Lord Phillips, the newly appointed President of the Supreme Court, has several times pronounced the changes likely to ensue as a result of the courts opening to be ones of “form rather than substance.” Is this correct? If so, would it justify the £77 million spent to create the new court, which opened for business on 1st October 2009?
The Supreme Court essentially fulfills the same judicial purpose as the Law Lords previously did in the Upper House, i.e. to act as the highest appeal court if the land, deciding upon legal issues of the greatest public or constitutional importance.
The impetus for separating the court from Parliament came from the 2005 Constitutional Reform Act. The Act seeks to uphold and define more clearly the roles of the judiciary, executive and legislative by separating the overlapping aspects of these bodies. It is argued that the new court will encourage greater scrutiny of the laws passed by Parliament and could, as Lord Neuberger fears, “lead to judges arrogating to themselves greater power than they have at the moment”.
The introduction of a Supreme Court is one of many reforms laid out in the 2005 Act, all of which are interlinked. For instance, the more prominent and seemingly independent role of the new court will attract greater public attention to the appointment of its Justices. Correspondingly, the 2005 Act has completely reshaped the selection process for the judiciary at all levels, with the introduction of the Judicial Appointments Committee (JAC) to establish a more transparent recruitment process for a more representative and diverse judiciary. The higher profile of the Supreme Court and its own attempts to make the system more transparent and accessible will arguably lead to greater public interest in the law. More challenging and diverse legal issues are likely to be put to court over the coming years as the demography of our society changes. It is hoped that a diverse and perhaps more independent judiciary will be better placed to determine the various issues rising in the 21st Century and beyond.
The House of Lords had been a source of concern to many observers with regards to its judicial and legislative powers. The establishment of a separate court, away though not very far from the hub of political and legislative action in the House of Lords, will help to alleviate this. The role of the Lords who serve as Justices in the Supreme Court is more clearly confined to that of a judge, and the majority of their rights as peers are surrendered. This will lead to greater public confidence in the independence of the judiciary, although some commentators have attempted to dismiss the entire exercise as an instance of ‘New Labour window dressing.’
The new building’s interior, which has a modern look featuring glass, marble and wide spaces, perhaps intends to convey a more transparent and open approach. The Court is currently hosting an exhibition on the role of the Supreme Court and has a clear intention to invite the general public to come and see the changes that have been made. One can openly listen to an appeal in progress from the public galleries, which are purpose-built. This is in contrast to the previous committee rooms from which the Lords operated, which seemed less open and accessible to the general public.
The introduction of a Supreme Court in the UK can be seen as an inevitable consequence of the process of modernization – a response to the ever growing demand for greater scrutiny and democratic accountability, part of wider constitutional reforms affecting the UK. The creation of the Supreme Court represents an opportunity for enhanced judicial independence, but the question as to whether the changes are truly ones of “form rather than substance” as Lord Phillips has suggested, remains to be seen. History suggests that changes in ‘form’ that promote greater independence can act as a catalyst for substantive change. Judicial interpretation is a key aspect of the common law system and any step that encourages greater independence of the judicial process at the highest level is likely to bear fruit, often with unforeseen consequences. As David Cavender, a Barrister
at one Essex Court eloquently puts it, “It could all go off in another direction.”
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