Platform: New Supreme Court will play major part in cross-Border rows

Published on Sunday 30 August 2009 22:42

IT IS often said that the United Kingdom does not have a constitution, and that its people dislike thinking constitutionally.

Arguably neither is true: the UK certainly has a constitution; it just isn't codified into a single US-style document, while recent months have demonstrated a profusion of proposed reforms, largely in response to the MPs' expenses furore.

Unlike newer democracies, however, constitutional reform in the UK is usually reactive rather than proactive; a cynical response to internal political pressures.

Devolution is a good example, although the Labour government deserves credit for one forthcoming reform that may just buck this trend.

On 1 October, the ancient judicial functions of the House of Lords will be transferred to a newly constituted Supreme Court of the United Kingdom.

Surprisingly for what the new court's website calls "a defining moment in the constitutional history" of the country, it has neither been well publicised, nor is it widely known.

There are, naturally, implications for Scotland. Although criminal appeals will remain outside the Supreme Court's jurisdiction, civil appeals from the Court of Session will now be heard in the Middlesex Guildhall rather than in the House of Lords.

Two of the new "Justices of the Supreme Court" will be Scots, the present Law Lords Hope of Craighead and Rodger of Earlsferry.

The new court completes the trio of reforms enshrined in the Constitutional Reform Act of 2005, the transfer of the Lord Chancellor's judicial responsibilities to the Lord Chief Justice and the creation of an independent Judicial Appointments Commission being the other two. Separation of these powers, proponents argued, was long overdue.

Europe also played a part. There were concerns that the historic combination of the Lords' legislative, judicial and executive power might contravene the requirements of the European Convention on Human Rights.

In other words, the Lord Chancellor and Law Lords could not be considered sufficiently impartial to provide a fair trial.

The last hearings and judgments in the House of Lords took place at the end of last month with barely a murmur. And while the initial 12 Justices will retain their membership of the Lords, none will be able to sit or vote. Their successors will not even be peers.

Meanwhile, the 2005 Act also made provision for judges of the Court of Appeal (covering England and Wales), and equivalent courts in Scotland and Northern Ireland, to sit as acting judges in the Supreme Court.

The Supreme Court will also determine what are understatedly called "devolution issues", that is, cases in which laws passed by the Northern Ireland Assembly, the National Assembly for Wales or the Scottish Parliament are called into question by the UK government.

The virtually unknown Judicial Committee of the Privy Council (located at the Whitehall end of Downing Street) currently has jurisdiction over these, admittedly rare, cases.

This role could, however, become particularly important after next year's general election.

With a cost-cutting Tory government at Westminster, and an SNP administration at Holyrood determined to maintain Scotland's preferential spending levels, the fledgling Supreme Court of the United Kingdom could find itself sorting out some messy constitutional disputes.

&#149 David Torrance is a freelance journalist and broadcaster.