Before the Supreme Court/Neues Gericht in England: die Vorgeschichte

In 1980 I qualified as a Solicitor of the Supreme Court of Judicature. In 1981 it was renamed the Supreme Court of England and Wales.

Now we are to have the Supreme Court of the United Kingdom (see below).

Not many non-lawyers know what the Supreme Court of England and Wales is. It isn’t one court, but a collective term for the higher courts of first instance (High Court and Crown Court) and the Court of Appeal.

A friend of mine once created a diagram of the English courts for me on which there was a greyish square backing these three courts. The publisher removed the grey.

Outside these courts are the inferior courts (magistrates’ courts and county courts), various institutions called tribunals, some of them more like courts and some less, and above them all the House of Lords, or rather the Appellate Committee of the House of Lords. (There is also the Judicial Committee of the Privy Council, but that is not for the UK; and the European Court of Justice (EU) and the European Court of Human Rights (not EU)).

The House of Lords as a court was originally much more integrated into the political chamber. There was an attempt to abolish it in 1873, but with a change of government it was saved. From 1844 no lay peers voted in the judicial business; from 1875, it was staffed by legally qualified judges who were given life peerages. After this, the House of Lords dealt with particularly important cases, in which a point of law was involved.

It did not sit in the parliamentary chamber, but in a sort of committee room. The judges did not wear wigs and gowns. It was presided over by the Lord Chancellor, who was also the Speaker of the House of Lords parliamentary chamber and a member of the government. He was therefore a popular subject for background studies questions, because he was the best example of a lack of separation of powers, being in the executive, the legislature and the judiciary.

Suddenly, in 2003, Tony Blair had a cabinet reshuffle and announced that the Appellate Committee of the House of Lords was to be replaced by the Supreme Court of the UK. Apparently Tony Blair was thinking of creating a Ministry of Justice even before he became Prime Minister in 1997. Even then it was reported that his former pupil-master, Derry Irvine, whom he made Lord Chancellor, was against the proposals so they would be deferred. But still, the sudden constitutional changes, apparently without consultation with the judges, were a shock. Were the plans drawn up on a cigarette packet, as has been reported? Or dreamed up over a glass of whisky, as suggested by Lord Neuberger this month? If not, that’s still what it looked like.

In fact, Blair actually abolished the Lord Chancellor (as reported in this blog on 12 June 2003 – Guardian article of the time) but we don’t talk about that now, because it didn’t quite work. At present, Jack Straw is both Lord Chancellor and Secretary of State for Justice (as Lord Falconer was in 2003, when he took over from Irvine).

The Guardian in 2003:

An astonished shadow home secretary, Oliver Letwin, said: “To remake constitutions on the hoof, on the basis of personnel changes within the cabinet, is the height of irresponsibility. To announce it in a press release at 5.45pm on a Thursday evening is nothing short of a disgrace.”

The shadow leader of the Lords, Lord Strathclyde, described the proposals as “trendy reforms cobbled together on the back of an envelope”.

Six years on from this little kerfuffle, the Constitutional Reform Act 2005 has been passed and the Supreme Court of the UK will start work on 1 October.

Lord Neuberger left the House of Lords to become Master of the Rolls, regarded as a step downwards, a step Lord Denning also took. His remark about the court has been widely quoted. Here is Eursoc on the subject:

Britain’s new Supreme Court is a “frivolous” creation, apparently dreamed up as a last-minute decision “over a glass of whisky” by former Prime Minister Tony Blair. So says former Law Lord Lord Neuberger of Abbotsbury, who declined to join the Supreme Court.

In an interview with the BBC, Lord Neuberger added,

“The danger is that you muck around with a constitution like the British Constitution at your peril because you do not know what the consequences of any change will be.”

The topic has been discussed by Joshua Rozenberg, who also writes in the TLS on two books about the UK constitution.

So what will change about the House of Lords?

The judges will be called justices (up to now, the only justices in England and Wales have been the justices of the peace)
They will move across the road to a 1913 building, the Middlesex Guildhall, that cost £77m to renovate
They will be more visible to the public
They may in time throw their weight about more
Its constitution will be the same, although there is a voluntary new procedure for choosing justices
Its powers will be the same
Its work will be the same
It will be able to issue a single opinion, or a majority opinion (at present five speeches are given)

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