This article is taken from the February 2024 issue of The Critic. To get the full magazine why not subscribe? Right now we’re offering five issues for just £10.
This month sees the twentieth anniversary of the introduction of what would become the Constitutional Reform Act 2005, which swept away the Appellate Committee of the House of Lords and replaced it with the Supreme Court of the United Kingdom. Like many New Labour inventions, the Supreme Court may now seem to many with hazy memories of pre-1997 Britain and over-familiarity with its famous American counterpart to be a historic part of the British constitutional landscape.
Yet its establishment ended centuries of tradition, whereby Parliament, represented by the House of Lords, sat as the kingdom’s highest court. The change would have profound consequences on the British constitutional settlement, centred on the supremacy of Parliament. And it was done with almost no forethought, coming about through a typically high-handed piece of Blairism.
Since the 19th century, the bulk of the Lords’ judicial work had been done by senior lawyers ennobled for life, familiarly known as the “law lords”, who constituted the Appellate Committee. At their head was the Lord High Chancellor, who also served as a cabinet minister and the speaker of the House of Lords. It was a unique arrangement, and foreign observers sometimes disapproved of it. It was said, for instance, that it gave the wrong idea to Eastern European judges, to whom Brussels was trying to teach the virtues of judicial independence. But the idiosyncratic system worked perfectly well: the law lords were highly regarded throughout the common law world, their independence was never affected by their placing within the legislature, and they performed useful public work in their capacity as peers.
All of this was swept away by Tony Blair’s 2005 reforms, though the demise of the law lords was, in fact, an afterthought. The impetus behind the creation of the Supreme Court came from Blair’s desire to abolish the lord chancellorship, which in turn stemmed from his wish to have a super-department dedicated to crime and another to the less interesting subject of the constitution. The Lord Chancellor’s Department straddled both areas, and in addition to offending their rationalist sensibilities, the Blairites thought it spent too much of its energy on upholding the UK’s constitutional settlement. It would have to go.
As an afterthought, it was decided to create a supreme court to tidy up things, since the lord chancellor would no longer be a judge. True, his government had repeatedly reaffirmed that it had no intention of abolishing the law lords; but in the age of mass media, memories were short. No one beyond the charmed circle of No. 10 was consulted on this profound constitutional change, especially not the Lord Chancellor, Lord Irvine of Lairg, whom Blair had come to distrust. The judges were not briefed either, though No 10 counted on the fact that two law lords, Lord Bingham of Cornhill and Lord Steyn, had recently given speeches in favour of a separate supreme court.
Alan Milburn’s unexpected resignation as Health Secretary on 12 June 2003 hastened things, and Lord Irvine was summarily sacked the same day by Blair in favour of Lord Falconer of Thoroton. The same day, the government announced the abolition of the law lords and the lord chancellor, and the creation of a supreme court. So little preparation had been done that the government did not realise that the lord chancellorship could not simply be abolished by prime ministerial fiat, and Falconer had to borrow a wig so he could preside over the House of Lords.
For weeks afterwards the law lords did not know whether they would be moved or swept away
The government had expected the judges to be happy with the creation of a supreme court: one senior official had thought it would be received “with acclamation”. But the news that the law lords were on the chopping block came as an unwelcome shock to almost everyone affected.
Lord Hope of Craighead, a Scottish law lord, first learned of it whilst watching the evening news at an airport lounge. The senior English judiciary, at a retreat in the Cotswolds, were similarly unprepared. For weeks afterwards the law lords did not know whether they would be moved horizontally to the new court or whether they were to be swept away once the new court was up and running.
On the final count, only four lords — Bingham and Steyn, plus the absentee Lord Saville of Newdigate (who was then busy with the interminable Bloody Sunday inquiry) and Lord Walker of Gestingthorpe — were in favour of the plans. The Scottish judiciary were also opposed, pointing out that the Appellate Committee was not the final court of appeal for many Scottish cases, whereas the very name of a United Kingdom supreme court implied the opposite.
Faced with such a formidable array of legal opinion against its plans, the government simply ignored them, preferring to repeat ad nauseam Lord Bingham’s supportive pronouncements as the final wisdom on the subject. The mild-mannered Lord Hope was so aggravated that he was moved to write a catty public memorandum, reminding the House of Lords that although Lords Bingham and Steyn were “entitled to their own views on this matter”, they were “not the source of all wisdom on these issues”. Predictably, the government took no notice.
What were the main arguments against New Labour’s plans for a supreme court? There were many, each of them fatal on its own. Firstly, there was the simple fact that the existing system worked perfectly well. The law lords were a byword for persuasive authority in the common law world and provided first-class adjudication at a very modest cost — the annual expenditures of the law lords, including salaries, did not reach £1m, as opposed to the eye-watering sums involved with an independent supreme court.
To this, all Falconer could muster was that “it is because it [the Appellate Committee] is working so well that now is the ideal moment to change it”, a vacuous and nonsensical remark which seemed to symbolise so much of New Labour’s constitutional vandalism.
The philosophical arguments advanced in favour of a supreme court did not withstand scrutiny either. Separation of powers had been the battle cry of the plan’s boosters, particularly that of Lord Bingham. Lord Steyn even went so far as to speak of “the three co-ordinate branches of government”, a tellingly American expression.
Yet separation of powers in the stereotyped American sense — which was, in the words of Lord Hobhouse of Woodborough, another law lord, based on “a mistaken analysis of the British constitution developed by French thinkers in the eighteenth century” — has never been a part of the British constitution. The existence of parliamentary supremacy, the fusion of the executive and the legislative and the lord chancellorship were all affronts to the strict tripartite separation of powers, but were fundamental to the workings of the British constitutional order.
The real constitutional principle involved with the law lords, as many pointed out, was the independence of the judiciary, enshrined in the Bill of Rights 1688, a very different principle to the one being tossed around by the supreme court’s boosters. Despite the oft-invoked fears about the potential for political interference generated by the comingling of the judges with politicians, no evidence of impropriety had even been produced. The last time a lay peer tried to vote on the disposal of an appeal occurred in 1883, and his vote was simply ignored.
And as Professor John Griffith, no friend of the judges, pointed out, judges are political animals (in the broader sense) who benefitted from their participation in public affairs through their membership of the House of Lords, and vice versa. To push them toward “corporate isolation” by taking them out of Parliament would seriously “weaken that commixture of powers which is the vital ingredient of our constitution”.
These concerns, articulated by a host of senior judges and laymen at the time, were blithely ignored
But the most serious objection of all concerned the psychological, and thus constitutional, impact of taking the law lords out of the anonymity of the back corridors of the Palace of Westminster and shoving them into the public limelight associated with a supreme court. To anyone who thought about the question seriously, it must have been obvious that the transition from being a committee of the House of Lords to an independent court with “supreme” in its name would cause an enormous shift in its judges’ self-conception, away from their traditional self-restraint and institutional modesty and toward an expansionist conception of their constitutional role.
And in an increasingly Americanised society (witness the BBC’s breathless coverage of the US Supreme Court), it would be all but inevitable for the British public and political class to conflate the role of their supreme court to the American one. Even the best-intentioned judge would find it hard to resist such pressures. Yet these concerns, articulated by a host of senior judges and laymen at the time, were blithely ignored. Even today, after years of mounting concerns about the expansion of judicial power in the UK, one still finds senior lawyers dismissing this argument by pointing out that, on paper, the powers of the Supreme Court are very similar to those of the Appellate Committee.
But as Lord Nicholls of Birkenhead, the second most senior law lord, presciently remarked, “it is not a question of the powers, it is the way that the powers are exercised”. Few of history’s judicial power grabs, from Marbury v Madison to the Israeli supreme court’s recent shenanigans, were the result of a formal expansion in the judges’ powers. What had changed in every case was the judges’ conception of the judicial role, away from a bounded version to an unbounded one.
Largely led by judges against the supreme court, the fight became increasingly acrimonious. But despite the best efforts of its opponents, the necessary legislation was whipped through, and received royal assent in 2005.
Yet for some of the new court’s supporters, particularly Lord Bingham, the victory was a bittersweet one. He had conceived of a great appellate court, with judges styled justices, like their American brethren. They would sit in a magnificent palais de justice, so much at odds with the British tradition of inverse correlation between the importance of a court and the grandeur of its surroundings, but in keeping with the Grecian temple-cum-courthouse in Washington DC.
What Lord Bingham wanted above all was to preside over the new court in the riverside Georgian splendour of Somerset House (which then housed the Inland Revenue). But it was not to be. The Government instead had its sights on Middlesex Guildhall, a fine example of Edwardian civic architecture and a somewhat gloomy crown court opposite Parliament.
Dejected after a site visit, Bingham dashed off a whiny memorandum which complained about the new court being “crudely thrust into a building designed and built for quite another purpose” and all but calling for the Guildhall to be razed to the ground and rebuilt. Later, when the rising costs associated with the supreme court’s establishment became the subject of negative public attention, he suggested that the law lords should call for a reappraisal of the whole project, and perhaps press for its abandonment.
Bingham’s buyer’s remorse came too late. The Middlesex Guildhall it would be. The result, which owes much to Baroness Hale’s taste in interior decoration, is notably discordant — an endless alternation of Edwardian municipal art with New Labour-esque public building furniture — a strangely appropriate visual representation of the muddled thinking that gave birth to the court in the first place.
Writing after the Supreme Court gave its outrageous judgment in Miller II in 2019, Lord Pannick QC enthusiastically declared that “the Supreme Court has come of age as a constitutional court”, which of course had been the hope all along for many of the project’s supporters, even if they would not always admit it, perhaps not even to themselves.
True, the seeds for the unchecked expansion of judicial power in the United Kingdom had been planted well before the Supreme Court’s opening in 2009. But the removal of the highest appellate court to a separate building, the isolation of its inmates from the Westminster political process, the creation of new ceremonials, titles, and above all, the all-important “supreme” in the new court’s name — all of this cannot have failed to influence judicial behaviour.
When Baroness Hale interviewed for the presidency of the Supreme Court, she declared to the panel, “I am world famous.” It is simply impossible to imagine the earlier generation of law lords, ensconced in the deliberate anonymity of the Appellate Committee, uttering such a thing, much less advance it as a self-compliment. The Supreme Court now had a public profile, and with it came the desire for the spotlight, spider brooches and all.
In any case, if those who stubbornly insist the Supreme Court is exactly like the old Appellate Committee are correct, then there can be no objection to moving it back to the House of Lords since it would make no difference whatsoever. It would be simple enough. The Supreme Court gift shop will be the first to go, with its Supreme Court-branded teddy bears and its unsold copies of the laudatory coffee table book about the building’s architecture. Baroness Hale’s leek-themed carpet, a 1970s style fever dream, will be next, revealing the sturdy floors underneath.
Then their lordships can return to the anonymous backrooms of the House of Lords, safe from the temptations of being supreme over Parliament. Middlesex Guildhall, that much-abused building, can be restored to its former glory, if it ever had any, and assist in dealing with London’s rising crime levels. Then the ghosts of the Blairite constitution may finally be exorcised.
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