04 October 2009

The Supreme Court - a Missed Opportunity

Some years ago I was a member of a working party of the Lib-Dem Lawyers Association that was tasked with commenting on the government's proposals for constitutional reform. One of those proposals was a new Supreme Court for the United Kingdom in place of the House of Lords. The others were abolition of Queen's Counsel and reform of the procedure for recruiting judges. It was quite a high powered committee so far as I can remember. We were chaired by Lord Goodhart QC and our number included Professor Jowell and Jonathan Marks QC.

To my mind all the proposals seemed very modest if not bordering on the irrelevant. The proposal to set up a Supreme Court with essentially the same powers and discharging the same functions as the House of Lords seemed to me to be nothing more than a name changing exercise. The only justification proffered by our wonderful government for the change was that it would end an historical anomaly. What anomaly one might well ask? Montesquieu's doctrine of separation of powers has never been as deeply rooted in our constitution as it has in that of the United States or the Fifth Republic. Nobody of my acquaintance ever worried that the head of the executive branch was also an MP or that the Lord Chancellor presided over the House of Lords and sat occasionally on appeal. In earlier times Parliament was referred as a High Court.

But that is not to say that I did not see an opportunity for reform. The highest court in the European Union hears and determines references on Community law from all levels of courts and tribunals in the member states. Art 234 of the Treaty of Rome mandates courts of last resort to refer questions of Community law to the European Court for a preliminary ruling but permits any court from the employment tribunal or magistrates upwards to make such a reference "if it considers that a decision on the question is necessary to enable it to give judgment". As I understand it, this is similar to the principle of "pourvoi" to the Cour de Cassation in many civil law systems. Although not quite the same the US Supreme Court does something similar through its writs of certiorari, prohibition and mandamus.

Everyone involved in the administration of justice from the President of the Supreme Court downwards should remember that the courts system exists for the benefit of the public and not the other way round. Anything that reduces cost is to be commended. Anything that maintains cost is to be deplored. Although novel points of law do not arise very frequently they do occur particularly in relation to technology. When I was called to the bar there was a lot of uncertainty as to whether copyright could subsist in computer programs under the 1956 Act until the matter was resolved by the Copyright (Computer Software) Amendment Act 1985. Nowadays there are a host of new issues presented by Web 2.0 such as who owns copyright in material on social networks, who should be liable for wrongdoing occasioned by such material and where can an alleged wrongdoer be sued. Obviously a judge of first instance or even a hearing officer can decide these issues which remain the law until they are overturned by a higher court but consider the cost savings that could be achieved if it were possible for a hearing officer or trial judge to refer a novel point of law for determination by the Supreme Court.

I wrote a memorandum suggesting an equivalent to art 234 in the statute constituting the Supreme Court to my fellow working party members. Willie Goodhart was polite enough but declined to take the suggestion further. No doubt he feared that this would be another wild and woolly Lib-Dem canard.

No comments: