Comment du jour: Supreme confidence

With the new Supreme Court to open shortly, I would like to share with you a letter I read in The Law Society Gazette if you haven’t already read it.  It is written by Lord Lester QC.  Lord Lester deftly brushes aside Lord Neuberger’s warning made some weeks ago about the ‘peril of mucking around with’ the British Constitution by creating a new British Supreme Court

Lord Lester wrote:

Lord Neuberger may be unaware of what gave rise to the pressing need to separate the powers of the law lords from the political branches of government. Before he was appointed to the Chancery Division, there had been cases in which Lord Chancellors, wearing three hats, had acted judicially in highly political cases. There had been instances of law lords entering the political arena by speaking and voting in controversial debates in the lords, even though the senior law lord, Lord Bingham, asked them not to do so. On one occasion a serving law lord moved (but did not vote on) a highly controversial amendment which suited the political convenience of the government of the day.

Lord Lester stated that in a modern democracy this was not acceptable  and noted “The European Court of Human Rights had indicated that a lack of separation of powers was a breach of article 6 of The European Convention on Human Rights.” Lord Lester ended his letter “The fact that The Supreme Court will be, and will be seen to be, separate and independent from the government and parliament should be welcomed.  That will strengthen the rights of the citizen against the misuse of the powers of the state”

I am not a specialist in constitutional law but have an interest in human rights law and issues – as do many.  It seems to me that Lord Lester QC, a noted expert in both of these fields, has put forward a very reasonable point.

On Monday, I talk to Jenny Rowe, the CEO of the new Supreme Court (in a podcast) . I thoroughly enjoyed doing this podcast for The College of Law series “Inside Track”.  Jenny Rowe takes us behind the scenes, discussed the building and costs, the facilities and the very open access for members of the public.  She also talks about the use of television at the Supreme Court and the new commentaries being written on leading judgments so that the press and others will get a clearer picture of the major decisions being made by the Justices.  I’ll publish the link to the podcast as soon as it becomes available on The College of Law website on Monday morning at 9.00 am.

One thought on “Comment du jour: Supreme confidence

  1. Lord Lester’s comments are jolly interesting and might have some force but for two things.

    First, there is nothing to suggest that the highest court being a committee of the upper house of parliament has led to the decisions of that court being supportive of the government of the day. Find me a single shred of evidence that any decision of the Appellate Committee of the House of Lords over the last 30, 40, 50 years has been affected by the fact that the Appellate Committee happens, nominally, to be part of the upper house of Parliament. That it is (for another few days) nominally part of the upper house of Parliament is an utter irrelevance unless you value form over substance.

    Secondly, the Human Rights Act (from which Lord Lester has been a major beneficiary) introduces political considerations into the law like no other Act of Parliament has ever done. Every dispute covered by that Act is subject to flexible value judgments rather than factual analysis against a set of established and well-defined values.

    Good laws are (generally speaking) those which define with precision that which is contrary to law. Define the prohibitions clearly and everyone knows where they stand. Define them in terms of wishy-washy rights to this that and the other and no one knows where they stand until “human rights lawyers” have argued the options and the courts have decided. The courts then are forced to take the role of defining that which is and is not allowed. In other words, the courts now have to make law like never before.

    Of course, to a degree, the courts have always done that because uncertainties in the drafting of an Act have to be clarified by the courts. But that is a world away from having to set the limits to a whole raft of generally stated “rights”. The courts have also done so through developments of the common law, all of which have been subject to Parliamentary reversal or amendment.

    So, the ultimate court must be removed, at great expense, from being nominally a committee of the upper house of Parliament for fear that it is too political and given a separate existence so that it can make more law than Parliament.

    The whole thing is barmy, unless you happen to be one of those likely to make a handy profit by donning the cap marked “human rights lawyer”.

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