Making arrangements

On 1 October 2009, the new UK Supreme Court opens for business. The Supreme Court will take over the judicial functions of the former judicial committee of the House of Lords, the continued existence of which was seen as infringing upon the principle of the separation of powers. Opponents of reform pointed to the fact that the House of Lords, acting as a final court of appeal, had worked well but the traditionalists have been overruled.

A key driver for the formation of the new Supreme Court is article 6 of the European Convention on Human Rights, which guarantees access to independent courts. There has been increased scrutiny of decisions of courts or tribunals where the role of those acting in a judicial capacity is difficult to reconcile with the notion of separation of powers. For example, where the senior member in a court martial appointed the other panel members and had the power to dissolve the court (see e.g. Morris v United Kingdom (no 38784/97)), or where some prior role or involvement in a matter might taint the views of the person deciding an issue (as in McGonnell v United Kingdom (2000) 30 EHRR 289 where the court found there had been a violation of the independence and impartiality requirement in article 6(1) because of the close connections between the judicial functions of the bailiff of Guernsey (as president of the Royal Court) and his legislative and executive roles).

Although it might in fact be the case that there is no evidence of bias or prejudice, the mere fact that there is a structural problem in the way the court or tribunal is composed (as in the Morris case) or personal involvement in the process (as with McGonnell) is enough to taint the process. Justice must, after all, be seen to be done.

Thus, the pressure for reform won the day and the Constitutional Reform Act 2005 made provision for the creation of the new UK Supreme Court. The Act purports to guarantee judicial independence. It provides:

'The Lord Chancellor, other Ministers of the Crown and all with responsibility for matters relating to the judiciary or otherwise to the administration of justice must uphold the continued independence of the judiciary.'

So far, so dandy, you might think. We have a Supreme Court, just like the United States and similar to many other jurisdictions. Separation of powers between the legislature and the judiciary at last!

The need for power

Oddly, the initial bout of concerns about the Supreme Court has focused mainly on the perceived risk that it and its judges will be too powerful. It has recently been reported that Lord Neuberger warned about 'judges arrogating to themselves greater power than they have at the moment' and Lord Phillips said such an outcome was 'a possibility', but was 'unlikely'. Lord Falconer said: 'The Supreme Court will be bolder in vindicating '¦ the freedoms of individuals.'

Do we want submissive judges? Of course not. We need fearless, strong judges. I don't see assertive judges as being a problem at all, within reason.

However, the degree to which the new justices can be assertive is in my opinion constrained '“ and at the most critical moments, might prove to be illusory. To find out why, you need to consider the UK's unusual constitutional arrangements.

In 2002 Lord Bingham presented a learned paper commenting on the case for a new Supreme Court, outlining his preferences. In that paper, Lord Bingham pointed out the key difference between the US Supreme Court and the new UK version in these terms:

'To many, mention of a Supreme Court conjures up visions of the world's best-known Supreme Court, that of the United States, striking down and annulling congressional legislation and asserting primacy of the constitution. I wish to make plain that a Supreme Court of the United Kingdom could neither claim nor exercise such a power. Under our constitutional dispensation, Parliament is sovereign' (Lord Bingham, 1 May 2002, spring lecture, UCL).

Lord Bingham is, of course, absolutely right. What we now have is a Supreme Court Lite; a Supreme Court that is not in fact 'supreme' in a real sense at all. The form and substance of the new court is fine; the quality of its new justices, exemplary. The problem is not the personnel, but the structure. We have replaced one set of weaknesses but perpetuated others.

The problem is that the Supreme Court is a creature of statute, not the result of a new constitutional arrangement. Parliament could repeal the Act creating the court, or modify it as it sees fit, restricting its powers. Does this matter? I think it does.

Imagine a future Parliament where extreme forces are at work. We hope it will never happen, but history teaches us not to be too complacent. In the absence of any constitutional safeguards enshrined in a written constitution, Parliament could enact extreme legislation which an adventurous litigant then challenges before the Supreme Court. The justices do their best, but, on the cusp of an adverse judgment, Parliament might pass new laws abolishing the court or overturning its ruling.

This has always been the case, even with the old House of Lords. And it might be the case that on a day-to-day basis the new Supreme Court does indeed flex its considerable judicial muscle '“ as it should.

A new constitutional arrangement

However, just as hard cases made clear the need for the separation of the judiciary from the legislature, so the creation, by Act of Parliament, of our new Supreme Court has hinted at the need for a different constitutional arrangement, with a new bill of rights or written constitution underpinning the authority of the Supreme Court. The 'protection' against interference afforded by the Act is not, by itself, enough.

This, of course, is a big subject. But the need for a written constitution has been evident for some time and is now more pressing.

Our unwritten constitution has been tinkered with (think of the amendments to the role of the 800-year-old office of Lord Chancellor as an example (or the Ministry of Justice. Whatever next, a Ministry of Truth?)) on and off with none of the debate you would need if the same happened in some other countries.

An unwritten constitution is, I fear, no constitution. As the power of Parliament has waned in the face of an increasingly powerful executive, and the world in which everyone 'knew their place' has (thankfully) vanished, we are left with a centralised and powerful state that controls the legislature. This is why we now need a written constitution and an assertive judiciary to act as a check on executive power; this also means a Supreme Court that is supreme in fact as well as in name.

When the financial crisis first broke, there was talk of constitutional reform which plods on but, as the crisis has passed, so has the enthusiasm for real substantive change.

I welcome the new Supreme Court. It is the best we can do under our present constitutional arrangements. However, perhaps it is not quite all it seems to be or should be, through no fault of its own or its justices. A new constitutional settlement is necessary to provide the Supreme Court with the status and power it needs to properly protect our fundamental rights at the state level within the European Union.