The Origins And Establishment Of The UK Supreme Court

Tuesday, January 5, 2010 - 01:00

Editor: Please give our readers some background on the origin of the Supreme Court of the UK. Since it became a part of the legal system as a result of the passage of the Constitutional Reform Act 2005, why has it taken so long to be implemented?

Maples: Although its origins arguably go back several centuries, the Appellate Committee of the House of Lords has been the superior appellate court in the United Kingdom since the late 19th century. In physical terms, the Committee sat in the House of Lords. Unlike the Supreme Court in the United States, it was not a constitutional court able to strike down legislation. However, as the UK's superior appellate court it determined appeals made to it in all civil and most criminal matters.

In July 2009, the Law Lords, as its judges were known, handed down their last judgments. In October, the new Supreme Court opened for business. The delay between the enactment of the Constitutional Reform Act of 2005 and the establishment of the Supreme Court can be explained in part at least by the need to prepare new facilities in which the Supreme Court would operate. The Supreme Court is now housed in the recently refurbished Middlesex Guildhall opposite Parliament at a cost of some £77 million.

Editor: Why were twelve members chosen and what are their backgrounds?

Maples: Ten of the Law Lords in office at the time of the disestablishment of the Appellate Committee of the House of Lords became ten of the twelve founding judges of the Supreme Court. A further judge was appointed from the Court of Appeal, the next most senior appellate court. The last place remains to be filled, and there is much speculation as to who will be appointed. Some commentators would like to see more criminal law experience on the bench. Another suggestion has been that a senior trial lawyer be appointed directly to the court, without first having to serve as a judge in the lower courts. However, no official pronouncements have yet been made on this subject. Given the volume and variety of cases that the Supreme Court is required to hear, it makes good sense for the courts to have a bench of twelve judges. These judges are from a variety of distinguished criminal and civil law backgrounds. In order to avoid a tied bench, only an odd number of judges will sit on each case. It is understood that there will be more widespread use of single judgments rather than the practice of having each judge deliver his or her own opinion. Although it is always interesting to hear the individual views of senior judges, such a development should increase the clarity of the Court's judgments and reduce uncertainty.

Editor: Why was it decided that the Law Lords should be replaced?

Maples: Central to the creation of the Supreme Court is the importance placed upon the separation of powers with distinct judicial and legislative bodies. Therefore, it was thought appropriate to have the UK's superior appellate court in its own home with a title distinguishing it from the House of Lords. Many jurists, such as Lord Neuberger, Master of the Rolls and senior judge of the Court of Appeal, were skeptical about the need for its establishment. Lord Neuberger has voiced concern about how the law of unintended consequences might operate in relation to this constitutional development.

Editor: What types of subject matter are expected to be brought before the court? What procedures are used to appeal a case?

Maples: The jurisdiction of the Supreme Court is essentially the same as that of the Appellate Committee of the House of Lords, except with respect to devolution matters. It is the final appellate court in the UK on matters of civil and criminal law (save for Scottish criminal law). Its judgments are binding on all other courts in the UK. Important questions of commercial and contract law will be decided by the Supreme Court. However, like its predecessor, it is not a constitutional court like the U.S. Supreme Court.

Turning to procedure, our Supreme Court cannot consider a case unless a relevant order has been made in a lower court. Furthermore, not all orders made by the lower courts can be appealed to the Supreme Court. To bring an appeal to the Supreme Court, the appellant must first apply to the court that handed down the relevant judgment requesting permission to appeal. Only after this court has refused the appellant permission to appeal against its judgment can the appellant then apply to the Supreme Court itself.

Editor: How were the current justices appointed?

Maples: Under the old system the Law Lords were appointed by the Queen on the recommendation of the Prime Minister and the Lord Chancellor (also a politician). The new process is designed to avoid any political involvement, increase transparency and improve competition for these positions. In summary, the President of the Court and the next most senior judge head a five-person appointment committee, the remaining three members being drawn from the judicial appointment bodies of the underlying UK jurisdictions. In stark contrast to practice in the U.S. the process is conducted in private and the candidates are not interrogated in public by politicians.

Editor: What is the function of the Judicial Committee of the Privy Council?

Maples: In addition to some domestic jurisdictions, it is the final court of appeal for several commonwealth countries, crowned dependencies and British overseas territories. It used to be housed in Downing Street, but now operates from Middlesex Guildhall together with the Supreme Court. Its members are the Supreme Court judges together with certain other judges. Although its role may sound somewhat esoteric, the Privy Council does hear matters of major commercial importance, usually arising from off-shore disputes, which can be of considerable complexity.

Editor: What is meant by the statement that the Court determines "devolution" issues?

Maples: "Devolution" is another feature of the Labour government's constitutional reform, whereby devolved administrations, i.e., administrations with powers delegated by Parliament, have been established in Northern Ireland, Scotland and Wales. The Supreme Court now exercises the jurisdiction previously exercised by the Privy Counsel to determine disputes concerning the operation of these devolved powers. Such disputes primarily relate to compliance with the Human Rights Act.

Editor: What effect has the development of the European Convention on Human Rights had on the decision to form the Court?

Maples: There was a concern that the continued co-existence of the House of Lords' legislative and judicial functions might run contrary to the tenets of the European Convention on Human Rights, such as the right to a fair trial. This concern seems somewhat far-fetched as it is hard to see any suggestion in the past that a litigant had not received a fair hearing in the Lords as a consequence of its dual role. More generally the UK's membership in the European Convention on Human Rights and its adoption of these principles into domestic law in the Human Rights Act in 1998 has led to an increasing number of cases where judges have had to determine issues involving a political element. This trend has led to a focus on the necessity for the separation of powers which in turn is one of the key drivers for the creation of the Supreme Court.

Editor: What are the retirement requirements for judges?

Maples: The previous retirement age was 75; however, if a judge was first appointed to the bench of whatever rank after 1995 then he or she must retire at 70. This is a controversial policy and one with which many disagree. In looking at the current bench, at least five are currently over 70, demonstrating that this requirement will deprive the Court of capable and experienced judges for no good reason. The Court's president is currently lobbying for an amendment to this rule. Those who support him in this view look to the example of the U.S. Supreme Court where there is no retirement age.

Editor: What effect do you expect the new Supreme Court to have on the substance and style of British law?

Maples: It is widely anticipated and hoped that, in the short term at least, the creation of a Supreme Court will have no material effect on the substance and style of law in the United Kingdom. As I have already noted, ten of the twelve Supreme Court judges were previously Law Lords, thus leading to a continuity of judicial approach in the new court at least for the time being.

In addition, although the Court's creation was motivated by design to keep the judiciary separate from the legislature, we do not expect the Supreme Court to determine "political" cases any differently than its predecessor court did. In the long run, however, it is hard to predict whether the Court's establishment will affect UK law. Perhaps the law of unintended consequences will surprise us all.

Editor: Do you expect that there will be clashes between the Court and Parliament, which could lead to an impasse - something similar to what we had in our history when President Andrew Jackson declared: "John Marshall has made his decision. Now let him enforce it!"

Maples: I think that the first thing to say is that because the Supreme Court is not a constitutional court there is much less scope for clashes of the kind experienced in the U.S. The UK Supreme Court is bound to follow the law laid down by Parliament. However courts at all levels in the UK are increasingly faced with situations where they encounter tensions between different pieces of legislation, e.g., where a piece of legislation runs contrary to the provisions of the Human Rights Act. It is to be hoped that by establishing the Supreme Court the judiciary as a whole has been put on a better footing to deal with issues of this kind without fear of criticism of political involvement.

Please email the interviewee at jamie.maples@weil.com with questions about this interview.