Supreme Court to become supremely powerful?

A leading judge has predicted that the law lords will become more powerful after they move from the House of Lords to the new Supreme Court in October.

Lord Neuberger, who joined the United Kingdom’s highest court in 2007, recalled in Oxford at the weekend that this had not been the Government’s intention when it decided to create a new final court of appeal for the United Kingdom.

“Ministers have emphasised that the legislation introducing the Supreme Court is not intended to alter our role or our powers in any substantive way,” he said in a speech at the Trinity College Law Society Beloff dinner.

“However, after 35 years’ experience in the legal world, there is only one law in which I have complete faith: it is the law of unintended consequences.

“More seriously, there are good empirical reasons for believing that the introduction of the Supreme Court will make a difference. Changing an institution tends to give its members an added sense of power and legitimacy — look at the consequences of the recent changes to the membership of the House of Lords.”

Lord Neuberger said that he and his fellow law lords had already reviewed their rules and procedures in preparation for the opening of the new court in little more than six months’ time.

“On top of this, resources are going into increasing public awareness and interest in the new court. New legislation; new name; new [judges’] titles; a new building; new procedures; discussions and publicity suggest to me that substantive changes may well be round the corner.”

The legislation setting up the new court reflected a change that was already occurring for other reasons, he continued.

“The balance of power between the three branches of government, legislature, executive and judiciary, seems to me to have shifted over the past few decades. The judges of the United Kingdom may be becoming rather more powerful and, indeed, more political — in the sense of being concerned with policy, not in the sense of being party political.”

European Union law enabled — and sometimes required — judges to overrule Acts of Parliament if these were in conflict with Community law. And the Human Rights Act enabled judges to declare legislation incompatible with the Human Rights Convention, leading to amendment by Parliament.

Lord Neuberger thought the “massive increase” in judicial review cases since 1970 had affected the balance of power between the executive and the judiciary.

“Of course, that is in part attributable to human rights which, when compared with more classic challenges to decisions, requires a more intense scrutiny of government action and decisions, and a scrutiny directed more to the decision and less to procedure. However, there has also been an enormous growth in traditional judicial review cases.

“And judges have been more prepared to speak out in public than in the past. The Kilmuir rules, promulgated in the 1950s, used to prevent judges from courting any sort of controversy out of court. That is now history, as evidenced by Lord Steyn’s ringing excoriation of Guantanamo Bay when he was still a serving law lord.

“The increase in judicial review and judicial outspokenness is perhaps partly attributable to the fact that judges educated in the rebellious and liberated 60s and 70s are replacing those who were brought up in the conventional and respectful 40s and 50s.”

But Lord Neuberger thought that another reason was the increase in the power of the government over Parliament. “The power of the House of Commons appears to have shrunk over the past 40 years, although not quite as much as would appear if one overlooks the work of the committees. The decline is, I think, partly due to large majorities for all but five of those years, partly because of the increase in prime-ministerial patronage, partly because of the sheer volume of legislation, and partly because of our somewhat antiquated governmental structures.

“In a healthy body, when one limb or one sense weakens, another often strengthens to compensate. The same seems to be true of non-totalitarian governments. So the decline of the House of Commons (which I hope will be short-lived) is, I suspect, being balanced by an increase in the power of other entities, most notably, I think, by the judiciary and the press.”

However, Lord Neuberger hoped that increased judicial power would not lead to increased judicial politicisation along US lines or to increased judicial arrogance.

Posted at March 19, 2009 04:05 PM