The newly minted Supreme Court of the UK handed down its first decision this week, after coming to power on October 1, 2009. There is no doubt that Brits (and the rest of us) are still getting used to the idea of new branch of government in the UK. There is even some question (in my mind at least) about how many British citizens even know about the change. I was at dinner several weeks ago with a veteran British Political Scientist (albeit, one who has been transplanted across the pond for some time now) who, in response to my question about any thoughts on the new body, asked “What Supreme Court?,” perhaps wondering if I had mistaken Britain for, I don’t know, New Zealand.
Indeed, it seems almost unfathomable that the British would adopt such a change. For one thing, the process was downright hasty, by British standards. The Supreme court was envisioned in a deliberate, almost Lockean, move of igneous constitutional reform — not the product of sedimentation as we like to think of the origins of most of British constitutional structure. This is the short, sharp, shock that Cheryl Saunders refers to in her excellent post commemorating the last decision made by the outgoing Law Lords. The sharp part of the reform has to do with the British embrace of some notion, however moderate, of separation of powers. We shouldn’t think that the days of Parliamentary Supremacy are over — British citizens will not be electing an executive directly and with a fixed term any time soon. However, it is remarkable that the laws of Parliament will now be interpreted by another body, not Parliament itself (in the form of the House of Lords’ law committee (Law Lords)). In this context, it is remarkable indeed that this change would go down with so little fanfare (if, indeed, my guess about citizen awareness of this change is borne out by the data — I will be on the lookout for any public opinion data on the subject).
Whether under the radar or not, this arrival of this new body introduces a wave of interesting questions, which scholars will be grappling with for years. The court’s members are selected by a commission (with, presumably, professional rather than political goals) but appear to serve at the pleasure of Parliament (what exactly that will mean in practice is unclear at this point), and are obligated to retire at 70. This suggests to me a score somewhere near the mean in terms of judicial independence (compared to contemporary standards), but I’ll let our colleague Julio Rios Figueroa score that with his index. At any rate, the new body represents a significant shift upwards in independence from the prior regime. How the new court’s decisions will differ from those of the Law Lords and which cases get heard remain to be seen, but given a new structure and newfound independence, one would expect increased pushback on Parliament.
The court’s decision in its first case — what constitutes membership in the Jewish faith — suggests that its decisions will be far reaching, perhaps even up to the heavens. I will leave the discussion of that case for another post. Suffice it to say that it takes up some of the most fundamental issues in relationship between church and state.