A final update before the new Supreme Court replaces the House of Lords
On 30 July the current highest Court in the land, the House of Lords, made its last decision in the Debbie Purdy case. The Court heard Mrs Purdy’s plea for clarity in the law on assisted suicide. Because of the Law Lords’ decision, new guidelines will be published on 23 September regarding the prosecution of people who help others to commit suicide. Following this case the Law Lords have now passed into history. From October the new Supreme Court will make decisions on difficult areas of law. The change has been justified as a necessary modernisation, but there is some concern that this new Court may use its more extensive powers to oppose the will of Parliament.
Some of the most senior judges in the land have expressed doubts about the possibility of judges gaining greater power than they have now. Take Lord Turnbull, one of Tony Blair’s most senior advisors when the then prime minister announced the reforms to the British Constitution in 2003. He has accepted that the new Supreme Court Justices might become more assertive and more difficult for a future government to manage.
Lord Neuberger, who has stepped down as a Law Lord to become the Master of the Rolls and head of the Civil Division of the Court of Appeal, has gone even further, suggesting that the new Supreme Court was created “as a result of what appears to be a last-minute decision over a glass of whisky”. Even worse, he has also said, “The danger is that you muck around with a constitution like the British Constitution at your peril because you do not know what the consequences of any change will be.”
Should we be worried about having a stronger judiciary?
I would agree with the views of the last Lord Chancellor (the office was abolished in 2007 as a result of another constitutional reform), Lord Falconer, who also believed that the judiciary would be strengthened but pointed out: -
“The Supreme Court will be bolder in vindicating both the freedoms of individuals, and coupled with that, being willing to take on the executive.”
It is unlikely that the new Supreme Court will start forcing its views on the government of the day. What will probably happen is a change in the way government decision makers act. They will have to stop and think carefully before pushing forward changes that might be repressive to individuals or minority groups.
The reality is that Parliament has ruled supreme for hundreds of years for both good and ill. The recent MP expenses scandal neatly highlights some of the failings of our elected representatives and a Parliament that is unaccountable. Clearly, unelected individuals such as the new Justices should not have too much power, but it seems unlikely that they will have a sudden “rush of blood to the head” or “start to throw their weight around” (to quote Lord Bingham, a former Law Lord).
It can only be hoped that the risk and expense of these changes are worth it in the end. If the changes are successful, we will have an effective new independent arm of the British Constitution where people like Debbie Purdy can go to seek justice.