Richard Ekins is Head of Policy Exchange’s Judicial Power Project and Professor of Law and Constitutional Government, University of Oxford
During the recent American Presidential election, Senator Biden, as he then was, declined to say whether he would, if elected, attempt to reform the United States Supreme Court and in particular whether he would consider packing the Court.
Donald Trump’s appointment of three new justices shifted the apparent balance of power. With this change in political fortunes came a sudden decline in political enthusiasm for the Supreme Court’s strong jurisdiction. For many (not all) on the left, the Court has long been championed as the vanguard of progressive change, with judicial power deployed to secure – and to cement – victories other than by the ballot box.
This deployment was always a disgraceful strategy, not to mention a disastrous way to govern, and if it has truly been abandoned, then well and good.
But the change of heart may be more strategic than sincere. Court reform in the United States seems to be as much about entrenching legal changes secured by past acts of judicial fiat as it is about preventing the Supreme Court from frustrating the policy of the new Biden administration. A more principled reform agenda would aim to establish general limits on the Court’s role, returning political questions to the political process, to be settled by representative institutions rather than by court order.
The challenge for Americans is how to reconcile the Supreme Court’s jurisdiction with constitutional self-government. This is an old problem, with President Lincoln warning, in his first inaugural address in 1861, that judicial supremacy would mean that “the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.” The Supreme Court’s outsized role in American public life distorts politics, making control of the power to appoint the marginal judge one of the central objects of political competition; it is difficult otherwise to explain Trump’s election in 2016.
Happily, here in Britain, our Supreme Court does not enjoy anything like the powers exercised by its American namesake. It is not free, in particular, to question the validity of Acts of Parliament; parliamentary sovereignty is our fundamental constitutional law.
That said, in a judgment in May 2019, three Supreme Court judges openly questioned that fundamental law. In other cases, the Court seems to have misunderstood itself to be the guardian of the constitution. The Human Rights Act 1998 has made the political (small-p) views of our judges ever more important, and the Supreme Court has been central to recent political controversy. No surprise, then, that the Court’s political salience has been rising, and that the Government is contemplating reform.
Now that a UK-EU deal has been agreed, Supreme Court reform is likely to be firmly on the agenda. What should the Government propose? How should Parliament respond?
Our Supreme Court was created by the Constitutional Reform Act 2005, which is an Act of Parliament open to repeal or amendment like any other.
In a paper published shortly after the 2019 general election, I recommended that Parliament amend the Act to rename the Supreme Court as the Upper Court of Appeal and to specify that the Court’s function was not to serve as the guardian of the constitution writ large. In a subsequent Policy Exchange paper, Professor Derrick Wyatt and I discussed his bolder proposal to replace the Supreme Court with a Final or Upper Court of Appeal made up of a rotating set of panels of Court of Appeal judges.
Lord Thomas of Cwmgiedd, former Lord Chief Justice of England and Wales, welcomed the paper as a serious contribution to public debate. It may have informed the Government’s thinking, which is said to be to rename the Supreme Court, with a small permanent core of judges joined by a changing set of Court of Appeal judges. Details remain sketchy. but this might well mean a change from Supreme Court to the Judicial Committee of the Privy Council, maintaining some continuity, but also widening the set of judges who decides final cases.
Parliamentarians should protect the constitution. The independent reviews of administrative law (chaired by Lord Faulks) and the Human Rights Act (chaired by Sir Peter Gross) will hopefully result in useful analysis and recommendations, but the danger of proceeding in this way is that the Government risks effectively providing the legal establishment with a lock on reform.
While experts of course have a contribution to make to public deliberation, there is no substitute for (elected) parliamentarians taking responsibility for the state of the constitution and its repair.
When the Government publishes proposals for amending the 2005 Act, perhaps in summer or autumn this year, Parliament should consider carefully their implications for the rule of law and the balance of powers in our constitution, as well as their practical workability. In publishing the two papers noted above, Policy Exchange’s Judicial Power Project aimed to contribute to public deliberation about the role of the courts, especially the Supreme Court, and options for reform.
In a symposium published recently, we extend the conversation, providing distinguished jurists with an opportunity to reflect on the Supreme Court and on the merits of institutional reform.
My Oxford colleague, Professor Robert Stevens, argues that Professor Wyatt’s proposal would improve judicial diversity, protect judges from celebrity status and related political attack, and would spread the workload more equitably. Professor Kate Malleson questions whether the reform would improve judicial diversity. John Larkin QC, former Attorney General for Northern Ireland, argues that the Supreme Court is less disciplined than the Appellate Committee of the House of Lords from which it emerges. Sir Patrick Elias, former Lord Justice of Appeal, agrees, but concludes that on balance Professor Wyatt’s proposal would do more harm than good. Professor Wyatt replies to all comers, powerfully developing his case for reform. For my part, I note that while the proposal is ingenious, Sir Patrick’s practical and principled objections to it are difficult to answer.
In arguing for our Supreme Court to be renamed, I reasoned that the name wrongly brought to mind the United States Supreme Court, a model we ought not to emulate. It is open to Parliament to rename the Court, to specify more narrowly its jurisdiction, or even to go further and to restructure how and by whom final appellate jurisdiction is exercised. Institutional reform requires careful thought and debate, all with an eye to the proper constitutional role of the courts, and the nature and purpose of appellate jurisdiction. In reasoning in this way, Parliament is best able to discharge its responsibility to protect the constitution, from the courts and for the courts.