Two of the members of the new Supreme Court that comes into contention from 2009 highlight the hopes and drawbacks of the new institution. Lady Hale welcomes the separation of the Law Lords from the House of Lords, especially as the latter is an increasingly politicised and partisan place. However, the funding of the Law Lords was protected by Parliament, preventing the executive from bringing pressure to bear:
But that cannot be guaranteed. “There one area where I think we are in a somewhat perilous situation is funding,” said Lord Hope.
Until now, he explained, the law lords’ funding bid had gone through Parliament — which meant it was never opposed by the Treasury. “It’s quite a strong protection against executive pressure,” Lord Hope added.
But the new Supreme Court will be more exposed. “We will be dependent, to quite a large extent, on money coming to us through the Ministry of Justice. I don’t know how this is going to work, but we have a chief executive who has been very carefully chosen and whose job it will be to fight that battle for us.”
This is a combustible combination: a more activist Supreme Court, whilst power always follows the money. If one were Machiavellian, one could view this Blairite change as an attempt to render the judiciary more vulnerable to executive pressure. They aren't known for that, are they?
Judicial activism is also the hallmark of the current cohort, and Lady Hale never notes never when it comes to overturning parliamentary sovereignty and democracy (e.g higher Platonic ideals, such as Europe, international law, human rights and Swiss cheese).
What, though, of the constitutional implications? Lord Hope thinks it important for the public to know that — unlike its United States namesake — the UK Supreme Court will not have the power to declare legislation unconstitutional.
“We will be a different institution [from the Lords] but we will be carrying the high standards and independence of our predecessors into a new world — and it’s not the same world as the United States.”
Lady Hale agreed. Would the court be grabbing its more visible independence with all 24 hands and moulding out of that a greater jurisdiction than it currently has? She did not think so.
Expanding on these thoughts last week in her Denning Lecture to the Bar Association for Commerce, Finance and Industry, Lady Hale said there was “no question of our striking down legislation, except to the extent that Parliament has allowed us to do so in measures such as the European Communities Act 1972 and the Human Rights Act 1998”.
The US Supreme Court had ruled on the constitutionality of legislation in 1803, she recalled. “I don’t foresee that we’d ever invent such a power — but history may prove me wrong.”
At least the Post Office has not acquiesced in this foreign enthusiasm by reserving for them the address they deserve until they earn our opprobrium or respect: Number 2, Little George Street....
