Nomen omen – but not always. The High Courts and Courts of Appeal in England and Northern Ireland formed part of the Supreme Court of Judicature before the coming into force of the Constitution Reform Act 2005 and, by and large, there was never a widespread sense of these Courts unduly throwing their weight around. Had they done so, no doubt the Appellate Committee of the House of Lords would have restored matters to their proper bounds.

In Reforming the Supreme Court, Professor Wyatt and Professor Ekins have produced a thoughtful contribution to the ongoing scholarly debate on the correct limits to judicial power; a debate which is, and always has been, driven by political rather than legal priorities. From the 1970s to the 1990s claims of judicial overreach in the UK were made primarily by those on the left such as JAG Griffith, Conor Gearty and Keith Ewing. Their objections to judicial power were underpinned by their views of the judiciary as an instrument of the establishment blocking workers’ rights and undermining civil liberties. After the enactment of the Human Rights Act in 1998, which Ekins rightly identifies as a key moment in changing judicial culture, these critical voices were more muted and concerns about the improper exercise of judicial power were increasingly raised by those on the right. Most recently they have been taken up by the Judicial Power Project.

In our recent paper, Reforming the Supreme Court, Professor Wyatt and I discussed the merits of his proposal to authorise changing panels of Court of Appeal judges to act as the apex appellate court.  I noted that my initial view had been that the proposal was too bold, and that it might undermine an important feature of any legal system, which is a stable appellate hierarchy.  However, there was clearly much to be said for the proposal, and by way of a series of tentative comments and questions I set out to elaborate and test its merits, concluding that it was an attractive and interesting proposal worthy of serious further consideration.  The paper’s publication has generated public discussion, with legal commentators, including Joshua Rozenberg QC (Hon) and Jonathan Fisher QC, for the Society of Conservative Lawyers, addressing its merits in some detail.  The government’s plans for reform, at least as reported, may also owe something to the paper’s reflections. 

This paper is a sequel to the earlier one published by Policy Exchange entitled “Should the UK Supreme Court be abolished?”[1] A number of commentators, as well as the contributors to this symposium, have discussed my proposal for an extended Final Court of Appeal which would replace the Supreme Court. I thank them all for throwing their caps into the ring, and contributing to a valuable discussion of issues which, as former Lord Chief Justice Lord Thomas of Cwmgiedd has said, “need debate.” I thank Professor Ekins, and Policy Exchange’s Judicial Power Project, for providing a forum for a frank exchange of views. I still think reform is needed, and if not this reform, what?

The debate about the role of judiciary in our democracy, and in particular of the Supreme Court, will never be resolved to everyone’s satisfaction. At root, there is fundamental disagreement about the legitimate function of the judges under the British constitution. At the risk of over-simplistic characterisation, the traditional view is that the court is the handmaiden of Parliament and whilst it can, with appropriate caution, develop the common law, it should genuinely seek to construe legislation, however unpalatable, so as to give effect to the will of Parliament and never to frustrate it.