The use of Montesquieu by many commentators is doubly ironic. Firstly, as Sir Louis Blom-Cooper QC points out in the excellent book The Judicial House of Lords, the 2005 constitutional reforms had less to do with strongly-held ideals than an attempt to resolve the political rivalry between the Lord Chancellor’s Department and the Home Office, onto which the creation of the new Supreme Court piggybacked.
Secondly, in his writings, Montesquieu spent much time praising the English system of government and its adherence to the principle of the separation of powers, despite the apparent “fusion” of the three powers at that time, not least with the hearing of cases within Parliament. It appears that substantive separation of powers mattered more to Montesquieu than their apparent separation. That view is perhaps reflected in the arguments of modern critics of the decision to move to the new court, who point out that in the last years of their existence, the Law Lords were to all intents and purposes divorced from the legislative process.
So will the new court make any difference at all? If there are any changes, what will be their effect? Now that the first hearings in the refurbished Middlesex Guildhall have taken place, these are questions worth asking.
In a talk at Georgetown University in the US last year, Baroness Hale said: “I don’t think judicial independence, in terms of the ability of the judges to make up their own minds without fear or favour, affection or ill will ... is under threat in my country ... The threats come from the lack of resources for the courts system ... That’s the problem with judicial independence for us.”
Perhaps the most important changes with the advent of the new court are, therefore, the least noticed. As a committee in Parliament, the Law Lords were not always well-endowed with resources or support. The Law Lords shared a library with the rest of the House of Lords, which did not contain the range of collection that is available in either the Inns’ libraries or in the Royal Courts of Justice. The level of research and secretarial support available to the Law Lords was limited. Even the accommodation was limited, with the Law Lords housed on a single corridor.
In the refurbished Middlesex Guildhall, the situation has been transformed. The new dedicated library combines the best of the House of Lords’ collection and that of the Privy Council, and £100,000 of new books have also been bought. The Justices now have additional secretarial support and twice the amount of research support.
Some of the extra resources allocated to the court will ensure that cases are heard more efficiently. The three courtrooms in the building all have ethernet points and docking stations linking to flat screen monitors. The latter will, in the future, allow the use of exclusively electronic bundles. Privy Council cases are now heard in Court 3 rather than Downing Street, saving on transit time.
Access to justice
Most promisingly, the new courts will be much more open and accessible. Lord Phillips has in the past commented that the title “Law Lords” was confusing to the public who had little idea who the judges were or where the hearings took place. It was not a surprise that with its own building on Parliament Square and the publicity surrounding the opening of the new court, the public benches were full for the first full appeal in the case of A and others v HM Treasury relating to the freezing of the assets of suspected terrorists. The same appeal was the second (after a costs-related application in the JFS case the previous week) to be recorded for broadcast – although it is not yet apparent to what extent the broadcasters will wish to show the footage. In future, the Justices will seek to explain the results of decisions in short press summaries – another welcome initiative given that cases are often misreported and therefore potentially misunderstood.
Constitutional changes: a new representative role
Aside from the move to separate the powers of judiciary and Parliament in form as well as substance, the creation of the Supreme Court came hand-in-glove with a raft of additional reforms. The passage of the Constitutional Reform Act 2005 (“the Act”), which gives effect to the reforms, was marked by controversy. As suggested above, one of the aims of government policy was to strip the Lord Chancellor’s Office of much of its power – in fact the government originally wanted to see the office of Lord Chancellor done away with in its entirety. Those who criticised the reforms argued that the Lord Chancellor was an effective advocate for judicial independ
ence and the rule of law within the Cabinet and that abolition of the role would threaten these twin ideals.
The criticisms have in part been heeded. Section 1 of the Act goes as far as to say that the Lord Chancellor’s role in relation to the rule of law is unaffected by the changes and s 3 charges the Lord Chancellor with defending judicial independence. However, while previous Lord Chancellors have generally been eminent lawyers who were appointed to the House of Lords and who thus had an element of independence owing to their station, the Lord Chancellor may now be appointed from the governing party in the House of Commons and he is no longer the head of the judiciary. There is therefore an important new role for the Justices and other senior judges in representing the judiciary and the courts system at large.
Shift in power
Under the Act, the relationship between the highest court and the other powers of state has shifted. The relationship with Parliament has been all but terminated (Justices who were Law Lords are entitled to use Parliamentary facilities but not to speak in debate or vote), while the connection with the executive is closer owing to the way in which the court is funded and the more politicised role of Lord Chancellor. The “check” which Congress can exercise on the Supreme Court in the US, by means of confirming who is appointed to the court, does not exist under the Act – Parliament has no say in deciding who should be appointed. Appointments are made by a commission, two out of the five members of which are members of the court – the President and Deputy President – plus one member of each of three Judicial Appointments Commissions, one of whom must be a non-lawyer. The Lord Chancellor has a veto, albeit a limited one.
Nor, as takes place in the US, does the court obtain its funds directly from the legislature. The provision of funding is of course central to the continued effectiveness of the court. The Law Lords previously had the security of being funded out of the cost of the Parliamentary Estate. Under the Act, a Chief Executive is appointed as an effective bridge between the judiciary and the executive; the first appointee, Jenny Rowe, will negotiate with the Treasury for the court’s allocation of funds under each Comprehensive Spending Review. The Lord Chancellor, who is under a duty to ensure that the court has such resources as he thinks are appropriate for it to carry on its business, has control over the appointment of the Chief Executive after consultation with the President of the Court. This is some improvement from the position originally proposed, where the new court was simply to be subsumed within the Courts Service as a whole. However, it seems questionable that the executive is given such close control over the level of funding.
Impact on decision making
There remains the question of whether the move to the new court will change the way that the court decides cases. Some have argued that, whether unconsciously or otherwise, the new more prominent situation and status of the Supreme Court will lead to bolder decisions and even a politicisation of the court and the appointments process. This seems unlikely. It is right to say, however, that given its new prominence and the type of cases which it will continue to hear (many of which are in the realm of public law and concern the rights of citizens vis-à-vis the state), the court will face more media and political scrutiny in the future.
There is no indication that the day-to-day practices of the court will change other than in two respects indicated by Lord Phillips. The first is that the court is likely to sit in larger panels. A and others v HM Treasury saw seven Justices take the bench, while the full hearing of the JFS case will feature nine, a number only unusually equalled in the past. The second change is that the Justices may in the future experiment with single “judgments of the court”, a welcome innovation for those who have had to dissect a wide range of opinion amongst the majority in previous cases. When the first judgment was released in mid-October, it was in this format, with Lord Hope as Deputy President giving reasons on behalf of the court.
The next phase
It is hard, as Lord Phillips has said, to predict how the court is going to function in the “new world”. The British constitution has a habit of allowing radical changes to evolve over time and then suddenly be proclaimed with new titles and institutions; the confirmation of the judiciary’s formal independence from Parliament is no exception. It will no doubt be left to that most recent of judge-made laws, the “law of unintended consequences” (cf Lord Neuberger’s comments on the new court) to determine how the next phase of evolution comes about.
William East is a barrister at 5 Stone Buildings, Lincoln’s Inn