Will The Supreme Court Be Abolished?

Backbench Conservative MP Sir Desmond Swayne has argued that the next Tory manifesto should include a pledge to abolish the Supreme Court and return to the pre-2009 status quo.

Before the establishment of the Supreme Court, the House of Lords was the United Kingdom’s highest court (though, technically, the appeals were addressed to ‘Her Majesty the Queen in Her Court of Parliament’).[1] In practice, its judicial work was handled exclusively by legally qualified peers appointed under the Appellate Jurisdiction Act 1876 known as the ‘Lords of Appeal in Ordinary’ (or, more colloquially, ‘Law Lords’).[2] Prior to World War II, oral arguments and judgments took place in the Lords Chamber, but when the House of Commons was bombed during the war, the Law Lords began hearing arguments in a committee room to escape the noise of the repair work. This proved to be such a success that this ‘Appellate Committee’ became the regular forum for the House’s judicial work, though judgments continued to be handed down in the Chamber proper (this video from Parliamentlive.tv records the final judgments of the House of Lords). The Constitutional Reform Act 2005 transferred the House of Lords’ judicial functions to a new Supreme Court, which was finally set up in October 2009.

Sir Desmond seems to think that the Supreme Court has gotten to big for its britches and a return to the Appellate Committee would result in less ‘judicial activism.’ However, he’s viewing the past through rose-tinted glasses. The Law Lords handed down a number of controversial judgments over the years, including:

  • Attorney-General v De Keyser’s Royal Hotel Limited [1920] UKHL 1 where it was held that statutes could put the royal prerogative into abeyance, and the Crown could not confiscate private property for purposes connected with the defense of the realm without paying compensation;
  • Burmah Oil Company Ltd v Lord Advocate [1964] UKHL 6 in which the Law Lords found that the Crown was liable for compensation due to damage caused in wartime;
  • Anisminic Ltd v Foreign Compensation Commission [1968] UKHL 6 where it was held that decisions of the Foreign Compensation Commission were subject to judicial review, even though the relevant statute declared that “[t]he determination by the commission of any application made to them under this Act shall not be called into question in any court of law”;   
  • Council of Civil Service Unions v Minister for the Civil Service [1984] UKHL 9 in which the Law Lords decided that the royal prerogative was subject to judicial review like other executive acts;
  • A (FC) and others (FC) v Secretary of State for the Home Department [2004] UKHL 56 where it was held that the Government’s detention of terrorism suspects without trial was unlawful.

One of the strongest arguments against the creation of the Supreme Court was that the change would be largely cosmetic. In practice, the judicial work of the House of Lords was separate from its legislative work. The Law Lords alone decided cases, and they generally did not take part in legislative business until they stepped down as Lords of Appeal in Ordinary.[3] But now the same argument can be used against the abolition of the Supreme Court. Moving the UK’s top judges back into the committee rooms of the House of Lords is unlikely to improve the administration of justice, and the optics of the situation would make it a hugely divisive proposition. For better or worse, the die has been cast, and the Supreme Court should stay in Middlesex Guildhall.  

[1] However, a number of cases were still outside the House of Lords’ jurisdiction, including civil appeals from Scotland and appeals from the ecclesiastical courts.  

[2] In addition to the Lords of Appeal in Ordinary, there were also Lords of Appeal. These were peers who had held high judicial office (e.g., the Lord Chancellor or the Lord Chief Justice), and they could sit alongside the Lords of Appeal in Ordinary when necessary.

[3] There were some exceptions to this. Law Lords were expected to serve on certain committees (e.g., the privileges committee) and sometimes took part in debates on general topics.

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