Vol. 14 No.12 (December 2004), pp.953-955

BUILDING THE UK’S NEW SUPREME COURT: NATIONAL AND COMPARATIVE PERSPECTIVES, by Andrew Le Sueur (ed).  New York, N.Y.: Oxford University Press, 2004. 376pp. Hardback.  £50.00 / $90.00. ISBN 0-19-926462-7.

Reviewed by Carla Thorson, World Affairs Council of Northern California.  E-mail: cthorson@wacsf.org

For more than three hundred years the doctrine of parliamentary supremacy has limited the power of the judiciary in the United Kingdom.  In June 2003, the Labor government challenged this principle, by announcing its intention to abolish the office of Lord Chancellor and to establish a new Supreme Court for the U.K.  According to the Department of Constitutional Affairs, “the government’s proposal [is] to remove the jurisdiction of the Appellate Committee of the House of Lords and transfer it to a new Supreme Court.  This would be a Supreme Court for the United Kingdom, and would be quite separate from the England and Wales or Scottish or Northern Ireland courts.  The present Lords of Appeal in Ordinary (the 12 full-time Law Lords) would form the initial members of the new court.  They would cease, while members of the court, to be able to sit and vote in the House of Lords.  There is no proposal to establish a Supreme Court on the US model with the power to overturn legislation.  Nor is there any proposal to create a specific constitutional court, or one whose primary role would be to give preliminary rulings on difficult points of law” (DCA 2003).  Thus, while a new UK Supreme Court may be a first step toward separating the power of the judiciary from that of the British Parliament, this constitutional reform is by no means the death knell for parliamentary supremacy.  In effect, this institution will be independent from Parliament as opposed to being a committee of the upper house, but its power relative to Parliament may vary little as a result of the separation.

How will this new Supreme Court be constituted and what jurisdiction might it assume?  This is the nominal focus of Andrew Le Sueur’s edited volume, BUILDING THE UK’S NEW SUPREME COURT.  While, the government’s 2003 proposal suggests that there will be little change in the powers of the judiciary vis à vis parliament, the contributors to Le Sueur’s volume offer informed speculation about what the court might be empowered to do in light of the devolution Acts and the EU Human Rights Act of 1998.  They also compare the issues that the court may face and its powers relative to those of other constitutional courts in Europe.

The volume is thus a bit premature; even the authors admit, “In the UK, we do not (at the time of writing) know what ‘it will be like’ to have a new supreme court.” (p.13)  In fact, the collection deals with a much broader agenda, namely reforming the UK’s top courts. It is based on two seminars on this topic held in 2001 in London and Edinburgh.  Three very general themes provide some organization to the essays by fourteen scholars, lawyers and barristers.  First, [*954] some of the essays deal with the question of how a UK Supreme Court will be reconciled with the existing court system and with national differences among the judiciaries within the United Kingdom.  Second, there are discussions that focus on the comparative lessons from high courts in other legal systems.  Third, the analyses consider the relationship between this Supreme Court and other courts, including the intermediate courts of appeal, the European Court of Justice, and the European Court of Human Rights.

On each of these three themes, there are several contributions.  First, on national questions: does devolution mean that a new UK Supreme Court should exercise “whole UK jurisdiction” and take powers previously reserved to the Privy Council?  This issue, along with other challenges of devolution, is discussed by Kay Goodall, and Aidan O’Neill relative to the Scottish courts and Brice Dickson in terms of Northern Ireland’s legal system.  Second, if we think about the British court structure in a federal context, what are the potential effects of establishing a high court at the apex of a federal legal system? Andrée Lajoie, Warren J. Newman, Ignacio, and Borrajo Iniesta offer discussions of how courts have faired in similar contexts, particularly Canada, Spain and Germany.  The comparative analyses in these chapters do at least relate to some of the issues that a new UK Supreme Court may face if it is given some autonomy from Westminister.

The third and final theme is addressed in a disparate set of analyses on issues related to various European Courts.  These chapters do not seem to mesh well with the nominal theme of the book, nor do they relate well with one another or the other chapters in the book.  David Anderson considers the European Court of Justice and the European Court of Human Rights and the House of Lords, while Charles Blake and Gavin Drewry consider the Court of England and Wales as an intermediate court of appeal.  Then Russell Wheeler relates these points to the appellate system and the Supreme Court in the United States.  Andrew Le Sueur discusses how cases are selected for hearing by top level courts in Common Law legal systems, while the final two contributions by Kate Malleson and Richard Gordon consider the selection of judges and the relationship between the high courts and the legal profession.

While each author presents interesting cogent arguments regarding the ways in which the highest court in the United Kingdom might be reformed, or on the ways in which the court system as a whole might be changed and improved in light of the experience of other European and North American legal systems, in total the analysis does not adequately reflect the title theme of the book, BUILDING THE UK’S NEW SUPREME COURT.  On their own, the essays might make good journal articles, but together they do not make a coherent volume.  I recommend them individually to those who are interested in the particular subject of each contribution.  We will have to wait for more progress on constitutional change in the United Kingdom for an analysis of building the “UK’s new Supreme Court.”

REFERENCES:

Department of Constitutional Affairs.  2003. “Constitutional Reform: A Supreme Court for the United [*955] Kingdom.” Consultation Paper, July 2003.  Available online at http://www.dca.gov.uk/consult/supremecourt/supreme.pdf .

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© Copyright 2004 by the author, Carla Thorson.