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A Supreme Court for the United Kingdom?

Published online by Cambridge University Press:  02 January 2018

Brenda Hale
Brenda Hale*
Affiliation:
House of Lords
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Extract

The Government's Consultation Paper does not have a question mark in its title. It does not purport to be a serious discussion of the role of a Supreme Court in a democracy. This is scarcely to be expected of such a document or its respondents, so I propose to respond in its own terms rather than on the loftier plane usually adopted by contributors to this journal. More unexpectedly, the Consultation Paper does not even put forward a serious set of options to consider. At the Law Commission, we always had (at least a metaphorical) question mark in our title because we almost always put forward two options which do not appear in this consultation: the ‘do nothing’ and the ‘let’s abolish it' options. Both have a lot to be said for them here.

Type
Research Article
Information
Legal Studies , Volume 24 , Issue 1-2 , March 2004 , pp. 36 - 44
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 CP 11/03, July 2003 (‘CP’).

2. Cf President Aharon Barak ‘Foreword: A Judge on Judging: The Role of a Supreme Court in a Democracy’ (2002) 116 Harv LR 19 and the numerous sources cited there.

3. Of which I was a member from 1 May 1984 to 31 December 1993.

4. CP, n 1 above, para 34; but the CP makes clear that they are still much in demand for chairing important committees and similar work.

5. [2003] UKHL 34; [2003] ICR 937.

6. CP, n 1 above, paras 53–56.

7. Access to Justice Act 1999, s 55(1). Only the Court of Appeal can grant such permission.

8. [2001] UKHL 61; [2002] I AC 800.

9. CP, n 1 above, para 58.

10. CP, n 1 above, para 59.

11. CP, n 1 above, paras 19–21.

12. [2000] 2 AC 59; 2000 SC (HL) 1. For a typically trenchant Scottish attack on Lord Steyn's ‘person on the underground’ test, see Professor J Thomson ‘Abandoning the law of delict’ (2000) 6 SLT 43–45.

13. Thus, eg, the House of Lords were not able to express their opinions on the difficult issues raised by the case of the conjoined twins (Re A (children) (conjoined twins) [2000] 4 All ER 961), surely one of the most important ever to have reached the courts.

14. Law Commissions Act 1965, s 3(1).

15. CP, n 1 above, para 2.

16. Although the CP, n 1 above, para 37, touches on whether those who have reached the very top of the judging profession should continue to be appointed to the House.

17. CP, n 1 above, para 4.

18. CP, n 1 above, para 3.

19. The Lord Chancellor's speech writers are well qualified to take their line from the former permanent secretary, Sir Claud Shuster, in a 1943 memorandum cited by R Stevens The Independence of the Judiciary: the View from the Lord Chancellor's Office (Oxford: Oxford University Press, 1993) p 3; see also R Stevens The English Judges: Their Role in the Changing Constitution (Oxford: Hart Publishing, 2002) p 91.

20. Lord Steyn ‘The Case for a Supreme Court’ (2002) 118 LQR 382.

21. CP, n 1 above, para 61.

22. A good recent example is Lloyds TSB General Insurance Holdings Ltd v Lloyds Bank Group Insurance Co Ltd [2003] UKHL 48.

23. CP, n 1 above, para 46.

24. R v Bow Street Magistrate, ex p Pinochet Ugarte [2000] 1 AC 61 at 119, 147.

25. CP, n 1 above, para 52.

26. There is an alarming account of the extent to which Senate confirmation hearings have become politicised around the issue of abortion in J Toobin ‘Advice and Dissent: The fight over the President's judicial nominations’The New Yorker, 26 May 2003, p42.

27. Department for Constitutional Affairs Constitutional reform: a new way of appointing judges CP 10103, July 2003.

28. CP 10/03, n 21 above, para 43.

29. CP 10/03, n 21 above, para 45.

30. CP 10/03, n 21 above, para 38.

31. H Kennedy Eve was Framed: Women and British Justice (1993) p 267. The Commission for Judicial Appointments also refers to the ‘cloning effect’ in its Annual Report (2003) para 4.31.

32. B Hale ‘Equality in the Judiciary: A Tale of Two Continents’ 10th Pilgrim Fathers' Lecture, 24 October 2003.

33. Barak, n 2 above, at 28–29.

34. Stevens (2002), n 19 above, p 152.

35. 347 US 483 (1955).

36. N Johnson Reshaping the British Constitution (forthcoming) ch 11.