Tuesday, 17 November 2020

Reforming the Supreme Court of the UK

"Supreme Court to be overhauled to curb its constitutional powers", said The Telegraph 15 November 2020.  The article then added as a sub-heading - "Reforms being considered include a new name for the body to make clear that it is not a US-style constitutional court."

In response, Mr David Lammy MP, the shadow justice secretary, said: “The Conservative government is determined to do all it can to take power away from the courts and hoard it in No 10. This is an attack not only on judges but on the British public, who rely on an independent judiciary to uphold the law" - The Guardian 15 November

Is reform actually required?

Some calls for reform are essentially political in nature and based on a number of cases decided against the government.

Whether there are good grounds to reform the court is an open question. The court

has a judiciary which is undoubtedly independent of government and is highly respected throughout the common law world. Proceedings can be viewed online and judgments are explained in comprehensive media briefings published on the court's website. All of that is a far cry from the old days of the House of Lords hearings which were held in a small committee room and it could be a long time from a judgment being announced to its actual publication in the various law reports. (Soimetimes we had to make quite long journeys to get access to a set of law reports such as "Appeal Cases" etc).

One area where the Supreme Court receives criticism is that of diversity. The court continues to be predominantly male and white British. There are currently calls to increase the number of female justices and also there is some pressure to appoint a BAME member.

Another possible criticism is that the court always appears to have a high workload and the time from hearing a case to actual judgment can be lengthy.

Political calls for reform:

The Conservative Party manifesto 2019 (at page 48) stated that - "After Brexit we also need to look at the broader aspects of our constitution:  the relationship between the Government, Parliament and the courts; the functioning of the Royal Prerogative; the role of the House of Lords; and access to justice for ordinary people."  The manifesto went on to state - "In our first year we will set up a Constitution, Democracy and Rights Commission ..."

There is no doubt that the politicians at Westminster have been stung by some of the Supreme Court's decisions most notably the two "Miller cases.

In the first case, in 2017, concerned the prerogative power relating to treaties. Could the executive trigger Article 50 of the Treaty on European Union without prior parliamentary approval.

In the second, it had to consider the extent of the prime minister's power to advise the Queen to prorogue parliament. 

Both cases were decided against the government: the first case by a majority (8 to 3) and the second unanimously (11 Justices).  In the second case, the Prime Minister did not offer the court any justification for seeking the prorogation.

It can be argued that, since the court came into being in 2009, it has sometimes had to tread a knife-edge between politics and the law - The Conversation 30 September 2019.  The knife-edge arises because some decisions about the law undoubtedly have political implications. This was shown by a third case which government appears to dislike - the UNISON case in 2017 - where the court ruled that the constitutional right of access to the courts is inherent in the rule of law and so, as a matter of domestic law, an Order imposing fees to be paid by applicants to employment tribunals, was unlawful because it effectively prevented access to justice. 


The government has not (yet) set up a Constitution, Democracy and Rights Commission but appointed an "Independent Review of Administrative Law" (IRAL) to examine judicial review - previous post 4 August 2020. The Review called for evidence in the period 7 September to 19 October 2020. A considerable number of bodies and individuals responded. Here are some of the responses -






Martin Partington Blog - a post with links to other submissions to IRAL

UK Administrative Justice Institute - Collection of responses to IRAL 

The Telegraph article:

In this post, I don't propose to dissect The Telegraph's article which, in any event, does not discuss a specific government proposal.  By way of background, I have added a few observations in the box below.

Policy Exchange:

Reforming the Supreme Court - 31 July 2020 - paper by Richard Ekins and Derrick Wyatt QC.

17 November 2020


 *** NOTES ***

1) The UK does not have a formal or codified (written) constitution. Our constitutional arrangements are to be found in Acts of Parliament, decisions of the courts, and in conventions.

Conventions are essentially guides to what is to be done in particular situations - e.g. when the Queen appoints a Prime Minister.  

2) The name of the court - Supreme Court of the United Kingdom - was chosen by Parliament when it enacted the Constitutional Reform Act 2005. This Act created the court and details the number of Justices (12) and how they are appointed. 

3) The Supreme Court does NOT have specific powers relating to the constitution so it is a major error to refer to the court's "constitutional powers." 

 The legal powers of the court are (broadly) the same as the former Appellate Committee of the House of Lords. The court is therefore the final court of appeal in both civil and criminal matters from England, Wales, and Northern Ireland. The court is the final court of appeal in civil cases from Scotland but NOT in criminal matters. (Had the Supreme Court not been created, cases such as Miller 1 and 2 would have reached the House of Lords).

4) The Supreme Court of the UK does NOT have a power to declare an Act of Parliament unconstitutional. This is a major difference between the UK position and the position of the Supreme Court of the USA which has derived such a power from the formal (written) constitution of the USA.

5)  Royal Prerogative powers are those legal powers given by the law to the Crown. Technically, they are powers exercisable by Her Majesty The Queen but, in practice, they are exercised on the advice of Ministers. In turn, Ministers are accountable to Parliament. 

In cases dating back to the 17th century, it is well-established law that the courts are entitled to determine whether a prerogative power exists and, if so, the legal extent of that power. The Supreme Court exercised precisely this role in the two Miller cases.

6) Under the constitutional arrangements of the UK, it is the Queen in Parliament which has the final say on the law. Therefore, an Act of Parliament, is our ultimate domestic law. The general rule is that an Act has to be passed by both Houses of Parliament and then receive the Royal Assent.

7) The UK's system of government has three branches: Executive, Legislative, Judicial.

In practice, the Executive has considerable control over the everyday workings of Parliament (especially the House of Commons). Generally, the executive is able to get legislation through Parliament and that is particularly true when the government has a sizeable majority in the House of Commons.

Limiting the right of the court to decide particular matters of law would result in a major uplift in Ministerial (Executive) power.

Constitution Committee Report on Fixed-term Parliaments Act


No comments:

Post a Comment