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The constitutional and political implications of a United Kingdom Supreme Court

Published online by Cambridge University Press:  02 January 2018

Diana Woodhouse
Diana Woodhouse*
Affiliation:
Oxford Brookes University
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Abstract

The constitutional and political implications of a United Kingdom Supreme Court are far-reaching. This paper suggests that its establishment represents an increase in judicial independence, both in terms of the individual judge and institutionally. In so doing, it draws attention to the continued infringement of judicial independence, most notably through the use of senior judges to chair inquiries, and to the need for judicial independence to be safeguarded by the judges themselves. It argues that, somewhat paradoxically, the independence of the Court may increase the extent to which it is perceived as a political player and used for political purposes. It also argues that the requirement for greater transparency in the appointment of judges and the processes and decisions of the Court needs to be matched by the improved accountability of the Court and the Secretary of State for Constitutional Affairs. The paper ends by speculating on the longer-term constitutional implications of a Supreme Court, suggesting that it could result in the further diminution of parliamentary sovereignty, a more even distribution of power between the constitutional actors and the development of the United Kingdom into a constitutional democracy.

Type
Research Article
Information
Legal Studies , Volume 24 , Issue 1-2 , March 2004 , pp. 134 - 155
Copyright
Copyright © Society of Legal Scholars 2004

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References

1. Department for Constitutional Affairs Constitutional Reform: A Supreme Court for the United Kingdom (July 2003).

2. R Stevens The English Judges, Their Role in the Changing Constitution (Oxford: Hart Publishing, 2002) p 79.

3. Lord Bingham, HL Official Report (5th series) col 419, 22 June 2000.

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7. Stevens, n 2 above, p 19.

8. Supreme Court Act 1981, s 11(3) and Appellate Jurisdiction Act, s6, as amended.

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11. Sir Jonah Barrington, a judge of the High Court of Admiralty in Ireland, was removed for embezzling money paid into the court.

12. Although the executive cannot reduce judicial salaries, a refusal to raise them in line with inflation or with the salaries of top civil servants or those practising at the Bar may be tantamount to a reduction. In 1992 John Major's government refused to implement the advice of the Committee on Top Salaries, established in 1971 to make recommendations on judicial pay awards, and gave judges a four per cent increase instead of the twenty per cent recommended.

13. Lord Mackay, HL Official Report (5th series) col 1308, 5 June 1996.

14. For instance, in the Pinochet case, some overseas observers thought that because of her position in the House of Lords, Baroness Thatcher was involved in the decision (R v Bow Street Metropolitan Stipendiary Magistrate, exp Pinochet Ugarte [1998] 4 All ER 897, HL; (No 2) [1999] 1 All ER 577, HL; (No 3) [1999] 2 All ER 97, HL).

15. Department for Constitutional Affairs, n 1 above, para 36.

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17. Lord Chancellor's Pension Act 1832.

18. This, as with all judges, is at 70. The pension of the Lord Chancellor was not originally tied to continued judicial service but in 1965, in a debate over its increase, an amendment was proposed to make it dependent on his being available ‘to participate in the legal work of the House of Lords.’ (Mr R T Paget MP, HC Official Report (6th series) cols 2069–2074, 22 July 1965). The amendment was rejected on the understanding that by convention an ex-Lord Chancellor who draws a pension is under an obligation to sit judicially.

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23. Department for Constitutional Affairs, n 1 above, para 65.

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26. Stevens, n 2 above, p 43.

27. Stevens, n 2 above, p 43.

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35. See Lord Woolf s Mansion House Speech, 9 July 2003.

36. Lord Chancellor's Department Select Committee Minutes of Evidence (2003) HC 611–i, Q29.

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38. See, eg, Sir Nicholas Browne-Wilkinson ‘The Independence of the Judiciary in the 1980s’ [1988] PL 44; Sir Francis Purchas ‘What is happening to Judicial Independence?’ (1994a) 144 NLJ 6665 at 1306–1310 and ‘The Constitution in the Market Place’ (1994b) 143 NLJ 6624 at 1604–1609.

39. Lord Mackay, HL Official Report (5th series) col 1308, 5 June 1996.

40. Purchas (1994b), n 38 above.

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43. Department for Constitutional Affairs, n 1 above, para 1.2.

44. R v Bow Street Metropolitan Stipendiary Magistrate, exp Pinochet Ugarte [1998] 4 All ER 897, HL; (No 2) [1999] 1 All ER 577, HL; (No 3) [1999] 2 All ER 97, HL.

45. The Times, 25 March 1999.

46. The Times, 22 September 2000.

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48. Eg J Laws ‘Is the High Court the Guardian of Fundamental Rights’ [1993] PL 59; ‘Law and Democracy’ [1995] PL 80; ‘The Constitution: Morals and Rights’ [1996] PL 622. See also S Sedley ‘Human Rights: A Twenty-First Century Agenda’ [1995] PL 386.

49. Lord Bingham ‘Incorporation of the ECHR: the Opportunity and the Challenge’ [1998] 2 Jersey LR 257 at 269–270.

50. Lord Bingham, n 49 above.

51. See J A G Griffith The Politics of the Judiciary (London: Fontana Press, 4th edn, 1991).

52. Department for Constitutional Affairs, Consultation Paper Constitutional Reform: A New Way of Appointing Judges (July 2003).

53. See Dame Brenda Hale ‘Equality and the Judiciary; why should we want more women judges?’ [2001] PL 489.

54. Le Sueur and Cornes, n 30 above, para 12.3.4.

55. Department for Constitutional Affairs, n 1 above, para 48.

56. Department for Constitutional Affairs, n 1 above para 1.1.

57. Lord Steyn, n 20 above.

58. Le Sueur and Cornes, n 30 above, para 3.2.2.

59. Le Sueur and Cornes, n 30 above, para 3.2.2.

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62. Stevens, n 2 above, p 111.

63. See Le Sueur and Cornes, n 30 above, para 3.4.2, for the range of possibilities.

64. See D Robertson ‘The House of Lords as a Political and Constitutional Court: Lessons from the Pinochet Case’ in D Woodhouse (ed) The Pinochet Case: a Legal and Constitutional Analysis (Oxford: Hart Publishing, 2000).

65. See D Woodhouse Ministers and Parliament: Accountability in Theory and Practice (Oxford: Clarendon Press, 1994).

66. For a discussion of the effectiveness of reason-giving practices as a method of accountability see the paper, entitled ‘Developing Mechanisms for Routine Judicial Accountability in the UK’, given by A Le Sueur at the BICL Conference on Accountability and Independence of the Judiciary, 14 June 2003.

67. G Drewry and D Oliver ‘Parliamentary accountability for the administration of justice’ in G Drewry and D Oliver (eds) The Law and Parliament (London: Butterworths, 1998) p35.

68. See K Malleson The Use of Judicial Appointments Commissions: a Review of the US and Canadian models (LCD, Research Paper no 6, 1997).

69. Select Committee for Public Administration Minutes of Evidence (1999) HC570–ix, pp 165–175.

70. Joint Committee on Human Rights, n 4 above.

71. See Le Sueur and Cornes, n 30 above, para 3.4.2, for examples of models from Canada, the United States and Spain.

72. See M Elliot ‘Parliamentary Sovereignty and the New Constitutional Order: Legislative Freedom, Political Reality and Convention’ (2002) 22 LS 3 at 340.

73. Above n 48.

74. Lord Steyn ‘Democracy through Law’ [2002] 6 EHRLR 725 at 735.

75. Lord Steyn, n 20 above.

76. Above n 49.