Lord Neuberger is one of 12 Law Lords, but he alone of his judicial colleagues won’t be sworn in tomorrow at the newly re-furbed Middlesex Guildhall. He warned in an interview with the legal commentator Joshua Rozenberg on Radio 4 that no good would come of meddling with the old order. “The danger is that you muck around with a constitution like the British constitution at your peril because you do not know what the consequences of any change will be.”
The fear is that a newly independent court will feel emboldened by its new separateness and begin to take on the executive with previously unseen vigour. Neuberger, who has been appointed Master of the Rolls, complained of a too casual redrawing of our constitution knocked up over “a last minute decision over a glass of whisky” by former Prime Minister Tony Blair.
So what do lawyers make of a controversy that has clouded the new court before ordinary court-goers have had a chance to ponder the wisdom of Andrew Motion’s contribution to the new court? The former poet laureate’s words are engraved on the benches outside the courtroom and double up as barriers against would-be suicide bombers. “Here Justice sits and lifts her steady scale within the Abbey’s sight and Parliament’s but independent of them both.”
Is “Justice” going to be too independent for its own good? “I don’t think there is any danger of a judicial coup d’etat,” reflects Roger Smith, director of the law reform and human rights organisation JUSTICE. “They aren’t going to be any more independent than they have been over the last 30 years, for example. Through the development of judicial review they have really showed their independence.” JUSTICE has campaigned for reform of the role of the Lord Chancellor’s office and greater separation of the powers since the mid-1990s. “The judicial committee of the House of Lords was a constitutional nonsense. You would not accept it in a banana republic, frankly,” Smith adds.
Tony Blair unveiled his plans for a Supreme Court six years ago without consulting judges – an omission confirmed by David Blunkett in the Radio 4 programme. Scrapping the role of Lord Chancellor was opposed by the then incumbent, Lord Irvine, the ex-PM’s former pupil master. “How could we (consult) with Derry sitting there?” Blunkett (then home secretary) said. “He did think he was Tony’s foster-uncle and, given his history back in chambers, he was invincible.
“But we all find out in time that we are not.” Gaffe-prone Irvine left abruptly in June 2003, heavily damaged by an ill-advised refurbishment of his own (£60,000 of tax-payers’ money on Pugin wallpaper for his offices). Irvine was replaced by Lord Falconer, who came in with a radical programme of reform including scrapping his own job as Lord Chancellor.
“It’s a matter of public record that the former law lords were split over whether the Supreme Court was a good thing,” comments Hugh Tomlinson QC, editor of a new blog about the court (www.ukscblog.com). “Some didn’t want to change the status quo. That reflects the conservatism of the higher judiciary. But I think the majority view is that it’s not going to be a dangerous innovation.”
Tomlinson’s chambers, the human rights practice Matrix whose most famous member is Cherie Booth, claims the distinction of being in the last case in the old House of Lords and in the first three cases in the new Supreme Court. Tomlinson reckons that the court will herald “a different culture”. “It is constitutionally important because under the English system there’s been a lot of blurring of boundaries. The Lord Chancellor has traditionally held a remarkable series of roles – senior government minister, speaker in the House of Lords and head of the judiciary. There is something very unsatisfactory about that.”
Malcolm Davis-White QC, vice-chairman of the Chancery Bar Association but speaking in a personal capacity, argues that on its constitutional merits the Supreme Court is “totally unnecessary”. “I don’t think that it is necessarily a bad thing because it’ll focus attention on the court and removing it from the House of Lords might make the court more flexible.” The silk predicts what he calls “unforeseen circumstances”. “I think that’s a possibility. Once the court is removed from the House of Lords it becomes very autonomous and there is no check caused by it being part of a larger entity.” However, he thinks that such independence will be more concerned with gaining control of its own procedures rather than making it any more “confrontational”.
Hugh Tomlinson isn’t anticipating the new Supreme Court to go power crazy either. “The Law Lords have been in recent times quite willing to take on the executive when it is needed,” he says. “I don’t think that the Supreme Court is going to make any difference. You have the same people involved with the same people in power. They aren’t going to turn overnight into legal radicals. That’s not how it works.”