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Monday, 27 September 2010

The United Kingdom Supreme Quango?

Another blog for Halsbury's Law Exchange, published here.

Earlier this year, I was critical of the introduction of the United Kingdom Supreme Court (UKSC). My objections included that the stated reason of greater independence was false, since (a) there was no reason to doubt the independence of the Appellate Committee of the House of Lords, and (b) a body the creation of an ordinary statute always carries the risk or the impression that it can be altered or done away with altogether by another ordinary statute, at the whim of the incumbent government.

Now it seems as though those fears may have come to pass. The UKSC blog reports that the court has been lumped in with a number of quangos whose futures are "still to be decided" as the government struggles to deal with the parlous state of the nation's finances.

Perhaps the inclusion of the court on the list is merely an oversight, but it is not a trifling matter. It would be truly astonishing if anyone in government was contemplating trying to do away with the court altogether and replacing it with a cheaper version, and presumably this is not on the agenda. But it would only be moderately less astonishing if the size of the court was to be reduced or subject to some visible cost cutting measure out of budgetary concerns.

As part of an independent judicial system the funding for the courts has to be seen to be outside the day to day control of the executive; the running of the court is a matter for the court itself. It is ironic that the separation of powers was the primary, indeed about the only, stated reason for its creation in the first place, yet we now find the court listed along with committees under the purview of the Ministry of Justice.

The previous government, with its half-baked reform of the House of Lords, botched attempt at abolition of the office of Lord Chancellor and needless setting up of the UKSC in the first place, did not leave a proud record of stewardship of the constitution. Now some of the unfortunate results are becoming evident: no traditional Lord Chancellor would have permitted the executive to imperil judicial independence by describing the highest (or any other) court as a quango or treating it as being of a piece with the Department of Administrative Affairs of Jim Hacker’s day. The House of Lords of old would certainly have sounded disapproval. And the Appellate Committee of the House of Lords was anything but a financial extravagance.

Update: the UK Human Rights blog has responded to this post here.

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