Courting Controversy

It is unlikely many of the pioneers of devolution imagined the very future of the United Kingdom would be in doubt today.

But another revolution was launched in a moment of “big bang” constitutional innovation which could have greater significance than its architects – or the electorate – realised.

Since 2009 the Supreme Court has been the highest judicial body in the United Kingdom. In the United States, Supreme Court judges are household names, their appointment procedure features intense scrutiny of past judgements and the search for signs of political bias.

But who are the justices who sit in their gleaming new London HQ? What does it say about British democracy that so few of us would recognise Lord Phillips, the President of The Supreme Court, if he was sitting at the next table at Nando’s?

Eurosceptics rail against the influence of the European Court of Human rights on UK law but where is the debate about the power of the Supreme Court to shape our lives through rules and regulations? In a UK with law-making legislatures in Scotland, Wales and Northern Ireland, what role should these have in the vetting of judges?
Concern about the power of judges to strike down the decisions of democratically elected governments now extends beyond the political class into the judiciary.

Jonathan Sumption QC, the latest appointment to Supreme Court, this week asked: “How far can judicial review go before it trespasses on the proper function of government and the legislature in a democracy?”

The revolution in law parallels the speed of constitutional change.

The SNP’s victory in Scotland means a referendum on independence is almost certain to take place. A commission will report on whether Scottish, Northern Irish and Welsh MPs can continue voting on England-only matters but there is potential for a constitutional crisis if this means MPs from the devolved nations would be barred from most UK cabinet posts.

A situation in which the Prime Minister is the de facto First Minister of England but continues to lead on issues of war and peace will prove untenable in the long-term but there is little appetite for a new constitutional settlement. Britain is the land of back of the envelope solutions.

Sumption’s speech was about law and not the future of Westminster and its relation to the four nations of the UK but his words are relevant: “There is surely a case for saying that constitutional change, where it occurs, should happen on purpose and after proper national debate about its wider implications. It should not come about by accident and without any acknowledgment that it is happening at all.”

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