Appeal of a Supreme Court May Be Limited

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THERE is now such distrust of this Labour Government that it is natural its proposals for the creation of a United Kingdom Supreme Court should be greeted with suspicion. It's not only the bastions of the existing order who are likely to ask: 'To what problem is the creation of a supreme court the solution?' and to answer: 'No problem at all.' In other words, if it's not broke, don't try to fix it.

Admittedly, it is odd that our most senior judges, charged with the administration of the law at the highest level, should also be members of the legislative body. Their involvement in lawmaking as members of the House of Lords may well be an anomaly.

Defenders of the system say it's aye been and works well. Nevertheless, one recently retired and very senior Scottish judge told me he has always regarded it as unsatisfactory.

Lawmaking, he said, should be distinct from the administration of the law.

There should be a separation of the legislative and judicial powers. We now, of course, have such a clear separation here in Scotland where purely Scottish legislation is concerned.

If the proposals for a Supreme Court, as outlined by Lord Falconer this week, go ahead, there will be an equally clear separation of powers as regards UK legislation too. In practice, one may remark, this will probably make very little difference, even if it makes more logical sense.

Many of Lord Falconer's proposals are irrelevant to Scotland.

We have our own recently reformed way of appointing judges in the shape of the Scottish Judicial Appointments Board, intended to diminish political influence in judicial appointments. These appointments were formerly made by the Lord Advocate, himself a political appointment and often, though not always, a party politician. I say not always because, when Mrs Thatcher made the future Lord Mackay of Clashfern Lord Advocate in 1979, someone said to him, 'I didn't know you were a Tory, James,' and got the reply, 'Nor did I,' or so the story goes.

In two areas, however, the proposed Supreme Court does impinge on Scotland.

First, it will have transferred to it the power, which now rests with the Judicial Committee of the Privy Council, to declare laws passed by the Scottish parliament ultra vires, that is, beyond its powers as laid down in the Scotland Act. It will not have the same power over laws passed by the UK Parliament.

SOME will object to this. Yet the reason for the distinction is clear. The powers of the Scottish parliament are restricted, defined by the Scotland Act. …