It's time to rein in the Supreme Court

4 August 2020

2:43 AM

4 August 2020

2:43 AM

The return of lockdown measures across parts of northern England, as well as the announcement of dozens of new peerages, almost entirely overshadowed the Lord Chancellor’s launch on Friday of an independent review of administrative law. Lord Faulks QC, former minister of state for justice, is to lead five other barristers and academic lawyers in examining the law of judicial review and considering whether reforms should be made. This is an important development in the government’s efforts to address the misuse of judicial power and balance of our constitution.

The review takes up part of the work the Constitution, Democracy and Rights Commission was otherwise expected to undertake, confirming earlier reports that the Commission has been shelved and is to be replaced by a series of more narrowly cast panels. Political action to address the expansion of judicial power, and consequent unbalancing of the constitution, is long overdue. There are good reasons, as I’ve argued elsewhere, for government and Parliament to review the scope of judicial review and to legislate to limit it where appropriate, reversing the effects of particular judgments by legislation when necessary. Launching the Review is an important decision, although of course the government must now wait on the panel’s deliberations and report.

Questioning the rise of judicial power is often unfairly caricatured as a personal attack on judges or an assault on the rule of law. On the contrary, the point of defending the traditional limits of the judicial role in our constitution is to vindicate the rule of law, as well as parliamentary democracy and effective government. And the importance of those limits, which in part help to protect judges from political controversy, is appreciated by many senior judges. As Lord Reed, now president of the Supreme Court, pointed out in the first Miller case, ‘the legalisation of political issues is not always constitutionally appropriate, and may be fraught with risk, not least for the judiciary’.

Speaking earlier this year, Lord Burnett, the Lord Chief Justice of England and Wales, noted that the law of judicial review had been ‘established and evolved as a result of judicial decision-making’. Parliament, he said, ‘is entitled to legislate and it is entirely appropriate for [it] to look into these issues’. He looked forward to ‘a period of calm reflection [about our] constitutional arrangements’, noting that ‘there are perfectly legitimate arguments and discussions about where the boundaries of [judicial review] should be’. In a foreword to a new paper for Policy Exchange’s Judicial Power Project, published last Friday, his predecessor as Lord Chief Justice of England and Wales, Lord Thomas of Cwmgiedd, notes that debate about the future of the Supreme Court cannot simply be wished away. He welcomes the paper, Reforming the Supreme Court, as a very important contribution to that debate, which raises many challenging questions.

The creation of the Supreme Court was clearly not intended to involve a change in substance. But, Lord Thomas notes, neither was much consideration given to its implications for self-restraint or accountability. And ‘one clear effect of the move’, he continues, ‘has been to isolate the judges from Parliament [in contrast to the Appellate Committee of the House of Lords] during a time when the constitution of the UK has undergone a series of uncoordinated changes and the focus of final appellate work has shifted towards judicial review, fundamental rights and devolution’. In an earlier paper, which prompted the ire of Lord Falconer amongst others, I have argued that in some cases the Supreme Court has misunderstood itself to be the guardian of the constitution, a misconception that one might begin to correct by renaming the Supreme Court the Upper Court of Appeal.

Policy Exchange’s new paper outlines a proposal by professor Derrick Wyatt QC for institutional change at the highest level of the court system. Professor Wyatt reflects on the reasons why the Supreme Court, like the Appellate Committee of the House of Lords before it, sometimes shrugs off constitutional limits and remakes the law. He reasons that hubris is a common feature of apex appellate courts, which do not need to fear reversal on appeal. (More important still, I say, is the wider judicial culture in which judges operate, to which the Human Rights Act 1998 is significant.) He concludes that renaming the court, while unobjectionable, would be insufficiently bold and proposes instead that Parliament replace the Supreme Court with a system in which final appellate jurisdiction would be exercised by changing panels of Court of Appeal judges, drawn from across England and Wales, Scotland and Northern Ireland, who would thus form a Final Court of Appeal.

What difference would this make? There would be no permanent set of apex appellate judges. Instead, appeals would be heard by judges who would remain used to being reversed by their colleagues and who would thus be less likely to develop an exaggerated sense of their constitutional role. The final stage of appeal would be peer review for error correction, rather than hierarchical control. True, as matters stand, Parliament may correct the Supreme Court and should legislate in response to wayward judgments (a prime example is the Court’s recent decision to quash Gerry Adams’s 1975 conviction for escaping from lawful custody, a decision which unsettles how government operates and may unjustly require compensation to be paid to Adams and others). But legislative time is short and legislative action may not substitute for judges being accustomed to their judgments being liable to reversal on appeal by a larger group of colleagues.

Returning existing Supreme Court justices to the Courts of Appeal (or Inner House of the Court of Session in Scotland), and widening the number of judges who could participate in the Final Court of Appeal, would increase diversity, in a range of senses, in apex judicial decision-making. It would also flatten judicial hierarchy, thus making promotion less of a feature of judicial careers, which might help deter early retirement and strengthen judicial independence.

However, one might fear that this institutional reform would introduce considerable uncertainty into appellate adjudication. It bears noting that some such uncertainty is already a feature of our arrangements insofar as the Supreme Court does not sit en banc. Appeals are heard by changing panels, as indeed was the case with the Appellate Committee of the House of Lords. There are advantages and disadvantages in this mode of structuring the courts. Professor Wyatt’s proposal would effectively widen the membership of our highest court and result in a wider range of judicial panels. If there is no step change in quality between Court of Appeal and Supreme Court judges, as seems likely, this institutional change may not undermine the quality of final adjudication.

Many questions remain to be answered, some of which Lord Thomas poses in his foreword. While the creation of the Supreme Court is clearly not the main driver of the rise of judicial power in recent years – the enactment of the Human Rights Act 1998 seems to me relatively much more important – the way in which the Court has come to understand itself is significant. In thinking about how to redress the balance of the constitution and to reinforce traditional limits on judicial power, the government and Parliament should give serious thought to reforming the Supreme Court to temper its sense of mission, whether by renaming it or, more radically, by restructuring it entirely.

Richard Ekins is Head of Policy Exchange’s Judicial Power Project and Professor of Law and Constitutional Government in the University of Oxford

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