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Published online by Cambridge University Press: 02 January 2018
This paper explores the reasons for the proposed abolition of the Appellate Committee of the House of Lords and its replacement by a new Supreme Court of the United Kingdom. It focuses on the principal justification now advanced for the project, namely the need to institute full judicial independence. It does so very much in the spirit of the argument recently made by Lord Steyn in Counsel (although it comes to a very different conclusion from Lord Steyn's): even if there is a clear commitment to the reform of the United Kingdom's highest judiciary, the nature of that reform should depend entirely on the reasons for change. It is necessary to be clear on those reasons and to weigh them carefully.
1. Johan Steyn ‘Creating a Supreme Court’Counsel, October 2003, 14–16 (hereinafter Creating).
2. Here too, Lord Steyn's 2003 article is refreshing, for he makes clear the connection between the creation of a Supreme Court and the subjection of the British Parliament to constitutional limitations (n 1 above, at 14), although he emphasises that the court would still not be a Supreme Court on the United States model (at 15). In a previous article, which to be fair focused overwhelmingly on the role of the Lord Chancellor, Lord Steyn had suggested that he was not placing in question the supremacy of Parliament: Johan Steyn ‘The Case for a Supreme Court’ (2002) 118 LQR 382 at 384 (hereinafter Case). It seems clear that he is edging away from that position. For reasons I develop below, that move is consistent with the underlying premises of his argument.
3. Department for Constitutional Affairs Constitutional Reform: A Supreme Court for the United Kingdom CP 11/03 (July 2003) p 8 (also p 21): ‘There is no proposal to create a Supreme Court on the US model with the power to overturn legislation.’ See also Lord Bingham of Cornhill ‘A New Supreme Court for the United Kingdom’ The Constitution Unit Spring Lecture 2002, I May 2002, p 10.
4. Human Rights Act 1998, c 42 (UK).
5. Given the potential confusion between the House of Lords in its judicial and legislative capacities, I will follow Le Sueur and Comes' practice of referring to the Lords in its judicial capacity as the ‘Appellate Committee’. See Andrew Le Sueur and Richard Cornes ‘The Future of the United Kingdom's Highest Courts’ research report, The Constitution Unit of the UCL (2001) p 6.
6. Le Sueur and Cornes, n 5 above, p 18.
7. Department for Constitutional Affairs, n 3 above, pp 19–20; Le Sueur and Cornes, n 5 above, pp 24–25, 79–80 and 82–85; Lord Bingham, n 3 above, pp 6–7.
8. Department for Constitutional Affairs, n 3 above, p 11.
9. Steyn, Creating, n 1 above, at 14.
10. Steyn, Creating, n 1 above; Steyn, Case, n 2 above, at 385. See also Le Sueur and Cornes, n 5 above, pp 85–87.
11. Department for Constitutional Affairs, n 3 above, pp 4 and 10, See also Steyn, Creating, n 1 above, at 14–15.
12. See, for example, Sir Heydon Phillips (Permanent Secretary, Department for Constitutional Affairs), in testimony before UK Parliament, Select Committee on Lord Chancellor's Department, Minutes of Evidence, 30 June 2003 (Q53–56); Steyn, Creating, n 1 above, at 14–15.
13. This focus on judicial independence is abundantly clear from the consultation paper, Department for Constitutional Affairs. n 3 above, passim, but especially pp 4 and 10–13. See also Lord Falconer of Thoroton, UK Parliament, Select Committee on Lord Chancellor's Department, Minutes of Evidence, 30 June 2003 (421).
14. See Department for Constitutional Affairs, n 3 above, pp 10–12.
15. Department for Constitutional Affairs Constitutional Reform: A New Wav of Appointing Judges CP 10/03 (July 2003).
16. See, for example, Department for Constitutional Affairs, n 3 above, pp 4 and 12; Lord Bingham, n 3 above, p 5.
17. Clive Soley questioning Lord Irvine of Lairg, UK Parliament, Select Committee on Lord Chancellor's Department, Minutes of Evidence, 2 April 2003 (Q50–51). The decision in the Pinochet case was Ex p Pinochet Ugarte (No 2) [1999] 1 All ER 577, HL.
18. Department for Constitutional Affairs, n 3 above, pp 10–12.
19. Department for Constitutional Affairs, n 3 above, p 11; Le Sueur and Comes, n 5 above, pp 5356; Lord Bingham, n 3 above, pp 56; Steyn, Case, n 2 above, at 383–384 (‘in the eyes of the public’). I confess not to be the first to make such observations on the ‘public’ perception in this context. See the comments of Lord Wilberforce, reported in Robin Cooke ‘The Law Lords: An Endangered Heritage’ (2003) 119 LQR 49 at 58–59.
20. Alexander Hamilton et al The Federalist Papers (ed Clinton Rossiter) (New York: New American Library, 1961) pp 320–323.
21. Ronald Dworkin ‘The Forum of Principle’ in A Matter of Principle (Cambridge Mass: Harvard University Press, 1985) p 33.
22. Although see Steyn, Case, n 2 above, at 388ff, which, however, focuses on the relationship between the executive and the judiciary, specifically on the office of the Lord Chancellor. At a more theoretical level, T R S Allan has argued for the recognition of inherent, judicially reviewable restrictions, already applicable to legislation at common law - a position that depends very much on the specialisation of roles rejected here: T R S Allan Constitutional Justice: A Liberal Theory of the Rule of Law (Oxford: Oxford University Press, 2001).
23. For an overview of several such mechanisms, see Jeremy Webber ‘Institutional Dialogue between Courts and Legislatures in the Definition of Fundamental Rights: Lessons from Canada (and elsewhere)’ in Wojciech Sadurski (ed) Constitutional Justice, East and West: Democratic Legitimacy and Constitutional Courts in Post-Communist Europe in a Comparative Perspective (The Hague: Kluwer Law International, 2002) p 61.
24. For an effective critique of the jaundiced view of legislation prevailing in much legal theory, see Jeremy Waldron Law and Disagreement (Oxford: Clarendon Press, 1999), passim, but especially p 21 ff.
25. See Jeremy Webber ‘The Limits to Judges’ Free Speech: A Comment on the Report of the Committee of Investigation into the Conduct of the Honourable Mr. Justice Berger (1984) 29 McGill LJ 370 at 389–393. See also the useful set of examples in Locabail (UK) Ltd v Bayfield Properties Ltd [2000] 1 All ER 65 at 77–78, CA.
26. See Jeremy Webber ‘The Adjudication of Contested Social Values: Implications of Attitudinal Bias for the Appointment of Judges’ in Appointing Judges: Philosophy, Politics and Practice: Papers Prepared for the Ontario Law Reform Commission (Toronto: OLRC, 1991) p 3.
27. Exp Pinochet Ugarte (No 2) [1999] 1 All ER 577, HL, especially at 589, per Lord Browne-Wilkinson. Compare the decision of the Supreme Court of Canada in Morgentaler v The Queen (1974: reported as an appendix to Webber, n 25 above, at 405–406), in which de Grandpré J was asked to recuse himself because of his support for the anti-abortion movement prior to his appointment (the case involved the prosecution of a doctor for performing abortions). The unanimous bench (de Grandpré J not participating) ruled that there was no impropriety in de Grandpré J sitting on the appeal.
28. UK Parliament, House of Lords Hansard, col 419, 22 June 2000.
29. Department for Constitutional Affairs, n 3 above, pp 20 and 24.
30. See, for example, Department for Constitutional Affairs, n 3 above, p 11.
31. I develop this view further in Jeremy Webber ‘The Foundation of the Rule of Law in the Public Justification of Governmental Action’, published in Chinese in (2002) 18 Nanjing University LR (Nanjing Daxue Falu Pinlun) 1 (English version available from the author).
32. See Webber, n 25 above, at 377–378; Jeremy Webber ‘A Modest Defense of Statutory Bills of Rights’, paper presented to workshop on ‘Protecting Human Rights in Australia: Past, Present and Future’, Melbourne, 10–12 December 2003.
33. Steyn, Case, n 2 above, at 386–387.
34. See, for example, Cooke, n 19 above, at 66–67; Lord Irvine of Lairg, testimony before UK Parliament, Select Committee on Lord Chancellor's Department, Minutes of Evidence, 2 April 2003 (Q28).
Indeed, the wisdom of having strong means for addressing executive criticism - and the value of having a consistent defender within the ranks of the government itself-has been reinforced by Australian developments. There, the former Commonwealth Attorney-General, Daryl Williams, systematically declined to defend judges, even when a Senator of his own party launched a highly unfair and prejudicial attack on a justice of the High Court. Williams argued that as a politician, he could not be held to the ethical obligations that had traditionally been expected of Attorneys-General. Others took up the task of defending the justice, and the allegation was quickly found to have been based on fabricated evidence. For one discussion of what was an extensive and dismal controversy, see Jeremy Webber ‘Missing: a positive political morality’The Australian Financial Review, 26 March 2002, p 63.
I am not arguing that judges should be exempt from criticism. Criticism is an important mechanism for public accountability in an office that is otherwise short on such mechanisms (for very good reasons linked to judicial independence). But it is important that criticism from those in legislative or executive positions observes a basic respect for the institution and is founded on a conscientious attempt to understand both the facts of the situation and the difficult responsibilities of judging. A member of the government, who has an acknowledged responsibility to ensure that criticism is fair and that judges are able adequately to defend themselves-or be defended-is crucial
35. See Webber, n 25 above, at 383–386.
36. House of Lords Hansard, n 28 above.
37. See Cooke, n 19 above, at 58–60. For criticism of simplistic caricatures, see Waldron, n 24 above.
38. Falconer, Lord of Thoroton, UK Parliament, Select Committee on Lord Chancellor's Department, Minutes of Evidence, 30 June, 2003 Google Scholar (Q21).
39. Department for Constitutional Affairs, n 3 above, pp 10–13 and 19–20.
40. Department for Constitutional Affairs, n 3 above, p 10.
41. For the historical roots of this conception, see Jeffrey Goldsworthy The Sovereignty of Parliament: History and Philosophy (Oxford: Clarendon Press, 1999), especially the summary at pp 229–235.
42. Lord Irvine of Lairg, testimony before UK Parliament, Select Committee on Lord Chancellor's Department, Minutes of Evidence, 2 April 2003 (Q48). Lest this be considered unfair emphasis on what is simply the provision of quarters for the new court, see Steyn, Creating, n 1 above, at 15; and Steyn, Case, n 2 above, at 396, where he too emphasises the symbolic significance of having ‘a dignified building fit for a co-ordinate branch of government’ if the new court is to become, as he hopes, the guarantor of a ‘true constitutional state’.
43. I make this argument in the Australian context in Webber (2003), n 32 above. See also Webber, n 23 above.
44. Department for Constitutional Affairs, n 3 above, p20; Le Sueur and Cornes, n 5 above, pp 24–25, 79–80 and 82–85.
