|UK Supreme Court, London|
The Constitutional Reform Act 2005 created the court - section 23(1). There are to be 12 Judges appointed by Her Majesty by letters patent - s.23(2). Under section 23(5), Her Majesty may by letters patent appoint one of the Judges to be President and one to be Deputy President of the Court. The judges, other than the President and Deputy President, are styled Justices of the Supreme Court - section 23(6). At first sight, the reader might consider that section 23(5) requires the President or deputy to be chosen from one of the Judges already there. However, that view could not stand with section 26(4) which clearly envisages the possibility of parachuting in an outsider to either the Presidency or Deputy Presidency:
26(4) A person who is not a judge of the Court must be recommended for appointment as a judge if his name is notified to the Prime Minister for an appointment as President or Deputy President.
Section 26 mandates a selection process involving selection commissions for vacancies to the Court including a vacancy in the position of President or Deputy President. Hence, progression to Deputy or President is not on the basis of the next senior but the selection has to be on merit - see section 27(5).
The President has a number of functions specified in the 2005 Act. He may request certain persons to act as Judges of the Court - s.38. He may issue directions as to the composition of the court when it sits - s.42. He makes Supreme Court Rules - s.45 and sits on Selection Commissions - s.26 and Schedule 8. Since the Court's creation, it has appeared to operate on a collegiate model but dissenting judgments are permissible. There has been a tendency to try to seek a lead judgment with other justices adding any further comments, points of disagreement etc. However, as far as one can see, there is nothing to prevent a justice issuing his or her own judgment.
Could the Supreme Court assert a power to strike down legislation?
Returning to Joshua Rozenberg's article, an interesting question is raised.
Looking to the future, Rozenberg asks:
The legislative Supremacy of Parliament is an established pillar of the UK's constitutional arrangements. Could the Supreme Court therefore ever assume a power to strike down legislation? In seeking an answer to this question, a number of points can be made.
1. A formal constitution - IF the UK were to adopt a formal written constitution then a "strike down" power might be more of a possibility. The Constitution might expressly permit that or, alternatively, the Supreme Court might be encouraged to assert such a power. In such a situation, the Constitution itself has become the yardstick by which other legislation is measured. Similarly, a British Bill of Rights" could enable the courts to at least declare that an Act of Parliament breached the Bill of Rights.
2. Jackson v Attorney-General 2005 - There are some judicial dicta that the Supremacy of Parliament may not be an absolute rule. These arose in Jackson v Attorney-General  UKHL 56 which was concerned with the question whether the Hunting Act 2004 was a valid Act of Parliament having been enacted using the Parliament Acts 1911-1949 procedure. It was argued that the 1949 Act was itself invalid having been enacted using the Parliament Act 1911 procedure. As Lord Bingham succinctly stated the issue:
In these proceedings the appellants sought a declaration that
"1. The Parliament Act 1949 is not an Act of Parliament and is consequently of no legal effect.
2. Accordingly, the Hunting Act 2004 is not an Act of Parliament and is of no legal effect."
For present purposes, the case is interesting because of dicta by Lords Steyn and Hope.
Lord Steyn stated (paras. 101 and 102):
However, this granting of relief does not truly amount to striking down legislation. On entry to the EU (then "Common Market") in 1973 the UK accepted the terms of membership which included the supremacy of EU law etc. - European Communities Act 1972 s2(1). Thus, it can be argued, that Parliament has itself authorised the UK courts to apply EU law even in preference to an Act of Parliament. In effect, Parliament agreed not to legislate contrary to the EU Treaties as long as the UK remained a member.
4. Devolution legislation - The Acts of Parliament devolving legislative power to Scotland, Wales and Northern Ireland offer another example of where the UK Supreme Court might appear to be striking down legislation made in one of those countries. This has arisen acutely with regard to Scotland and was discussed on Law and Lawyers 1st June 2011 - "Scottish Ministers resentful of the Supreme court's "interference" in their legal system." However, the right of the Supreme Court to rule on such devolution issues was granted to the court by the UK Parliament - Scotland Act 1998.
5. Human Rights Act 1998 - it is clear that this Act does NOT permit courts in the UK to "strike down" legislation passed by the UK Parliament. The Human Rights Act 1998 recognises the supremacy of Parliament and only enables the courts to make declarations of incompatibility. It is then for Parliament to address the incompatibility. Essentially, the judges are applying the instructions given to them by Parliament in the Human Rights Act 1998 - see the view of Lord Phillips BBC 12th October 2011. The Act enables the judges to consider legislation against Convention rights and, if it is found wanting, to say so but it then remains for Parliament to amend the law. See also the article 12th October by former Lord Chancellor Lord Irvine - "Leave human rights law to the judges."
Hence, powers which appear to be "striking down" powers are not quite what they appear. Parliament itself can be taken to have authorised the courts to do what they do in relation to EU law, devolution and human rights. Whether the "common law construct" of the supremacy of Parliament - (as referred to in Jackson v AG) - can now be modified by the judges is a moot point though it is not entirely impossible that the seeds planted by Lords Steyn and Hope may flower one day - perhaps in response to some extreme form of legislation. A true striking down power would be one which allowed the Supreme Court to rule that legislation was unconstitutional. Such a power exists in the United States. In the absence of a formal constitution, it is difficult to see how the UK Supreme Court could assume such a power.
Addendum 12th October: The UK Constitutional Law Group published an article looking at how the role of the Supreme Court may be different from the role played by the House of Lords - see "Roger Masterman and Jo Murkens: What kind of a Court is the UK Supreme Court?"
A challenge to the Damages (Asbestos-Related Conditions)(Scotland) Act 2009 was mounted before the UK Supreme Court in Axa General Insurance Ltd v The Lord Advocate  UKSC 46. The Supreme Court held that the Act is valid. Although it is quite a lengthy judgment, the case is a "must read" for a fuller understanding of devolution issues and legal challenges to Acts of the Scottish Parliament which has powers - under the Scotland Act 1998 - delegated to it by the UK Parliament.
This blogpost was kindly reproduced on Legal Week 12th October 2011.