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Monday, 15 March 2010

The Supreme Court again

This blog has now been published here.

Courtesy of the UKSC Blog here is a link to an interview with the President of the Supreme Court, Lord Phillips. In it he is asked about the reasons for the court's formation. He admits that there was no prior consultation with the judges. Although the idea had been knocking around for a while, and in particular the now retired Law Lord, Lord Bingham, had been in favour, it was essentially sprung on the judges without notice as part of a package of significant constitutional reforms. Despite the far-reaching consequences of those reforms, they were announced with all the fanfare of a 2p rise in tax on alcohol or any other mundane policy decision.

One of the other measures was the abolition of the post of Lord Chancellor, a reform which in the event failed because no-one had taken the trouble to find out the full extent of what the Lord Chancellor actually did. The then-incumbent, Lord Irving, Tony Blair's fomer pupil master, was elbowed aside one way or another. Lord Falconer, Tony Blair's former flatmate, replaced him, though not at the same salary level. These days the post is held by Jack Straw, who still calls himself Mr Straw and sits in the House of Commons and obviously doesn't consider Lord Chancellor to be a full time job anymore.

Back to the Supreme Court. In the interview Phillips is pressed on the reasons for the Court's formation. He responds "I can't tell you why" but then offers "I can tell you the justification" and refers to the separation of powers. The interviewer asks perfectly reasonably whether the Appellate Committee of the House of Lords infringed that principle. Phillips says no, but that that might not have been obvious to a casual observer. The reason for the change, he then asserts, is to make the separation more transparent.

I would make three observations. First, that a body entirely the creation of an ordinary statute isn't necessarily independent, because there is always the suspicion that Parliament might pass another ordinary statute to alter or do away with it should it be displeased with the body's performance.

Secondly, if a lay observer had wondered whether the Appellate Committee was truly independent, he or she could have researched the situation and found the answer, as with any other legal issue. The creation of the court was a rather expensive way of pre-empting a question that wasn't evidently one troubling any sizeable section of the public or the media or anyone else.

Thirdly, despite the surprisingly cavalier nature, to say the least, of the reforms, Lord Phillips wasn’t sufficiently troubled to object, or if he was, to object with any conviction, unlike his former colleague Lord Neuberger.

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