SUPREME FOLLY; Dreamt Up by Tony Blair 'Over a Glass of Whisky', the Supreme Court - Which,within Days,will Hold Sway over British Law - Is a Constitutional Disaster in the Making

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Byline: by Max Hastings

A FEW days from now, a major constitutional innovation will take effect. The Supreme Court, created by Tony Blair, will open for business at the expensively revamped Middlesex Guildhall in Parliament Square. It replaces the House of Lords as the highest judicial appellate body in the land.

Twelve judges chosen by an appointments commission will hear cases which, unprecedentedly, will be recorded on film.

Even before the first words have been spoken in its chamber, fierce controversy attends the new creation. Many judges are furious about the manner in which this momentous change has been introduced, in furtherance of a Downing Street whim.

Back in 2003, Blair's aggressively assertive old mentor, windbag and claretlover, the Lord Chancellor Derry Irvine, allowed his conceit to overreach itself.

Irvine believed that his relationship with the Prime Minister empowered him to say what he liked, including expressing views on sentencing policy that were completely at odds with those of the then Home Secretary, David Blunkett.

Blair astonished not only Irvine but the legal world by sacking his Lord Chancellor and decreeing a wholly new dispensation for the top tier of Britain's judiciary.

None of the law's grand panjandrums was consulted. Nobody, as far as is known, gave serious thought to the consequences for Britain's political system of wrenching a centuries-old system onto a new template. The outcome, six years later, is that the British people are getting a Supreme Court whether we like it or not.


Lord Neuberger, a former Law Lord who has been appointed Master of the Rolls, has caused a ferment by declaring that a major change in the constitution has occurred 'as a result of what appears to have been a last-minute decision over a glass of whisky'.

He told the legal commentator Joshua Rozenberg: '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'.

Several of Lord Neuberger's colleagues, including some who will sit on the new court, have made plain that they share his concerns. The danger with inventing a body which is titled 'Supreme', such as Britain has never before possessed, is that sooner or later it will begin to act in a supreme fashion.

For centuries, the nation has been governed on the basis of a fundamental principle: our elected Parliament makes law, and represents the highest arbitrator of the public interest. Yet over the past 30 years, and especially since the coming of the 1997 Labour Government, real power in Britain has shifted. Prime Ministers behave ever more like Presidents. The importance of the House of Commons has ebbed, as MPs become mere lobby-fodder, fulfilling Downing Street's bidding. Local authorities have been deprived of most of their historic rights. Globalisation has shrunk the authority of national governments. Devolution has transferred many Westminster responsibilities to Edinburgh and Cardiff.

The EU has assumed powers which override the sovereignty of national parliaments. And, as a consequence, the role of judges has dramatically expanded, as interpreters of European law.

Most conspicuously in human rights and immigration cases, more and more judges hand down decisions that establish precedents and defy the expressed views of elected ministers -- and, indeed, much of the electorate.

Judge-made law, as distinct from measures endorsed by Parliament, has been playing a growing part in all our lives for a generation. The electorate has never been asked whether this is an innovation it welcomes, or even wishes to accept; we are merely told this is the way things are.

Even before the Supreme Court was thought of, judges have been extending their discretionary powers to the limits, and sometimes beyond. …