In defence of the UK Supreme Court

Yahoo

04-04-2025

The Constitutional Reform Act 2005, one of the flagship statutes of the Blair government, was passed almost exactly twenty years ago.
Among other things, it abolished the Appellate Committee of the House of Lords and replaced it with a new court of final appeal for the United Kingdom to be called the Supreme Court.
The change was largely cosmetic. It was designed to correct the constitutional anomaly that the highest court of the land was nominally a committee of the legislature. In the British constitution it is quite common to find that the label is no guide to the contents of the bottle.
But everyone who cared to know realised that the Appellate Committee was actually a proper court whose judicial functions were quite distinct from everything else that happened in the building.
The Supreme Court is institutionally and physically separate from the House of Lords, but otherwise it is exactly the same as the old Appellate Committee.
The three main differences between the Supreme Court and the Law Lords have all been wholly positive.
First, its judges are chosen on merit by a non-political commission. There is therefore no danger of the selection process being used to politicise the Court, as has happened in the United States.
Secondly, the Supreme Court is more deliberative and collegiate than its predecessor. The result has been a higher quality of judgements, more coherent and more useful as explanations of the law.
Thirdly, the Court has a closer engagement with the public whom it serves. Brief explanations of each decision in non-technical language are given when the judgements are handed down.
Nevertheless, the Supreme Court has proved to be surprisingly controversial in some quarters, and notably on the right. This is mainly due to the two Gina Miller decisions. They were significant interventions in the prolonged constitutional crisis generated by the decision to leave the European Union.
Many leavers condemned them without any evidence as politically motivated decisions by judicial remainers trying to sabotage Brexit. The Johnson government at one stage toyed with the idea of abolishing it. The former UKIP MP Douglas Carswell recently called in this newspaper for the Law Lords to be restored.
The Court's critics seem to have been misled by its name. They think that it is a British version of the US Supreme Court which can override Acts of Congress.
In fact the Supreme Court has no power to override Acts of Parliament, any more than the Law Lords did, although both courts were required by statute to give overriding effect to EU law while we were members of the European Community.
Far from undermining the constitutional authority of Parliament, the Supreme Court has consistently defended it.
In the first Gina Miller case, it decided that Theresa May could not give notice to leave the European Union without Parliamentary approval. In the second one it decided that Boris Johnson could not prorogue Parliament whenever it suited him.
Both decisions involved fundamental issues of constitutional law which had to be decided by a court. Since then, the Supreme Court has held in two landmark cases that where considerations of social, economic or political policy are relevant in a public law case, judges should normally take their cue from Parliament.
The Court's critics are often people who object not just to the constitutional role of judges but to the role of Parliament itself.
Mr Carswell, for instance, would like to see a British government ruling by what he calls orders in council, i.e. by decree.
We are only a democracy because governments are answerable to the elected House of Commons. So long as Parliamentary democracy remains the foundation of our constitution, the Supreme Court will have an indispensable role to play in our national life.
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