A New Supreme Court for the United Kingdom - Essay Example

The whole idea for the establishment of a new Supreme Court for the United Kingdom came in 14 July 2003 when it was thought by the administration that there should be an urgent need to create a new supreme court for the United Kingdom1. This sparked off some academic as well as legal debates either in support of or in opposition to the court’s creation. It should be recalled that this controversial move for the creation of a new Supreme Court for the United Kingdom had earlier been mooted by the government as far back as June 2003. This was extensively debated in parliament2 and a selected committee of the House of Lords was equally put set up to scrutinized the reasons for and against a want of a new Supreme Court. Those who thought it wise that a new Supreme Court for the United Kingdom was necessary, believed that in establishing this court, the House Of Lords had a judicial function and this function should not be meddled with legislative functions. At least, the doctrine of the separation of the various arms of government should be maintained. Another reasoned judgment for this reform was to avoid unnecessary conflicts whereby the judiciary, the legislature and the administration will conflict with the obligation of the state as provided by the European Convention on Human Rights.3 Thus, there is a need to keep away those who are instruments behind the creation of the law from enforcing those laws. Keep in mind that if the same individuals were to be responsible for making and executing laws, the courts will no longer give reasoned judgment on the basis of an independent and impartial judiciary. This will therefore create a legal forum where every appeal for an unfair trial emanating from the House of Lords to the European Court of Human Rights will be upheld.4 It is common knowledge that revolutions of such nature be they constitutional or not, has always been marked by violence. But this created very insignificant or no agitation among the Britons. Was this new change received piecemeal or wholly; were agitations about this to spring in the future? The truth remains clear. This constitutional reform by the 2005 Act5, making provision for a Supreme Court of the United Kingdom to fully assume the existing functions of the House Of Lords and some powers of the Judicial Committee of the Privy Council was not well digested by the British public. However, with little or no open agitation, there was strong and passionate debate and this still continues with reformists and conservatives striving to make and uphold the strength of their arguments. Reformists base their arguments on an administrative document advancing these four reasons for the creation of the new Supreme Court. First, the institution occupied by the law lords embodies a flouting of the separation of powers. Remember that laws are voted for and put into effect by this same institution. Justice is on a progressive move and elements of justice, judicial review in particular, are continually on the focus. Thus, if the rights of persons are to be upheld as per the provisions of the Human Rights Act 1998, it will be out of the ordinary not to think that accountability and transparency will be breached by the law lords. And these of course, are necessary for an egalitarian and elected culture like the English. Secondly, the common and ordinary man finds the particulars or the workings of the House of Lords, an absolute ambiguity. For instance, a greater part of the populace is not cognizant of the fact the judges are often reluctant to sit in cases having some political features. If one thing has to be clear about the law, it should be ambiguous. Thus, an apparent division is indispensable to perk up an open awareness of neutrality and the notion of lack of prejudice on the part of the judges. Thirdly, and as a matter-of-fact, the working environment as well as the funds needed for the smooth functioning of the Appellate Committee which holds at Palace of Westminster is inadequate. Places of work are sometimes overcrowded to the extent that a judge finds little or no place to function. Therefore, only a new structure, could guarantee improved arrangement to an already disorganized body, which the Britons look upon as a court of final jurisdiction. A final argument for a new Supreme Court seems to be vague. The administration believes that if the business of this court had gone smooth over the years, the existing position should no more be the same. There should be want for reorganization. On the other hand, the conservatives have stood their ground, although they think reform is necessary. Reacting to the first point, they believe it is common knowledge that the general public is of the opinion that the irregularities within the House of Lords should not be an issue of concern nowadays. This opinion may, to an extent, be absent. Remember that some judges decline to vote during parliamentary sessions or choose to completely stay detached from the duties of the legislature; while others confine themselves to play subsidiary roles, even if they are formerly required to be active in these sessions. Although this will still carry reform through, a complicated situation may still arise. It is of no use to want to think of the doctrine of separation of powers between the judiciary and the legislature when in fact, the most evident flouting on this doctrine is manifested between the administration and the legislature. Keep in mind that no suggestion for reform to this effect has ever been tendered. There is no denying of the fact that reform is necessary, but in effect, the administration should begin from where it has to begin to make strong its reason for a change. If we further have to convince ourselves of the practicability of a Supreme Court for the United Kingdom, this will still be impossible because of its faulty inception. We cannot be talking of an independent new Supreme Court when the administration has not primed an estimate on the functioning of the business of the court. Remember that independence in its wholeness means that court must function on resources which must not be decided by administrators gunning for political favors. The previous court had functioned well and had conveniently managed a defined budget6; then there should be no need for a new court. It is wondered if this is just a flawed-necessity to replace a traditional system that had served the kingdom well for ages. Rather, a better way to determine the budget of the court will be for the court to put forth its budget, which will have to be sanctioned by the legislature. It is recommended that appointment of law lords should be let off the hook of political intrusion. Who becomes a law lord or not is tabled at the desk of the Home Secretary. This has been described as ‘putting those fleeing from lunatic regimes abroad in charge of the asylum laws’.7 A separate and independent body in change of appointing judges should be put in place. And if the administration must play a major role in this, the length of its powers should be controlled by sound reasons for its opinion. There is no conclusion with regards to where the business of the Supreme Court should take place. It is certain that the new Supreme Court should be located in a new premise, but which must be next to the Royal Courts of Justice. Remember that many hearings at the Supreme Court will emanate from these courts. If the intended ambit of the Supreme Court should extend to devolution cases which are at present, under the jurisdiction of the Judicial Committee of the Privy Council, it is reasonable to propose that the court should have a permanent seat in Edinburgh. But this too may obviously displease Wales and Northern Ireland because, besides the Appellate Committee of the House of Lords, no other English court has jurisdiction over cases from these jurisdictions.8 One thing is sure. Those who champion or attack the idea of a new Supreme Court both uphold the notion that the independence of the judiciary must never be flouted. The administration must prove with logical arguments that the business of the courts will remain untainted by the administration. Else, the establishment of a new Supreme Court will be an unnecessary attack on the constitution. It is not an easy thing to mess up with an age-old constitution of a democratic society such as that of the United Kingdom. However, the way forward should not be based on criticism. If criticisms are void of constructive and sound proposals, then it will simply be “much ado about nothing”. The better and even the best may still be yet to come. Further reading on perceptible progression on this constitutional reform can be read at: Le Sueur, Andrew (ed). Building the UKs New Supreme Court: National and Comparative Perspectives (Oxford University Press 2004). ISBN 0-19-926462-7 Morgan, Derek (ed). Constitutional Innovation: the creation of a Supreme Court for the United Kingdom (A special issue of the Legal Studies, the Journal of the Society of Legal Scholars) Read More