Old wine in a new bottle: more on the Supreme Court

Some other thoughts about the new UK Supreme Court which takes over from the Law Lords in October. It’s basically the same lot with the same powers, but now formally separate from the legislature, which is the case in most countries. The modernising Blair government made the historic change almost casually because they felt the UK’s ( or rather England’s) historic concentration of the powers in Parliament was oudated and open to serious challenge on grounds of unfairness and incompatibility with the whole shape and form of European lawmaking. They cited the example of the Bailiffs of Jersey and Guernsey whose roles as judges and lawmakers in their own small areas was ruled incompatible with human rights. From the beating of such a butterfly’s wings are great storms created. The ECHR is not superior to the Supreme Court which however seeks to follow its rulings and individuals may of course continue to appeal direct to Strasbourg. The quite different European Court of Justice is supreme on EU matters. In practice, both European courts are gummed up and the UK Court will continue to deal with most relevant last stages of appeal. The Supreme Court will be different from the US Supreme Court in a key respect. It has no power to strike down an Act of Parliament as being contrary to the constitution. The UK has no written constitution remember. However, lawyers and others will be watching keenly to see how activist it becomes as it exercises its new-found formal independence in two areas in particular: human rights and devolution. How might the Supreme Court respond if a government of either party carries out their threats to alter the balance betwen rights and national security by amending or replacing the UK Human Rights Act? As devolution becomes more politically volatile, the Court will be expected to rule on any clashes of powers between, say, an SNP government and Westminster. Clashes might also arise once justice and police powers are devolved to Stormont. In a recent Constitution Unit book Constitutional Futures Revisited: The Constitution to 2020 authors Andrew le Sueur and Kate Malleson in the Judiciary chapter see it like this. ( below the fold)

“Attempts by politicians to clip the judges’ wings are likely to be thwarted by the very system of judicial independence the politicians themselves have created. The expansion of judicial review, the growing body of EU law, the operation of devolution and the application of terrorism legislation will guarantee that the judges’ roles are not diminished. At the apex of the system of more formal separation of the powers, the new Supreme Court will be keenly watched for the degree of independence its exercises.

Politicians’ ambitions to curtail the application of the Human Rights Act may not survive closer scrutiny and may be satisfied by adding duties to a Bill of Rights and Responsibilities.

Politicians and the judiciary will be keen to heal tensions through a more formal system of concordats and consultations, although in the end the smooth running of the relationship will greatly depend as ever on how the leading personalities rub along together.”

So for all its newness, the UK Supreme Court will probably be a typically “rubbing along” British institution.

Former BBC journalist and manager in Belfast, Manchester and London, Editor Spolight; Political Editor BBC NI; Current Affairs Commissioning editor BBC Radio 4; Editor Political and Parliamentary Programmes, BBC Westminster; former London Editor Belfast Telegraph. Hon Senior Research Fellow, The Constitution Unit, Univ Coll. London