What is the UK Supreme Court and how does it differ from the Law Lords?
The Supreme Court is a formally independent body with its own premises. By contrast, the Law Lords were – although independent when deciding cases – technically a committee of the House of Lords and were housed in the Palace of Westminster. Law Lords were full members of the House and could participate in its debates. Although the current Supreme Court Justices were all previously Law Lords, they are now excluded from the House until they retire as Justices (while still using the titles ‘Lord’ and ‘Baroness’), and future Justices will not be members. However, the formal powers of the Supreme Court are no different from those of the Law Lords. Some thus describe the Court’s creation as merely a presentational exercise. However, others argue that due to the Court’s formal independence, it will have a stronger sense of constitutional legitimacy and thus be more assertive than were the Law Lords.
Is our Supreme Court like that of the USA?
It’s different in three crucial respects. First, unlike the US Supreme Court it does not have the general power to set aside legislation (statutes must be set aside if incompatible with EU law, but this power comes from the EU and UK courts have acknowledged it for twenty years). The UK Court is thus weaker. Secondly, the UK Court is not always the last court of appeal. Cases involving EU law may go on to the European Court of Justice (ECJ) and cases involving European Convention rights to the European Court of Human Rights. Some people therefore argue that the ECJ, rather than any national court (whatever it happens to be called), provides the better European analogy to the US Supreme Court. Thirdly, the UK Supreme Court has three extra Justices (12 rather than 9), and – as with the Law Lords – the appointment process is far less openly partisan.
How does it affect me as a citizen?
Since the Supreme Court’s powers are formally no different from those of the Law Lords, in theory citizens won’t be affected beyond the general point that making the Court independent of Parliament confers greater legitimacy on the entire judicial process. But in the longer term, it’s possible that things may alter if the Supreme Court, relying on the perception that it is more legitimate than were the Law Lords, becomes more ambitious in interpreting and using its powers. For example, in cases where human rights compete with national security arguments, we can certainly expect to see the current tensions between politicians and the courts continue. But it’s an interesting question whether the tensions might grow stronger if the Supreme Court interprets and uses its powers more ambitiously than did the Law Lords. How a court eng
ages with such matters is often as important as the formal scope of its powers.
How controversial is the change? Why has it occurred?
The legal foundation for the Supreme Court lies in the Constitutional Reform Act 2005. It may seem odd that the Court is only now opening for business, but the process of replacing the Law Lords has been difficult for technical reasons. On the ‘controversy’ point, some lawyers have argued for years for a Supreme Court because it would be, or appear to be, more independent than the Law Lords and thus more legitimate. Opponents have claimed either that a formally independent Court would make little difference, or that it would provoke unwanted controversy if it in fact turned out to be more assertive than the Law Lords. These arguments aside, cynics suggest that Tony Blair (Prime Minister at the time) proposed creating the Court only as a pretext for easing his mentor, Lord Irvine, out of office as Lord Chancellor.
Is it worth the money?
This depends on the view you take about the previous questions. The estimated rough cost of setting up the Supreme Court is £56 million. If you think the Court will make no real difference (not least because the first 11 members were all previously Law Lords), then probably it is not money well spent. But if you think that an independent Court will confer greater legitimacy on the judicial process, your answer may well be different – especially if you believe that courts need to be still bolder in scrutinising the actions of politicians and that the new Supreme Court will help in this respect. As in just about any constitutional debate, plausible answers need to engage with theory as well as practicality.
Nicholas Bamforth is a Fellow in Law at Queen’s