Why the UK Supreme Court Was Established

Explain why the UK Supreme Court was established and consider whether further changes should have been made in the powers and working methods of the UK’s top court.

The UK Supreme court was primiarily established in 2009 to “put the relationship between parliament, the Government and judges on a modern footing” by dissolving the role of the Lord Chancellor and amending its judicial appointments. Its main role is to attend appeals from the courts under the United Kingdoms three legal systems. This further establishes the seperation of powers, and makes it more official. The new suprememe court was also needed to increase the independence of the judiciary, which was felt necessary under Art.6. Moreover, the court was created to introduce independence and neutrality to the rule of law. However, it was assured that there was no intention of a US style court and there was to be no power to strike down unconstitiuional legislation apart from human rights and community law, which will by no doubt have this type of effect. The Sumpreme Court is to have discretion to resolve controversy arising in matters of devolution. The other main focus of the court is to construct issues which they feel have a public significance [1] .

“The change is going to make it much easier for the public to understand the role of the judges, who will now be justices of the Supreme Court, rather than disguised members of the upper house.” [2]

One of the main motives of the new court was the facility to allow the Law Lords to debate in legislative matters. However, this has raised queries into the “sufficient transparency of independence”. Conversely, as Lord Lloyd, pointed out in 2004: “I have never met anyone with those perceptions and… the government have put no evidence forward that any such perception exists” [3] .

The Supreme Court was further established renovate a single climax to the UK’s judicial system. This would provide protection against the danger of

conflicting judgments. It would also enhance the Law Lords’ independence and better differentiate the top levels of the UK judicial system and Parliament [4] .

The Court is built up of twelve judges, a president and a duputy president, law lords and mew Justices, which will be by selection and appointment. The Court may also appoint a special adviser. The Court rules must ensure that the court is accessible, simple and efficient. In cases of appeals, leave may be granted by the court lower in the hierarchy, however leave is infrequently approved and therefore appeals are to be made to the House of Lords [5] .

However, there have been many complaints over the new Supreme Court, particularly around the Law lords, as they have the right to take part in the legislative decisions which they may further have to interpret and apply in court. The Times paper argues that the new court makes a “mockery of official promises of open justice in the country’s most important cases”. In addition former Prime Minister, Tony Blair states that the Supreme Court is an “Incoherent, un-worked up and piecemeal approach”. However, there were many others who also opposed the new court. For example Lord Hope, who is the current Supreme Court’s Deputy President. In 2008 he claimed that “there was an almost total lack of clarity as to what arrangements were to be”. Furthermore, Master of the Rolls, Lord Neuberger identified that “The danger is that you muck around with a constitution like the British Constitution at your peril because you do not know what the consequences of any change will be”. He also advocated to the BBC that the Court was “a result of what appears to have been a last-minute decision over a glass of whisky” [6] .

The Chairman of the Bar Council argues in an article in The Times on 2 April 2003, said “Judges should have no part of the legislature …. It is very difficult to understand why our Supreme Court (the law lords) should be a committee of the second house of Parliament” [7] .

The separation of the Supreme Court from the UK Parliament raises questions over devolution issues. The decision to refer devolution cases to the Judicial Committee was due to the changes put forward which have not been present for an extensive period but are tremendously. The new changes benefit from a broader panel of judges than that of the Appellate Committee.

This illustrates that there will no longer be conflicts of interest in relation to jurisdiction [8] .

Nicholas Green QC claimed that the House of Lords “were anomalous in law, in being merely a committee of the body politic: the problem was that lawyers had become too familiar with this anomaly and had almost forgotten how peculiar it in fact was” [9] . There were also some criticisms about the expense, which does not demonstrate the scheme of justice [10] .

Furthermore, many have disputed that as Lord Bingham and Lord Hoffmann retired, the Court is now missing two vital legal characters: “One detects a younger, fresher panel, with the freedom to question; and I think that freedom will be influential” [11] .

On the other hand Dan Tench, a writer in the new influential blog on the UK Supreme Court (UKSC blog) argues that “There is something proactive and modern about the Court led by Nicholas Phillips” [12] . In addition Green held that ‘the new Court is a vast improvement on the arrangements for hearings before the House of Lords, when far too many people attempted to cram themselves into committee rooms that were far too small. There were no facilities for technology to be used. There was inadequate space, even for advocates to work. The process was quaint but inefficient”. The Supreme Court altered the way in which judgments were set out. Judgments can know be printed any order the judges choose, so the leading judgment can come first irrespective of supremacy, making the decisions considerably simple to understand before the law reports even come out [13] .

However, the Concerns regarding the selection of judges are explained in detail in an essay by Kate Malleson. She acknowledges that the difficulties involved are not to be determined by use of the “merit”, “for merit comprises a bundle of conflicting qualities, one of which might well be a sensitivity to the issues posed by problems primarily concerning women, such as rape or abortion, and problems concerning ethnic minorities. Thus, the criterion of “merit” might itself require the selection of more female and ethnic minority judges” [14] .

It should also be noted that further change should be made with regard to a wider professional background, as this would change the style of the judgements from an informed and intelligent non lawyer to a more European Court of Human rights style which is much simpler to read. In addition, it has been argued by Brenda Hale that the Supreme Court was not radical enough. Lord Woolf further highlighted that the new Supreme Court was second class in contrast to the Final Court of Appeal. However, Parliament took these arguments on board and made a total of 400 amendments, which Lord Woolf acknowledged. Futhermore, it was argued that UK should have gone further in creating a Supreme Court on the lines of the European Court of Justice [15] .

The existence of a Supreme Court for the United Kingdom is undoubtedly a potentially important symbol of the continuing unity of the state post-devolution. But it should be clear that its primary function is as a United Kingdom court, addressing United Kingdom issues, and it is not immediately clear that it should also be acting as the final appellate court on all law for England, Wales and Northern Ireland, and on all non-criminal law for Scotland [16] . Assuming the court will continue to hear cases from all over the UK, there may be a question about the balance between judges from the three UK legal systems [17] .

In conclusion, the creation of the Supreme Court of the UK symbolises a significant constitutional reform, which has long been waited for. However, more still remains to be done as there are still many unreciprocated demands in relation to the judiciary’s network of communication with parliament, the role of retired judges, the Court’s role in resolving devolution disputes, and how far the Supreme Court is to be supreme for Scotland. The United Kingdom’s constitutional compact is by no means settled [18] .

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