Or Just a New Supreme Court?

One of the most significant changes in the judicial system of England and Wales is the introduction of a brand new institution, which will be totally different from all the bodies existing within the system so far – the new Supreme Court.

The new Supreme Court is supposed to put the relationship between the executive, the legislature and the judiciary on a modern footing respecting the separation of powers between the three. The functions of the highest courts in the land are currently divided between the House of Lords (the Appellate Committee) and the Judicial Committee of the Privy Council. The Appellate Committee of the House of Lords receives appeals from the courts in England and Wales and Northern Ireland, and in civil cases from Scotland. The Judicial Committee of the Privy Council, in addition to its overseas and ecclesiastical jurisdiction, considers questions as to whether the devolved administrations, the Scottish Parliament, the National Assembly for Wales and the Northern Ireland Assembly are acting within their legal powers. The Human Rights Act 1998 which made the European Convention on Human Rights a part of English domestic law makes stricter requirements to ensuring independence and impartiality of the judicial system. It raises questions about whether there is sufficient independence from the executive and the legislature when the highest court of appeal is situated within one of the chambers of Parliament. The Government believes that the creation of a separate Supreme Court will be an important part of the reforms which will rearrange the relationship between the Judiciary, the Government and Parliament to preserve and increase independence of English judges.

The idea of the reform of the highest court in the land is about abolishing the jurisdiction of the House of Lords within the UK’s judicial system and vesting the functions currently performed by the Appellate Committee of the House of Lords in a new Supreme Court which will by no means be connected to Parliament. It should be understood that this will not be a Supreme Court based on the US model with the power to strike down and annual legislation and assert the primacy of the constitution. Nor will it be a constitutional court based on the German model or a court which would give definitive rulings on difficult points of law the way the European Court of Justice does. A Supreme Court along one of such models would be a departure from the UK’s constitutional traditions where Parliament is supreme. Regardless of the membership in the European Union and the Human Rights Act this principle remains intact.

As regards the Judicial Committee of the Privy Council it also acts as the final court of appeal for a number of Commonwealth and overseas territory jurisdictions, as well as for the Crown Dependencies. In that capacity, it is acting as a court of appeal for independent jurisdictions and it seems that it is going to continue to provide this important function. Instead of the Lords of Appeal in Ordinary being appointed to the Judicial Committee, the members of the Supreme Court will be so appointed.

The initial members of the new Supreme Court will be the existing Lords of Appeal in Ordinary. The Government proposes that members of the Supreme Court should lose the right to sit and vote in the House while they are members of the Supreme Court. Anyone who is a member of the House before joining the Court will retain the peerage and title, and will be free to return to the House when he or she ceases to sit on the Court. It is proposed that the members of the Court will be appointed on the same basis as senior judges now are. That is, they will be appointed during good behaviour, but may be removed by Her Majesty on the address of both Houses of Parliament. The statutory retirement age is likely to be fixed at 75, so that each member can be assured of comparatively long tenure and the Court enjoys some stability.

The new Supreme Court will be the highest court in all three jurisdictions in the realm, i.e. it will be the supreme court of the United Kingdom. There is, however, already the Supreme Court of England and Wales, which consists of the Court of Appeal, the High Court and the Crown Court by virtue of the Supreme Court Act 1981. In Scotland the term ‘Supreme Court’ has also been used to refer to the Court of Session and the High Court of Justiciary collectively. There is also a Supreme Court of Northern Ireland. However, to avoid confusion, in the future the title of Supreme Court will be reserved for the Court to be created as a result of this constitutional reform. The new Court cannot become part of any of the existing Supreme Court because its authority will extend to all three jurisdictions.

TASK 9. Find in the text above the English equivalents for the following key words and expressions and use them in sentences of your own.

1. Верховный уголовный суд Шотландии
2. Сессионный суд (высший суд по гражданским делам в Шотландии)
3. судьи-члены апелляционного комитета палаты лордов
4. старший судья
5. пенсионный возраст
6. внутреннее право государства / внутригосударственное право
7. пребывание в должности
8. действовать в пределах предусмотренной законом компетенции
9. отменять законодательство
10. администрации с делегированными полномочиями
11. занимать должность пожизненно при условии надлежащего поведения
12. предъявлять более строгие требования
13. обеспечивать независимость и беспристрастность судебной системы
14. передать функции новому Верховному суду
15. утверждать верховенство конституции
16. выносить окончательные решения по сложным вопросам права
17. сохранить звание и титул пэра
18. на основании Акта (закона) о Верховном суде

TASK 10. Fill each gap with the appropriate preposition from the box. Some prepositions can be used more than once:

during, in, on, from, within

1. The new Supreme Court is supposed to put the relationship between the executive, the legislature and the judiciary … a modern footing.
2. The Judicial Committee of the Privy Council considers questions as to whether the devolved administrations, the Scottish Parliament, the National Assembly for Wales and the Northern Ireland Assembly are acting … their legal powers.
3. The idea of the reform of the highest court in the land is about […] vesting the functions currently performed by the Appellate Committee of the House of Lords … a new Supreme Court.
4. A new Supreme Court would be a departure … the UK’s constitutional traditions.
5. The members of the Court will be appointed … the same basis as senior judges now are, that is, they will be appointed … good behaviour.

TASK 11. Speak on the following in the context of the judicial reform, making use of the key words and expressions in the text.

• The structure of the new Supreme Court, its membership and functions.
• The changes in the House of Lords.
• The role of the Judicial Committee of the Privy Council.

UNIT 10. LEGAL PROFESSION – ‘OUT ON ITS OWN’