Supreme Court of The United Kingdom - History

History

The creation of a Supreme Court for the United Kingdom was first mooted in a consulation paper published by the Department of Constitutional Affairs in July 2003. Although the paper noted that there had been no criticism of the then-current Law Lords or any indication of an actual bias, it argued that the separation of the judicial functions of the Judicial Committee of the House of Lords from the legislative functions of the House of Lords should be made explicit. The paper noted the following concerns:

1. Whether there was any longer sufficient transparency of independence from the executive and the legislature to give assurance of the independence of the judiciary.
2. The requirement for the appearance of impartiality and independence limited the ability of the Law Lords to contribute to the work of the House itself, thus reducing the value to both them and the House of their membership.
3. It was not always understood by the public that judicial decisions of "the House of Lords" were in fact taken by the Judicial Committee and that non-judicial members were never involved in the judgements. Conversely, it was felt that the extent to which the Law Lords themselves had decided to refrain from getting involved in political issues in relation to legislation on which they might later have had to adjudicate was not always appreciated. The new President of the Court, Lord Phillips, has claimed that the old system had confused people and that with the Supreme Court there would for the first time be a clear separation of powers among the judiciary, the legislature and the executive.
4. Space within the House of Lords was at a constant premium and a separate supreme court would ease the pressure on the Palace of Westminster.

The main argument against a new Supreme Court was that the previous system had worked well and kept costs down. Reformers expressed concerns that the historical admixture of legislative, judicial and executive power in the UK might conflict with the state's obligations under the European Convention on Human Rights. Officials who make or execute laws have an interest in court cases that put those laws to the test. When the state invests judicial authority in those officials, it puts the independence and impartiality of the courts at risk. Consequently, it was supposedly possible that the decisions of the Law Lords might be challenged in the European Court of Human Rights on the basis that they had not constituted a fair trial.

Lord Neuberger of Abbotsbury, later President of the Supreme Court, expressed fear that the new court could make itself more powerful than the House of Lords committee it succeeded, saying that there is a real risk of "judges arrogating to themselves greater power than they have at the moment". Lord Phillips said such an outcome was "a possibility", but was "unlikely".

The reforms were controversial and were brought forward with little consultation but were subsequently extensively debated in Parliament. During 2004, a select committee of the House of Lords scrutinised the arguments for and against setting up a new court. The Government estimated the set-up cost of the Supreme Court at £56.9 million.

The Supreme Court was established by Part 3 of the Constitutional Reform Act 2005 and started work on 1 October 2009. It assumed the judicial functions of the House of Lords, which were exercised by the Lords of Appeal in Ordinary (commonly called "Law Lords"), the 12 professional judges appointed as members of the House of Lords to carry out its judicial business. Its jurisdiction over devolution matters had previously been held by the Judicial Committee of the Privy Council.