisely this role of the House of Lords that motivated the creation of the Supreme Court. Related to this was the fact that the Lord Chancellor’s role was an instrumental driver behind the Act, the aim of which was to assert the separation of powers as an integral part of the British constitution17. Therefore Lord Falconer asserted the “overall aim…. is to put the relationship between the Executive, Legislative and Judiciary on a modern footing, respecting the Separation of Powers between the three18”. Therefore the creation of the new Supreme Court of the United Kingdom is a fundamental part of this where the judicial function of the House of Lords is transferred to a new Supreme Court. In accordance with this reform, the judicial function of the House of Lords is transferred to a new Supreme Court. Accordingly, in theory the Supreme Court should be removed from political motivations in judicial law making. The Supreme Court opened on 1 October 2009 and is certainly welcome in transferring judicial duties outside the legislature carrying “a badge of independence and neutrality19”, thereby rendering the notion of independence a closer reality. However, the new court is in Parliament Square, Westminster20 and this begs the question as to whether the close proximity to Parliament compromises the intended role of the Supreme Court as preserving separation of powers within the British Constitution. This potential for conflict with the separation of powers doctrine has been compounded by polarised debate as to the limitations on the power of the Supreme Court and begs the question as to the role of the Supreme Court and potential for abuse going forward. For example, Lord Neuberger comments that the implementation of the Court via the Act was created “as a result of what appears to have been a last minute decision over a glass of whisky”21. The purpose of the Supreme Court is to address the constitutional anomalous position where the final recourse in the appeals process is a parliamentary body, thereby moving towards an independent judiciary in practice. Indeed, Lord Falconer argued during the process of the Act’s reforms that if anything, the new court would strengthen the judiciary and that “the Supreme Court will be bolder in vindicating both the freedoms of individuals and coupled with that being willing to take on the executive.22” To this end, Lord Falconer’s argument suggests that the Supreme Court will address the problems of having the legislature, executive and judiciary governing the appeals process. As such, this argument supports the role of the Supreme Court as a fundamental turning point in addressing the independence of the executive and judiciary. However, the central problem is that it remains to be seen how far the Supreme Court’s powers will be utilised as a check on the executive. To this end, Lord Neuberger’s contention is that whilst the Supreme Court appears to be a good idea in theory, the Act fails to address the parameters of its powers. This in turn lends itself to the Court going beyond the powers of the House of Lords committee it replaces and thereby operating is a fundamental opposition to government power, which the Act fails to address. Ultimately, it remains to been how far the Supreme Court’s powers will grow, however on the other hand it is submitted that concerns about a “too powerful” Supreme Court may be premature particularly in light of the Act’s introduction of the Judicial Appointments Commission (“the Commission”). The Commission is now responsible for selecting judges in England and Wales. Previously, judges were appointed by the Lord Chancellor, which compromised political independence. Taking the power from the Lord Chancellor into the decision of an independent commission was a much needed move towards transparency in selection procedures. The Commission launched its new system to select High Court judges on 31 October 200623 with the requirement that appointments are to be made on the basis of merit solely24. However, although the Commission is made up of a mixture of professional, judicial and lay members, the presiding Chairman of the Commission is the Right Honourable Baroness Prashar CBE, who is a member of the House of Lords, which raises the same potential problems of fusion of powers. Furthermore, it is also arguable that being a member of the House of Lords directly contradicts the purpose of the Commission as a symbol of the preservation of separation of powers, especially when the Executive and Legislature is in fact the presiding Chairman in charge of judicial appointments. Furthermore critics have highlighted other shortcomings of the Act in improving the separation of powers. Le Sueur comments as an initial observation that these reforms are robust and lack precision25. Le Sueur highlights that the lack of a codified constitution in the British system intrinsically fails to entrench constitutional power and in particular the judiciary26. A further lacuna in the Act is the failure to address the “channels of communication” between the three organs of state and in particular the relationship between the judiciary vis-à-vis Parliament and the Executive27. The boundaries, extent and nature of formal communications between the three organs are not addressed anywhere in the Act. Conversely, the concept of the separation of powers implies a principle that the powers of each body should be held accountable to others however this is weakened by the Act’s silence on formal channels of communication between the three28. Accordingly in conclusion, the Act is clearly a welcome move in recognising the need for the UK to alleviate the previous problems of the separation of powers doctrine. The curtailment of the Lord Chancellor’s powers and the reform of the House of Lords through the implementation of the Supreme Court was a much needed improvement to the current system of law reform and judicial law making. However, the Act’s provisions point to a knee jerk reaction in its introduction of the Supreme Court, which fails to address potential abuses of power. Accordingly, it is too premature to predict whether the British Supreme Court will become more powerful than the House of Lords, nevertheless the current framework for the Court’s role clearly renders this a distinct possibility going forward. BIBLIOGRAPHY H. Barnett., (2004). Constitutional and Administrative law. 5th edition Routledge Cavendish A Bradley., (2006). Constitutional and Administrative Law. 14th Edition Longman. Penny Darbyshire, & K.J. Eddey.,(2002) Eddey and Darbyshire on the English Legal System. 7th Edition Sweet & Maxwell A. Carroll., (2007). Constitutional and Administrative Law. 4th edition, Pearson Education Harlow Lord Falconer LC., 657 HL Debs, col. 13 (26 January 2004). Rebecca Huxley-Binns., & Jacqueline Martin(2005). Unlocking the English Legal System Hodder Arnold. A King., (2001) Does the United Kingdom still have a constitution? Sweet & Maxwell. Leyland., & Papworth (2006) Textbook on Administrative Law. Oxford University Press. Loveland., (2006). Constitutional, Administrative Law and Human Rights. 4th Edition Oxford University Press Montesquieu (1748) “The Spirit of Laws” reported (2002) Prometheus Books Joshua Rozenberg (2009). Fear of UK Supreme Court Impact. 8 September 2009, Retrieved at www.news.bbc.co.uk accessed November 2009. Lord Steyn in Ministerial Speech (2004) Constitutional reform: strengthening democracy and rights. Retrieved at www.dh.gov.uk accessed November 2009. Le Sueur., A., (2005). Judicial Power in the Changing Constitutions: In Jowell & Olive)(Eds.). The Changing Constitution, Chapter 13. H W R Wade & Forsyth (2004). Administrative law. 9th edition Cambridge University Press. Lord Woolf., (2005). Singapore Academy of Law A, Constitutional Protection without a Written Constitution. Lord Woolf (2004). The Rule of Law and a Change in the Constitution. (2004) 63 (2) Cambridge Law Journal. D Woodhouse., “The Office of Lord Chancellor” (1998), Public Law p.607. Legislation Constitutional Reform Act 2005 Supreme Court of Judicature Act 1875 Read More