Supreme Court of the United Kingdom
|Supreme Court of the United Kingdom|
|Established||1 October 2009|
|Location||Middlesex Guildhall, Parliament Square, London, England|
|Composition method||Appointed by the Monarch on the advice of the Prime Minister, following approval of a recommendation by the Secretary of State for Justice|
|Authorized by||Constitutional Reform Act 2005 Section 23(1)|
|Number of positions||12|
|Currently||Lord Reed of Allermuir|
|Since||13 January 2020|
|Since||27 January 2020|
The Supreme Court (initialism: UKSC or the acronym: SCOTUK) is the final court of appeal in the United Kingdom for all civil cases, as well as for criminal cases originating in England, Wales and Northern Ireland. It also hears cases of the greatest public or constitutional importance affecting the whole population.
The Court usually sits in the Middlesex Guildhall in Westminster, though it can sit elsewhere and has, for example, sat in the Edinburgh City Chambers, the Royal Courts of Justice in Belfast, and the Tŷ Hywel Building in Cardiff.
The United Kingdom has a doctrine of parliamentary sovereignty, so the Supreme Court is much more limited in its powers of judicial review than the constitutional or supreme courts of some other countries. It cannot overturn any primary legislation made by Parliament. However, as with any court in the UK, it can overturn secondary legislation if, for an example, that legislation is found to be ultra vires to the powers in primary legislation allowing it to be made.
Further, under section 4 of the Human Rights Act 1998, the Supreme Court, like some other courts in the United Kingdom, may make a declaration of incompatibility, indicating that it believes that the legislation subject to the declaration is incompatible with one of the rights in the European Convention on Human Rights. Such a declaration can apply to primary or secondary legislation. The legislation is not overturned by the declaration, and neither Parliament nor the government is required to agree with any such declaration. However, if they do accept a declaration, ministers can exercise powers under section 10 of the Human Rights Act to amend the legislation by statutory instrument to remove the incompatibility or ask Parliament to amend the legislation.
As authorised by the Constitutional Reform Act 2005, Part 3, Section 23(1), the Supreme Court of the United Kingdom was formally established on 1 October 2009 and is a non-ministerial government department of the Government of the United Kingdom. Section 23 of the Constitutional Reform Act limits the number of judges on the Court to 12, though it also allows for this rule to be amended, to further increase the number of judges, if a resolution is passed in both Houses of Parliament.
It assumed the judicial functions of the House of Lords, which had been exercised by the Lords of Appeal in Ordinary (commonly called "Law Lords"), the 12 judges appointed as members of the House of Lords to carry out its judicial business as the Appellate Committee of the House of Lords. Its jurisdiction over devolution matters had previously been exercised by the Judicial Committee of the Privy Council.
The creation of a Supreme Court for the United Kingdom was first mooted in a consultation paper published by the Department of Constitutional Affairs in July 2003. Although the paper noted that there had been no criticism of the then-current Law Lords or any indication of an actual bias, it argued that the separation of the judicial functions of the Appellate Committee of the House of Lords from the legislative functions of the House of Lords should be made explicit. The paper noted the following concerns:
- Whether there was any longer sufficient transparency of independence from the executive and the legislature to give assurance of the independence of the judiciary.
- The requirement for the appearance of impartiality and independence limited the ability of the Law Lords to contribute to the work of the House itself, thus reducing the value to both them and the House of their membership.
- It was not always understood by the public that judicial decisions of "the House of Lords" were in fact taken by the Appellate Committee and that non-judicial members were never involved in the judgments. Conversely, it was felt that the extent to which the Law Lords themselves had decided to refrain from getting involved in political issues in relation to legislation on which they might later have had to adjudicate was not always appreciated. The first President of the Court, Lord Phillips of Worth Matravers, claimed that the old system confused people and that with the Supreme Court there would for the first time be a clear separation of powers among the judiciary, the legislature and the executive.
- Space within the House of Lords was at a constant premium and a separate supreme court would ease the pressure on the Palace of Westminster.
The main argument against a new Supreme Court was that the previous system had worked well and kept costs down. Reformers expressed concern that this second main example of a mixture of the legislative, judicial and executive might conflict with professed values under the Universal Declaration of Human Rights. Officials who make or execute laws have an interest in court cases that put those laws to the test. When the state invests judicial authority in those officials or even their day-to-day colleagues, it puts the independence and impartiality of the courts at risk. Consequently, it was hypothesised closely connected decisions of the Law Lords to debates had by friends or on which the Lord Chancellor had expressed a view might be challenged on human-rights grounds on the basis that they had not constituted a fair trial.
Lord Neuberger of Abbotsbury, later President of the Supreme Court, expressed fear that the new court could make itself more powerful than the House of Lords committee it succeeded, saying that there is a real risk of "judges arrogating to themselves greater power than they have at the moment". Lord Phillips said such an outcome was "a possibility", but was "unlikely".
The reforms were controversial and were brought forward with little consultation but were subsequently extensively debated in Parliament. During 2004, a select committee of the House of Lords scrutinised the arguments for and against setting up a new court. The Government estimated the set-up cost of the Supreme Court at £56.9 million.
The first case heard by the Supreme Court was HM Treasury v Ahmed, which concerned "the separation of powers", according to Phillips, its inaugural President. At issue was the extent to which Parliament has, by the United Nations Act 1946, delegated to the executive the power to legislate. Resolution of this issue depended upon the approach properly to be adopted by the court in interpreting legislation which may affect fundamental rights at common law or under the European Convention on Human Rights.
One of the most important cases presented to the Supreme Court was the joint cases of R (Miller) v The Prime Minister and Cherry v Advocate General for Scotland, known as Miller/Cherry. It is one of only two cases that involved the presence of 11 judges (the highest number of judges currently allowed to rule on a case). The case carried a large amount of political tension in the context of the process of the United Kingdom leaving the European Union; reactions to the ruling "delighted 'Remainers' but appalled 'Leavers'".
Jurisdiction and powers
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From the Supreme Court —
The Supreme Court is the final court of appeal in the UK for civil cases, and for criminal cases from England, Wales and Northern Ireland. It hears cases of the greatest public or constitutional importance affecting the whole population.
For Scottish civil cases decided prior to September 2015, permission to appeal from the Court of Session was not required and any such case can proceed to the Supreme Court of the United Kingdom if two advocates certify that an appeal is suitable. The entry into force of the Courts Reform (Scotland) Act 2014 has essentially brought the procedure for current and future Scottish civil cases into line with England, Wales and Northern Ireland, where permission to appeal is required, either from the Court of Session or from a Justice of the Supreme Court itself.
The Supreme Court's focus is on cases that raise points of law of general public importance. As with the former Appellate Committee of the House of Lords, appeals from many fields of law are likely to be selected for hearing, including commercial disputes, family matters, judicial review claims against public authorities and issues under the Human Rights Act 1998.
The Supreme Court only exceptionally hears criminal appeals from the High Court of Justiciary (the criminal appeals court in Scotland) with respect to "devolution issues".
The Supreme Court also determines "devolution issues" (as defined by the Scotland Act 1998, the Northern Ireland Act 1998 and the Government of Wales Act 2006). These are legal proceedings about the powers of the three devolved administrations—the Northern Ireland Executive and Northern Ireland Assembly, the Scottish Government and the Scottish Parliament, the Welsh Government and Senedd Cymru. Devolution issues were previously heard by the Judicial Committee of the Privy Council and most are about compliance with rights under the European Convention on Human Rights, brought into national law by the Devolution Acts and the Human Rights Act 1998.
Panels and sittings
All twelve justices do not all hear every case. Unless there are circumstances requiring a larger panel, a case is usually heard by a panel of five justices. More than five justices may sit on a panel where the case is of "high constitutional importance" or "great public importance"; if the case raises "an important point in relation to the European Convention on Human Rights"; if the case involves a conflict of decisions among the House of Lords, Judicial Committee of the Privy Council, or Supreme Court; or if the Court "is being asked to depart, or may decide to depart from" its previous precedent. The composition of panels is ultimately determined by the President.
To avoid a tie, all cases are heard by a panel containing an odd number of justices. Thus, the largest possible panel for a case is 11 justices. To date, there have been only two occasions (both involving matters of major constitutional importance) heard by 11 justices: the case of R (Miller) v Secretary of State for Exiting the European Union (argued in 2016 and decided in 2017) and the cases of R (Miller) v The Prime Minister and Cherry v Advocate General for Scotland (argued and decided in 2019).
Other "supreme courts" in the United Kingdom
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Prior to 1 October 2009, there were two other courts known as "the supreme court", namely the Supreme Court of England and Wales (known as "the Supreme Court of Judicature", prior to the passing and coming-into-force of the Senior Courts Act 1981), which was created in the 1870s under the Judicature Acts, and the Supreme Court of Judicature of Northern Ireland, both of which consisted of a Court of Appeal, a High Court of Justice and a Crown Court. When the provisions of the Constitutional Reform Act 2005 came into force these became known as the Senior Courts of England and Wales and the Court of Judicature of Northern Ireland respectively.
The Judicial Committee of the Privy Council also retains jurisdiction over certain matters. By Section 4 of the Judicial Committee Act 1833, the Sovereign may refer any matter whatsoever to the Judicial Committee of the Privy Council to provide advice, although this does not confer judicial authority.
The judicial functions of the House of Lords have all been abolished, other than the trial of impeachments, a procedure which has been obsolete for 200 years.
The court is composed of the President and Deputy President and ten other Justices of the Supreme Court, all with the style of "Justices of the Supreme Court" under section 23(6) of the Constitutional Reform Act. The President and Deputy President of the court are separately appointed to those roles.
The ten Lords of Appeal in Ordinary (Law Lords) holding office on 1 October 2009 became the first judges of the twelve-member Supreme Court. The eleventh place on the Supreme Court was filled by Lord Clarke (formerly the Master of the Rolls), who was the first justice to be appointed directly to the Supreme Court. One of the former Law Lords, Lord Neuberger, was appointed to replace Clarke as Master of the Rolls, and so did not move to the new court. Lord Dyson became the twelfth and final judge of the Supreme Court on 13 April 2010. In 2010, Queen Elizabeth II granted justices who are not peers use of the title Lord or Lady, by warrant under the royal sign-manual.
In addition to the twelve permanent judges, the President may request other senior judges drawn from two groups to sit as "acting judges" of the Supreme Court.
- The first group are those judges who currently hold 'office as a senior territorial judge': judges of the Court of Appeal of England and Wales, judges of the Court of Appeal of Northern Ireland and judges of the First or Second Division of the Inner House of the Court of Session in Scotland.
- The second group are known as the 'supplementary panel'. The President may approve in writing retired judges' membership of this panel if they are under 75 and are (a) former supreme court justices or (b) former 'senior territorial judges'. A list of those currently appointed is to be found on the Supreme Court website. (The system is similar to senior status in the United States Federal Courts of Appeal, although there are important differences: for example, a judge on the supplementary panel does not receive a salary).
Qualification for appointment
Section 25 of the Constitutional Reform Act 2005 details the necessary requirements for a person to be eligible for appointment to the Court. A person is qualified for appointment if they have, at any time:
- held high judicial office for a period of at least 2 years or
- been a qualified practitioner for at least 15 years.
To hold high judicial office includes; being a High Court Judge of England and Wales, or of Northern Ireland; a Court of Appeal Judge of England and Wales, or of Northern Ireland; or a Judge on the Court of Sessions. A person is a qualified practitioner if they are an advocate in Scotland or a solicitor entitled to appear in the Court of Session and the High Court of Justiciary; or a member of the Bar of Northern Ireland or a solicitor of the Court of Judicature of Northern Ireland.
The Constitutional Reform Act 2005 makes provision for a new appointment process for Justices of the Supreme Court. An independent selection commission is to be formed when vacancies arise. This is to be composed of the President of the Supreme Court (the chair), another senior UK judge (not a Supreme Court Justice), and a member of the Judicial Appointments Commission of England and Wales, the Judicial Appointments Board for Scotland and the Northern Ireland Judicial Appointments Commission. By law, at least one of these cannot be a lawyer. However, there is a similar but separate commission to appoint the next President of the Supreme Court, which is chaired by one of the non-lawyer members and features another Supreme Court Justice in the place of the President. Both of these commissions are convened by the Secretary of State for Justice (Lord Chancellor). In October 2007, the Ministry of Justice announced that the appointment process would be adopted on a voluntary basis for appointments of Lords of Appeal in Ordinary.
The commission selects one person for the vacancy and notifies the Secretary of State for Justice of its choice. The Secretary of State for Justice then either
- approves the commission's selection
- rejects the commission's selection, or
- asks the commission to reconsider its selection.
If the Secretary of State for Justice approves the person selected by the commission, the Prime Minister must then recommend that person to the Monarch for appointment.
New judges appointed to the Supreme Court after its creation will not necessarily receive peerages; however, they are given the courtesy title of Lord or Lady upon appointment. The President and Deputy President are appointed to those roles rather than being the most senior by tenure in office.
List of current judges
There are currently 12 judges. The most recent Justice to join the court is Lady Rose of Colmworth, who was invested on 13 April 2021 following the retirement of Lady Black of Derwent. In order of seniority, they are as follows:
The UK Supreme Court has since its inception sent some of its justices to sit on Hong Kong’s top court, the Court of Final Appeal. This practice was established when the Court of Final Appeal was first set up in 1997, and before the founding of the UK Supreme Court, when the House of Lords was still the final appellate court in the UK. When British justices sit on the top court of Hong Kong, they are required by law to take the judicial oath with the pledge of allegiance to the Hong Kong SAR of the People’s Republic of China. Because of that, they are not "overseas judges" as many mistakenly assume. They become local Hong Kong judges themselves. Along with their oaths taken to be justices of the UK Supreme Court, these judges owe a double allegiance and serve on the top courts of both jurisdictions at the same time.
The participation of UK Supreme Court’s justices in Hong Kong’s judiciary is highly welcomed by the Hong Kong government because it helps bolster the international reputation of the courts in Hong Kong. However, there have been calls advocating the discontinuation of this practice since the implementation of the controversial national security law in Hong Kong by China in July 2020. More specifically, members from both Houses of Parliament across the political spectrum have on various occasions either called for the termination of this practice or questioned the appropriateness of it.
As of May 2021, two justices of the UK Supreme Court do concurrently sit on Hong Kong’s top court, namely, Lord Reed and Lord Hodge. In addition, six retired justices and two retired Law Lords are listed as appointees. In June 2021, Baroness Brenda Hale, former president of the UK Supreme Court, announced her decision not to seek reappointment on the Hong Kong court after the end of her term in July while mentioning the impact of the national security law. She became the first senior British judge to quit Hong Kong's top court after the enactment of the security law. Amid the controversy, in August 2021, Lord Reed issued a statement certifying that Hong Kong's judiciary "continues to act largely independently of government". However, about three months later, the US-China Commission submitted its annual report to US Congress detailing China’s situation. In the report, not only did the Commission explicitly state that the independence of Hong Kong’s judiciary existed “in name only”, in direct conflict with Lord Reed’s certification, but also questioned whether or not overseas judges, including British judges, serving on Hong Kong’s top court could still protect the rule of law in Hong Kong.
The Constitutional Reform Act 2005 gave time for a suitable building to be found and fitted out before the Law Lords moved out of the Houses of Parliament, where they had previously used a series of rooms in the Palace of Westminster.
After a lengthy survey of suitable sites, including Somerset House, the Government announced that the new court would be at the Middlesex Guildhall, in Parliament Square, Westminster. That decision was examined by the Constitutional Affairs Committee, and the grant of planning permission by Westminster City Council for refurbishment works was challenged in a judicial review by the conservation group Save Britain's Heritage. It was also reported that English Heritage had been put under great pressure to approve the alterations. Feilden + Mawson, supported by Foster & Partners, were the appointed architects, with Kier Group appointed as main contractor.
The building had been used as the Middlesex Quarter Sessions House, and the headquarters of the Middlesex County Council. Following the abolition of the Council in 1965, its former council chamber became a courtroom, which is now Court One, the principal courtroom. In 1972 the building became a Crown Court centre.
The official badge of the Supreme Court was granted by the College of Arms in October 2008. It comprises both the Greek letter omega (representing finality) and the symbol of Libra (symbolising the scales of justice), in addition to the four floral emblems of the United Kingdom: a Tudor rose, representing England, conjoined with the leaves of a leek, representing Wales; a flax (or 'lint') blossom for Northern Ireland; and a thistle, representing Scotland.
Two adapted versions of its official badge are used by the Supreme Court. One features the words "The Supreme Court" and the letter omega in black (in the official badge granted by the College of Arms, the interior of the Latin and Greek letters are gold and white, respectively), and displays a simplified version of the crown (also in black) and larger, stylised versions of the floral emblems; this modified version of the badge is featured on the new Supreme Court website, as well as in the forms that will be used by the Supreme Court. A further variant omits the crown entirely and is featured prominently throughout the building.
Another emblem is formed from a more abstract set of depictions of the four floral emblems and is used in the carpets of the Middlesex Guildhall designed by Sir Peter Blake, creator of such works as the cover of The Beatles' 1967 album, Sgt. Pepper's Lonely Hearts Club Band.
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I am delighted that Britain has been able to contribute to this process, by making available to the Court of Final Appeal two of our leading Law Lords, Lord Hoffmann and Lord Nicholls, as members of the Court's panel of non-permanent judges.
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As a Hong Kong judge I serve Hong Kong people.
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At a time when judges are forced to leave Hong Kong following pressure by Beijing and their mouthpieces in the media to convict protestors, civil society groups are being forced to close, and nearly all pro-democracy voices are in jail, exile, or awaiting trial, it cannot be right that UK judges continue to offer Hong Kong courts a veneer of legitimacy.
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Secondly, Ministers must reconsider the participation of sitting UK judges on the Hong Kong court of final appeal. As the human rights situation continues to deteriorate at a worrying pace, it is clear that these judges are powerless to moderate Beijing’s behaviour. Instead, they are offering political cover for a Government in Hong Kong who have lost all legitimacy.
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...and we need—as the Labour party is calling for—British judges to leave Hong Kong. British judges are simply lending a veneer of credibility to the undemocratic, broken system. Have the UK Government made an assessment of whether UK judges are protecting the rule of law in Hong Kong or simply legitimising an authoritarian regime?
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British judges’ continued presence in Hong Kong lends a false veneer of respectability to a justice system that is no longer just. The president of the Supreme Court and the new foreign secretary must take a stand and remove British judges from Hong Kong once and for all.
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My Lords, I thank the Minister for his reply, but is it not time that Her Majesty’s Government make their position clear on this and take further action? Is it not wrong on many levels that British judges are active in Hong Kong, giving a veneer of respectability to wholly draconian laws which effectively stifle freedom of speech, freedom of assembly and free and fair elections?
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Judiciary Independent in Name Only (p.458) Hong Kong’s historically independent judiciary is no longer reliably impartial on cases related to matters the Chinese government deems sensitive, since the National Security Law has cemented Beijing’s right to determine which judges hear national security cases in which jurisdiction, almost guaranteeing outcomes the CCP prefers. (p.458) It is no longer certain that overseas judges serving in nonpermanent posts on the Court of Final Appeal (CFA) can still protect the rule of law in Hong Kong. (p.460)
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