The Supreme Court

The creation of the Supreme Court: The 2005 Constitutional Reform Act led to the establishment, 4 years later, of a Supreme Court as the highest court of appeal in the UK for civil cases, and (except in Scotland) for criminal cases. Previously senior judges known as the Law Lords, sitting in the House of Lords, had performed this function. This development is an example of the separation of powers — the idea that the different branches of government (in this case law-making and judicial) should be independent of each other.

. The Court opened in October 2009.The 12-strong Court replaced the Law Lords. It initially consisted of existing Law Lords but, as justices of the Supreme Court, they cease to be members of the House of Lords. The Court:

 • Hears appeals on arguable points of law of general public importance 

• Acts as the final court of appeal in England, Wales and Northern Ireland

 • Hears appeals from civil cases in England, Wales, Northern Ireland and Scotland and criminal cases in England, Wales and Northern Ireland

 • Has assumed the devolution jurisdiction of the Judicial Committee of the Privy Council (this makes the Court genuinely the ‘Supreme Court of the United Kingdom’) The Constitutional Reform Act (CRA) and the new Supreme Court have a number of advantages: 

• They substantially strengthen the separation of powers. This is done by tackling two problems The first problem was that the highest court of appeal in the UK, the Law Lords, sat in the House of Lords, creating a fusion between the judiciary and the legislature. This was seen as undermining the independence of the judiciary- are at the appearance of independence.  The second problem arose from the office of Lord Chancellor which, uniquely, fused judicial (head of the judiciary), legislative (presiding officer of the House of Lords) and executive (cabinet minister) roles. The post of Lord Chancellor has been merged with that of Secretary of State for Constitutional Affairs. The Lord Chief Justice has become the head of the judiciary, and a separate Lords Speaker has been appointed. 

• The CRA addressed long-term concerns about the independence of the judiciary that arose from the control that ministers exercised over the process of judicial appointments by creating the Judicial Appointments Commission.

 Although the Supreme Court helps to address a number of long-standing constitutional problems, its creation divided the judiciary and provoked a number of concerns

While some argue that the Supreme Court reflects a trend towards UK judges becoming policy-makers like their US counterparts, others point out that the UK Supreme Court does not come close to resembling the US Supreme Court. Not only does the UK Supreme Court operate within an uncodified constitution in which its powers are largely confined to judging whether or not ministers and officials have taken decisions that lie within their competences as set out by Act of Parliament, but it is hardly ‘supreme’ in that appeals can be made to the European Court of Justice and the (non EU) European Court of Human Rights. 

A further concern is that progress in making the senior judiciary more socially representative has been slow. This is in view of the statutory requirement on the JAC (Judicial Appointments Commission) to make appointments on the basis of merit, expertise and experience, and because senior judges will continue to be appointed mainly from the ranks of long-standing barristers.

 Finally, the Supreme Court has been seen as a ‘missed opportunity’ by those who favour more radical reform, particularly by those who call for an entrenched bill of rights