Supreme Court - which, within days, will hold sway over British law - is a constitutional disaster

Daily Mail (UK) ^ | 24th September 2009 | Max Hastings

[naturalman1975]

A few days from now, a major constitutional innovation will take effect.

The Supreme Court, created by Tony Blair, will open for business at the expensively revamped Middlesex Guildhall in Parliament Square. It replaces the House of Lords as the highest judicial appellate body in the land.

.....

None of the law's grand panjandrums was consulted. Nobody, as far as is known, gave serious thought to the consequences for Britain's political system of wrenching a centuries- old system onto a new template. The outcome, six years later, is that the British people are getting a Supreme Court whether we like it or not.

Lord Neuberger, a former Law Lord who has been appointed Master of the Rolls, has caused a ferment by declaring that a major change in the constitution has occurred 'as a result of what appears to have been a last-minute decision over a glass of whisky'

.....

Several of Lord Neuberger's colleagues, including some who will sit on the new court, have made plain that they share his concerns.

.....

The EU has assumed powers which override the sovereignty of national parliaments. And, as a consequence, the role of judges has dramatically expanded, as interpreters of European law.

Most conspicuously in human rights and immigration cases, more and more judges hand down decisions that establish precedents and defy the expressed views of elected ministers - and, indeed, much of the electorate.

Judge-made law, as distinct from measures endorsed by Parliament, has been playing a growing part in all our lives for a generation.

.....

Many lawyers think it inevitable that, over time, having been given the same title as one of the three pillars of the very different U.S. constitution, Britain's new court will seek to emulate its Washington counterpart.

[Army Air Corps]

Does this court have a Wise Latina Woman^tm?

[El Gato]

Does this court have a Wise Latina Womantm?

Probably not, but it likely will soon have, if if doesn't already, several wise "Asian" men, of the Muslim variety.

[Pontiac]

Most conspicuously in human rights and immigration cases, more and more judges hand down decisions that establish precedents and defy the expressed views of elected ministers - and, indeed, much of the electorate.

Welcome to the jungle.

Wait till they get to the special rights of the disabled, gays and minorities.

Hope you have your duct tape.

[HiTech RedNeck]

Was the House of Lords being busied out by all the chicken poop new law that came with the European Union? Did they just want a dedicated body to get their old appellate duties off their back?

[Wuli]

This problem needs to be put in a British context - Britain has no formal “Constitution”; its laws AND ITS LEGAL STRUCTURE AND, what we would call “constitutionality” has evolved by common law practice and in the “larger than life issues” by the consent of the governed, which was supplied, however efficiently or not, by the House of Lords.

Unlike the United States, in which an active and continuous legislative process has supplied, and modified a formal Constitution, as the basis of what judges are supposed to cling to in their rulings (I said supposed), there is no such formal basis that Britain’s Supreme Court can be held to, even if the Parliament wanted to.

It seems to me that the British system of law is becoming “judicial independence” run amok.

[Cicero]

Basically this happened because the House of Lords held up several of Tony Blair’s favorite bills. In particular, the bill that lowered the age of consent for homsexual relations with minors.

So Blair destroyed the ancient hereditary House of Lords. That removed a huge restraint on doing whatever the party in control of the House of Commons wants, without any limitation, since the Queen has long since lost the power to veto anything or even to speak out against it.

[GeronL]

A written Constitution would be nice. A UK Constitution, not a Eur0-splat one.

[GeronL]

Someone should write a UK Constitution and have that proposed. The EU would drop bricks.

[Humble Servant]

” Someone should write a UK Constitution and have that proposed. The EU would drop bricks. “

Would they actually read it, or pay it any more attention than the Honduran Constitution?

[GeronL]

dang, always a glitch in my plans.

last time it was the fact you can’t literally saw California off the continent

[Humble Servant]

Okay, I’ll bite if no one else will. Who or What in the Wide, Wide World of Sports is a “Panjandrum”?

[Humble Servant]

OKAY, NEVER MIND, I LOOKED IT UP MYSELF.

So can you.

[gary_b_UK]

There is, however, a safeguard of a kind. The British system is based on parlimentary soverignty, that Parliament is the supreme authority in the land. Parliament has the power to nullify ANY court ruling through an Act of Parliament.

An example that comes to mind is that before 1997 while they were in opposition, the Labour Party introduced affirmative action for selecting Parliamentary candidates, introducing all-women shortlists for target seats, preventing men from running for the Labour Party nomination in those seats. In 1996, the courts said this was a form of sex discrimination and ruled the practice illegal. When they were elected to government, the Labour Party pushed through an Act which made an exception to sex discrimination laws for political parties selecting candidates and overriding the court decision. As parliamentary soverignty applies, the courts can do nothing.

[Humble Servant]

” last time it was the fact you can’t literally saw California off the continent “

We could, and should, make Mexico take it back. It would solve a whole lot of problems at once.

[Winniesboy]

There is, however, a safeguard of a kind. The British system is based on parlimentary sovereignty

Rather an understatement, if I may say so. The sovereignty of Parliament is the key safeguard, around which the entire constitution revolves. In the latter part of his article (which is worth reading in full) Hastings argues that this is already being nibbled at. Maybe. But the new Court will not have the power to declare an Act of Parliament unconstitutional. Hastings believes this will only be a matter of time. I doubt it, but we shall see...

[Winniesboy]

So Blair destroyed the ancient hereditary House of Lords. That removed a huge restraint on doing whatever the party in control of the House of Commons wants, without any limitation.

That was undoubtedly Blair's wish. In the event, however, the (only partially) reformed House of Lords has proved remarkably resilient as a revising chamber, especially in modifying some of the more radical legislation threatening constitutional freedoms (90 days' detention without charge, etc etc).

[Wuli]

“There is, however, a safeguard of a kind. The British system is based on parlimentary soverignty, that Parliament is the supreme authority in the land. Parliament has the power to nullify ANY court ruling through an Act of Parliament.”

I am not up and what of that “final-constitutional” authority remained with Parliament AFTER the creation of the Supreme Court. If that was not changed, you are correct.