Richard Ekins: How to reform our Supreme Court

24 Jan

Richard Ekins is Head of Policy Exchange’s Judicial Power Project and Professor of Law and Constitutional Government, University of Oxford

During the recent American Presidential election, Senator Biden, as he then was, declined to say whether he would, if elected, attempt to reform the United States Supreme Court and in particular whether he would consider packing the Court.

Donald Trump’s appointment of three new justices shifted the apparent balance of power. With this change in political fortunes came a sudden decline in political enthusiasm for the Supreme Court’s strong jurisdiction. For many (not all) on the left, the Court has long been championed as the vanguard of progressive change, with judicial power deployed to secure – and to cement – victories other than by the ballot box.

This deployment was always a disgraceful strategy, not to mention a disastrous way to govern, and if it has truly been abandoned, then well and good.

But the change of heart may be more strategic than sincere. Court reform in the United States seems to be as much about entrenching legal changes secured by past acts of judicial fiat as it is about preventing the Supreme Court from frustrating the policy of the new Biden administration. A more principled reform agenda would aim to establish general limits on the Court’s role, returning political questions to the political process, to be settled by representative institutions rather than by court order.

The challenge for Americans is how to reconcile the Supreme Court’s jurisdiction with constitutional self-government. This is an old problem, with President Lincoln warning, in his first inaugural address in 1861, that judicial supremacy would mean that “the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.” The Supreme Court’s outsized role in American public life distorts politics, making control of the power to appoint the marginal judge one of the central objects of political competition; it is difficult otherwise to explain Trump’s election in 2016.

Happily, here in Britain, our Supreme Court does not enjoy anything like the powers exercised by its American namesake. It is not free, in particular, to question the validity of Acts of Parliament; parliamentary sovereignty is our fundamental constitutional law.

That said, in a judgment in May 2019, three Supreme Court judges openly questioned that fundamental law. In other cases, the Court seems to have misunderstood itself to be the guardian of the constitution. The Human Rights Act 1998 has made the political (small-p) views of our judges ever more important, and the Supreme Court has been central to recent political controversy. No surprise, then, that the Court’s political salience has been rising, and that the Government is contemplating reform.

Now that a UK-EU deal has been agreed, Supreme Court reform is likely to be firmly on the agenda. What should the Government propose? How should Parliament respond?

Our Supreme Court was created by the Constitutional Reform Act 2005, which is an Act of Parliament open to repeal or amendment like any other.

In a paper published shortly after the 2019 general election, I recommended that Parliament amend the Act to rename the Supreme Court as the Upper Court of Appeal and to specify that the Court’s function was not to serve as the guardian of the constitution writ large. In a subsequent Policy Exchange paper, Professor Derrick Wyatt and I discussed his bolder proposal to replace the Supreme Court with a Final or Upper Court of Appeal made up of a rotating set of panels of Court of Appeal judges.

Lord Thomas of Cwmgiedd, former Lord Chief Justice of England and Wales, welcomed the paper as a serious contribution to public debate. It may have informed the Government’s thinking, which is said to be to rename the Supreme Court, with a small permanent core of judges joined by a changing set of Court of Appeal judges. Details remain sketchy. but this might well mean a change from Supreme Court to the Judicial Committee of the Privy Council, maintaining some continuity, but also widening the set of judges who decides final cases.

Parliamentarians should protect the constitution. The independent reviews of administrative law (chaired by Lord Faulks) and the Human Rights Act (chaired by Sir Peter Gross) will hopefully result in useful analysis and recommendations, but the danger of proceeding in this way is that the Government risks effectively providing the legal establishment with a lock on reform.

While experts of course have a contribution to make to public deliberation, there is no substitute for (elected) parliamentarians taking responsibility for the state of the constitution and its repair.

When the Government publishes proposals for amending the 2005 Act, perhaps in summer or autumn this year, Parliament should consider carefully their implications for the rule of law and the balance of powers in our constitution, as well as their practical workability. In publishing the two papers noted above, Policy Exchange’s Judicial Power Project aimed to contribute to public deliberation about the role of the courts, especially the Supreme Court, and options for reform.

In a symposium published recently, we extend the conversation, providing distinguished jurists with an opportunity to reflect on the Supreme Court and on the merits of institutional reform.

My Oxford colleague, Professor Robert Stevens, argues that Professor Wyatt’s proposal would improve judicial diversity, protect judges from celebrity status and related political attack, and would spread the workload more equitably. Professor Kate Malleson questions whether the reform would improve judicial diversity. John Larkin QC, former Attorney General for Northern Ireland, argues that the Supreme Court is less disciplined than the Appellate Committee of the House of Lords from which it emerges. Sir Patrick Elias, former Lord Justice of Appeal, agrees, but concludes that on balance Professor Wyatt’s proposal would do more harm than good. Professor Wyatt replies to all comers, powerfully developing his case for reform. For my part, I note that while the proposal is ingenious, Sir Patrick’s practical and principled objections to it are difficult to answer.

In arguing for our Supreme Court to be renamed, I reasoned that the name wrongly brought to mind the United States Supreme Court, a model we ought not to emulate. It is open to Parliament to rename the Court, to specify more narrowly its jurisdiction, or even to go further and to restructure how and by whom final appellate jurisdiction is exercised. Institutional reform requires careful thought and debate, all with an eye to the proper constitutional role of the courts, and the nature and purpose of appellate jurisdiction. In reasoning in this way, Parliament is best able to discharge its responsibility to protect the constitution, from the courts and for the courts.

The Deal in Detail 6): Law and Constitution

1 Jan

Richard Ekins is Head of Policy Exchange’s Judicial Power Project and Professor of Law and Constitutional Government in the University of Oxford.

In his foreword to the Government’s explanation of the UK-EU Trade and Cooperation Agreement, the Prime Minister says “the agreement provides for the UK to take back control of our laws, affording no role for EU law and no jurisdiction for the European Court of Justice. The only laws we will have to obey are the ones made by the Parliament we elect.”

Strictly, no agreement with the EU has ever been necessary for the UK to take back control of its laws, but the Prime Minister’s point is that nothing in this new agreement requires the UK to conform to EU law or otherwise to be subject to the jurisdiction of the European Court of Justice (ECJ). The truth of this claim is obviously important. So too is the question of whether, even if the ECJ’s jurisdiction is brought to an end, the agreement might (inadvertently) compound the problem of the European Court of Human Rights (ECtHR), strengthening its jurisdiction over the UK by tying it to free trade with the EU.

Like the Withdrawal Agreement, the UK-EU Trade and Cooperation Agreement, when ratified, will be an international treaty between the UK and the EU. Both agreements make provision for dispute resolution, and in neither agreement is the ECJ the arbiter, for the obvious reason that the ECJ is the EU’s own court.

However, parts of the Withdrawal Agreement, especially the Protocol on Ireland/Northern Ireland, do make provision for EU law to continue to apply, in relation to which the ECJ has a continuing role. In adopting the Withdrawal Agreement, the UK agreed to legislate to give some of the agreement’s terms domestic legal force, including priority over other legislation.

There is no such requirement in the UK-EU Trade and Cooperation Agreement, and the agreement does not import concepts of EU law or otherwise make provision for the UK to be subject to ECJ rule. The only limited exception concerns continuing UK participation in EU programmes, such as Horizon, in relation to which the ECJ obviously has a role. However, this is quite different from the UK agreeing to follow EU law and agreeing to be subject to the ECJ’s jurisdiction.

The Agreement creates a complex network of institutions that will manage relations between the UK and the EU across various fields. In the event of disputes, different options will be open, depending on the context, including third-party arbitration. In some cases, the UK and the EU may be free to suspend performance of obligations in retaliation to breaches. The UK and the EU will thus enforce the agreement by way of arbitration and diplomacy. The EU cannot enforce the agreement against the UK by way of the ECJ, which has no relevant jurisdiction.

At various points during the negotiations, the EU has sought from the UK an undertaking that it would remain a member state of the ECHR and would agree not to amend or repeal the Human Rights Act 1998. This was an obviously unreasonable negotiating aim. Happily, the Agreement contains no such undertaking. The point might seem academic because it is Government policy for the UK to remain party to the ECHR. However, the UK’s treaty right to leave the ECHR is an important protection. It would be open to a successive government, led by a latter-day Clement Attlee for example, to choose to leave. While the Agreement is to some extent conditional on mutual human rights assurances, they fall well short of an undertaking not to denounce the ECHR and thus to protect human rights by other (better) means.

In the opening words of the preamble to the Agreement, the UK and the EU reaffirm “their commitment to democratic principles, to the rule of law, to human rights, to countering proliferation of weapons of mass destruction and to the fight against climate change, which constitute essential elements of this and supplementing agreements”.

Part Six, which concerns dispute resolution, again confirms that these are “essential elements” of the agreement. The UK and the EU agree to continue to uphold shared values and principles of democracy, the rule of law and respect for human rights and reaffirm their respect for the Universal Declaration of Human Rights (UDHR) and the international human rights treaties to which they are parties. The UK is of course a party to the ECHR, but the agreement does not mention the ECHR at this point (the EU has a treaty commitment to join the ECHR, but the ECJ has frustrated its fulfilment; EU member states are parties to the ECHR). Respect for treaties to which one is a party is consistent with maintaining a right to leave in future.

Part Six provides that either the UK or the EU may terminate or suspend the operation of the Agreement if there has been “a serious and substantial failure” by the other party to fulfil any of the obligations that are essential elements of the Agreement. However, the agreement specifies that any measures adopted would have to be proportionate and for a failure to be serious and substantial failure, “its gravity and nature would have to be of an exceptional sort that threatens peace and security or that has international repercussions”.

The Agreement specifies that defeating the object and purpose of the Paris Agreement would count, but there is no mention of leaving the ECHR. The omission is justified, because denouncing the ECHR would not itself be a failure of respect for human rights. On the contrary, it might well be a decision that human rights, democracy and the rule of law are better realised by a mature parliamentary democracy not subject to the ECHR’s jurisdiction. While the EU might attempt to argue that denouncing the ECHR was a breach of the Agreement, the argument would be weak indeed. It would also be superfluous because the EU, like the UK, is free to terminate the entire Agreement provided it gives twelve months’ notice.

Part Three of the Agreement, which concerns law enforcement and judicial cooperation in criminal matters, is somewhat more specific. The Agreement notes that the basis for cooperation is that the UK, the EU, and EU member states have long respected democracy, the rule of law and the protection of human rights, including rights set out in the UDHR and the ECHR, as well as the importance of giving domestic effect to the ECHR.

The Agreement disavows any intention to modify existing obligations to respect fundamental rights, especially those affirmed in the ECHR or, on the part of the EU and its member states, in the Charter of Fundamental Rights. Part Three permits the UK or the EU to terminate this part of the Agreement by giving nine months’ notice (other parts of the Agreement also provide for partial termination on nine months’ notice).

It also provides for earlier termination if the reason for termination is that the UK or an EU member state has denounced the ECHR, , specifying that in this case this part shall case to have effect from the date on which denunciation becomes effective (which the ECHR provides requires six months’ notice). Denouncing the ECHR would neither breach Part Three nor vitiate a condition on which the continuing application of Part Three depends; instead, the EU would have to choose to exercise its right to terminate.

In ratifying this agreement, the UK will not be undertaking not to withdraw from the ECHR, let alone not to amend or repeal the Human Rights Act. If the UK subsequently exercises its treaty right to leave the ECHR, it will be choosing, like Australia, Canada or New Zealand, to live without an international (regional) human rights court.

Whether to make this choice is an important question of foreign policy, a question with significant constitutional implications. Leaving the ECHR would not be a breach of the Agreement. It would not justify suspension or termination of agreed terms of trade. It might be a reason for the EU to terminate law enforcement and judicial cooperation, but that would be a choice for the EU to make and the EU, like the UK, is in any case free to terminate the Agreement. If the UK were to leave the ECHR, it would be prudent to provide assurances to the EU that there would be no relevant change in the protection of liberty within domestic law. But whether to leave the ECHR, and how to protect human rights, would remain for the UK freely to decide.

This is the sixth of a series of pieces from Policy Exchange looking at specific issues that arise from the Brexit trade deal.