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)

The Court of Appeal, on 20 May 2009, held that Pringles, which are a kind of reconstituted crisp-like substance, are crisps, not cakes or biscuits. This makes them subject to VAT.

Daily Telegraph article (tweeted by matthewbennett)
Decision at Bailii

(4) Regular Pringles are manufactured by mixing the dry ingredients into dough with water and emulsifier, cutting shapes out of a dough sheet, frying it for a few seconds, adding oil and salt, cooling it and then adding flavours. A similar procedure applies to maize (in US parlance, corn) chips like tortillas. Mr Hogg considered that the unique feature of Regular Pringles was that the manufacturing process causes oil to go into the spaces throughout the texture of the product replacing the water content removed during the frying. This gives the “mouth-melt” feel when it is eaten. By contrast with potato crisps most of the fat stays on the surface.

I like ‘in US parlance’. (Also the later reference to ‘the reasonable man’ and Pringles). I’m not sure the last sentence is well constructed. It should be ‘By contrast, in potato crisps most of the fat stays on the surface’.

Food products are generally zero-rated for VAT purposes; see Schedule 8, Group 1 of the VAT Act 1994. However there are some excepted items. Item 5 reads:

“5. Any of the following when packaged for human consumption without further preparation, namely, potato crisps, potato sticks, potato puffs and similar products made from the potato, or from potato flour, or from potato starch, and savoury products obtained by the swelling of cereals or cereal products; and salted or roasted nuts other than nuts in shell.”

This case is reminiscent of earlier cases about peanuts and tomatoes, if I remember right. They are good reading for students who are interested in the language of the law courts and don’t want too complex a situation.

There was a language point, ‘made from’ (no mention of ‘made of’, which would mean about 100% to me):

“Made from”
# In the course of his urbane submissions on the “made from” aspect of Regular Pringles Mr Cordara QC referred to “the potato as a fiscal contaminant”, the “essential characteristics of the paradigm potato crisp”, the absence of “findings of potatoness” and the “quantitative role of the potato.” In contending that Pringles (42% potato, 33% fat) were not “made from” the potato he put forward this proposition:

“If a product has a number of significant ingredients it cannot be said to be ‘made from’ one of them.”

So it is argued that Regular Pringles, which also contain fat and flour, cannot be said to be “made from the potato.”

‘Urbane’ is one of those typical tongue-in-cheek references to the court’s and lawyers’ enjoyment in phrasing the case.

I haven’t got far with my introduction to English law, but looking ahead, when (if) I get round to the courts, one court of interest is the Judicial Committee of the Privy Council. It’s easy to start looking at this one in isolation. Frances Gibb has an article in the Times headed Does anyone understand what the Privy Council does? which is a good starting point.

Of course, I don’t understand what the Privy Council does, and never have done. What I know a bit about is the Judicial Committee of the Privy Council. The Privy Council is one thing, its court another. The same goes for the House of Lords – a chamber of parliament, but containing within it a court, the Judicial Committee of the House of Lords. It gets confusing when the long name of the court is abbreviated.

So, the Privy Council is a bunch of people whose predecessors once advised the monarch in what I tend to call the Middle Ages. In German it could be called Kronrat. I should think in those days it was clearer who was a member, but nowadays it’s a mystery not just to me. It isn’t a full-time occupation in itself. I liked the quote referring to it only occasionally emerging from the ‘constitutional fog’.

Before I get down to the Judicial Committee, I recommend further reading on what the Privy Council is for those who like obscure knowledge.

Who are Privy Counsellors? Currently there are more than 540, mostly senior politicians who were once MPs. As with a gentlemen’s club or secret society, members swear allegiance to the Queen and to “assist and defend…against all Foreign Princes”.

One thing I don’t think the article mentions is that members of the Privy Council can be recognised by their title – some of them call themselves ‘Right Honorable’, unless they have a superior title. (Note the spelling of Privy Counsellor – I admit that was new to me).

Turning to the court, the Judicial Committee of the Privy Council is a relic of the British Empire. It used to be the highest court of appeal for all colonies. It still acts as a court of appeal for the (few) remaining colonies), and some Commonwealth countries have chosen to retain it as their final court of appeal.

(T’he Commonwealth is a voluntary association of independent states that used to be colonies).

Its members are the same judges, appointed lords, who constitute the Judicial Committee of the House of Lords, plus occasionally one or two judges from whatever jurisdiction the case is about.

It acts as the final court of appeal for many former colonies and UK overseas territories, mainly in the Caribbean but also including appeals from the Channel Islands and Isle of Man, Admiralty appeals from the Cinque Ports, and disciplinary appeals involving doctors and dentists as well as some appeals from ecclesiastical courts.

Since 1998 it has also had power to rule on constitutional appeals arising over devolved powers to Scotland and Wales.

In recent years its overseas jurisdiction has reduced as successive countries have cut off the Privy Council as a court of final appeal: Canada, India, Sri Lanka, African nations, Singapore and, most recently, Hong Kong and New Zealand have all withdrawn.

In all it handles about 55 to 65 Commonwealth and devolution appeals a year, appeals nominally to the Queen as head of state. The judges, notes Mr O’Connor, do not make decisions like other courts; they “humbly advise Her Majesty” whether to grant a petition to the appellant. But the Queen can also refer to it any matter that she wants to. In effect, he says, it is “an embryonic, but unused, constitutional court”.

It’s curious that the court can find itself making decisions on the death penalty, which is not part of English law, or on written constitutions, which the UK does not have.