The Noblemen of the UK Supreme Court

As every UK newspaper-reader and television-watcher ought to, but probably doesn’t, know, since the Appellate Jurisdiction Act 1876, the judicial work of the House of Lords has been done only by the 12 most senior judges in the land, the Lords of Appeal in Ordinary—or ‘Law Lords’[1].  From 1 October this year (2009) the functions of the former Law Lords have been transferred, along with their lordships, to a new UK Supreme Court with its courtroom and offices just across the road from the House of Lords, thus completing the long overdue reform whereby the judicial role of parliament’s second chamber has been separated from its law-making functions.

It’s understandable, I suppose, that all this confusion between judges and lords should find an echo with our American cousins, especially the bankers and financiers, in their house organ, the Wall Street Journal, now owned by that patriotic American from Down Under, Rupert Murdoch:

A U.K. Court Without the Wigs
New Supreme Bench, Patterned on America’s, Stirs Debate

The justices of the U.S. Supreme Court long have been Anglophiles, routinely turning to antique English cases to help decide issues from gun rights to terrorism….

Now, the Mother Country is following the lead of its offspring. This month, the U.K. replaced its Law Lords — a committee of noblemen that served as the highest tribunal for much of Britain — with the new Supreme Court of the United Kingdom. [Emphasis added]

The WSJ’s second headline, describing the new UK Supreme Court as “Patterned on America’s”, is about as wrong as it could be.  The UK’s Supreme Court doesn’t interpret or enforce our written federal constitution, as its US namesake does, for we have no such thing.  Our Supreme Court has no power to strike down any law passed by the Westminster parliament as unconstitutional and therefore invalid, as the US Court can do and does.  It is not the highest court of a federation each of whose constituent units has its own supreme court, because we don’t (yet) have a federation, although Scotland has its own legal system and its own courts. The decisions of our Supreme Court don’t automatically prevail over those of the government or the parliament, as those of the US Supreme Court do.  They are different animals, inhabiting different zoos.

But never mind that.  A ‘committee of noblemen as Britain’s highest court!  What a price we pay for calling all these curious people Lords — life peers, Justices of the Supreme Court, even (heaven help us) bishops! Mr Jack Straw, MP, still prevented from casting off his weird and now functionless title of ‘Lord’ Chancellor, and yet not even a member of the House of that name!  More bizarrely still, even that powerful commoner Mr Gordon Brown MP, who bears the majestic title of First ‘Lord’ of the Treasury, despite not being a Lord and no longer the minister responsible for the Treasury!  And finally, spare a thought for The Rt Hon Harriet Harman QC MP, “Leader of the House of Commons, Lord Privy Seal and Minister for Women and Equality”, who — as the old joke has it — is neither a Lord, nor a privy, nor a seal. No wonder Mr Murdoch and his financiers’ newspaper find it all a little difficult to follow, when on their reckoning Harriet Harman must evidently be a nobleman.

Let’s just hope that when the remaining hereditary peers are at last removed from our second chamber and, in accordance with the expressed wishes of the House of Commons, all (or most) of the members of the reformed second chamber are commoners directly elected to it,  we may at last be allowed to stop calling it the House of Lords, and to stop calling its members Lords.  I don’t much care what it’s then to be called instead;  but when the glad day comes that the United Kingdom accepts the logic of its current half-baked constitution and becomes a proper federation of its four constituent nations, the obvious name for its federal second chamber will be the Senate (with equal numbers of Senators elected from each of the nations, regardless of population size)[2];  and the august judges of the Supreme Court will be Justices, and no longer also Lords.  Then perhaps Mr Murdoch and his Wall Street Journal will get the message, and the ageing noblemen of our decayed aristocracy, committees and all, can retire gracefully to the shires whence they came.


[2] My reference in another blog to the ‘Senate‘ as the obvious name for the federal second chamber of a UK Federation prompted an angry outburst in one comment, to the effect that the term was an Americanism and thus objectionable (!).  Quite apart from it also being the name of the federal second chambers of Australia and Canada, it’s worth bearing in mind that the classical Romans, as so often, actually got there first.  But unlike the present UK, where sovereignty supposedly rests with ‘The Queen in Parliament’, in republican ancient Rome ‘Senatus Populusque Romanus‘ or SPQR (‘the Senate and People of Rome’) were jointly sovereign;  indeed,

The two legal entities mentioned, Senatus and the Populus Romanus are sovereign when combined. However, where populus is sovereign alone, Senatus is not”  [].

The change to federal status for the UK will provide the welcome opportunity to establish that the peoples of the four federated nations are sovereign, not any of the five parliaments to which they will voluntarily delegate certain defined and strictly limited powers.


9 Responses

  1. When the House of Lords had to rule on Pinochet, there was considerable interest in the Spanish-speaking bit of the Internet as to which way Lady Thatcher would cast her vote. I did my best to explain things, but the peculiarities of the British ways of doing things do cause confusion among people who have more simple and straightforward constitutions.
    Spain, France and Italy – and no doubt other countries – have senates. But I suppose that European examples are no more acceptable than American ones. How about calling it the Ealdorwitan*?
    *Or whatever. My Old English is even shakier than my Latin!

    Brian writes: I’m afraid that it’s not only people whose constitutions are “more simple and straightforward” who are confused by the accretions of ours, in which almost nothing is what it seems. The idea of straightening it all out in a nice written document is tempting, but I’m afraid that at the end of the process of writing and approving it, our last state would be even worse than our first: and we’d find it even more difficult to change it — e.g. to a fully-fledged federal model, as I tirelessly advocate — than we do now, when there’s no legal or constitutional bar to change, only the resistance of ingrained conservatism and fear of the unknown. It’s like swimming in treacle.

  2. Barrie England says:

    ‘Witenagemot’’ might do, Peter.

    Even baronesses address their colleagues, male and female alike, as ‘My Lords’. Would any future Baroness Harman do that, I wonder? Am I right in thinking that the gentlemen’s lavatories in the upper house bear the sign ‘Peers’?

    Brian writes: Like, I believe, many others, I often address my wife and daughters as ‘chaps’, gender discrimination having long been outlawed in this country. As for the doors of the chaps’ loos in the Lords being labelled ‘Peers’, what else would you suggest? ‘Voyeurs’? ‘Gents’, or a picture of a silhouette in trousers, wouldn’t do, since that might imply availability of the facility in question to (male) commoners. The silhouette in trousers indeed might well admit female commoners, too, these days, which would be even worse. And what about the silhouette of person in a skirt in Scotland?

    But enough of this levity. These are serious matters. A ‘committee of noblemen’, indeed. What about Baroness Hale, recently a Law Lord, now a Justice of the Supreme Court? —

    In 2004, she joined the House of Lords as a Lord of Appeal in Ordinary. She was the only woman ever to have been appointed to this position. She served as a Law Lord until 2009 when she, along with the other Law Lords, transferred to the new Supreme Court. She remains the most senior female judge in the history of the United Kingdom. [,_Baroness_Hale_of_Richmond]

  3. Owen Barder says:

    With respect, the opinions of Mr Murdoch’s henchmen were not quite as wide of the mark as you suggest.  Until the establishment of the new Supreme Court, it was formally the entire House of Lords that was the highest court.  It is true that the House of Lords has not tried a case in full session, with the Lord Chancellor on the Woolsack, since 1834; and by convention the non-legal members of the House of Lords stopped participating in legal cases in 1845.  The Appellate Jurisdiction Act 1876 establishes that there must be three Law Lords present to determine a case, it does not exclude the participation of other members of the House of Lords (though by convention only those with a legal background participate). Indeed, it was the convention that appeals were heard by the whole House of Lords until the Appellate Committee was established in 1948.  Until Charlie Falconer, the Lord Chancellor used to sit judicially regularly;  and until the establishment of the Supreme Court, it remained the case that every judgement made by the House of Lords was given in the Chamber of the House.
    So while you are right that, in practice, the Appellate Committee of the House of Lords has in recent years operated mainly as a distinct body, in fact the root of its powers, procedures and traditions were firmly rooted in the hereditary second chamber, and technically they were acting on behalf of the whole House.   It was, for most of its history, a committee of noblemen.
    Trivia: I think the last person to be Lord Chancellor while sitting as a hereditary peer was Reginald Manningham Buller, father of the former head of MI5. (Hailsham was a hereditary peer, of course, but was Life Peer when he was Lord Chancellor).

    Brian writes: All perfectly true, and of much historical interest. It adds up to a compelling example of a characteristically British way of modernising and reforming ancient institutions by infinitesimally small stages to bring them, eventually, more closely into line with contemporary ideas and values. This has a downside: reform is so slow as to be almost imperceptible; while it’s in progress, it tends to be riddled with anomalies; there’s rarely a coherent vision of or consensus about the final destination; fundamental constitutional principles may be breached until the reform is completed, leading to a sometimes damaging lack of public understanding of the principles at stake. Sometimes, as in this case, we get there in the end (although I doubt whether 5 per cent of the UK’s population has noticed). Sometimes we seem to flounder on forever without resolving the problems created by our doggedly evolutionary approach (look at the failure to tackle the West Lothian question with anything approaching intellectual or constitutional rigour!). It makes radicals frustrated and impatient. But none of this affects my basic point, or one of them: to call what until last month was our highest court of appeal, comprising the Lords of Appeal in Ordinary (aka the Law Lords), a “committee of noblemen” is a risible travesty, revealing an extraordinary ignorance of the realities which the Wall Street Journal article purports to describe.

  4. Barrie England says:

    I had in mind the punning potential of the sign.
    If gender discrimination is outlawed why is the husband of a Queen not called a King, when the wife of a King is called a Queen (although I realise that latter practice might cause problems during the next reign)?

    Brian writes: As I have observed elsewhere, unless the UK parliament, with the consent of the other 15 Realms (Australia, Canada, etc., with a total population including the UK of some 132 million), legislates to the contrary, which is exceedingly unlikely, if and when the present Prince of Wales becomes King, his wife will become Queen, whatever title she and her husband choose for her — just as Camilla is at present the Princess of Wales, whether the two of them like it or not. However, the point you make (that a King’s wife becomes a Queen, of sorts, but a reigning Queen’s husband does not become a King) is of course perfectly valid. Similarly, the wife of a knight or of a life peer is automatically a Lady, whereas the husband of a Dame or a life baroness stays plain Mister, unless he gains some other handle under his own steam. Unfair!

  5. Phil says:

    the House of Lords has not tried a case in full session, with the Lord Chancellor on the Woolsack, since 1834
    I don’t think that can be right – who can forget the trial of Louis D’Ascoyne Mazzini?

    Brian writes: Who indeed? But then Dennis Price was sui generis (and Alec Guinness, as all his victims, even more so, if a comparative form of sui generis may be permitted). Sadly, this account of the affair omits any mention of the crucial fact that the would-be Duke is to be denied his aristocratic human right of being hanged by a silken rope.

  6. The Duke of Denver was tried by the full House of Lords in 1926, and was acquitted by the sterling work and bravery of his brother Lord Peter Wimsey.

  7. Owen Barder says:

    Right – but that was the special case of members of the House of Lords being tried by their peers: not the House of Lords in its role as the highest court of appeal.

  8. Yes, but so was Kind Hearts and Coronets.

  9. Canadian Reader says:

    “with equal numbers of Senators elected from each of the nations, regardless of population size”: Now that *would* be Americanisation (or Australianisation). In Canada and, for that matter, Germany, the upper house represents the constituent provinces/states in rough proportion to their populations, thus satisfying those who tend to be nationalistic (Quebeckers, Bavarians) while avoiding the U.S. problem of senators from tiny states in the Northeast having as much influence as senators from giant states such as Texas or California. So, frankly, I’m mystified by that proviso “regardless of population size”.

    Brian writes: Cher M Lecteur Canadien, je vous remercie de votre commentaire. Australia as well as the US has equal representation in its Senate for all the Australian States regardless of population size. This would be highly desirable, indeed probably essential, in a federal UK, as a vital means of protecting the three small nations (Scotland, Wales and Northern Ireland) from the much bigger fourth nation, England. If both chambers of the federal parliament were to be based on population size, the English Senators would be able easily to out-vote those representing the other three nations put together. Population-based representation would thus enable England to force through legislation that could discriminate against the other three nations and damage their essential interests. Equal representation would force any of the nations to get support from at least one of the others in the Senate, plus one other Senator, to get any controversial legislation through. The Senate, like our current House of Lords (which it would replace), would of course have limited powers: probably only the power to delay legislation sent to it from the House of Commons but not to block it indefinitely if the Commons re-adopted it in two successive parliaments. Like the Lords, it would probably not be empowered to vote on money bills.

    I’m interested to see that you’re ‘mystified’ by the equal representation proposal. The British North America Act of 1867 which established the Canadian Constitution stated that the ‘divisions’ (later Provinces) of Canada should have equal representation in the Upper House (which of course was to be and remains appointed, not elected, uniquely among democratic Upper Houses apart from Britain’s!). The original divisions of Ontario and Quebec were allocated 24 seats each, and the smaller provinces of New Brunswick and Nova Scotia got 12 each, so the principle of equality was breached from the start. When the four western provinces joined in 1915 they got 6 seats each. Later Prince Edward Island was given four, with New Brunswick and Nova Scotia losing two each. In 1949 Newfoundland was given six. The three ‘territories’ subsequently got one each. So the original intention, equal representation, has been steadily eroded and no longer has any meaning, although there seems to have been no explicit decision or agreement to abandon it. As almost all appointments to the Senate are, I understand, made from the membership of the majority party of the day, there are few if any genuine independents, certainly none comparable with the influential cross-benchers in the UK House of Lords, and as none of the Senators is elected, my impression is that Canadians generally regard their Senate as having very limited legitimacy. (The same thing of course applies to the British and the House of Lords but the inclusion in the Lords of acknowledged non-party experts in their various fields does give it a certain weight, and the recent removal from it of the great majority of the hereditary peers has removed one of the biggest obstacles to taking it seriously. The House of Commons has now voted overwhelmingly for either a wholly elected upper house, or an upper house with at least 80 per cent of its members elected.)

    All in all, and with the utmost respect to you and your fellow-Canadians, it’s clear — to me, anyway — that the US and Australian Senates, and some of those in western Europe, are better models for a future UK federation than the appointed body in Ottawa.

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