It has been reported that the UK Government is planning to overhaul the Supreme Court, which was established by the Constitutional Reform Act 2005 and began its work in 2009. As the highest court in the land, it took over from the Appellate Committee of the House of Lords, which until then had been the court of final appeal hearing the majority of civil and criminal cases in the UK. The latest reforms are reportedly being proposed because of a perception by some politicians that the idea behind the creation of the Court in its current form was misconceived. They argue that the Supreme Court has politicised itself by extending its jurisdiction to cover politically sensitive matters, and that it should not have been given the powers it currently has to deal with and rule on such cases.
At the time of the original reform, the proponents of the brand-new institution tried to depoliticise it by arguing that it was a constitutional necessity required for the promotion of a liberal and democratic state governed by the rule of law. As a matter of fact, the previous arrangement saw the highest court technically become a parliamentary committee within a legislative chamber. Although the constitutional safeguards were in place to maintain the independence of the system, it was perceived by the public (who may not have been familiar with the intricacies) that the Committee was not fully independent of the legislature and its operation was failing to adhere to the doctrine of the separation of powers. Moreover, the rise of judicial review in the second half of the 20th century saw the judiciary becoming increasingly involved in scrutinising decisions of government departments, and so reform was needed to enable a fully functional judiciary to be independent of the legislature and the executive.
More recently, the Supreme Court found itself at the centre of mainstream political debate when it was required to rule on the suspension of Parliament in 2019. Delivering a significant blow to the Government, the Court held unanimously that the executive had acted unlawfully by suspending parliamentary sittings and preventing Parliament from debating Brexit as a deadline approached. The consensus among legal and political commentators was that a political grudge was borne by the Government following the disastrous ruling, and that in the future it was likely to seek political revenge on the institution for performing its constitutional role.
It has now emerged that the Government is considering reforming the Supreme Court once again by renaming the institution and reducing the number of justices. It is also planning to introduce expert judges to facilitate the availability of expertise for cases requiring specialist knowledge. Whereas the critics of the Supreme Court argue that its authority should be scaled back and it should not be allowed to act as a constitutional court in considering relevant matters, its proponents contend that it is inevitable that constitutional matters come up for deliberation from time to time in the absence of a written constitution.
Unlike the US Supreme Court in the US, which has the authority to strike down an act of Congress as unconstitutional, the role of the UK Supreme Court is limited by the doctrine of parliamentary sovereignty and so the Court here is unable to override the will of Parliament. While the critics of the UK Supreme Court argue that its powers should be curtailed to prevent it from carrying out assessments of constitutional issues in the manner that the US Supreme Court does, it is generally misleading to compare the two systems. The UK system is unique due to the absence of a written constitution, while the US is proud of a constitution that has been in force for more than 200 years. It could be argued that by making those comparisons critics of the UK Supreme Court are deliberately politicising the institution in order to have the issue resolved by politicians. This is notwithstanding the fact that all the hallmarks of the Court show the opposite, and its reluctance to wade into a political debate is evident unless it has to perform its constitutional role.
The ancillary matter emanating from the idea of limiting the Supreme Court’s powers is its position as the final decision maker in matters involving judicial review. The proponents of the Court argue that because of the increasing use of judicial review proceedings as a means of holding the Government to account, any proposed reforms involving the statutory reduction of justiciable issues are seen as aiming at avoiding scrutiny of the executive – the opposite of what is envisaged by the principles of constitutional law. The process of judicial review is also under review by the Government, and reforms in the structure and scope of judicial review may follow in due course.
Former Justice of the UK Supreme Court Lord Sumption told The Times “Abolishing or downgrading the most prestigious common law court in the world is an extraordinary act of self-laceration which can only reduce our influence and the attraction of London as a dispute resolution centre”. He also emphasised that unlike judicial appointments in the US where this is a prerogative for politicians, justices in the UK are not appointed in accordance with their political allegiances and so the judiciary remains independent as a result.
Any official confirmation and the scope of proposed reforms have yet to be announced.
The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Gherson accepts no responsibility for loss which may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please don’t hesitate to contact Gherson. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Gherson.