UK LEGISLATION SYSTEM

UK Legislation System



UK Legislation System

Introduction

On the 1 October 2009 the new Supreme Court assumed the judicial role of the House of Lords and is now the highest appellate court in the UK. Its jurisdiction covers all matters under English law, Welsh law, Northern Irish law and Scottish civil law and like the previous Appellate Committee of the House of Lords will focus on cases that raise points of law of general public importance. The court does not have any authority over criminal cases in Scotland where the High Court of Justice remains the supreme criminal court. The new UK Supreme Court also has jurisdiction to determine devolution disputes, previously held by the Judicial Committee of the Privy Council, in which the legal powers of the three devolved governments or laws made by the devolved legislatures are questioned.

The new Supreme Court is housed in the former Middlesex Guildhall on the western side of Parliament Square and forms part of a pre-existing quadrangle made up of the Houses of Parliament, Westminster Abbey and Treasury. This new location is highly symbolic of the UK's separation of powers, balancing judiciary and legislature across Parliament Square, with the other two sides occupied by the executive (the Treasury building) and the church (Westminster Abbey).

Background to the New Supreme Court

The Supreme Court transfers judicial authority away from the House of Lords by taking over the judicial functions of the former Judicial Committee, the continued existence of which was seen as infringing upon the principle of the separation of powers between the legislature and judiciary. Reformers expressed concerns that the historical mix of legislative, judicial and executive power in the UK might conflict with the state's obligations under the European Convention on Human Rights where Article 6 guarantees the right to a fair trial. It was argued that this put the independence and impartiality of the courts at risk. The pressure for reform therefore prevailed and under the Constitutional Reform Act 2005, which purports to guarantee judicial independence, provision was made for the creation of the new Supreme Court.

The proposals concern, inter alia, the status of the Law Lords, and judicial appointments. Keeping judicial appointment apolitical and focused on judicial integrity is of critical importance, lest our judiciary go the way of America's. I am unsure whether the government's proposals are good or bad in this regard - their aims seem to include making the judiciary more "representative" of particular groups within UK society. Criminals constitute an important group within society, but are not so to be "represented" within the ranks of the judiciary, which strikes me at least as anomalous, but I can see how it might be justified.

Separation of Powers

The other "biggie" is the formal separation of judiciary and legislature, motivated by the "separation of powers" doctrine. I've never been a fan of the separation of powers idea, which was based on an 18th century author's misunderstanding of a foreign country's constitution. That foreign country was in fact England (the author was French), but ...