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the supreme
Lords who previously sat there now sit as justices in the new Supreme Court.
On 1 October 2009, the House of Lords was replaced by a new Supreme Court
as the upper chamber of parliament, continues to exist, but now the 12 Law
as the highest court within the English legal system. The House of Lords,
On 1 October 2009, the House ¤ The legislature is the body Courts may issue a declaration
of Lords was replaced by a new within the constitution in of incompatibility, but such a
Supreme Court as the highest which the power of making declaration does not invalidate
court within the English legal law is located. Under the legislation in question
system. The House of Lords, democratic constitutions and any action to remedy the
as the upper chamber of the body will normally be conflict must be undertaken by
parliament, continues to exist, elected. In the UK, Parliament the legislature.
but its membership has been is bicameral and is made of ¤ The executive, as its name
reduced by the 12 Law Lords the House of Commons and suggests, is the institution that
who previously sat there, and the House of Lords. It is also executes the law, ie carries
who now sit as justices in the worth stating that in countries it into effect. It is essentially
new Supreme Court. with a written constitution and the government operating
a strong separation of powers, through the instrument of
The Separation of Powers there are limits to the power the state, such as the civil
The idea of the separation of of the legislature to make law, service and other state
powers, which can be traced in that it is not permissible for functionaries. In theory, the
back to ancient Greek political laws to be made which conflict executive implements, rather
philosophy, is based on the with the rights provided under than creates, the law and is
existence of three distinct the constitution. If any such subject to the scrutiny of the
functions of government (the law is passed, it is open to legislature and the judiciary.
legislative, executive and judicial challenge in the courts, which ¤ The judiciary’s role is to decide
functions) and the conviction may strike it down as being issues in relation to the law
that these functions should be unconstitutional. However, of the state in which they are
kept apart in order to prevent the UK has no written located. A corollary of this
the centralisation of too constitution as such and description is the conclusion
much power. functions under the doctrine that it is not the function of the
of parliamentary sovereignty. judges to make law.
This effectively means that
Parliament is not just the
ultimate source of law, but
it can make such law as it
determines, which cannot be
challenged in the courts as to
its content. Even the Human
Rights Act 1998, which
introduced the European
Convention of Human Rights
and Fundamental Freedoms
into UK law, maintains the
doctrine of parliamentary
sovereignty to the extent that
the courts cannot declare
primary legislation to be
invalid on the grounds that it
conflicts with the convention.
student accountant issue 01/2010
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court
The fact that, before October The Court of Sessions held ¤ The 12 judges of the Supreme
Supreme Court, which was the title previously given to the High
2009, the highest court in the UK that Lord Hardie should at Court are titled Justices of
was located in, and constituted least have declared his previous the Supreme Court and will
This new Supreme Court should not be confused with the old
part of, the country’s legislative interest in the matter and that, no longer be allowed to sit
body was always considered at in the light of his failure to do as members of the House of
least somewhat anomalous. Such so, there was at least the real Lords. As a matter of fact, all
Court and Court of Appeal. In future those courts will be
a situation was clearly contrary possibility of bias, and ordered of the present members are
to any idea of the separation the case to be retried. life peers and as a result will
of powers and one that was The enormous historical be able to sit in the House of
known as the Senior Courts of England and Wales.
not lost on Lord Falconer, the change involved in remedying Lords on their retirement from
former Lord Chancellor, who the unsustainable situation their judicial office, but this
in 2005 explained the need for was brought about by the may not always be the case in
reform thus: implementation of Part 2 of the the future.
Constitutional Reform Act 2005, ¤ The immediately previously
The present position is no longer which provided for the following: serving Law Lords became the
sustainable. It is surely not ¤ The establishment of the new first Justices of the Supreme
right that those responsible for independent Supreme Court, Court, and Lord Phillips, the
interpreting the law should be able separate from the House of former Lord Chief Justice, was
to have a hand in drafting it. The Lords with its own independent appointed the first President
time has come for the UK’s highest appointments system, its own of the Supreme Court. In fact,
court to move out from under the staff and budget and its own only 11 of the previous Lords
shadow of the legislature. building: Middlesex Guildhall. of Appeal in Ordinary have
This new Supreme Court taken positions as Justices
The relevance of Lord Falconer’s should not be confused with of the Supreme Court, Lord
argument was given added the old Supreme Court, which Neuberger, instead, taking the
power by the decision of the was the title previously given position of Master of the Rolls
Scottish Court of Sessions, to the High Court and Court of in the Court of Appeal.
the equivalent of the Court of Appeal. In future those courts
Appeal, in Davidson v Scottish will be known as the Senior As has been stated above, in
Ministers (No 2) (2002). The case Courts of England and Wales. other constitutional systems,
involved a challenge to a previous both civil, as in France, or
court decision, on the grounds common law, as in the US,
of Article 6 of the ECHR, for the not only is there a clear
reason that one of the judges separation of powers between
in the earlier case, the former the judiciary, the executive and
Lord Advocate Lord Hardie, had the legislature, but there is also
spoken on the issue before the a distinct Constitutional Court
court while a member of the with the power to strike down
Scottish Assembly. legislation on the grounds of its
being unconstitutional.
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