Thursday, 19 December 2019

Valedictory for Lady Hale of Richmond

A valedictory ceremony was held on 18 December for Lady Hale of Richmond who is retiring from her role as President of the Supreme Court of the UK.  On any fair view, her legal career has been remarkable: 23 years at the University of Manchester, 9 years as a Law Commissioner, appointed to the High Court in 1994, the Court of Appeal in 1999 and to the Appellate Committee of the House of Lords in 2004. In 2009 she became one of the first justices of the Supreme Court and became its President in 2017.

The full ceremony may be viewed via the Supreme Court website.

Lady Hale remarked
that the justices did not know the political views of eachother. Judges have not been appointed for party political reasons since at least world war two. Her Ladyship added - "We do not want to turn into the Supreme Court of the United States whether in powers or in the process of appointment."

The remarks appear to have been prompted by things said by politicians after the Prorogation case (covered here).  As the Law Society Gazette reported on 25 September, Mr Geoffrey Cox QC MP (Attorney-General) was asked whether Supreme Court appointments should receive Parliament's formal approval. Cox said: 'I think it is a matter which this house may need to reflect upon in the coming months and years, depending on the status of our constitutional arrangements. As we leave the European Union, a great gap opens up, whereby we take away from legal integration all this European Union law, and we need to think about the implications. I therefore agree that there may very well need to be parliamentary scrutiny of judicial appointments in some manner. I have to say that I am not enthusiastic about that."

The Supreme Court of the United Kingdom was the creation of Parliament (Constitutional Reform Act 2005 Part 3) but, unlike the Supreme Court of the USA, the court does not have the power to "strike down" legislation on the grounds that it is "unconstitutional."  The Supreme Court of the USA asserted a right to do that in Marbury v Madison 1803 and, as at 2014, some 176 Acts of Congress have been declared unconstitutional - (analysis here).

In the United Kingdom, the Queen in Parliament has legislative supremacy and the courts do not have power to "strike down" a duly enacted Act of Parliament. The UK does not have a codified constitution even though some wish to see it obtain one - (discussion in this previous post).

This is not to say that the UK lacks constitutional principles. The fundamental principle is the legislative supremacy of the Queen in Parliament. Further, as shown by the Prorogation case, there are other principles such as the accountability of the executive to Parliament.

On the basis of the current political situation it is unlikely that such a constitution will arrive any time soon even though the Conservative manifesto contained a commitment to a Constitution, Democracy and Rights Convention - see para 48 of their manifesto - discussed in this previous post.

The current political situation also makes it unlikely that, whatever the recommendations of such a Commission, there will be any desire to give the Supreme Court of the UK a power to strike down legislation. It is therefore unlikely that the Supreme Court of the UK will be granted a similar power to that held by SCOTUS.

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