The UK Supreme Court: What is its relationship with the UK Parliament?

Rt Hon. The Lord Reed of Allermuir is the President of the UK Supreme Court since 13 January 2020.

Introduction In 2005, the UK Parliament created the UK Supreme Court by passing the Constitutional Reform Act 2005. Until then, the highest court in the UK was not a court at all, but a Parliamentary Committee: the Appellate Committee of the House of Lords. Its proceedings were theoretically open to the public, but in practice very few members of the public penetrated to Committee Room 1, where the appeals were heard. In addition to hearing and deciding cases, the Law Lords (as the members of the Appellate Committee were known) were able to debate and vote on legislation.

The Law Lords also comprised the Judicial Committee of the Privy Council, which is the highest court of appeal for many Commonwealth countries, as well as the UK’s Overseas Territories, Crown Dependencies and Sovereign Military Base areas. The Privy Council, as I shall call it for short, sat at that time in a court room at 9 Downing Street, subsequently converted into the government’s press briefing room.

The role of the judicial House of Lords was not well understood by the public. Justice was done, but it was not very effectively seen to be done. Having Parliamentarians simultaneously acting as judges and law makers was increasingly felt to be in conflict with the idea that the Judiciary should be visibly independent of the Executive and the Legislature.

When the replacement of the Law Lords by a Supreme Court of the United Kingdom was proposed by the government in 2003, its consultation paper said: “[The changes will] put the relationship between the executive, the legislature and the judiciary on a modern footing, which takes account of people’s expectations about the independence and transparency of the judicial system.”

The UK Government also explained that the court would be fundamentally different from the Supreme Court of the United States. Lord Falconer, then the Secretary of State for Constitutional Affairs and Lord Chancellor, said in a parliamentary debate: “The [UK Supreme Court], which will sit separately from the legislature, will not be a supreme court of appeal such as the one in the United States of America, which has the power to strike down legislation because there is a written constitution that is superior to it. We are not going down that route. We are allowing a system to be developed where the way in which the courts operate and the way in which the legislature operates will be much clearer to the public.”

Through the Constitutional Reform Act, the UK Parliament ensured that the highest court in the UK was independent, and was seen to be independent, of the other branches of government. All those who appeared before the court, and the wider public, could be confident that cases were decided fairly and free from external influence. So the members of the Appellate Committee became judges of the UK Supreme Court, and moved across Parliament Square into the former Middlesex Guildhall. That building had housed courts for many years, but was refurbished so as to provide three court rooms, a law library, offices for the judges and staff, and a reception area, café, shop and exhibition centre for members of the public. It opened to the public on 1st October 2009.

Twelve years on It is now 12 years since the provisions establishing the court were brought into force, and the court opened for business. How has it developed?

It was only in 2020 that the last of the Law Lords retired. The court is now composed entirely of judges appointed in accordance with the procedures laid down by the UK Parliament in 2005. A recommendation is made to the Lord Chancellor by an independent selection commission comprising a majority of nonlegal members, who must consult the government, the devolved governments in Scotland and Wales, and the Northern Ireland Judicial Appointments Commission, as well as senior members of the judiciary. The Lord Chancellor then carries out further consultations, and can accept or reject the recommendation.

The court has developed public access and education far beyond anything that would have been possible in Parliament. The court’s hearings are normally (when not in lockdown) packed with members of the public, especially school children and students on educational visits. In a normal year, the court receives over 100,000 visitors. Its hearings are broadcast online, and cases in which there is a high level of public interest are viewed by hundreds of thousands of people. The court also communicates with the public through its Twitter and Instagram accounts, its YouTube channel, and its RSS feeds. It also engages with schools and universities, not only through events held in the court building, and through the judges travelling to universities, but also by holding online events with schools and universities which cannot bring their students to London. Ask a Justice, for example, is a series of half hour conversations between a judge and a class of school students, typically in Scotland, Northern Ireland, Wales or south-west or northern England. The court has also made a point of sitting not only in London, but also at venues throughout the UK.

The move has also made it easier for the court to promote diversity and inclusion, both internally and more widely. The court has devised a strategy which takes full advantage of its facilities, for example by enabling law students from under-represented groups to work alongside the judicial assistants as paid interns, and by providing judges from the lower appellate courts with opportunities to work at the court, gaining experience and encouraging them to consider applying for appointment when vacancies occur.

The Privy Council can now offer virtual hearings to parties in most of its more distant jurisdictions, allowing them cheaper and more convenient access to the court. Its in person hearings are well attended by members of the public. British students and schoolchildren, many from families which came to Britain from Privy Council countries, learn about the UK’s role in the administration of justice in those countries. The Privy Council sits in those jurisdictions when invited to do so, as it has been in recent years by Mauritius and The Bahamas.

The work of the Supreme Court and the Privy Council There are a few key points that it is useful to understand about the workings of the Supreme Court. First, it is a court of appeal, so it does not hear witnesses, and it does not involve a jury. It is concerned only with questions of law.

Second, because the Supreme Court is not a constitutional court like the US Supreme Court, it hears cases across all areas of the law.

Third, there is no right of appeal to the Supreme Court. Litigants have to obtain the court’s permission to appeal, and the court only grants permission where the appeal raises an arguable point of law of general public importance. In practice, that means that a high proportion of the court’s work is concerned with cases where there is a great deal at stake – it may be in financial terms, or it may be in other ways – because it is usually in cases of that kind that the parties are prepared to take the risk of arguing cutting-edge points of law.

Fourth, the questions which the court considers are usually difficult. Consequently, the court does not normally take an instant decision at the end of the hearing of an appeal. The hearing is the beginning of a process involving research by the judges and their judicial assistants, discussion between the judges, and the drafting of judgments, which can last for several months.

The position is broadly similar in the Privy Council. Most countries allow an automatic right of appeal to the Privy Council where a question arises as to the interpretation of their constitution, but otherwise the Privy Council usually has to grant permission, and it applies the same test as the Supreme Court.

In practice, although political interest in the Supreme Court tends to be focused on cases of judicial review brought against the government, these form only a small element of the court’s work. A high proportion of cases consist of commercial and chancery work (eg company law, trusts, tax and insolvency), usually of very high value, and often involving parties from outside the UK. That reflects the fact that the UK is a global centre for legal and financial services, with the Supreme Court as the UK’s legal flagship.

For example, the court recently heard a dispute between two rival boards of the central bank of Venezuela, appointed by the rival claimants to the presidency of the country, concerning which board was entitled to the country’s gold reserves, held by the Bank of England and Deutsche Bank. Another case currently before the court is a dispute between Ukraine and Russia, concerning the validity of a 3 billion dollar bond. One of the most important cases heard by the court in recent years concerned developments in patent law arising from the emergence of global technologies, and involved the world’s leading mobile phone manufacturers, such as Huawei and Apple. The fact that cases like these are litigated in a UK court is not only of economic importance to the UK, but reflects a level of international confidence in British justice which is of wider global benefit to the UK. The work of the court in such cases gives the UK a degree of influence in legal matters around the world which is greater than that of many larger economies.

Many of the jurisdictions which have the Privy Council as their final court of appeal are also important global centres for financial services: for example, the Cayman Islands, the British Virgin Islands and The Bahamas. Financial disputes of world-wide significance come to London from countries such as these, in order to be decided by the Privy Council. A current example is the aftermath of the Bernard Madoff “Ponzi” scheme, being litigated in appeals from the Cayman Islands. These countries’ financial services industries, which are of great importance to their economies, are supported by confidence in the quality of justice dispensed by the Privy Council in London.

But both courts also decide issues that affect people’s daily lives. For example, the Supreme Court recently decided the Uber appeal, concerned with whether the drivers of Uber cabs qualified for protection under employment legislation. The Court also heard the business interruption insurance appeal, concerned with whether businesses which had closed as a result of the COVID19 pandemic could claim under their insurance policies. The Privy Council is currently considering appeals concerned with the availability of same-sex marriage under the constitutions of the Cayman Islands and Bermuda.

Cases such as these are, from one perspective, concerned with controversial issues of social or economic policy. But the court is concerned only with questions of law. In the Uber case, for example, the judges were not concerned with how the UK should respond to the rise of the “gig” economy, but with the question whether the contracts which Uber required its drivers to sign were effective to deprive them of the rights conferred by employment legislation. Equally, the Privy Council does not attempt to determine who has the better of the argument in Bermuda or the Cayman Islands about the morality of same-sex marriage, but interprets the relevant constitutional provisions in accordance with established principles of construction.

The Supreme Court and Parliament The Supreme Court performs a vital function in supporting the preeminent role of Parliament in the UK’s democracy. It is the ultimate interpreter of the laws that Parliament enacts. It also ensures that the laws enacted by Parliament are properly applied.

The court also protects the principle that Parliament is supreme. It was for that reason that the court rejected the argument in the prorogation case in 2019 that Parliament could only sit when the government wanted. The court also made it clear in the HS2 case in 2014 that EU law had effect in the UK only by virtue of an Act of Parliament, and that it did not accept that EU law could override Parliamentary privilege. More recently, in the child tax credit case, the court has sought to dispel the tendency to treat Ministerial statements during debates as expressing the will of Parliament. In the same case, the court has also strongly affirmed the principle that controversial questions of social policy should be decided by Parliament rather than the courts. In these and other cases, the court has insisted on the centrality of Parliament in our constitution, and has sought to protect it against the risk that its role might be diminished.

“The Supreme Court performs a vital function in supporting the pre-eminent role of Parliament in the UK’s democracy. It is the ultimate interpreter of the laws that Parliament enacts. It also ensures that the laws enacted by Parliament are properly applied. ”

Image credit: UK Supreme Court

The court also protects the principle that executive powers, whether exercised by the government or by other public authorities, must be exercised within the limits which Parliament has laid down. Most cases of judicial review are concerned with the application of that principle. Some cases of that kind are politically controversial, but the judges do not decided them on a political basis. Where the power being exercised by the public authority has been conferred by Parliament, the court ensures that it is exercised on a correct understanding of the law which Parliament enacted, and for the purpose which Parliament intended. Where the power is one derived from the common law, the court ensures that it is applied fairly and rationally.

As the UK constitution is composed largely of the common law and statutes, whose interpretation is a matter for the courts, the Supreme Court inevitably has a constitutional function, like the House of Lords before it. But, as I have explained, it is far from being a constitutional court in the same sense as a court such as the US Supreme Court. Its work is based on a deep respect for Parliament, as its judgments often make clear.

One of my priorities as President of the Supreme Court is to strengthen the relationship between the court and Parliament, which has been largely confined to the annual appearance of the court’s President and Deputy President before the Constitution Committee of the House of Lords. I have had valuable discussions with the Speaker of the UK House of Commons and the Lord Speaker of the UK House of Lords about how the relationship might be strengthened, and I hope to build on those discussions once circumstances permit. I am also keen to build stronger links with the devolved legislatures in the UK, and with the jurisdictions which use the Privy Council.

It is important that Parliamentarians should understand the role of the court, and vice versa. Our institutions share a commitment to the rule of law, which we uphold in different ways. Parliament enacts the law, and the court interprets and applies it. The court plays a significant role in ensuring that Parliament remains at the heart of our constitution, and Parliament can play an important role in protecting the court’s independence. Both institutions are vital to our democracy.