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’. 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); 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.
 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” [http://j.mp/3QcOqL].
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.