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The Government’s Supreme Court Plans: Warranted Reform or Worrying Revenge?

Disclaimer: The views expressed are that of the individual author. All rights are reserved to the original authors of the materials consulted, which are identified in the footnotes below.


By Joseph Cannon




Boris Johnson’s Conservative Government are reportedly making plans to reform the UK Supreme Court. Johnson has had a bumpy history with the court, especially the controversial ‘Miller 2’[1] case of September 2019, where he was found to have acted unlawfully in misleading the Queen when giving advice over Parliament’s prorogation. Whilst Lord Chancellor Robert Buckland denies that the reforms constitute ‘revenge’[2] over ‘Miller 2’[3], it is hard to believe that this is wholly true. Johnson’s response to his historic defeat, it seems, is to change his ‘competitor’, rather than change his ways.


This article will show that, while calls for reform are somewhat warranted, the specific reforms reportedly called for by the government miss the point.


A brief history of the UK Supreme Court

The Supreme Court was set up by the Constitutional Reform Act 2005, replacing the Appellate Committee of the House of Lords as the highest court in the UK. The key issue with the previous court was that, by virtue of its position within the House of Lords, it appeared to conflict with the separation of powers – a key principle of UK constitutional law. The separation of powers requires that governmental powers are split between executive, legislature and judiciary branches of government.


Thus, the Law Lords moved out of the House of Lords, and into their own new building[4]. Yet, not much else changed:

  • The structure and personnel of the court was largely unchanged – 11 of the 12 justices on the maiden Supreme Court bench served on the previous House of Lords counterpart[5].

  • The new court had essentially the same powers as before, with the addition of jurisdiction over devolution issues.[6] Crucially, the Supreme Court was not made ‘supreme’ in the US sense.


The plans for reform

The Telegraph have reported that the Supreme Court could be ‘facing an overhaul’[7]. The Government’s plans are principally in response to concerns that the UK court is ‘being increasingly viewed as a constitutional court’[8] in the same vein as the US style Supreme Court.


The plans consist of two key parts:

  • To rename the court.

  • To reduce the amount of permanent justices, instead relying on specialist judges drafted in depending on the case at hand.


Are these reforms warranted?

To rename the Supreme Court

The plans to rename the court stem from fears that the ‘Supreme Court’ name has ‘confused the public’[9] over the court’s role in society. The government want to halt misconceptions that arise due to comparisons with the US’s Supreme Court, an institution which has a very different role in the constitutional order. The most pertinent difference, perhaps, is the fact that the US Supreme Court has ‘strike down powers’ – the ability to invalidate statutes - making it, in this way, a relatively more powerful institution compared to its UK counterpart.


Yet, these plans seem ironic – part of the rationale for the establishment of the Supreme Court (and the name change) was to make it more explicit to the general public that this was a court independent from the House of Lords.


To reform the composition of the Supreme Court

The Government also reportedly plan to reduce the size of the court. This would involve fewer permanent members of the court, with specialist judges drafted in for particular cases.


This reform also raises a few eyebrows, especially when one considers the justification for the change. The motivation for these reforms is widely believed to be the government’s embarrassing defeat in the ‘Miller 2’[10] case and the general sceptical mood of Conservative MPs towards judicial review[11]. Thus, one would think that the government’s issues with the Supreme Court would be limited to relatively recent changes. Lord Falconer, the former Lord Chancellor, tweeted: ‘Not sure what’s wrong with the number of supreme court judges. Same as in Judicial Ctee of Lords’[12].


Ironically, this reform could actually introduce a feature prominent in the US’s Supreme Court, thus potentially undermining the first reform. The drafting in of specialist judges may have the effect of ‘court becoming more politicised’[13] due to an increased focus on judges' backgrounds. This seems strange – the stark politicisation of the US court is one of its most common criticisms. This effect seems to contradict Lord Chancellor Robert Buckland’s responses during a meeting with the Joint Committee on Human Rights on 18 November 2020. In this, he claimed that he wanted to protect the Supreme Court from ‘the nightmare scenario of a US-style appointment system’[14], yet, this particular change appears to have the potential for the opposite effect.


Conclusion

The government’s proposed plans for reform of the Supreme Court seem to miss the point; the reforms serve to resolve the government’s problems with the Supreme Court as opposed to trying to resolve actual problems with the Supreme Court. Perhaps the starkest problem with the Supreme Court unaddressed by the proposals is the lack of diversity. With Lady Hale’s retirement earlier this year[15], coupled with Lady Black’s retirement next January[16], the court may be left with just one female judge[17]. This issue of diversity is compounded by the fact that there are no BAME justices on the Supreme Court. This is clearly an unsatisfactory situation. If the reforms succeed in reducing the size of the court, the challenge of obtaining a more representative and diverse bench is only going to become more difficult.

Thus, despite Robert Buckland’s dismissal of the reform being ‘revenge’[18] for ‘Miller 2’[19], it is difficult to avoid being sceptical of this claim. It does not appear as if the reforms truly intend to improve the Supreme Court, rather, they attempt to resolve the government’s issues with it.

Perhaps if more thought were put into reforming the court for the better, rather than the proposed plans, the public would better ‘understand’ the court, whatever its name may be.


 

Sources [1] R (on the application of Miller) v The Prime Minister; Cherry and others v Advocate General for Scotland [2019] UKSC 41 [2] Robert Buckland, ‘Nightmare Scenario’ Joint Committee on Human Rights (18 November 2020) [3] Miller (n 1) [4] ‘Significance to the UK’ The Supreme Court (accessed 25 November 2020) < https://www.supremecourt.uk/about/significance-to-the-uk.html> [5] Roger Masterman and Colin Murray, Constitutional and Administrative Law (2nd edn, Pearson Education Limited 2018) 352 [6] ibid. [7] Edward Malnick, ‘Supreme Court to be overhauled to curtail its constitutional powers’ The Telegraph (14 November 2020) < https://www.telegraph.co.uk/politics/2020/11/14/britains-supreme-court-faces-overhaul-concerns-us-style-election/> [8] ibid. [9] Katie Feehan, ‘Supreme Court could be renamed and the number of judges cut under plans being considered by ministers amid fears US-style legal rows may become routine in the UK’ MailOnline (15 November 2020) < https://www.dailymail.co.uk/news/article-8950883/Supreme-Court-renamed-number-judges-cut-plans-considered-ministers.html> [10] Miller (n 1) [11] Jane Croft, ‘Former top UK judges sound alarm over court review’ Financial Times (17 November 2020) < https://www.ft.com/content/74f5595d-6e43-4bf1-920e-a65603a0f626> [12] Lord Falconer, ‘Not sure what’s wrong’ (Twitter, 15 November 2020) < https://twitter.com/LordCFalconer/status/1327954506529824769> accessed 25 November 2020 [13] Owen Boycott, ‘Plan to reform supreme court is attack on independent judiciary, says Labour’ The Guardian (15 November 2020) <https://www.theguardian.com/law/2020/nov/15/supreme-court-plans-an-attack-on-independent-judicary-says-labour> [14] Buckland (n 2) [15] Family Law LexisNexis, ‘Lady Hale, 'pioneer' retires from Supreme Court’ LexisNexis (16 January 2020) < https://www.familylaw.co.uk/news_and_comment/lady-hale-'pioneer'-retires-from-supreme-court> [16] Owen Boycott, ‘UK supreme court could be left with only one female justice’ The Guardian (8 November 2020) < https://www.theguardian.com/law/2020/nov/08/uk-supreme-court-could-be-left-with-only-one-female-justice> [17] ibid. [18] Buckland (n 2) [19] Miller (n 1)

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