On 1 October 2009, the House of Lords was replaced by a new Supreme Court as the highest court within the English legal system
The House of Lords, as the upper chamber of parliament, continues to exist, but its membership has been reduced by the 12 Law Lords who previously sat there, and who now sit as justices in the new Supreme Court.
The idea of the separation of powers, which can be traced back to ancient Greek political philosophy, is based on the existence of three distinct functions of government (the legislative, executive and judicial functions) and the conviction that these functions should be kept apart in order to prevent the centralisation of too much power.
The fact that, before October 2009, the highest court in the UK was located in, and constituted part of, the country’s legislative body was always considered at least somewhat anomalous. Such a situation was clearly contrary to any idea of the separation of powers and one that was not lost on Lord Falconer, the former Lord Chancellor, who in 2005 explained the need for reform thus:
The present position is no longer sustainable. It is surely not right that those responsible for interpreting the law should be able to have a hand in drafting it. The time has come for the UK’s highest court to move out from under the shadow of the legislature.
The relevance of Lord Falconer’s argument was given added power by the decision of the Scottish Court of Sessions, the equivalent of the Court of Appeal, in Davidson v Scottish Ministers (No 2) (2002). The case involved a challenge to a previous court decision, on the grounds of Article 6 of the ECHR, for the reason that one of the judges in the earlier case, the former Lord Advocate Lord Hardie, had spoken on the issue before the court while a member of the Scottish Assembly.
The Court of Sessions held that Lord Hardie should at least have declared his previous interest in the matter and that, in the light of his failure to do so, there was at least the real possibility of bias, and ordered the case to be retried.
The enormous historical change involved in remedying the unsustainable situation was brought about by the implementation of Part 2 of the Constitutional Reform Act 2005, which provided for the following:
As has been stated above, in other constitutional systems, both civil, as in France, or common law, as in the US, not only is there a clear separation of powers between the judiciary, the executive and the legislature, but there is also a distinct Constitutional Court with the power to strike down legislation on the grounds of its being unconstitutional.
It has to be emphasised that the UK Supreme Court will not be in the nature of these other supreme courts, in that it will not be a constitutional court as such and it will not have the powers to strike down legislation. Consequently, although the proposed alterations clearly increase the appearance of the separation of powers, the doctrine of parliamentary sovereignty remains unchallenged.
It remains to be seen, however, whether under the changed circumstances of the contemporary constitution the Supreme Court, as the highest court in the land, will simply assume the previously limited role of the House of Lords, or whether it will, with the passage of time, assume new function and increased powers as are consonant with Supreme Courts in other jurisdictions. This issue arose in September 2009 when the former Law Lord, Lord Neuberger, who gave up his position in the House of Lords to become Master of the Rolls, spoke on a BBC radio programme expressing the opinion that the advent of the Supreme Court was not unproblematic. As he put it, ‘the danger is that you muck around with a constitution like the British constitution at your peril because you do not know what the consequences of any change will be’. And that there was a real risk of ‘judges arrogating to themselves greater power than they have at the moment’.
Former Lord Chancellor, Lord Falconer, also expressed the view that the Supreme Court ‘will be bolder in vindicating both the freedoms of individuals and, coupled with that, being willing to take on the executive’, but Lord Phillips the President of the Supreme Court was more conciliatory towards the executive expressing the view that, although he could not predict how the court would function in the future, he did not foresee it changing in the way suggested by Lord Neuberger.
The changes will make little practical difference to the student of law; the previous decisions and precedents of the former House of Lords will still be binding and the previous rules of law and procedure for hearing appeals from lower courts will continue to operate. Consequently, the shift from House of Lords to the Supreme Court should be seamless and unproblematic.
More information cane be found on the Supreme Court website
Written by a member of the Corporate and Business Law examining team