Constitutional

The emergence of a UK constitutional court could be “one unintended consequence” of the new Supreme Court, Lord Neuberger has warned. 

“I am not saying that this will or that it should happen. I am saying it may happen,” he said, delivering the Young Legal Group of the British Friends of the Hebrew University lecture. 

In a country where “law is a bedrock of society” the new Supreme Court is a “pillar of the constitution”, the former senior Law Lord, Lord Bingham of Cornhill told a well attended meeting of the All Party Parliamentary Group for Legal and Constitutional Aff airs on 26
October. His comments were made in response to a suggestion—for which he had no sympathy— that the justices could save the salary of a Chief Executive by sharing the administrative and human resources duties amongst themselves. During the meeting he also stated his opposition to televising court proceedings—the tendency would be to broadcast things out of context and “I don’t think [televising has] much enhanced the standing of Parliament”. Although the role of the President of the Supreme Court will evolve he did not foresee a change in the way the justices dealt with the law (judicial “activism” or the lack of it was cyclical and a function of personalities) but there will be a change in perception which will be for the better. 

Is the creation of the new UK Supreme Court a triumph of form over substance? William East investigates 

With the new Supreme Court opening last month, and countless programmes, speeches and articles on the new-found separation of powers in the British constitution, the weary reader has had to endure rather a lot of Montesquieu. For it was this now rather better-known French philosopher who, in his essay The Spirit of Laws, is credited with outlining the principle of the separation of powers for the first time. A mere 261 years later, with the opening of the new court, we are said to have avoided the apocalyptic scenario in which: “There would be an end of everything, were the same man or the same body, whether of the nobles or of the people to exercise [the] three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals.” 

The Supreme Court was officially opened on 16 October 2009. Speaking at the ceremony, the Secretary of State for Justice Jack Straw said that the new Supreme Court “mixes the old and the new, and keeps the historic balance between Parliament, government and the judiciary, the bedrock of the British constitutional settlement. But the judges will be in a new environment with all the benefits this brings – as Andrew Motion’s fine poem puts it: ‘new structures but an old foundation stone’.” (See also pp 10-12 and 14-16.) 

Debate on the future of the Human Rights Act 1998 (“HRA 1998”) illustrates a number of contemporary political themes.  

There is convergence – both Labour and the Conservatives invoke the spirit of the Glorious Revolution with arguments for a new Bill of Rights. There is divergence – in essence, Labour and the Liberal Democrats are for the HRA 1998 and the Conservatives against it – though all sides have their mavericks. There is an awful lot of confusion, if not wilful obfuscation. And, underneath the politics, there are, largely unacknowledged, constitutional principles that limit what can practically be done. 

The new Supreme Court could cause unpredictable changes to the constitution, Lord Neuberger has warned. The former Law Lord, who is due to return to the Court of Appeal in October to take over as Master of the Rolls, has suggested that the Justices of the Supreme Court will be strengthened and more assertive in their new location. 

The Australian Bar Association Conference examined how English law deals with human rights considerations, privacy issues and direct access, reports Justice Glenn Martin.  

Why did 150 Australian barristers and judges come to London in June to hear about the law of England and Wales? We, the Australian Bar Association (“ABA”), came precisely because the law is, to varying degrees, different in this jurisdiction. And because of the different ways in which the profession and the judiciary have dealt with problems which have also arisen in Australia. And because exposure to different ideas and attitudes challenges you to re-assess your own decisions and behaviour. 

In the wake of the recent Court of Appeal interlocutory judgment giving the green light for the first trial on indictment by a judge alone, David Wolchover and Anthony Heaton-Armstrong propose some convenient and inexpensive jury tampering countermeasures 

The Northern Ireland judge-only Diplock courts for the trial of cases involving a terrorist dimension linger on, though nowadays with a much reduced throughput. But while the risk of jury intimidation and religious bias may have waned in Ulster the perceived problem of jury tampering—or “nobbling”—had supposedly increased in England and Wales to such an extent that provision was finally enacted in the Criminal Justice Act 2003 (“CJA 2003”), s 44 for trials on indictment to be conducted where appropriate without a jury. 

The new Supreme Court could cause unpredictable changes to the constitution, Lord Neuberger has warned. 

The former Law Lord, who is due to return to the Court of Appeal in October to take over as Master of the Rolls, has suggested that the Justices of the Supreme Court will be strengthened and more assertive in their new location. 

Freedom of expression is “an important card in the pack” but “not always the ace of trumps”, according to Lady Justice Arden. 

In a speech, Freedom of Expression and the Role of a Supreme Court—Some Issues from Around the World, at a judicial academic conference in the summer, Arden LJ considered the role of Supreme Courts.