Readings: Norton CH 12

 How are British judicial institutions being reconstituted?  What prompted this push for judicial reform?  What are the consequences of reform for the position of Lord Chancellor? UK Supreme Court? UK judiciary?

 Constitutionally, the judiciary is subordinate to Parliament.  Judges are supposed to confine their rulings to the provisions of a specific law.  In instances where the law is unclear or may no longer be relevant, justices can “interpret” law in such a way as to essentially “make” law.

 Individual judges are taking a more active role within political life.  Judicial institutions continue to be a subject of debate.  Particularly as the recently created Supreme Court develops.  Attempts to separate judicial, executive, and legislative authority are ongoing.

 Historically, the Lord Chancellor served as the head of the judicial branch.  As a result, he sat amongst the Law Lords and had a role to play in selecting justices.  BUT, he was also a member of Cabinet  Thus he was also a member of the executive branch.  AND, he was also a member of the House of Lords and could, thus, vote on bills, etc.  Also a member of the legislative branch.  In essence, the Lord Chancellor wore “three hats”

 The fusion of executive, legislative, and judicial authority has been a subject of debate for decades.  A series of events following Labour’s election brought the issue to a head  Lord Steyn (Law Lord): conflict of interest was “no longer sustainable on either constitutional or pragmatic grounds”  2000 ECHR decision suggested it was wrong for those who have a say in passing legislation to sit in judgment of cases that arise from it.

 Initially, judicial reform was not on the table.  Institutional reforms often placed on the backburner.  In the face of increasing debate over his role, Lord Chancellor (Lord Irvine of Lairg), began to limit involvement in cases and Lords debates.  2003: Council of Europe’s Legal Affairs and Human Rights committee questions the independence of British courts.  2003:Bar Council finds that the Lord Chancellor should not sit in Cabinet and serve as a judge.

 While no one believed that the Law Lords/Lord Chancellor were compromised, the government worried about the appearance of impropriety.  Prompted a reshuffle and a proposal to overhaul the judicial system.  Lord Irvine was out. ▪ Became a political liability and loyalty questioned.  Proposal included eliminating the position of Lord Chancellor and the creation of a Supreme Court.

 Bill suffered several defeats in the Lords.  Peers questioned:  1) the elimination of the position of the Lord Chancellor  2) whether the creation of a Supreme Court was really necessary  3) where the Supreme Court would be housed  4) and how to reflect the regions on the court.  Because the bill was initiated in the Lords, the Parliament Acts could not be used.  Lords were able to extract several concessions.

 Government decided to retain the office of Lord Chancellor.  But changed the responsibilities of the position.  1) Lord Chancellor remains in Cabinet  But could no longer serve as a judge; nor head of the judiciary.  Current occupant, Jack Straw is the first not to be a peer.  2) Lord Chancellor no longer chooses judges.  Independent commission selects justices.  LC can affirm or reject decisions but cannot nominate  3) Lord Chancellor no longer presides over the House of Lords.  Speaker of the Lords created.

 Debate over how to house the new court.  Law Lords would no longer sit in the House of Lords.  But should court be removed from Westminster?  Government argued that to leave the Court in Westminster would send the wrong message.  Law Lords worried about questions of funding and housing the new institution.  “Sunrise clause” required the court to be adequately funded and housed before being shifted from the Lords.  Settled on Middlesex Guildhall.  Government agreed that courts would control how to spend funds.  Formally seated in October 2009.

 12 members appointed by a selections committee.  New members will no longer receive a peerage in the Lords during their tenure. ▪ Although they may receive one at retirement.  Must retire at 70 if appointed after March  Retires at 75 otherwise.  Convention dictates that Northern Ireland and Scotland should be represented on the court.  This is not codified in law however.  Court will have special jurisdiction on issues pertaining to devolution.  Sewel motion: removes certain Scottish cases from the purview of the Supreme Court.  Court will not have judicial review.

 Lords pushed for an explicit recognition of the independence of the judiciary.  Bill codifies the independence of the judiciary by:  1) Explicitly delineating judicial and executive functions.  2) Making judicial appointments more transparent and less “political”  3) Retain “laymen” to serve on commission to draw a more balanced assessment of candidates.  4) Judiciary to recruit their own staff, establish their own spending plans, etc.

 Though Parliament remains supreme, the judiciary is becoming more visible and arguably more relevant.  Desire to “modernize” the system key to explaining reform.  EU laws provided additional incentives.  Creation of a Supreme Court has critical consequences for not only the judicial and legislative branches, but also for devolved institutions.  Extent to which the Supreme Court can carve out a role vis-à-vis parliament remains to be seen.

 Theme: Unitary Government  Readings: Norton CH 10 and Dunleavy CH 2