The court’s changing composition could prove profoundly importantby Richard Ekins, Stephen Laws / August 7, 2019 / Leave a comment
It is not quite a decade since the Supreme Court replaced the Appellate Committee of the House of Lords and the Law Lords became Justices of the Supreme Court. The new court was created to be a final court of appeal on legal disputes (including, of course, disputes involving government), not to be a constitutional court standing in judgment over parliament. Many lawyers would prefer a more assertive court which, like supreme courts in some other jurisdictions, would see itself as the guardian of the constitution and would take responsibility for ensuring the substantive justice of the law.
The future of the Supreme Court, and of the rule of law, turns on how its justices understand their role. So, it is noteworthy that the court’s composition is being subjected to significant change. Six of the 12 justices were appointed in the last two years. On 24th July other events in Westminster overshadowed three further appointments. In January, April and May, Lady Hale, Lord Carnwath and Lord Wilson will retire and be replaced by Lord Justice Hamblen, Lord Justice Leggatt and Professor Andrew Burrows, QC (Hon). The gender balance of the court will worsen from January. It may worsen again unless Lady Arden is replaced by a woman when she retires two years later.
The July announcement also specified that Lord Reed will replace Lady Hale as President of the Court. Lord Reed is likely to serve as president for more than six years, considerably longer than Lady Hale’s two years. His appointment will provide an opportunity to shape the operation, composition and public profile of the court. He will determine the size and composition of appeal panels, chair the commission recommending the appointment of new justices and will be the most prominent person who will speak in public on behalf of the court.
What is the significance of these announcements?
Lord Reed’s appointment is welcome. In a succession of important cases, Lord Reed has carefully considered the limits of judicial power. His dissenting judgment in Miller (the Article 50 litigation) rightly stresses that “it is important for courts to understand that the legalisation of political issues is not always constitutionally appropriate, and may be fraught with risk, not least for the judiciary.”
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