The Government has promised a review of the UK constitution in order to - "restore trust in our institutions and our democracy." According to the BBC this will include steps reduce the power of the Supreme Court. This would, if it wasn’t legal nonsense, be an act of revenge for the decision in September 2019 that Boris Johnson’s unlawful prorogation of Parliament was unlawful.
The BBC report quotes a Whitehall ‘source’ as saying that the plan is to ‘clip the wings’ of the Supreme Court by reinstating its – ‘more modest role - as the appellate committee of the House of Lords.’
I think another brief history lesson is called for.
The House of Lords has exercised a judicial role since, at least, 1399. This role was formalised in the Jurisdiction Act 1876 when it became the final Appellate Court and the highest court in the land. . All appeals ended there. The House had the final say. The judges were Lords of Appeal in Ordinary and were known as Law Lords, who also had the right to sit in the House itself
UK Courts follow a system of precedent. This means that courts must follow decisions of a higher court. So, the High Court is bound by the Court of Appeal. In most cases the Court of Appeal must follow its own previous decisions. The House of Lords was the only court that could overrule its own earlier decisions.
In 2009 The Supreme Court was created by the Constitutional Reform Act 2005. The aim was to separate the judical functions from the legislative. The Law Lords became Supreme Court Judges. Their role was judicial only. They no longer sat in the House of Lords. But apart from that, there was no real change in the role of the court. It remained the final court of appeal. It was the highest court in the land, just like the House of Lords.
All of which begs the question. How does the government or anyone else propose to ‘clip its wings’? Its previous role was far from ‘modest’ as suggested by the BBC report. The judges would presumably become Law Lords again, rather than Supreme Court Judges. In all other respects it would revert to what it was for centuries. It would be supreme rather than Supreme!
It really is nonsense or something worse.
What it really looks like is an attempt by politicians to exercise control over the judiciary, to eliminate judicial independence.
The report also mentions enhancing the role of the Lord Chancellor who has to swear –
“…that in the office of Lord High Chancellor of Great Britain I will respect the rule of law, defend the independence of the judiciary and discharge my duty to ensure the provision of resources for the efficient and effective support of the courts for which I am responsible.”
So will the ‘enhanced’ role involve the removal of that oath? That would surely diminish the role.
Judicial scrutiny of the executive remains a vital constitutional safeguard. It is a safeguard that must stand above political revenge.