Trials and tribulations
Britain finally gets a Supreme Court
IN 1867, Walter Bagehot demanded that England set up a Supreme Court—a “great conspicuous tribunal” to rule all others. It was about time, the editor of The Economist believed, for the House of Lords to relinquish its peculiar status as the nation's highest court. Bagehot's wish was finally granted this week, when Parliament narrowly approved a bill to establish a Supreme Court. Constitutional reform is a slow process, although the pace of change has been too rapid for some.
Labour's third major reform of the way Britain is governed (the first two devolved powers to Scotland and Wales and removed hereditary peers from the House of Lords) was ineptly handled. Plans to set up a Supreme Court were abruptly announced in June 2003 during a cabinet reshuffle. At the same time, the government declared it was abolishing the office of Lord Chancellor. The holder of that ancient post was head of the judiciary and a member both of the cabinet and the House of Lords—an anachronism, but one that struck some judges as a good way of protecting their interests.
With the judges and the Lords in revolt against “constitutional vandalism”, the government was forced to compromise. Under the new bill, the office of Lord Chancellor will be reformed but the title will remain. The senior judiciary gets a formal promise that its independence will be preserved. It also wins the right to appoint its own members. The government had wanted to pick new Supreme Court judges from a shortlist drawn up by members of the court; now it will have to accept or reject a single candidate.
Britain's Supreme Court will not be one of the world's most powerful. Because the nation lacks a written constitution, the judges cannot plausibly claim to be guardians of any scriptural “rule of law”. As before, parliamentary legislation can be struck down only by Parliament.
Over time, though, the Supreme Court is likely to grow in power and political confidence. Part of the reason is geographical. As soon as arrangements can be made, the judges will be plucked out of the House of Lords and installed in their own building on the other side of Parliament Square. That alone will encourage them to think of themselves as a separate organ of state.
But the law lords would have become more politically involved even without help from the government. Thanks to the growth of administrative law and, even more important, the 1998 Human Rights Act, a court that used to spend much of its time deciding tax cases now rules on the legality of executive actions and even on the validity of Acts of Parliament. Last December, it declared that the government could not justify holding foreign terror suspects without trial. Ten years ago, such a decision would have been impossible. With a few confident judges at the helm, Britain's Supreme Court may find the lack of a constitution only a slight hindrance to judicial activism. Israel's highest court has grasped power by creatively interpreting the country's “basic laws”.
For that reason, the government may come to regret its decision to give up control over the appointment of judges. So may the judges. As Robert Stevens, of the University of London's Constitution Unit, points out, a self-appointing oligarchy is vulnerable to the charge that it is standing in the way of popular reforms. “The judges will have less protection than if they were appointed by the government,” he says. Recent home secretaries such as David Blunkett and Michael Howard have feuded with the judiciary. Future disputes may make those squabbles seem minor.
From the print edition: Britain