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Introduction Of The Supreme Court In UK
The introduction of the Supreme Court in United Kingdom originated from constitutional reform which was proposed in 2003.The government abolished the post of Lord Chancellor without the consent of both Houses. In effect the reforms separated the judiciary from the executive and legislature which was previously chaired by the post of Lord Chancellor. The UK Supreme Court has taken responsibility of Appellate Committee of the House of Lords and also the Judicial Committee of the Privy Council. The Supreme Court consists of twelve appointed judges known as Justices of the Supreme Court. Part 3 of the Constitutional Reform Act 2005 establishes a Supreme Court, which also has the jurisdiction power to solve devolution disputes. The court is located at Westminster, London in the Middlesex Guildhall and has jurisdiction authority over appeal cases from England, Wales, Northern Island and Scotland. Certainly the introduction of the Supreme Court has modified the functions and roles of the English legal system. The impact shall be discussed in many aspects of the UK’s legal system and constitution.
HISTORY OF THE INTRODUCTION
As discussed earlier, the Supreme Court was established after the Constitutional Reform Act 2005, and the need of this court was debated and argued long time ago before the Act itself. Some senior judges such as Lord Bingham have argued the need for Supreme Court since 2001. The creation came to an official discussion and debated when it was mooted on Department of Constitutional Affairs Consultation Papers in 2003 although the papers reported that there is no any critical criticism against the current law lords or any significance bias in the Lords. It is argued that the functions of Judicial Committees of the House of Lords should be distinguished and separated from the main function of House of Lords. It was concerned whether there is a need to establish a completely impartial and independent judiciary and on the other hand it is argued that giving this impartiality would limit the roles of the judiciary. In fact, the creation of the Supreme Court is to draw a clear distinction of separation of powers between the three branches of the English legal system. Those who against this argued the cost that it would take to establish this new court and in opinion of the previous system worked well. Although it was controversial but was brought up to the Parliament for further debates and subsequently managed to get the permission for the establishment. The constitutional history of UK was changed since the court introduction thus transferring judicial authority of the House of Lords. At the location, the court forms part of a pre-existing quadrangle made up of the Houses of Parliament, Westminster Abbey and Treasury. Although at first the government could not find a suitable building for this court and had to postpone the idea but finally the Supreme Court was established and assumed to play its roles since October 2009
It might be good to discuss the function of Appellate Committee of House Lords and the Judicial Committee of the Privy Council before moving on to the Supreme Court. In 2000, they were 236 petitions for the Appellate Committee, out of these 58 were allowed and 79 substantive appeals presented in 2000  . Most of the appeals are regarding civil areas as conflicting laws, defamation and tenant and landlord though not so much criminal cases appealed. While the Judicial Committee of the Privy Council received 90 appeals and most of the cases dealt are regarding capital murder and though two thirds of the cases received were disposed. Moreover, the Human Right Acts and European Convention on Human Rights affect and urged the creation of the Supreme Court.
It can be said that a new constitution is being created in the UK with introduction of the Supreme Court, but not so much noticed especially by the public. This is maybe because of unwritten constitution, the difficulties to access it and various sources of the UK constitution. Of course this new court has caused a lot of changes in the English legal system. Firstly, in the sense of separation of powers, it is undoubted to say that the judges are experts in keeping distinction in their function as legislators and judges. It is argued that this constitutional reform provides no significance in the sense of separation of powers. This might be untrue because judicial impartiality and independency should be measured both subjective and objectively. In Findlay v United Kingdom  , the European Court on Human Rights provides that, first the tribunal must be free from any personal partiality or bias. Secondly, it must be free from objective view that is excluding any objective doubt in this. Though there are no any clear questions about subjective partiality and this might be the way for the judges to be partial. Objective impartiality is kept on hold and always maintained although at time of rapid growth of modernisation. In McGonnell v United Kingdom  , the European Court of Human Rights decided that Bailiff of Guernsey, which one of the judges deciding the case did not pass the requirement of objective impartiality because he was involved passing the law questioned in the case. The Law Lords themselves demonstrated the importance of separation of judicial and legislative functions. Senior Law Lord, Lord Bingham stated that the Lords constitutionally can involve in Parliamentary debates. There were some arguments for the removal of the law lords from Parliament. First, arguments that goes in line with the Supreme Court. It was part of the governments urge to modernise the constitution which was already too old and the need to be changed.
It is said that this establishment is consistent with Art 6 of the European Convention which prescribes a right to a fair trial. As with the existence of Supreme Court, excessive delays could be reduced or avoided and this would create faster and smoother jurisdiction in cases. Before this, the judges can rely on self-denying ordinance which makes them unqualified for cases which they were involved in the process of passing or scrutinising the said law. After this separation, there is no need of judges to ‘recuse’ themselves. As there are arguments for it but number of arguments levelled against the creation of new Supreme Court. Among the arguments, that the lords are already considered to be independent, therefore separation could hardly do nothing to their independence. No practical benefit would result from the separation. Instead, the new court could become more constitutionally isolated without the protection of the Parliament. The judges would lose chances working with the parliamentarians and the Parliament itself would lose the advantages they achieved from the judicial members. However it has to be taken into account that both Houses now have some numbers of lawyers.
The Lord Chancellor is a vital figure in the English legal system as he had functions in all three branches of the legal system. However his role has now changed since the CRA 2005 which also introduced the Supreme Court. He no longer acts as the Speaker of the House of Lords and even though constitutionally he has been a peer, and in the future he might be not a member in the Upper House which was stated in s 2 of the Constitutional Reform Act 2005. This position is now held by Lord Chief Justice which also assumes many of the judicial functions formerly exercised by the Lord Chancellor.
The Supreme Court may be subject to have excessive powers and this could be seen when the court ruled the government breached its power in Her Majesty’s Treasury v Mohammed Jabar Ahmed and others  .The government froze accounts of suspected terrorist without any vote from the Parliament. The court ruled that the treasury has no power to interfere with fundamental rights of an individual thus making their action of suspending the accounts invalid. Although the court struck down government’s decision in this case but it is unlikely that the Justices of the Supreme Court will behave differently from the House of Lords. As most of them are conservative and defended parliamentary sovereignty before this. Moreover, Parliament would not allow any ‘violations’ in their right to create the law. Parliamentary sovereignty based its legitimacy on political facts and only can be changed with a revolution.  Indeed a small and silent revolution has taken place as in the cases of Factortame. It is known that European Community law precedes over Parliament legislations. The court can only declare incompatibility over EC law and sometimes suspends the statutes. All legislation is required to be given effect in accordance to European Convention of Human Rights under the HRA 1998. The courts are known to challenge the Parliament by scrutinising the law. In Jackson v Attorney General  , the court challenged the Parliament which was regarding fox hunting. The Lords are no strangers in criticising and questioning the sovereignty of the Parliament. So, even with a Supreme Court, it is expected just to be the same as the Lords before. It has to be noted that this has become a part of the judiciary and most probably they would continue it in the Supreme Courts.
The opening of this court has considerably shifted the constitution of the UK, but merely changing the name and the location would not create a totally new, out of nowhere court. The Supreme Court does not have any newly invented powers from other courts. They cannot strike down any legislation as the Supreme Court of the United States. Due to uncodified constitution of UK, the judges cannot measure their judgements and they will just operate as usual. It might be said that the establishment is partly to modernise the constitution by rebranding and refurbishing the courts and the system itself. How all these achieved? First, the Supreme Court Justices are made to have a higher visibility as they are selected in a different way from the law Lords. These Justices are expected to achieve the conclusion in a more different way as cases decided together and there is a only a little space for some personal opinion which will likely be partial. The Supreme Court cases are also broadcasted with higher vicinity hoping that it could interact and be accessed by the public. Therefore, it could receive more public comments and scrutiny.
The Supreme Court might have no experience to deal criminal cases and argued by one of judges that only rare and occasional criminal appeals should reach it. Most of the cases should be left to the Court of Appeal which has wide experiences in dealing this type of cases. It is also argued that unless someone with an extensive criminal experience appointed, there is a great risk that the Supreme Court judgement will likely bring confusion rather than making clear judgements. The reason that it is hard to understand and apply law lords judgements because they have their own reasons or rulings to arrive often at a same conclusion. As this was the result of the judiciary procedure which technically two judges cannot have the same speeches. The Supreme Court will win to this point as it will be able to deliver a single judgement or a majority judgement. In one view, it might be said that the House of Lords is simply moving to a new location for continuing their functions. So, why moving to a new place would change their way of giving judgement? This might be true if creation of the Supreme Court is viewed generally.
The Supreme Court also makes the judges to be more willing to take on the executive and would likely cause some effect in their way of judging and looking at individual freedoms as most of the cases regarding this were brought up against the Government and the consequences might be disastrous. Furthermore, it can be said that Britain is more towards popular sovereignty and not parliamentary sovereignty, as it concerns more its relation with the public. As discussed earlier, the UK Supreme Court is expected not to follow US Supreme Court declaring Acts of Parliament unconstitutional. Lord Collins, one of the lords in the Supreme Court said and believes that the Supreme Court will evolve over time and plays crucial role in the legal system though not so much deviated as the US Supreme Court. This court will try to do the same function as what the law lords did before. Lord Hope in Jackson said ‘Parliamentary sovereignty is no longer, if it ever was, absolute. The appellant argued that the Hunting Act 2004 was invalid because it was passed without the consent of House of Lords. Lord Steyn stated that it was the sovereignty of the Parliament to enact such law thus the Act is valid. It may be argued that the judges have no need to invent or create new laws as it is not their function. In most cases, it must be noted that the way they interpret the statutes that makes it seems like the judges create the law. Instead actually, they tried to induce their understanding and principles in interpreting the Acts.
The Supreme Court will not become bolder than the House of Lords. They should know their actual functions and limits. There is no need of Supreme Court if the judges want to be bolder as they had all the necessary requirements before this in House of Lords. A lot has the knowledge that higher courts can declare incompatibility with the EC laws but the power of the courts is only to ‘declare’. The ultimate decision changing the ‘incompatible’ law lies in the hand of Parliament. And this would not change even after the establishment of the Supreme Court. The new court certainly can show the fine lines between the arms of the English legal system but it is believed to be more cautious as the House of Lords. The constitutional reform might not be worth if taken into whole but it surely had enhanced the powers of the judiciary.
The government did not spend the people’s money on something that is unimportant and has no significance. Prior to its introduction, much debated regarding the cost that it would take for the establishment and this used as a ground against it.
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