What new appointments mean for the Supreme Court—and the rule of law

It is not quite a decade since the Supreme Court replaced the Appellate Committee of the House of Lords and the Law Lords became Justices of the Supreme Court. The new court was created to be a final court of appeal on legal disputes (including, of course, disputes involving government), not to be a constitutional court standing in judgment over parliament. Many lawyers would prefer a more assertive court which, like supreme courts in some other jurisdictions, would see itself as the guardian of the constitution and would take responsibility for ensuring the substantive justice of the law.

The future of the Supreme Court, and of the rule of law, turns on how its justices understand their role. So, it is noteworthy that the court’s composition is being subjected to significant change. Six of the 12 justices were appointed in the last two years. On 24th July other events in Westminster overshadowed three further appointments. In January, April and May, Lady Hale, Lord Carnwath and Lord Wilson will retire and be replaced by Lord Justice Hamblen, Lord Justice Leggatt and Professor Andrew Burrows, QC (Hon). The gender balance of the court will worsen from January. It may worsen again unless Lady Arden is replaced by a woman when she retires two years later.

The July announcement also specified that Lord Reed will replace Lady Hale as President of the Court. Lord Reed is likely to serve as president for more than six years, considerably longer than Lady Hale’s two years. His appointment will provide an opportunity to shape the operation, composition and public profile of the court. He will determine the size and composition of appeal panels, chair the commission recommending the appointment of new justices and will be the most prominent person who will speak in public on behalf of the court.

What is the significance of these announcements?

Lord Reed’s appointment is welcome. In a succession of important cases, Lord Reed has carefully considered the limits of judicial power. His dissenting judgment in Miller (the Article 50 litigation) rightly stresses that “it is important for courts to understand that the legalisation of political issues is not always constitutionally appropriate, and may be fraught with risk, not least for the judiciary.”

Questions about the proper role of courts often arise in disputes involving human rights law. There are important differences between our judges about whether the European Convention on Human Rights can or should be interpreted and applied in the UK in ways that go beyond the jurisprudence of the European Court of Human Rights. Lord Sales, who replaced Lord Sumption on the court in January, has been a powerful critic of the legitimacy of going beyond Strasbourg. So has Lord Reed. It will be interesting to see whether the new court produces a stable majority to this effect.

Decisions by the courts on legal challenges to policy or legislation are often influenced by how much judges respect the legitimacy and competence of those with political accountability. Some may believe that courts are as well placed, or even better placed, to determine whether a policy is rational or strikes the best balance between the interests of an individual and the public interest. Others doubt the capacity or legitimacy of the courts to regulate political decision-making, or to improve on it.

The last two presidents of the Supreme Court, Lady Hale and Lord Neuberger, have taken it as a given that parliament is controlled and dominated by government, and so has very little real influence over it. This is a complete misunderstanding of how the constitutional relationship between those institutions normally works, but it can tempt judges into assuming that they need to fill a gap that does not exist. Assumptions about lack of parliamentary influence (which the Brexit process has clearly demonstrated to be false) were at work in the Miller litigation, and also in Wightman, where the Scottish courts intervened directly in parliamentary proceedings. The relationship between government and parliament works best as a collaboration and without the intervention of a third party, whether in the form of a referendum or judicial regulation. It may be hoped that the new court will recognise this truth. Lord Reed’s judgment in Miller provides grounds for optimism that it will do so under his leadership.

The fundamental principle of the UK constitution, parliamentary sovereignty, means that the Supreme Court has no right to invalidate statutes. However, that principle is capable of being subverted if judges interpret legislation in a way that denies the political authorities the capacity to choose what the law shall be. The risk is evident in the court’s recent case law, especially in the application of the principle of legality to cases involving “access to justice.” The principle is sound, but is capable of being misused. Legislators should make their meaning clear—as the principle requires—but it undermines the rule of law to deny legislators the capacity to predict whether there are any words capable of giving effect to their true intentions.

On this point, it is not entirely clear how the new court will proceed. Lord Reed joined with the majority in the decision in Evans, in which the ministerial override power in the Freedom of Information Act 2000 was, for all practical purposes, judicially repealed. He also gave the main judgment in the UNISON case, in which regulations were invalidated on the grounds of their ultimate effect, rather than any failure when they were made. On the other hand, he was in the minority in the recent Privacy International case (about whether decisions of the Investigatory Powers Tribunal are subject to judicial review) and so in favour of giving effect to words that seemed clearly intended to exclude the jurisdiction of the courts. Lord Justice Leggatt has a sound understanding of how the original intention of an enactment continues to apply over time. Professor Burrows, however, in his recent Hamlyn Lectures dispenses with the idea of legislative intention and embraces the dubious idea of “updating” the meaning of statutes so as to depart from what parliament actually chose when passing the legislation.

Happily, there is nothing that would suggest that Lord Reed or any of the new appointees would support the revolutionary view of the three justices in the Privacy International case (two of whom are amongst those soon to leave the court) that it was open to the courts to defy parliamentary sovereignty in the case of statutes restricting judicial review. On the contrary, there is some reason to suppose that the new court will adhere to a more restrained, traditional understanding of its constitutional function.

Richard Ekins, Associate Professor, University of Oxford and Head of Policy Exchange’s Judicial Power Project

Stephen Laws, Senior Research Fellow, Policy Exchange’s Judicial Power Project, First Parliamentary Counsel from 2006-2012