Wednesday, 15 July 2009

One To Watch

Jack Straw has announced that rulings of the new Supreme Court are to be delivered before the television cameras. His own Ministry of Justice was cut out of the Home Office as part of the same attempt as this Court give yet further effect to the attempt to import into this country the dangerous, and wholly foreign, theory of “the separation of powers”.

What of the Law Lords, of whom, as set out below, there are still going to have to be some? What of the Home Secretary’s role in determining sentences? Or of the numerous quasi-judicial functions of Ministers? Or of the fact that all members of the Executive are required to be members of the Legislature? Or of the fact that the judges make the whole of the Common Law?

This “separation of powers” line was also put about when the position of Lord Chancellor was abolished overnight in favour of something apparently sketched on the back of a beer mat. But the House of Lords is still chaired by someone in much the same outfit, which was actually presented by Blair as a serious, and even conclusive, argument for abolition. It is just that Baroness Hayman is not the Lord Chancellor. But so what, from that point of view? Meanwhile, until Straw there was still no Cabinet Minister accountable to the House of Commons either for the major front-line public service that is the Court Service, or for the enormous Legal Aid budget of public money.

Like the other examples given above, the office of Lord Chancellor was often described as an “exception” to "the separation of powers". Quite apart from the fact that such a doctrine cannot, by definition, admit of exceptions, so that their very existence disproves the doctrine itself, there do seem to be an awful lot of these “exceptions”, and they do seem to matter rather a lot.

In reality, the “powers” have never been “separate”, nor can they ever be so. One of them has to win in the end. In Britain, we have decided that it is to be Parliament, and thus the elected House of Commons within Parliament. Would we rather that the Prime Minister always had the last word? Or that, as in the United States (among other places) an unelected judicial body of lifetime appointees could simply rule that any matter it liked was “constitutional”, and thus reserved entirely to itself?

This is why, as is their wont, judicial theorists and constitutional lawyers habitually engage in more than a spot of wishful thinking where “the separation of powers” is concerned. They wish to see an American-style krytocracy in this country, where the judiciary is still drawn (unlike the Bar generally these days) from a very narrow social, socio-economic and educational base indeed. Presumably, that is what makes it so attractive to them.

The wretched Human Rights Act has been a major step in that direction. But mercifully, we still have instead the supreme legislative, executive and judicial authority of the Crown (i.e., of the nation embodied, regardless of party or anything else), exercised either by Parliament itself or by Ministers drawn from and accountable to Parliament. Within Parliament, the House of Commons has come to be elected by universal adult suffrage and, since the Parliament Act of 1911, to be supreme.

The Crown is the ultimate contradiction of the Franco-American, and in no sense indigenously British, theory of the separation of powers. And it is thus the ultimate guarantee that the United Kingdom (and each of the 15 countries with which we share the Crown) will remain a democracy, unlike either absolutist and historically coup-plagued France, or krytocratic America, to name but two.

And what of the the crowing of Scottish Nationalists, within and beyond the SNP, about Scotland’s exemption from the jurisdiction of the new Supreme Court of the United Kingdom? No reason for this has ever been presented. There has been nothing more than the usual squealing that “Scotland is different”, for which no evidence ever does have to be presented. No matter that, in its days, the Judicial Committee of the Privy Council was the final court of appeal for everything from the tribal tribunals of the South Seas to the Sharia Courts of parts of British India, always applying whatever legal system was at issue at the time. One might add that there will therefore still have to be Law Lords, since several Commonwealth countries retain the right of appeal to that Committee. It is just that they will have no jurisdiction in the country in which they meet.

As much as anything else, at least this Court will be made of proper judges, whereas most of those who sit on the bench of the European Court of Justice are career politicians, sometimes with law degrees, but very often without even that. Yet from that bench may be struck down any enactment or judicial ruling anywhere in the EU, including Scotland. To accept and even welcome this state of affairs while objecting to the Supreme Court on purely Nationalist grounds is an eye-watering example of swallowing the camel but straining at the gnat.


  1. The Aberdonian16 July 2009 at 12:04

    What are you talking about?

    The new court is succeeding the jurisdiction of the House of Lords. The House of Lords never had jurisdiction over criminal matters in Scotland. That is a fact.

    The new body, like the Lords, will only here Scottish civil appeals.

    The reasoning for this arrangement. Well before the union, the Scottish Parliament did not have judicial jurisdiction on criminal matters (except in the cases of treason). Criminal jurisdiction was removed on the initiative of James V when he set up the College of Justice (basically the modern Scottish judicial system) in the 1530's.

    The Scottish Parliament however did hear civil appeals.

    Therefore it was "interpreted" that the Lords taking civil jurisdiction in Scotland was natural succession of the pre-1707 arrangements and the exclusion of criminal matters was as well.

    Not of course that there is still controversy of the present arrangements. Questions are still raised how a judgement made by a panel of judges made largely of English judges with no knowledge of Scots law can be properly made except by hoping they listen to their Scots Law colleague (convention demands that all Scottish appeals should have at least one Scots Law Law Lord present to advise colleagues as well as give judgement).

    By the way, it was not the SNP that lead the campaign against full Supreme Court jurisdiction over Scotland. It was Scots Law Lord (and former Lord President/Lord Justice-General) Hope.

  2. "Questions are still raised how a judgement made by a panel of judges made largely of English judges with no knowledge of Scots law can be properly made"

    And the ECJ? Many of them are not really judges at all.

    I do not want there to be a Supreme Court of the United Kingdom. But there is going to be. And you are either in the United Kingdom or you are not. The question of never having been subject to the full jurisdiction of the Law Lords does not arise: the Law Lords have never claimed to be the Supreme Court of the United Kingdom. There could and would always have been one Scottish judge on it, just as there is always one Northern Ireland Law Lord.

    The Judicial Committee still hears appeals from a wide range of jurisdictions, and used to do so from about as diverse a set of legal systems as it is possible to imagine. The US Supreme Court manages to exercise final appellate jurisdiction over Napoleonic Louisiana. And then there is the ECJ again.

  3. The Aberdonian20 July 2009 at 11:35

    The ECJ is restricted to making judgements on matters that are part of EU law as provided through the interpretation of the Treaties.

    The same with the US Supreme court. All their judgements relate to the interpretation of the constitution whether it be on the rights of ethnic minorities or some guy on death row, it comes from the constitution.

    The UK does not have these central codes to interpret from so the UK Supreme Court is in a totally different context from the two bodies above.