UK Supreme Court Reform: Combating Smoke with Fire

1. INTRODUCTION

Last November, an unknown source leaked to the Sunday Telegraph that the Government is set on reforming the Supreme Court.[1] The contemplated reforms would transform both the structure and composition of the UK’s Supreme Court by replacing its 12 justices with a broader pool of ‘appeal court judges’, so that each appeal would be brought before a panel of justices selected on a case-by-case basis.

According to the source, ‘[j]ust like in the US, campaigners are increasingly looking to the courts to settle political arguments and this puts the judiciary in a place most of its members really don’t want to be.’ The source says that the Government is pushing for Supreme Court reform to halt what it sees as increased judicial ‘activism’ in the Court.  This opposition to perceived judicial activism appears to have also driven the reviews of Administrative Law and the Human Rights Act. However, it is not clear that there exists, in fact, any such judicial ‘activism’, or that the Supreme Court needs the reforms being discussed. In this blog post, I argue that the proposals are problematic. Beyond superficial changes, they only obfuscate a system that has, so far, been proven to work well, and even if the assumption that there is excessive judicial activism were correct, the reforms would fail to solve that issue.  

2. THE PROPOSALS FOR REFORM

In contrast to the current panel of 12 Supreme Court justices, the proposals detail a shift to a large pool of ‘appeal court judges’ (which would, presumably, be constituted of current Supreme Court justices and judges sitting on the Court of Appeal), with future cases each being heard by a panel of judges drawn from this pool. These reforms bear a striking similarity to those proposed by Derrick Wyatt QC and Richard Ekins, who, in a paper published by the Judicial Power Project, have both expressed deep concern at what they perceive to be an increasingly activist Supreme Court (although Wyatt is more tentative in tone and distances himself from Ekins’ more extreme view that the Court often does not afford sufficient weight to parliamentary sovereignty as the driving force of the UK constitution).[2] Wyatt argues that the ‘elite’ corps of Supreme Court justices have become ‘detached’ from the rest of their judicial brethren, which encourages them to develop a hubris and hand down decisions more akin to policy than a legal judgment. Wyatt refers to Anisminic[3] and Council of Civil Service Unions v Minister for the Civil Service[4] (‘CCSU’) as cases where the House of Lords made what were effectively policy decisions ‘lacking a convincing legal basis’.[5] In Anisminic, the House of Lords held that a clause claiming to oust the courts’ jurisdiction was ineffective where the relevant decision results from an error of law, which Wyatt equates to effectively ‘removing [s. 4(4) of the Foreign Compensation Act 1950] from the statute book’.[6] The decision in CCSU that the exercise of the royal prerogative by the executive is subject to judicial review, according to Wyatt, is also an example of a case decided on policy, not legal, grounds.[7]

The reforms would also rename the Supreme Court, either as the new ‘Upper Court of Appeal’ or after its predecessor, the Appellate Committee of the House of Lords. Ekins in particular argues that the adjective ‘supreme’ shares the blame for the alleged increased judicial activism, and together with Wyatt, believes that this might be avoided if the judges are no longer ‘distinguished by title and by composition’.

3. PROBLEMATIC POLICY PROPOSALS

Dealing first with the proposal for renaming the Supreme Court, which would be least effective in creating any change beyond the superficial, it is not clear that the concerns underlying it are well founded. The adjective ‘supreme’ does not obviously imbue the Supreme Court justices with any hubris, and it does them a disservice to imply that their judgments would be influenced by such a trivial factor. When asked (in March, by the House of Lords Constitution Committee) about the leaked reforms, the President of the Supreme Court, Lord Reed of Allermuir, described renaming the Court, and the justification advanced for doing so, as ’idiotic’.[8] He noted that such a change would have no impact on the law or how judges decide cases, and also pointed out that, since the disputed terminology is not particularly novel, it ought not to be associated with any claims of increased activism. Prior to the Constitutional Reform Act 2005, the Court of Appeal, the High Court and the Crown Court were titled the ‘Supreme Court of England and Wales’ under the Supreme Court Act 1981, while in Scotland, both the Court of Session and the High Court of Justiciary are still often jointly referred to using the term ‘Supreme Court’. As Lord Reed points out, ‘it’s a name which simply recognises our position as the country’s highest court’, and so has no deeper significance or effect on the jurisprudence of the Court. His Lordship also expressed concerns over Britain’s international reputation and the damage that could be done by ‘downgrading its top court’.

Similar concerns arise in respect of the more substantive proposals: shifting the composition of the Court from its current 12 justices towards a more ad hoc model would risk damaging the efforts made since 2009 to better establish the Court in the public conscience. The presence of a definitive body of justices sitting on a Supreme Court, independent from Parliament, has raised public awareness of the institution (as public familiarity with certain justices, most notably Baroness Hale, demonstrates). There is at least an understanding that the Supreme Court sits atop a legal pyramid and has the last say on the outcome of a case, yet an ad hoc model would diminish this progress. The Supreme Court plays an essential role in our constitutional arrangements and so this increased public awareness of its functioning, and its justices, which helps increase public understanding of and confidence in our constitutional system, ought to be celebrated.

An even more fundamental issue with the ad hoc proposal is how the selection process for such panels would function. One simple option would be to form the panels based on the availability of the justices from the wider pool of judges, and yet there will always be scenarios where there are more justices available than necessary. Currently, the three appeal courts select panels based on considerations such as the seniority of justices, or whether certain justices have specialist knowledge of the relevant area of law. If the Supreme Court is then replaced with an ‘Upper Court of Appeal’, would this mean that justices with less seniority and less specialist knowledge would hear cases in this final court?

One could then argue that the most suitable judges be held back until they can hear the final appeal, yet this creates more issues than it solves as there would be many cases that never make it to the ‘Upper Court of Appeal’, and so have been assigned less appropriate judges than they would have otherwise under the current system. Joshua Rozenberg also points out the importance of the Supreme Court being able to sit with the maximum number of justices for cases of the utmost constitutional significance (as was the case in both Miller[9] and Miller/Cherry[10]), to try and balance out more ‘activist’ voices and to avoid outcomes depending on the choice of judges.[11] Considering the size of the pool of justices eligible to sit on the new ‘Upper Court of Appeal’, such arrangements would be impossible, meaning that whoever is responsible for selecting the panel in particularly important cases could potentially select justices considered more ‘activist’. Surely, this sits uncomfortably with the intentions of Wyatt, Ekins and the Government: namely, to rein in the Supreme Court, and more broadly, to ensure the impartiality of the judiciary.[12]

It is also worth considering Wyatt’s claim that the Supreme Court justices are ‘detached’ from the rest of the judiciary and more ‘activist’ by virtue of their position on the Court. It is true that in both Anisminic[13] and CCSU,[14] the Court of Appeal adopted a more deferential stance to the Executive, which was subsequently overruled by the House of Lords. However, as Reed Langen points out, it does not follow that Court of Appeal judges are a more accurate representation of all the appellate judiciary.[15] Although not all Supreme Court members have previously been Court of Appeal judges, a majority have, so Wyatt’s claim implies either that justices simply become more activist upon their appointment to the Supreme Court, or that the Court’s selection process seeks out more ‘activist’ justices, neither of which is likely. One need not look further than Lord Sumption, who generally embraced a more conservative approach to judicial law-making, and others, such as Lords Hughes and Clarke, who were often more restrained in their approach.

Reed Langen points out that a more probable explanation for cases where the Court of Appeal is comparatively deferential is its difference in role compared to the Supreme Court.[16] Most importantly, Court of Appeal judges are bound by precedent, unlike Supreme Court justices who are freer to develop and change the law. For these reasons, the proposals would not have the desired effect of making the UK’s Final Court of Appeal more moderate, since it would still be fulfilling the same function, with judges, when they sit in their capacity as justices on the ‘Upper Court of Appeal’, still being less bound by precedent and freer to develop the law.

4. CONCLUSION

The reforms being discussed by the current Government are unsatisfactory and create more problems than they claim to solve. They are based on the false assumptions that the title of ‘Supreme Court’ has helped create an elite corps of justices, that this elite corps is ‘detached’ from the rest of judiciary, and that the Supreme Court is becoming increasingly ‘activist’. A Government enacting these reforms to try and ‘tame’ the judiciary and help avoid what it considers more ‘activist’ decisions would be left disappointed with the outcome. It would dismantle a system that thus far has worked remarkably well and has elevated public awareness of the independent judiciary, and awareness of the role of the rule of law in our democracy. Since the proposals leaked, the Government has remained silent on Supreme Court reform. One would hope, however, that it takes note of Lord Reed’s answer when asked whether he could see any benefits to the proposals: ‘no’.