Top judge rebuffs attack on top court
Lord Reed: “idiotic” to think name makes us behave like US Supreme Court
The United Kingdom’s most senior judge has savaged government-inspired proposals to rename and restructure the UK Supreme Court, describing them as an “act of national self-harm which could only reduce respect for this country as a bastion of a rule of law and weaken the UK as an international centre for legal services”.
Last November, the Sunday Telegraph reported that ministers were discussing plans to give the UK Supreme Court a new name, reduce its justices in number from the current 12 and bring in judges with “specialist” knowledge to hear individual cases.
That newspaper is used regularly by sources at the Ministry of Justice to float possible reforms and trail government announcements. I explored the Supreme Court proposals at some length here in January.
The lord chancellor was asked by MPs in December whether he wanted to review the Constitutional Reform Act 2005, which set up the Supreme Court in 2009. Robert Buckland replied :
I am not going to commit, here and now, to saying which parts would not be looked at and which would be. But clearly, 15 years on, it is entirely legitimate for us to consider it afresh and to see whether we can improve upon it.
Asked about the proposals yesterday by members of the House of Lords constitution committee, Lord Reed of Allermuir summed them up as “a quite deliberate, downgrading and undermining of the most prestigious common law court in the world”.
New name “idiotic”
Reed dealt first with the suggestion that the Supreme Court might be given a new name. There would be no benefits to that, he said bluntly:
I think it would be widely perceived as an act of spite. It wouldn’t change the law or the attitude of the judges. The idea that seems to lie behind this proposal — that calling a court a “supreme court” results in its behaving like the American one — is simply idiotic.
The reason for the politicisation of the US Supreme Court is that its members are appointed politically. The judges of the UK Supreme Court are not. The 2005 act made sure of that by providing for appointment on a recommendation of an independent selection committee — instead of selection by a government minister, as previously. There’s nothing that the Supreme Court has decided that the old appellate committee of the House of Lords wouldn’t have decided.
In fact, one of the points I make in my response to the Human Rights Act review is that the most important decisions expanding the scope of the effect the act, beyond what Parliament might have had in mind, were all made by the House of Lords — not by our court.
I’d also emphasise there’s nothing new in the UK about the title Supreme Court. Before 2009, the Supreme Court of England and Wales was a title of the Court of Appeal, the High Court and the Crown Court, constituted under what was then titled the Supreme Court Act 1981. “Supreme Court” is still the term used in Scotland to describe the Court of Session and the High Court of Justiciary. And it’s a name which simply recognises our position as the country’s highest court, just as many other countries also use the same term for their final appeal courts.
For example, Reed added, he and his fellow justices had recently had meetings with judges from the Supreme Court of India, the Supreme Court of Japan and the Supreme Court of Ireland:
There’s just nothing unusual about the title at all. It’s just an easy way of identifying the top court… I saw somebody wanted to call us the upper court of appeal, which wouldn’t go down very well in Scotland for a start. But internationally, if that change were made, people would think: what on earth is Britain playing at, downgrading its top court? It wouldn’t be good for our international reputation.
Another suggestion was that the permanent body of 12 justices should be replaced by “ad hoc assemblages of judges”. This, said Reed, would be another own goal:
There is at present no legal limit to the number of judges who can sit on the Supreme Court. There are 12 permanent justices, but the president can invite as many other senior judges to sit on the court as he likes. And I’ve been exercising that power with some regularity over the last few months. But it is peripheral to the working of the court.
Asked by Lord Wallace of Tankerness QC whether he could see any benefits to the proposals, Reed gave a pithy answer: “no”.
The Supreme Court president seemed to have more he wanted to say about the proposals, which are closely associated with the think-tank Policy Exchange and its judicial power project. But Baroness Taylor of Bolton, who chairs the committee, told Reed he had made his position perfectly clear.
This post reached you free of charge. For the full benefits, take out a paid subscription: £4.99 a month or £50 a year.