The UK Supreme Court and its President: some interesting issues for the future

On Monday 10 October, The Guardian published an article by Joshua Rozenberg - Nine men, a Lady and the Master. The article asked who would replace Lord Phillips of Worth Matravers (pictured) as President of the Supreme Court. Lord Phillips had not publicly announced his retirement at this stage. The next day, Lord Phillips announced that he would retire on 30 September 2012.

Rozenberg's article speculates that Lord Neuberger - presently Master of the Rolls - would be in line to become the court's next President, though Rozenberg admits of other possibilities including Lady Hale who gave a dissenting judgment in R (McDonald) v Royal Borough of Kensington and Chelsea [2011], which appears to have irritated some of her male colleagues - see, for example, the judgment at para 27.

What then, if anything, does the law state about the President of the Supreme Court?

The Constitutional Reform Act 2005 created the court - section 23(1). There are to be 12 judges appointed by Her Majesty by letters patent - s.23(2). Under section 23(5), Her Majesty may by letters patent appoint one of the judges to be President and one to be Deputy President of the Court. The judges, other than the President and Deputy President, are styled Justices of the Supreme Court - section 23(6). At first sight, the reader might consider that section 23(5) requires the President or deputy to be chosen from one of the Judges already there. However, that view could not stand with section 26(4) which clearly envisages the possibility of parachuting in an outsider to either the Presidency or Deputy Presidency:

"26(4) A person who is not a judge of the Court must be recommended for appointment as a judge if his name is notified to the Prime Minister for an appointment as President or Deputy President."

Section 26 mandates a selection process involving selection commissions for vacancies to the court including a vacancy in the position of President or Deputy President. Hence, progression to Deputy or President is not on the basis of the next senior but the selection has to be on merit - see section 27(5).

The President has a number of functions specified in the 2005 Act. He may request certain persons to act as Judges of the Court - s.38. He may issue directions as to the composition of the court when it sits - s.42. He makes Supreme Court Rules - s.45 and sits on Selection Commissions - s.26 and Schedule 8. Since the Court's creation, it has appeared to operate on a collegiate model but dissenting judgments are permissible. There has been a tendency to try to seek a lead judgment with other justices adding any further comments, points of disagreement etc. However, as far as one can see, there is nothing to prevent a justice issuing his or her own judgment.

Could the Supreme Court assert a power to strike down legislation?

Returning to Joshua Rozenberg's article, an interesting question is raised. Looking to the future, Rozenberg asks:

"Will [the court] continue treading water, deciding cases in pretty much the same way as the law lords used to do - although using blunter language? Or it will it assert the power to strike down legislation, as the Supreme Court of the United States did in 1803 and the Israeli supreme court did in 1995?"

The legislative Supremacy of Parliament is an established pillar of the UK's constitutional arrangements. Could the Supreme Court therefore ever assume a power to strike down legislation? In seeking an answer to this question, a number of points can be made.

1. If the UK was to adopt a formal written constitution then a 'strike-down' power might be more of a possibility. The Constitution might expressly permit that or, alternatively, the Supreme Court might be encouraged to assert such a power. In such a situation, the Constitution itself has become the yardstick by which other legislation is measured.

2. There are some judicial dicta that the Supremacy of Parliament may not be an absolute rule. These arose in Jackson v Attorney-General [2005] which was concerned with the question whether the Hunting Act 2004 was a valid Act of Parliament having been enacted using the Parliament Acts 1911-1949 procedure. It was argued that the 1949 Act was itself invalid having been enacted using the Parliament Act 1911 procedure. As Lord Bingham succinctly stated the issue:

In these proceedings the appellants sought a declaration that:

"1. The Parliament Act 1949 is not an Act of Parliament and is consequently of no legal effect.

2. Accordingly, the Hunting Act 2004 is not an Act of Parliament and is of no legal effect."

For present purposes, the case is interesting because of dicta by Lords Steyn and Hope. Lord Steyn stated (paras. 101 and 102):

"The potential consequences of a decision in favour of the Attorney General are far-reaching. The Attorney General said at the hearing that the government might wish to use the 1949 Act to bring about constitutional changes such as altering the composition of the House of Lords. The logic of this proposition is that the procedure of the 1949 Act could be used by the government to abolish the House of Lords. Strict legalism suggests that the Attorney General may be right. But I am deeply troubled about assenting to the validity of such an exorbitant assertion of government power in our bi-cameral system. It may be that such an issue would test the relative merits of strict legalism and constitutional legal principle in the courts at the most fundamental level.

"But the implications are much wider. If the Attorney General is right the 1949 Act could also be used to introduce oppressive and wholly undemocratic legislation. For example, it could theoretically be used to abolish judicial review of flagrant abuse of power by a government or even the role of the ordinary courts in standing between the executive and citizens. This is where we may have to come back to the point about the supremacy of Parliament. We do not in the United Kingdom have an uncontrolled constitution as the Attorney General implausibly asserts. In the European context the second Factortame decision made that clear: [1991] 1 AC 603. The settlement contained in the Scotland Act 1998 also point to a divided sovereignty. Moreover, the European Convention on Human Rights as incorporated into our law by the Human Rights Act, 1998, created a new legal order. One must not assimilate the ECHR with multilateral treaties of the traditional type. Instead it is a legal order in which the United Kingdom assumes obligations to protect fundamental rights, not in relation to other states, but towards all individuals within its jurisdiction. The classic account given by Dicey of the doctrine of the supremacy of Parliament, pure and absolute as it was, can now be seen to be out of place in the modern United Kingdom. Nevertheless, the supremacy of Parliament is still the general principle of our constitution. It is a construct of the common law. The judges created this principle. If that is so, it is not unthinkable that circumstances could arise where the courts may have to qualify a principle established on a different hypothesis of constitutionalism. In exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts, the Appellate Committee of the House of Lords or a new Supreme Court may have to consider whether this is a constitutional fundamental which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish. It is not necessary to explore the ramifications of this question in this opinion. No such issues arise on the present appeal."

Lord Hope stated at paragraph 104:

"I start where my learned friend Lord Steyn has just ended. Our constitution is dominated by the sovereignty of Parliament. But Parliamentary sovereignty is no longer, if it ever was, absolute. It is not uncontrolled in the sense referred to by Lord Birkenhead LC in McCawley v The King [1920] AC 691, 720. It is no longer right to say that its freedom to legislate admits of no qualification whatever. Step by step, gradually but surely, the English principle of the absolute legislative sovereignty of Parliament which Dicey derived from Coke and Blackstone is being qualified."

3. The UK is a member of the European Union. The principle that the European Treaties are supreme law was established before the UK joined - e.g. Van Gend en Loos (Case 26/62) [1963] ECR 1. The supremacy derives from the aims of the EU which would not be achieved without a single system of "common" rules. It has been said that EU law has an existential need to be supreme in the various fields covered by it. For the UK, the most striking assertion of supremacy was the Factortame litigation in the 1980s and early 1990s. This litigation, fiercely fought by the British government, resulted in the possibility of the courts granting relief against the application of an Act of Parliament where the Act is considered to be in breach of EU law (see Factortame cases).

However, this granting of relief does not truly amount to striking down legislation. On entry to the EU (then "Common Market") in 1973 the UK accepted the terms of membership which included the supremacy of EU law etc. - European Communities Act 1972 s2(1). Thus, it can be argued, that Parliament has itself authorised the UK courts to apply EU law even in preference to an Act of Parliament. In effect, Parliament agreed not to legislate contrary to the EU Treaties as long as the UK remained a member.

4. Devolution legislation - The Acts of Parliament devolving legislative power to Scotland, Wales and Northern Ireland offer another example of where the UK Supreme Court might appear to be striking down legislation made in one of those countries. This has arisen acutely with regard to Scotland (see Scottish Ministers resentful of the Supreme court's 'interference' in their legal system). However, the right of the Supreme Court to rule on such devolution issues was granted to the court by the UK Parliament - Scotland Act 1998.

5. Human Rights Act 1998 - it is clear that this Act does NOT permit courts in the UK to "strike down" legislation passed by the UK Parliament. The Human Rights Act 1998 recognises the supremacy of Parliament and only enables the courts to make declarations of incompatibility. It is then for Parliament to address the incompatibility. Essentially, the judges are applying the instructions given to them by Parliament in the Human Rights Act 1998 (see Retiring Supreme Court president defends human rights). The Act enables the judges to consider legislation against Convention rights and, if it is found wanting, to say so but it then remains for Parliament to amend the law (see Leave human rights to the judges).

Hence, powers which appear to be "striking down" powers are not quite what they appear. Parliament itself can be taken to have authorised the courts to do what they do in relation to EU law, devolution and human rights. Whether the "common law construct" of the supremacy of Parliament - (as referred to in Jackson v AG) - can now be modified by the judges is a moot point though it is not entirely impossible that the seeds planted by Lords Steyn and Hope may flower one day - perhaps in response to some extreme form of legislation. A true striking down power would be one which allowed the Supreme Court to rule that legislation was unconstitutional. Such a power exists in the United States. In the absence of a formal constitution, it is difficult to see how the UK Supreme Court could assume such a power.

Addendum: The UK Constitutional Law Group has published an article looking at how the role of the Supreme Court may be different from the role played by the House of Lords (see Roger Masterman and Jo Murkens: What kind of a Court is the UK Supreme Court?).

ObiterJ is the author of the Law and Lawyers blog. Click here to follow ObiterJ on Twitter.