The Supreme Court of the United Kingdom (initialism: UKSC) is the final court of appeal in the United Kingdom for all civil cases and for criminal cases originating in England, Wales and Northern Ireland. As the United Kingdom's highest appellate court for these matters, it hears cases of the greatest public or constitutional importance affecting the whole population.[1]
Further, under section 4 of the Human Rights Act 1998, the Supreme Court, like some other courts in the United Kingdom, may make a declaration of incompatibility, indicating that it believes that the legislation subject to the declaration is incompatible with one of the rights in the European Convention on Human Rights. Such a declaration can apply to primary or secondary legislation. The legislation is not overturned by the declaration, and neither Parliament nor the government is required to agree with any such declaration. However, if they do accept a declaration, ministers can exercise powers under section 10 of the Human Rights Act to amend the legislation by statutory instrument to remove the incompatibility or ask Parliament to amend the legislation.
As authorised by the Constitutional Reform Act 2005, Part 3, Section 23(1),[7] the Supreme Court of the United Kingdom was formally established on 1 October 2009 and is a non-ministerial government department of the Government of the United Kingdom.[8] Section 23 of the Constitutional Reform Act limits the number of judges on the Court to 12, though it also allows for this rule to be amended, to further increase the number of judges, if a resolution is passed in both Houses of Parliament.[9]
The creation of a Supreme Court for the United Kingdom was first proposed in a consultation paper published by the Department of Constitutional Affairs in July 2003.[10] Although the paper noted that there had been no criticism of the then-current Law Lords or any indication of an actual bias, it argued that the separation of the judicial functions of the Appellate Committee of the House of Lords from the legislative functions of the House of Lords should be made explicit. The paper noted the following concerns:
Whether there was any longer sufficient transparency of independence from the executive and the legislature to give assurance of the independence of the judiciary.[10]
The requirement for the appearance of impartiality and independence limited the ability of the Law Lords to contribute to the work of the House itself, thus reducing the value to both them and the House of their membership.[10]
It was not always understood by the public that judicial decisions of "the House of Lords" were in fact taken by the Appellate Committee and that non-judicial members were never involved in the judgments. Conversely, it was felt that the extent to which the Law Lords themselves had decided to refrain from getting involved in political issues in relation to legislation on which they might later have had to adjudicate was not always appreciated.[10] The first President of the Court, The Lord Phillips of Worth Matravers, claimed that the old system confused people and that with the Supreme Court there would for the first time be a clear separation of powers among the judiciary, the legislature and the executive.[11]
Space within the House of Lords was at a constant premium and a separate supreme court would ease the pressure on the Palace of Westminster.[10]
The main argument against a new Supreme Court was that the previous system had worked well and kept costs down.[12] Reformers expressed concern that this second main example of a mixture of the legislative, judicial and executive might conflict with professed values under the Universal Declaration of Human Rights. Officials who make or execute laws have an interest in court cases that put those laws to the test. When the state invests judicial authority in those officials or even their day-to-day colleagues, it puts the independence and impartiality of the courts at risk. Consequently, it was hypothesised closely connected decisions of the Law Lords to debates had by friends or on which the Lord Chancellor had expressed a view might be challenged on human-rights grounds on the basis that they had not constituted a fair trial.[13]
The Lord Neuberger of Abbotsbury, later President of the Supreme Court, expressed fear that the new court could make itself more powerful than the House of Lords committee it succeeded, saying that there is a real risk of "judges arrogating to themselves greater power than they have at the moment". The Lord Phillips of Worth Matravers said such an outcome was "a possibility", but was "unlikely".[14]
The reforms were controversial and were brought forward with little consultation but were subsequently extensively debated in Parliament.[15] During 2004, a select committee of the House of Lords scrutinised the arguments for and against setting up a new court.[16] The Government estimated the set-up cost of the Supreme Court at £56.9 million.[17]
Significant cases
The first case heard by the Supreme Court was HM Treasury v Ahmed, which concerned "the separation of powers", according to Phillips, its inaugural President. At issue was the extent to which Parliament has, by the United Nations Act 1946, delegated to the executive the power to legislate. Resolution of this issue depended upon the approach properly to be adopted by the court in interpreting legislation which may affect fundamental rights at common law or under the European Convention on Human Rights.
One of the most important cases presented to the Supreme Court was the joint cases of R (Miller) v The Prime Minister and Cherry v Advocate General for Scotland, known as Miller/Cherry, on Boris Johnson's unlawful prorogation (suspension) of Parliament, to suppress debate in anticipation of Britain's withdrawal from the European Union, "frustrating or preventing the constitutional role of Parliament in holding the Government to account".[18] It is one of only two cases that involved the presence of 11 judges (the highest number of judges currently allowed to rule on a case). The case carried a large amount of political tension in the context of the process of the United Kingdom leaving the European Union; for some, the ruling "delighted 'Remainers' but appalled 'Leavers'",[19] although some Conservative MPs who sought to withdraw from the EU with an agreement had opposed the prorogation.[20]
In 2022, the Supreme Court ruled on whether the Scottish Parliament had the power to legislate for a second independence referendum. In the case, the five-judge panel unanimously found that Scotland did not have the right to organise a referendum without the permission of Westminster, as questions around independence qualify as "reserved matters" (reserved to the central government) under the Scotland Act 1998. Nicola Sturgeon, the then-leader of the pro-independence Scottish National Party, regarded the decision as "a hard pill for any supporter of independence... to swallow" but reiterated the party's commitment to "find another democratic, lawful means for Scottish people to express their will".[21][22]
Jurisdiction and powers
From the Supreme Court –
The Supreme Court is the final court of appeal in the UK for civil cases, and for criminal cases from England, Wales and Northern Ireland. It hears cases of the greatest public or constitutional importance affecting the whole population.[1]
The Supreme Court hears appeals (i) in England and Wales, from the Court of Appeal (Civil Division), the Court of Appeal (Criminal Division) and (ii) in Scotland from the Court of Session.[23]
The Supreme Court is the highest court of appeal in relation to Scottish civil cases. However, the High Court of Justiciary is the highest court of appeal in relation to Scottish criminal cases.[24]
On rare occasions the court may have original jurisdiction, normally in cases relating to contempt of the Supreme Court, such as Proceedings for Contempt: Mr Tim Crosland[25] and its appeal case HM Attorney General v Crosland.[26]
Panels and sittings
The twelve justices do not all hear every case. Unless there are circumstances requiring a larger panel, a case is usually heard by a panel of five justices.[27] More than five justices may sit on a panel where the case is of "high constitutional importance" or "great public importance"; if the case raises "an important point in relation to the European Convention on Human Rights"; if the case involves a conflict of decisions among the House of Lords, Judicial Committee of the Privy Council, or Supreme Court; or if the Court "is being asked to depart, or may decide to depart from" its (or the House of Lords') previous precedent.[27] The composition of panels is ultimately determined by the President.[28]
The justices have never worn court dress during sittings.[32] In November 2011, The Lord Phillips of Worth Matravers allowed counsel to jointly agree to "dispense with any or all of the traditional elements of court dress" at sittings.[32]
Administration
The Supreme Court has a separate administration from the other courts of the United Kingdom, under a Chief Executive who is appointed by the Court's president.[33][34][35]
Prior to 1 October 2009, there were two other courts known as "the supreme court". These were the Supreme Court of England and Wales (known as "the Supreme Court of Judicature", prior to the passing and coming-into-force of the Senior Courts Act 1981), which was created in the 1870s under the Judicature Acts, and the Supreme Court of Judicature of Northern Ireland. Each consisted of a Court of Appeal, a High Court of Justice and a Crown Court. When the provisions of the Constitutional Reform Act 2005 came into force these became known as the Senior Courts of England and Wales and the Court of Judicature of Northern Ireland respectively.
The Judicial Committee of the Privy Council also retains jurisdiction over certain matters. By Section 4 of the Judicial Committee Act 1833, the Sovereign may refer any matter whatsoever to the Judicial Committee of the Privy Council to provide advice, although this does not confer judicial authority.[37][38]
The judicial functions of the House of Lords have all been abolished, other than the trial of impeachments, a procedure which has not been invoked for 200 years.
The court is composed of the President and Deputy President and ten other Justices of the Supreme Court, all with the style of Justice of the Supreme Court under section 23(6) of the Constitutional Reform Act.[7] The President and Deputy President of the court are separately appointed to those roles.
The ten Lords of Appeal in Ordinary (Law Lords) holding office on 1 October 2009 became the first judges of the twelve-member Supreme Court.[39] The eleventh place on the Supreme Court was filled by The Lord Clarke of Stone-cum-Ebony (formerly the Master of the Rolls), who was the first justice to be appointed directly to the Supreme Court.[40] One of the former Law Lords, The Lord Neuberger of Abbotsbury, was appointed to replace Clarke as Master of the Rolls,[41] and so did not move to the new court. Lord Dyson became the twelfth and final judge of the Supreme Court on 13 April 2010.[42] In 2010, Queen Elizabeth II granted justices who are not peers use of the title Lord or Lady, by warrant under the royal sign-manual.[43][44]
The Senior Law Lord on 1 October 2009, The Lord Phillips of Worth Matravers, became the Supreme Court's first President,[45] and the Second Senior Law Lord, The Lord Hope of Craighead, became the first Deputy President.
In addition to the twelve permanent judges, the President may request other senior judges drawn from two groups to sit as "acting judges" of the Supreme Court.[48]
The first group are those judges who currently hold 'office as a senior territorial judge': judges of the Court of Appeal of England and Wales, judges of the Court of Appeal of Northern Ireland and judges of the First or Second Division of the Inner House of the Court of Session in Scotland.[49] This has included the current Lord President, Lord Carloway, himself sitting on cases.[50]
The second group are known as the 'supplementary panel'. The President may approve in writing retired judges' membership of this panel if they are under 75 and are (a) former supreme court justices or (b) former 'senior territorial judges'.[51] A list of those currently appointed is to be found on the Supreme Court website.[52] (The system is similar to senior status in the United States Federal Courts of Appeal, although there are important differences: for example, a judge on the supplementary panel does not receive a salary).
Qualification for appointment
Section 25 of the Constitutional Reform Act 2005 details the necessary requirements for a person to be eligible for appointment to the Court.[53] A person is qualified for appointment if they have, at any time:
held high judicial office for a period of at least 2 years or
been a qualified practitioner for at least 15 years.
To hold high judicial office includes; being a High Court Judge of England and Wales, or of Northern Ireland; a Court of Appeal Judge of England and Wales, or of Northern Ireland; or a Judge on the Court of Sessions. A person is a qualified practitioner if they are an advocate in Scotland or a solicitor entitled to appear in the Court of Session and the High Court of Justiciary; or a member of the Bar of Northern Ireland or a solicitor of the Court of Judicature of Northern Ireland.[54]
Appointment process
The Constitutional Reform Act 2005 makes provision for a new appointment process for Justices of the Supreme Court. An independent selection commission is to be formed when vacancies arise. This is to be composed of the President of the Supreme Court (the chair), another senior UK judge (not a Supreme Court Justice) and a member of the Judicial Appointments Commission of England and Wales, the Judicial Appointments Board for Scotland and the Northern Ireland Judicial Appointments Commission. By law, at least one of these must be a non-lawyer. However, there is a similar but separate commission to appoint the next President of the Supreme Court, which is chaired by one of the non-lawyer members and features another Supreme Court Justice in the place of the President. Both of these commissions are convened by the Lord Chancellor.[55] In October 2007, the Ministry of Justice announced that the appointment process would be adopted on a voluntary basis for appointments of Lords of Appeal in Ordinary.[56]
The commission selects one person for the vacancy and notifies the Lord Chancellor of its choice. The Lord Chancellor then either
approves the commission's selection
rejects the commission's selection, or
asks the commission to reconsider its selection.
If the Lord Chancellor approves the person selected by the commission, the Prime Minister must then recommend that person to the Monarch for appointment.[57]
New judges appointed to the Supreme Court after its creation do not necessarily receive peerages. Following a Royal Warrant dated 10 December 2010, all Justices of the Supreme Court of the United Kingdom not holding a peerage are entitled to the judicial courtesy title of Lord or Lady and retain this style for life.[43][58]
The President and Deputy President of the Supreme Court are appointed to those roles rather than being the most senior by tenure in office.
List of current judges
The most recent to join the court is Lady Simler, who joined on 14 November 2023 in place of Lord Kitchin. In order of seniority, they are as follows:
The UK Supreme Court has since its inception sent some of its justices to sit on Hong Kong's top court, the Court of Final Appeal.[60] This practice was established when the Court of Final Appeal was first set up in 1997 and before the founding of the UK Supreme Court, when the House of Lords was still the final appellate court in the UK.[61] When British justices sit on the top court of Hong Kong, they are required by law to take the judicial oath with the pledge of allegiance to the Hong Kong SAR of the People's Republic of China.[62] Because of that, they are not "overseas judges" as many mistakenly assume.[63][64] They become local Hong Kong judges themselves.[65] Along with their oaths taken to be justices of the UK Supreme Court,[66] these judges owe a double allegiance and serve on the top courts of both jurisdictions at the same time.
The participation of UK Supreme Court's justices in Hong Kong's judiciary is highly welcomed by the Hong Kong government because it helps bolster the international reputation of the courts in Hong Kong.[67] However, there have been calls advocating the discontinuation of this practice since the implementation of the controversial national security law in Hong Kong by China in July 2020.[68][69] More specifically, members from both Houses of Parliament across the political spectrum have on various occasions either called for the termination of this practice or questioned the appropriateness of it.[70][71][72][73][74]
In June 2021, Baroness Hale of Richmond, former President of the UK Supreme Court, announced her decision not to seek reappointment on the Hong Kong court after the end of her term in July while mentioning the impact of the national security law.[75] She became the first senior British judge to quit Hong Kong's top court after the enactment of the security law. Amid the controversy, in August 2021, The Lord Reed of Allermuir issued a statement certifying that Hong Kong's judiciary "continues to act largely independently of government".[76] However, about three months later, the US-China Commission submitted its annual report to US Congress detailing China's situation.[77] In the report, not only did the Commission explicitly state that the independence of Hong Kong's judiciary existed “in name only”, in direct conflict with The Lord Reed of Allermuir's certification, but also questioned whether or not overseas judges, including British judges, serving on Hong Kong's top court could still protect the rule of law in Hong Kong.[78]
In a statement issued on 30 March 2022, the Foreign Secretary announced that the UK Government could no longer endorse British current judges sitting on the Hong Kong Court of Final Appeal, saying to do otherwise "would risk legitimising oppression".[79] Soon after the government's announcement, on the same day, the president and deputy president of the UK Supreme Court, The Lord Reed of Allermuir and Lord Hodge, tendered their resignations as judges of the Hong Kong court.[80] As of 30 March 2022, six retired British justices continue to sit on Hong Kong's top court.[60]
The Constitutional Reform Act 2005 gave time for a suitable building to be found and fitted out before the Law Lords moved out of the Houses of Parliament, where they had previously used a series of rooms in the Palace of Westminster.[81]
After a lengthy survey of suitable sites, including Somerset House, the Government announced that the new court would be at the Middlesex Guildhall, in Parliament Square, Westminster. That decision was examined by the Constitutional Affairs Committee,[82] and the grant of planning permission by Westminster City Council for refurbishment works was challenged in a judicial review by the conservation group Save Britain's Heritage.[83] It was also reported that English Heritage had been put under great pressure to approve the alterations.[84] Feilden + Mawson, supported by Foster & Partners, were the appointed architects, with Kier Group appointed as main contractor.[85]
The building had been used as the Middlesex Quarter Sessions House and the headquarters of the Middlesex County Council. Following the abolition of the council in 1965, its former council chamber became a courtroom, which is now Court One, the principal courtroom. In 1972 the building became a Crown Court centre.[86]
Badge
The Blake emblem with stylised depictions of the four floral emblemsBlake's carpet for the Supreme Court buildings
The official badge of the Supreme Court was granted by the College of Arms in October 2008.[87] It comprises both the Greek letter omega (representing finality) and the symbol of Libra (symbolising the scales of justice), in addition to the four floral emblems of the United Kingdom: a Tudor rose, representing England, conjoined with the leaves of a leek, representing Wales; a flax (or 'lint') blossom for Northern Ireland; and a thistle, representing Scotland.[88][89]
Two adapted versions of its official badge are used by the Supreme Court. One features the words "The Supreme Court" and the letter omega in black (in the official badge granted by the College of Arms, the interior of the Latin and Greek letters are gold and white respectively), and displays a simplified version of the crown (also in black) and larger, stylised versions of the floral emblems; this modified version of the badge is featured on the new Supreme Court website,[90] as well as in the forms that will be used by the Supreme Court.[91] A further variant omits the crown entirely and is featured prominently throughout the building.[92][89]
Another emblem is formed from a more abstract set of depictions of the four floral emblems and is used in the carpets of the Middlesex Guildhall designed by Sir Peter Blake, creator of such works as the cover of The Beatles' 1967 album, Sgt. Pepper's Lonely Hearts Club Band.[93]
^ ab"The Supreme Court". The Registry, the Supreme Court (The Registry of the Supreme Court of the United Kingdom). 12 January 2013. Retrieved 9 November 2018.
^"New Supreme Court opens with media barred". The Daily Telegraph. London. 1 October 2009. Archived from the original on 4 October 2009. Retrieved 24 May 2010. For the first time, we have a clear separation of powers between the legislature, the judiciary and the executive in the United Kingdom. This is important. It emphasises the independence of the judiciary, clearly separating those who make the law from those who administer it.
^A. Le Sueur, "From Appellate Committee to Supreme Court: A Narrative", ch. 5 in L. Blom-Cooper, G. Drewry and B. Dickson (eds.),The Judicial House of Lords (Oxford University Press, 2009); Queen Mary School of Law Legal Studies Research Paper No. 17/2009. SSRN1374357
^Constantina P. Tridimas and George Tridimas (April 2020). "Is the UK Supreme Court rogue to un-prorogue Parliament?" European Journal of Law and Economics, Springer, vol. 49(2), pp. 205–225.
^Cook, Robin (UK Foreign Secretary) (January 1998). "Sino-British Joint Declaration Six-Monthly Report to Parliament (Jul–Dec 1997)"(PDF). GOV.UK. p. 2. I am delighted that Britain has been able to contribute to this process, by making available to the Court of Final Appeal two of our leading Law Lords, Lord Hoffmann and Lord Nicholls, as members of the Court's panel of non-permanent judges.
^Andrew Rosindell (15 November 2021). "Hansard (Debate: Amnesty International Offices in Hong Kong)". UK Parliament. Secondly, Ministers must reconsider the participation of sitting UK judges on the Hong Kong court of final appeal. As the human rights situation continues to deteriorate at a worrying pace, it is clear that these judges are powerless to moderate Beijing's behaviour. Instead, they are offering political cover for a Government in Hong Kong who have lost all legitimacy.
^Stephen Kinnock (9 June 2021). "Hansard (Debate: Human Rights in Hong Kong)". UK Parliament. ...and we need—as the Labour party is calling for—British judges to leave Hong Kong. British judges are simply lending a veneer of credibility to the undemocratic, broken system. Have the UK Government made an assessment of whether UK judges are protecting the rule of law in Hong Kong or simply legitimising an authoritarian regime?
^Alistair Carmichael (14 October 2021). "It's time to remove British judges from Hong Kong". The Sunday Times. British judges' continued presence in Hong Kong lends a false veneer of respectability to a justice system that is no longer just. The president of the Supreme Court and the new foreign secretary must take a stand and remove British judges from Hong Kong once and for all.
^Peter Truscott, Baron Truscott. "Hansard (Debate: Hong Kong Courts: British Judges)". UK Parliament. My Lords, I thank the Minister for his reply, but is it not time that Her Majesty's Government make their position clear on this and take further action? Is it not wrong on many levels that British judges are active in Hong Kong, giving a veneer of respectability to wholly draconian laws which effectively stifle freedom of speech, freedom of assembly and free and fair elections?
^US-China Commission (17 November 2021). "2021 Report to Congress of the U.S.-China Economic and Security Review Commission"(PDF). United States-China Economic and Security Review Commission. Judiciary Independent in Name Only (p.458) Hong Kong's historically independent judiciary is no longer reliably impartial on cases related to matters the Chinese government deems sensitive, since the National Security Law has cemented Beijing's right to determine which judges hear national security cases in which jurisdiction, almost guaranteeing outcomes the CCP prefers. (p.458) It is no longer certain that overseas judges serving in nonpermanent posts on the Court of Final Appeal (CFA) can still protect the rule of law in Hong Kong. (p.460)
Morgan, Derek (ed). Constitutional Innovation: the creation of a Supreme Court for the United Kingdom (A special issue of the Legal Studies, the Journal of the Society of Legal Scholars).
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