Blog of the International Journal of Constitutional Law

Out with the old, in with the new

The newly minted Supreme Court of the UK handed down its first decision this week, after coming to power on October 1, 2009. There is no doubt that Brits (and the rest of us) are still getting used to the idea of new branch of government in the UK. There is even some question (in my mind at least) about how many British citizens even know about the change. I was at dinner several weeks ago with a veteran British Political Scientist (albeit, one who has been transplanted across the pond for some time now) who, in response to my question about any thoughts on the new body, asked “What Supreme Court?,” perhaps wondering if I had mistaken Britain for, I don’t know, New Zealand.

Indeed, it seems almost unfathomable that the British would adopt such a change. For one thing, the process was downright hasty, by British standards. The Supreme court was envisioned in a deliberate, almost Lockean, move of igneous constitutional reform — not the product of sedimentation as we like to think of the origins of most of British constitutional structure. This is the short, sharp, shock that Cheryl Saunders refers to in her excellent post commemorating the last decision made by the outgoing Law Lords. The sharp part of the reform has to do with the British embrace of some notion, however moderate, of separation of powers. We shouldn’t think that the days of Parliamentary Supremacy are over — British citizens will not be electing an executive directly and with a fixed term any time soon. However, it is remarkable that the laws of Parliament will now be interpreted by another body, not Parliament itself (in the form of the House of Lords’ law committee (Law Lords)). In this context, it is remarkable indeed that this change would go down with so little fanfare (if, indeed, my guess about citizen awareness of this change is borne out by the data — I will be on the lookout for any public opinion data on the subject).

Whether under the radar or not, this arrival of this new body introduces a wave of interesting questions, which scholars will be grappling with for years. The court’s members are selected by a commission (with, presumably, professional rather than political goals) but appear to serve at the pleasure of Parliament (what exactly that will mean in practice is unclear at this point), and are obligated to retire at 70. This suggests to me a score somewhere near the mean in terms of judicial independence (compared to contemporary standards), but I’ll let our colleague Julio Rios Figueroa score that with his index. At any rate, the new body represents a significant shift upwards in independence from the prior regime. How the new court’s decisions will differ from those of the Law Lords and which cases get heard remain to be seen, but given a new structure and newfound independence, one would expect increased pushback on Parliament.

The court’s decision in its first case — what constitutes membership in the Jewish faith — suggests that its decisions will be far reaching, perhaps even up to the heavens. I will leave the discussion of that case for another post. Suffice it to say that it takes up some of the most fundamental issues in relationship between church and state.


3 responses to “Out with the old, in with the new”

  1. David Law Avatar

    Would it be unduly cynical to question whether commissions designed to select judges on the basis of merit rather than politics or ideology ever actually accomplish that goal? The state-level evidence here in the U.S. is not that promising. The British have certainly tried with this reform to insulate the judicial selection from political influence. The Lord Chancellor selects panels that are in turn responsible for selecting the lay members of the Judicial Appointments Commission. By law, these lay members constitute a majority of the Commission, and they are supposed to apply for their positions. But will this really do the trick, or does it merely mean that the influence will be exercised more indirectly through an additional intermediate layer of procedure?

  2. J.S. Avatar

    I think this (welcome) change is much less radical than is being made out. It just formalises what has been the reality for a very long time (since 1834 according to Wikipedia).

    People speak of “an appeal to the House of Lords” but what they mean is the appellate committee of the Lords, which is just a court by another name, consisting of a small group of “law lords” (judges). This change just rectifies the anomally that law lords also have the right to vote on bills (although they rarely exercise that right, as I understand it).

    “The sharp part of the reform has to do with the British embrace of some notion, however moderate, of the separation of powers …British citizens will not be electing an executive directly with a fixed term any time soon”

    I have to question this statement. The separation of powers is not equivalent to a presidential system of government–the American version is just its strictest form.

    The separation of power has been an integral part of the British constitution, in some form or other, since at least the 1689 Bill of Rights. It’s also respected in other parliamentary systems, which include the majority of Western democracies.

    The important part of the separation of powers, as I see it, is not that the executive is separately elected to the legislature, or that judges do not have some vestigial participation in parliament. What matters most is that that the courts are not interferred with and the executive cannot ignore the law, or legislate by decree.

  3. Zach Elkins Avatar

    I take these insightful comments by David and J.S. as empirical questions worth investigating. To wit: (1) will the selection method be as political as, say, that in used in the U.S.; and (2) Will the membership in the new body represent old wine in new bottles?

    The separation of powers point is well taken. There are elements of that in the Westminster system.

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