First Year Writing Competition Winner: ‘Reforming the UK’s Supreme Court’ by Leo Huseyin

“Whilst reform of the Law Lords was correct, replacing it with a Supreme Court, with judges separate from the rest of the judiciary has resulted in an activist court overreaching into the realms of politics. Reform is needed”

In the USA, a battle rages to fill a vacant seat on the Supreme Court left by the passing of Justice Ruth Bader-Ginsberg. Nominated as her replacement is staunch textualist Amy Coney-Barrett who if confirmed would give conservatives an expanded majority of the court. Liberals increasingly fear the majority could be used to roll back abortion rights and other protections as they see the court becoming increasingly activist and partisan. Such fears have led to threats to pack the court. By doing this, they would expand the number of justices and fill the vacant seats with liberal appointments to make the court more amenable to their aims. Not since the 1940s have such threats been issued and to go through would be a serious escalation of the politicisation of America's courts. 

Given such a perilous situation, we might feel pleased with the status of our Supreme Court. Formed in 2009, the court is a new institution that replaced the antiquated Law Lords. It would be hard for even the most ardent conservative to mount a defence of the previous system where the Lord Chancellor was a member of the legislature, executive and judiciary and had the power to write, interpret and enforce laws simultaneously. Such an arrangement could be considered a metaphor for the British constitution: it was messy and not designed to fit neatly into a modern system of government but instead developed over hundreds of years. That situation was unfit for the modern era and with the passage of the 2005 Constitutional Reform Act was replaced with a new institution: The Supreme court.

The new court served the same role, it acts as the final court of appeal for all cases in the UK, its justices are selected by the Judicial Appointments Commission and serve until they reach 70 years of age.   

This does not mean the new institution in uncontroversial, from its outset fears were expressed that the new body would become too powerful. Lord Neuberger said, “there is a risk of judges arrogating to themselves greater power than they have at the moment”. Critics claim this fear has come true, pointing to decisions such as Miller v PM where the court found that the PM had acted illegally in proroguing parliament by undermining the right of parliament to scrutinise the executive. Some consider this case to be an example of judicial activism which undermines prerogative powers in favour of uncodified conventions, among them are Oxford professors Etkins and Finnis, who described it as "a startling judgment" that was "badly mistaken", "a historic mistake" and "a misuse of judicial power". 

Some have concluded that whilst reform of the Law Lords was correct, replacing it with a Supreme Court, with judges separate from the rest of the judiciary has resulted in an activist court overreaching into the realms of politics. Reform is needed. 

The fact that the UK’s Supreme Court is the only court which has the power to disregard its own precedents and strike down the opinions of the court of appeal makes it a uniquely powerful institution, perhaps too powerful. Its distinctiveness from the rest of the judiciary only exacerbates this problem. A better system would be to follow the recommendation of Derrick Wyatt QC to replace it. 

The first act would be to rename the new institution the Upper Court of Appeals. Removing the words "Supreme Court" from the name is legally irrelevant but semantically significant: sending a message that the court is not omnipotent but instead a constituent part of the UK judiciary designed to interpret the law as they see fit based on legal precedent, parliamentary intentions and when appropriate legal policy. 

The next change would be to enshrine in statute law the inviolability of royal prerogative powers. It is not hard to imagine the precedent set in Miller being used to limit other executive powers. It is accepted that the PM holds prerogative powers to declare war and deploy troops. One could imagine the UK’s Supreme Court finding that given every major military action since the Iraq war has happened only with the approval of parliament and action in Syria in 2014 was prevented after parliament withheld consent that a new convention mandating parliamentary approval has been created. Based on Miller, this would not be an extraordinary expansion of the law regarding parliamentary scrutiny, however, it does go against centuries of prerogative powers and should not be the case unless parliament explicitly legislates to say so. 

There is a history of the judiciary expanding the scope of laws in areas such as negligence as the public's views change, for example with consumer rights, but to apply the same principle to the realm of politics is a dangerous incursion into the democratic process that threatens the separation of powers and has the potential to turn the court into an unelected and unaccountable super-legislature. 

Photo by Daily Mail (https://www.dailymail.co.uk/home/index.html)

Another change would be concerning the appointments process. Justices on the new Upper Court would be selected from a pool of judges serving in the court of appeals and the equivalent courts in Scotland and Northern Ireland. They should be chosen not by the politically appointed Lord Chancellor but instead by a ballot of their fellow Court of Appeal justices and serve 3-year fixed terms renewable non-consecutively. This would have numerous benefits: it would prevent the justices from being separate from the rest of the judiciary as they would return to the lower court at the end of their term. This would stop the development of an unruly supreme court and temper the impulses of the justices to make dramatic changes to the law. It would depoliticise the process and disincentive the upper court from flippantly striking down rulings from lower courts.   

There are of course potential pitfalls: critics would point out that taking twelve judges out of the Court of Appeals would undermine its effectiveness; this could be mitigated by shrinking the size of the Upper Court to nine from twelve. Also, the number of Court of Appeal judges could be increased and the pool of potential Upper Court of appeals justices expanded to include those recently retired. Of the nine seats, two would be reserved each for judges from Scotland and Northern Ireland with the remaining five from England and Wales.

The last 11 years have been an experiment - an experiment which sought to test whether the judiciary would be enhanced by having a Supreme Court on top of it. The increasing amount of controversy around the court regarding the straying into the realms of politics has given a clear answer: it has not. The solution is reform, reform to depoliticise the court, to remove its distance from the rest of the judiciary and to use statute law to make clear its limits, all in all, these reforms would make for a more credible and respected final appeals court for the UK, characteristics such a court desperately needs.