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New United Kingdom Supreme Court Now At Work

On October 1, the United Kingdom implemented a potentially far-reaching constitutional change, with the coming into force of Part 3 of the Constitutional Reform Act of 2005.  This statute establishes the Supreme Court of the United Kingdom as an autonomous court of highest appeal, with jurisdiction to hear civil and criminal appeals from courts in England and Wales, and Northern Ireland, as well as civil appeals from Scotland.  (Scottish criminal law is insulated from review by English courts under the Act of Union.)  The new Supreme Court thus replaces the Appellate Committee of the House of Lords (Law Lords), which itself was formally created by the Appellate Jurisdiction Act of 1876.  However, the exclusive power of the House of Lords to function as a court of highest appeal actually dates back to 1399, when the House of Commons ceased hearing petitions to overrule judgments of lower courts, and the power of Parliament generally to act as a court of appeal can be traced back over 600 years to the work of the royal court, or Curia Regis.  In purely institutional terms, the creation of the new Supreme Court of the United Kingdom is therefore a major innovation.

The intriguing question is whether this institutional change will remain one of purely formal significance, or whether it will fundamentally alter the relationship between courts and Parliament. The new court was created in order to effect a complete separation of judicial and legislative functions, not so much as a necessary or desirable feature of the English constitution, but on the ground that the admixture of those functions might violate the U.K.’s obligations under the European Convention on Human Rights relating to fair trials.  Thus, original members of the court (former Law Lords) will now be non-voting members of the House of Lords, and new members will be directly appointed on the recommendation of a selection commission.  They will have no necessary connection with the House of Lords at all.

But the larger question is whether the independence of the U.K.’s highest appellate court of general jurisdiction will gradually alter that court’s attitude towards Parliamentary supremacy.  In this regard, it is important to view the creation of the Supreme Court as part of a larger agenda of constitutional reform that has been implemented over the past decade.  Most prominently, this includes devolution of certain home rule powers to Scotland, Wales, and Northern Ireland, and adoption of the Human Rights Act of 1998, under which the courts acquired the power to declare acts of Parliament incompatible with the European Convention on Human Rights.  The Human Rights Act does not empower courts to set aside acts found incompatible, but it does direct them in section 3 to give effect to legislation in a manner compatible with Convention rights in so far as it is possible to do so.  The Judicial Committee already used this authority very broadly in 2004 to hold that the phrase “surviving spouse” in the Rent Act of 1977 must be read to include the survivor of a gay couple, in order to give same-sex partners the same rights to take over a protected tenancy as the survivor of a married or cohabiting heterosexual couple. [Ghaiden v. Godin-Mendoza, 2004 UKHL 30]  In addition, at least one lower court has held that inconsistent later statutes cannot repeal provisions of a “constitutional statute” by implication, with the result that any derogation from Convention rights in legislation subsequent to the Human Rights Act must be specifically articulated in Parliamentary acts. [Thoburn v. Sunderland City Council, 2002 EWHC 195 Admin]

There is also now judicial support on the U.K. Supreme Court for the notion that “Parliamentary sovereignty is no longer, if it ever was, absolute.” [Lord Hope in R. (on the application of Jackson) v. Attorney General, 2005 UKHL 56]   To a large extent, this view rests on the observation that Parliamentary supremacy has  eroded through the U.K.’s membership in the European Union, the effect of incorporating Convention of Human Rights standards into municipal law, and the impact of devolution.  However, there is also support for the more radical idea that Parliamentary supremacy was “a construct of the common law,” and is therefore subject to limitations imposed by the common law. [Lord Steyn, also in the Jackson decision] This view is generally referred to as common law constitutionalism, and asserts the existence of broad power inherent in the common law to subject Parliamentary acts to general principles enunciated by the courts.  Historically speaking, it is highly questionable whether Parliamentary supremacy is an invention of the common law, rather than a product of the political settlement following the Glorious Revolution.  However, it remains to be seen whether the newly created institutional independence of the U.K. Supreme Court will provide impetus to the further development of common law constitutionalism.  Of course, much will depend upon Parliament’s reaction to the possible erosion of its supremacy.

Those interested in learning more about the new Supreme Court of the U.K. should visit the Court’s web site.  For a recent analysis of the current constitution of the U.K., see The New British Constitution, by Vernon Bogdanor (Oxford: 2009), which is shelved in our collection under the call number KD3966 .B64 2009.  This title was the subject of a review in TLS (Times Literary Supplement), Sept. 4, 2008, p.8.


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