The Wizard of Oz knew his onions. He awarded the Cowardly Lion a medal emblazoned with the legend “Courage”. Thus fortified, the lion did indeed become courageous. In short, words matter.
Some critics fear that when the Law Lords were abolished by the Blair government and replaced with the “Supreme Court” in 2009, the designation might have gone to the heads of the judges.
The term conjures up images of the American Supreme Court, and politically contentious judgments such as the Roe v Wade abortion ruling. The speedy process by which President Trump’s nominee, Amy Coney Barrett, joined the court very shortly before the US presidential election in November 2020 was also a polarising event.
In the UK, politically sensitive rulings such as the decision of the Supreme Court to quash Boris Johnson’s prorogation of Parliament during the fraught Brexit process have caused some to wonder whether the judges are becoming too controversial, too often. The devolution settlement might throw up further difficult cases, such as what might happen if the Scottish Government were to consider staging an independence referendum without authorisation from Westminster, or the potential implications of the Northern Ireland Protocol to the Brexit deal.
Of course, the judges do not choose the cases which come before them and must do justice, without fear or favour, according to the merits of whatever happens to come across their desks. Nevertheless it may be a good time to consider various possible changes which might address some of the concerns which have been expressed. The different options, and their respective pros and cons, would need to be carefully evaluated by the Government and Parliament but might include the following:
- Rename it – it can no longer be called the “House of Lords” (it was, in fact, technically only a committee of the Lords) and we already have a Court of Appeal. Perhaps “Upper Appeal Court” might fit the bill.
- Move it out of Parliament Square – housing the Supreme Court in its own grand building in Parliament Square, directly opposite Parliament, may have been a bad idea. It was intended to emphasise the separation between the judges, on the one hand, and the legislature and the executive, on the other hand. It may be, however, that just as the House of Commons fosters an adversarial culture by having the two sets of benches face off against each other, having the Supreme Court and Parliament in each other’s eyeline across the most political piece of turf in the country does more harm than good.
- Move it to Slough - the perception of the metropolitan elite having too much power in the UK in general has gathered steam in recent years. The judges may well be keen to shed any impression that they are London-centric and might welcome a move to Slough, beyond the M25 belt but within a convenient distance. For practical reasons, a London base may ultimately remain preferable, in which case the excellent transport links of Canning Town or Ealing Southall might make these attractive locations.
- Stop making the judges life peers and calling them “Lords” – now that the Law Lords do not operate from the House of Lords, there is no reason to ennoble Supreme Court justices. They do not become life peers automatically on appointment but life peerages are still conferred on some, such as Lord Reed, the current President. Most of them simply use the title of “Lord” or “Lady” as a courtesy, but this flummery may be unnecessary. After all, almost of them will already come from the bench and been previously awarded a knighthood or damehood as a token of esteem; this is sufficient. On retirement, worthy candidates could still be considered for appointment to the Lords crossbenches if they wish to contribute to public life in that capacity and fulfil the appropriate criteria.
- Abolish the costumes – the Supreme Court judges have jettisoned their traditional horsehair wigs and ornate robes as a modernising gesture and now adopt, on ceremonial occasions, what has been compared to the costume of an extra from Star Trek. It may be preferable to abolish these costumes altogether. Judges may also prefer to leave accoutrements such as spider brooches for use at weekend dinner party soirees rather than when they are engaged on court business.
- Let the judges get on with judging – some perceive a recent tendency for there to be lots of inquiries and for lots of them to be judge-led. Allocating serving judges to what can often be extremely long-running inquiries (such as those relating to “Bloody Sunday” or “Phone-hacking”, for example) may not be the best use of what is a very scarce resource. Retired judges may often be able to fill the role instead, as in the case of the Grenfell Tower inquiry.
- Let a well of expertise develop – of the 11 Supreme Court justices, it is remarkable that 9 of them have been appointed since October 2017 and the most experienced member only joined in 2012. In judicial terms, this may be seen as a young and inexperienced court, although of course each justice brings experience from having served elsewhere before joining the Supreme Court. Lawyers of a certain vintage tend to think of judges like Lord Denning and Lord Wilberforce as being a forceful presence on the bench over a period of several decades, during which they have made a sustained contribution to the incremental development of the law. Vagaries of illness, death and retirement etc will always be there but in general it would be desirable to limit the turnover of the judges and to make appointments with a view to the judge settling into a steady, long-term spell on the bench.
These sorts of considerations, and many more besides, should be properly evaluated by the relevant authorities. Not all carry equal weight and indeed some of them may be cosmetic but as we know from the Cowardly Lion, words and optics count for something. We mention these suggestions not by way of any endorsement but to illustrate the types of concerns which some observers may feel. It would be for the benefit of the public as a whole for the Supreme Court to operate on a basis which attracts the widest possible confidence and few would doubt that it would be possible for the current arrangements to be improved.
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