Should the Supreme Court be less supreme?

The Telegraph has reported that Ministers are understood to be discussing plans to change the name of the Supreme Court, cut the number of permanent judges, and bring in new judges with "specialist" knowledge to hear individual cases. 

The government has been considering reform since last year when the Supreme Court ruled unanimously that Boris Johnson’s prorogation of Parliament during a stand-off over Brexit was unlawful. As is currently the culture of briefing, an anonymous government source will float an embryonic policy via a friendly media outlet, and Ministers then assess the public response. This weekend, a senior Tory source briefed that: “There's a feeling that Blair and Falconer made a complete dog's dinner of constitutional reform and that we're feeling the negative effects of it today. Just like in the US, campaigners are increasingly looking to the courts to settle political arguments and this puts the judiciary in a place most of its members really don't want to be."

The Leader of the Commons, Jacob Rees-Mogg, accused the Supreme Court of a executing a ‘constitutional coup’ after their prorogation ruling last year.

The Lord Chancellor is apparently now concerned that the current legislation, the 2005 Constitutional Reform Act, is ‘riddled with imperfections’. One of the purposes of the Act was to further separate the judiciary from Parliament. But the government is now concerned that the Supreme Court is perceived as a ‘Constitutional Court’.  

Giving evidence to Parliament's Joint Committee on Human Rights, the Lord Chancellor said "I want to ensure we do not either intentionally or unintentionally proceed down a path that will lead to a political process that allows parliamentarians to cross-question and select members of that or any other court within our jurisdiction. I think it is my job to protect the judiciary from that scenario".

So, with the stated aim of avoiding a US-style system of political appointments, he wants to avoid handing judges decisions which people might assume were politically motivated, adding "I think there’s a risk that because judges are being placed in the political arena, that decisions they make based upon the law… are increasingly being seen as having a political tint"

Although Mr Buckland refused to comment on the Telegraph story, it is reported that Ministers are now considering:-

• Reducing the current number of Supreme Court justices down from 12, to a smaller "core".
• This core would be supplemented by expert judges from around the UK, brought in to hear cases in which they have specialist knowledge.

Who judges the judges?

It is not yet clear who will choose which judges are expelled from the core, or which new judges might be 'helicoptered in' to hear which particular appeal. One suspects these would be decisions for the Lord Chancellor, presumably as part of ironing out ‘the imperfections’, as he calls them. This idea of 'guest judges' who do not ordinarily sit on the Supreme Court is truly novel, but may have merit if applied objectively.  Were it to be wrongly applied, one is reminded of the scene in classic comedy ‘Yes Prime Minister’ where PM Jim Hacker suggests having a ‘little drinkie’ with the judge presiding over a sensitive case. The Cabinet Secretary, Sir Humphrey Appleby, looks appalled at the impropriety of this:

Appleby: “Prime Minister, it’s unthinkable! Absolutely no pressure can ever be placed on a British Judge!”
Hacker: “Oh, so what can we do then?”
Appleby: “Oh, simple, we just find a Judge who won’t need any pressure put on him... A quiet word with the Lord Chancellor is in order”.

In this way, the problem is that politicised meddling in relation to the composition of the court might in itself undermine the separation of powers. 

What’s in a name?

The second problem is this perceived problem of judges interfering in ‘political arguments’. The government’s concern is that the judiciary should not step in and assume a ‘supreme’ role over and above the politically expressed 'will of the people’, i.e. the elected politicians. This is linked to the desire to rename the court. In 2019 the think tank Policy Exchange proposed to rename the Court the ‘Upper Court of Appeal’ and to set out a list of government prerogative powers which would no longer be justiciable (i.e. certain decisions would not be susceptible to judicial review).

The President of the Supreme Court Lord Reed, addressing the house of Lords Constitution Committee in March this year said: "Judges are very well aware of the risk of challenges being brought in what are political rather than legal grounds. They are repelling them and are careful to avoid straying into what are genuine political matters. When this is a matter that is to be considered it should not start from the premise that judges are eager to pronounce on political issues. The true position is actually quite the opposite." He also rebutted the contention that Judges make what are politicised decisions, citing the legal claims spear-headed by campaigner Gina Miller in 2017 and 2019: "We are lawyers and I can’t deny our personality plays a part but we agonise sometimes over trying to get the right legal answer. In the first (Gina) Miller case I held in favour of the government. In the second [Brexit-related] case I held against the government. I had not suddenly switched from being a Brexiter to a Remainer – it was based on the legal merits of the case."

The Lord Chancellor's concern that judges ought to be protected from politically-charged decisions fails to appreciate that, in a scenario where the government has broken the law, then a judicial decision to put them right will inevitably have political ramifications - sometimes small, but sometimes huge. This fact alone cannot make it logical to make such no longer justiciable.    

It is also difficult to determine what falls within being ‘political decision’, and what does not. It is true that policy campaigners can, and do, raise genuinely arguable points of law. At the same time, it is all too easy to decry an adverse court decision as being politically-motivated or biased.

To take a few hypothetical examples:-

Would it be a ‘political decision’ to ban all Black Lives Matter protests on public holidays? Would it be ‘political’ to stop the development of the HS2 rail line pending a further public consultation? Would it be ‘political’ to stop any NHS Track and Trace data being used to prosecute breaches of Covid-19 rules?

All of these are highly sensitive areas not just for those affected by them, but also the wider country. Is the government therefore saying these areas should not be justiciable, meaning that whatever the government prerogative is cannot be challenged in court, even where it is alleged to have broken the law? Where does one draw the line? Indeed, if you take the view that these decisions are not ‘political’ per se, then why should the legality or illegality of the Prime Minister suspending Parliament be off the table? Putting Brexit aside for one moment, isn't that scenario precisely what a Supreme Court should be for? Moreover, had the Supreme Court unanimously sided with the government in it's ruling, would we even be having this conversation now? 

The truth is that, of course, the name of the Court barely matters. But in any democratic country, its most senior court must be able to impartially judge when its government has broken the law. Without this mechanism, it is the government that becomes supreme, picking and choosing which laws it feels like breaking, and when it feels like breaking them. Those who are in favour of that really ought to consider what they might say if their political foes one day seize that power, unfettered by the courts. It is only by properly weighing up these implications that we can truly take the politics out of constitutional decisions.