Supreme Court

UK Supreme Court. How was it established? The Supreme Court was established on 1 October 2009, under the terms of the Constitutional Reform Act 2005. The Supreme Court largely replaced the Appellate Committee of the House of Lords; 10 law lords joined as judges. While the Appellate Committee was seen as working well in the past, the Supreme Court was mainly established over concerns about the appearance of judicial independence (or lack thereof). And while the law lords worked in the Palace of Westminster, the Supreme Court was housed in a new building. What does it do? The Supreme Court is made up of 12 permanent judges: a President, a Deputy President and 10 Justices. The Supreme Court’s main role is as the final court of appeal in the UK (except concerning Scottish criminal law); it “hears cases of the greatest public or constitutional importance”. What has it done? The Supreme Court has decided nearly 1,000 cases since 2009, including: R (Nicklinson) v Ministry of Justice: In 2014, a majority refused to issue a declaration of incompatibility over the criminal offence of assisting the suicide of another for breaching article 8 of the European Convention on Human Rights as they thought that this was an issue for the UK Parliament; R (Miller) v Brexit Secretary: In 2017, a majority ruled that triggering article 50 of the Treaty on European Union was beyond the scope of the royal prerogative and that the power to do so had to come from an Act of Parliament; R (Miller) v Prime Minister: In 2019, it ruled that Boris Johnson could not prorogue (suspend) the UK Parliament for over a month without giving a good reason, because of the constitutional principles of parliamentary sovereignty and parliamentary accountability; Re Lord Advocate: In 2022, it ruled that it was beyond the powers of the Scottish Parliament to legislate for a referendum on Scottish independence, as that would relate to the union and UK Parliament, which the Scotland Act 1998 explicitly reserves to the UK Parliament.
Supreme Court judges. Appointment process: Every Supreme Court judicial vacancy so far has apparently been widely advertised, but only those who have been a senior judge for at least two years or a lawyer for at least 15 years are eligible to be appointed; almost all successful applicants to date had been both before being appointed. The main body involved in appointments is a selection commission, convened by the Lord Chancellor, which shortlists, interviews and picks a candidate, by law, “on merit” (and if two candidates are of equal merit, then one may be preferred over the the other for the purpose of “increasing diversity”). The selection commission includes the President, another senior judge and a member of each of the judicial appointment bodies for the UK’s three legal systems. However, politicians still have a limited role in the process: the Lord Chancellor, First Minister of Scotland and First Minister of Wales are among those who are consulted throughout. And, if certain conditions are met, the Lord Chancellor can reject or ask for a reconsideration of the selection commission’s choice (this has almost definitely not happened so far), but must ultimately recommend one of the names that it produces to the Prime Minister to advise the monarch to appoint. Current judges: Lord Reed (President); Lord Hodge (Deputy President); Lord Lloyd-Jones; Lord Briggs; Lord Kitchin; Lord Sales; Lord Hamblen; Lord Leggatt; Lord Burrows; Lord Stephens; Lady Rose; Lord Richards. All but one of the Supreme Court judges are men and all are also white. Two Supreme Court judges are from the Scottish legal system, one is from the Northern Irish legal system and the remaining six are from the English and Welsh legal system, although one (Lloyd-Jones) is lauded as a Welsh judge. Arguments for diversity. In a 2001 article, Brenda Hale (as she then was) set out three arguments as to why judicial diversity is a good thing: Equal opportunities: First, all candidates should be “considered impartially and solely on their merits and not in some other way or for some other reason”; To make a difference: Second, tentatively, an undiverse judiciary “will be the poorer in terms of appreciating what is at stake and the impact of its judgments”; Democratic legitimacy: And third, “in a democratic society… it is wrong in principle for [judicial] authority to be wielded by such a very unrepresentative section of the population”.