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Tuesday, October 20, 2009

The Supreme Court of the United Kingdom

United_kingdom_supreme_court_crestThis month marks a historic moment in the history of the Anglo legal tradition. As of October 1, 2009, the United Kingdom did away with the judicial function of the House of Lords and opened a new court, the Supreme Court of the United Kingdom, to be the highest judicial authority in the country. 

This is no small break with tradition. Remember, this is a country where lawyers still wear wigs in the courtroom. Until this month, the House of Lords had been the tribunal of last resort for most cases since 1399, which was when the House of Commons stopped hearing petitions for reversal from lower courts. In 1876, the judicial authority of the House of Lords was modernized when professional judges were appointed as Lords of Appeal in Ordinary to carry out the judicial functions of the House of Lords. But these law lords maintained a legislative role by having the power to vote in parliament – though they rarely did so.

All that has changed. As of this month, the law lords are now “justices.” And although the current justices retain their title of “lord,” the Supreme Court members are now disqualified to vote in the House of Lords. Moreover, as absences occur on the new Supreme Court, seats will be filled by judges who may not bear the title of “lord” at all.

For American lawyers and law professors, the creation of the new U.K. Supreme Court provides some cause for reflection: Our American legal tradition evolved from the U.K.’s. Our common law tradition, our courts, and our ideals of jurisprudence all come in large part from the Mother Country. It strikes me as a tremendous compliment to the USA that, in the 21st Century, traditions appear to be flowing back across the Atlantic. The U.K. has followed the American exemplar not only in concept, aiming for a strictly independent judiciary, but in in name as well, using the appellations “Supreme Court” and “justices.” 

Now, let me admit that I am not a scholar of British law. Thus, I cannot say how much of the new U.K. court structure is directly modeled on the U.S. example. (If anyone can chime in on to what SCOTUK and the Constitutional Reform Act of 2005 owes to SCOTUS and the U.S. Constitution, I’d be grateful to hear it.) But I, for one, take it as a sure sign of Ameriphile sentiment that Britain chose to call their new high court by the same name as ours – especially since the U.K. has such a tradition of super cool names for judicial tribunals: “Privy Council,” “Exchequer of Pleas,” and “Court of the Queen’s Bench” to name just a few.

A couple of interesting trivia bits to point out: 

  • The crest for the new court is built around a Greek omega – a reference to the institution’s status as the court of last resort. 
  • The court has been given spectacular new digs at a renovated courthouse, Middlesex Guildhall, which is next to the Houses of Parliament and Westminster Abbey. 
  • The U.K. Supreme Court has colorful pdf-based forms for aspiring litigants, such as a very friendly looking fill-in-the-box cert petition (called an “application for permission to appeal”) with instructions on where the completed form can be e-mailed. (Anyone who has dealt with the PACER system or the elaborate document formatting rules for U.S. appeals courts might find the British approach highly refreshing.)

ABOVE: The home of the new Supreme Court of the United Kingdom, Middlesex Guildhall.

Posted by Eric E. Johnson on October 20, 2009 at 04:34 PM in Constitutional thoughts, International Law, Judicial Process | Permalink


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I'm a law student at the University of Cambridge (it's an undergrad course here), and I just had a supervision (Cambridge-speak for an hour-long meeting between 3 students and a professor or researcher) about the Separation of Powers in the UK.

Broadly, the old role of the Lord Chancellor has changed. Formerly, this was a very important role in the judiciary who sat in the House of Lords on appeals (hundreds of years ago, he also had his own Courts of Chancery and Star Chamber), appointed judges (without a commission) and was a member of the Cabinet. The CRA 2005 made him "Secretary of State for Justice" (Secretary of State in the UK is the equivalent to Secretary in the US) - a mostly administrative role with no right to sit on the new Supreme Court. Technically, the Lord Chancellor still passes nominations from the judicial appointments commission on; in practice it's now the same as most other Cabinet positions in the UK.

The Supreme Court idea probably came from the current Government's love for reforming anything it can get its hands on, constitutionally. There may have been a little impact from the US system, but remember that the UK judiciary has probably been more impartial for longer, so it's a change of name only (at least initially).

On Separation of Powers in general, we still have big issues. Our executive sit in Parliament, most MPs vote party line because they want executive jobs in future, and legislation is generally prepared by the executive and passed with shoddy scrutiny from Parliament. It's big news when the Government loses even minor votes here - it's been a long time since a government didn't get its way on a big issue.

The appeals from the ex-colonies that have maintained right of appeal to the UK actually don't go to the Supreme Court - they go to the Judicial Committee of the Privy Council, which is the same judges sitting with different hats on. The Privy Council lost a little jurisdiction over Devolution (our rubbish version of federalism) to the Supreme Court, but as far as I know the PC remains the highest court for places like the Bahamas.

To add to the confusion, the Court of Appeal and High Court (2 lower-level courts) were previously known collectively as the "Supreme Court of Judicature" - a historical quirk now rectified by being renamed "Senior Courts of Judicature".

The ENGLAND & WALES (Scotland & Northern Ireland have their own systems of law) Court hierarchy is:

Magistrates' Courts (Justices of the Peace or District Judges): Groups of 3 lay volunteers advised by a legally trained clerk, deal with minor criminal offences (up to 6 months jail/£5k fine). Note that there's no jury, and these Courts also deal with things like alcohol licences, committing people for trial, warrants, etc.
County Courts (District Judges or Circuit Judges): Low-level civil and family cases, heard by one judge - no jury
Crown Courts (Circuit Judges or High Court Judges by designation): First instance for major criminal cases (on indictment), tried by jury.

High Court (High Court Judges aka Puisne Judges - "Mr. Justice X"): First instance for big civil cases, some appeals from Magistrates on questions of law, bigger family cases, probate, tax, admiralty, etc. Split into 3 divisions - Chancery (mainly equity-related stuff, especially trusts, probate, commercial law, etc.), Family (Divorce, some probate, wardship), and the Queen's Bench Division (some criminal appeals from Magistrates, Big Civil Cases - no jury except for defamation or false imprisonment -, Admiralty, Administrative law, and broadly anything else). Binds all Courts below it.

Court of Appeal (Lords Justice of Appeal - "Lord Justice X"): Civil Division (led by "Master of the Rolls") hears appeals on civil cases, Criminal Division (Led by "Lord Chief Justice of England and Wales") hears appeals from Crown Court criminal cases. Both bind selves and all courts below.

Supreme Court (Supreme Court Justices): Hears appeals on matters of public importance from Court of Appeal, and very occasionally directly from High Court. Binds all other Courts, and will occasionally depart from own precedent. Also hears appeals from Scotland and Northern Ireland.

Note that the Lord Chief Justice actually sits on the SECOND highest Court!

OK, I'd better get my work on objective vs subjective recklessness and omissions causation done now.

Posted by: Joseph Sanderson | Oct 22, 2009 8:14:43 AM

I blogged at length on SCOTUK in July. I noted there:

"The British talent for making changes that are initially superficial, but will gain substance imperceptibly over time is remarkable. All incumbents will return upon retirement to the House of Lords and have no different powers before or after the move, but as the Law Lords age, and they aren't young to start with, the Court will become a completely separate branch of government after several hundred years of fusion with parliament."

The new digs are decidedly English. The U.S. Supreme Court, in contrast, is deliberately, both in its argument chambers (with justices coming out from behind a hanging curtain) and in its exterior, a conscious imitation of a classical Greek temple - and with its neo-divine power of judicial review based on something close to natural law, the image of SCOTUS as a Greek oracle fits. The law lords, in contrast, lacked any power of judicial review prior to 1998, and this is reflected in a court design similar to town halls across Europe. The addition of judicial review in human rights cases, which is the greatest practical changes towards the SCOTUS model, notably, happened eleven years before SCOTUK became symbolically independent of parliament.

The less political body, also has a less political appointment process, with a blue ribbon commission pre-screening candidates much as Missouri plan states do in the U.S. and civil service systems do for non-judicial appointment. Nor does SCOTUK have as much control over its docket as SCOTUS - the equivalent of certiorari can be granted by lower courts in some cases, and in Scotland one simply needs the certification of two lawyers that the case is worthy of review.

(One wonders if there will be a loss to English law making as the Law Lords lose their more casual and direct ties to the legislative process. The U.S. practice of ignoring calls from the bench for rewrites of ill written laws may become more common in the U.K.)

While the SCOTUK seal has an omega, further review is actually possible in some cases to the European Court of Justice in EU matters and to the European Court of Human Rights in human rights cases (where SCOTUK does have limited judicial review pursuant to section 4 of the Human Rights Act 1998 of issues similar to those decided by SCOTUS (subject to furthere European Court of Human Rights review). But, parliament has the power to legislatively reverse those decisions or abrograte its European Human Rights Convention membership.

On the other hand, in addition to have jurisdiction over appeals from sixteen different U.K. territories (notably many of the important asset protection jurisdictions), it also hears appeals from fourteen former British colonies that are now independent as their highest court, a power that SCOTUS does not share. Many of these are just off the American Gulf Coast. SCOTUK also hears appeals from ecclesiastical courts "except on matters of doctrine, ritual or ceremony, which go to the Court for Ecclesiastical Causes Reserved." Ecclesiastical courts have a considerable property and religious institution employment law practice.

"It appears that the House of Lords will retain jurisdiction over "peerage claims" (i.e. claims to hereditary nobility) and will continue to be responsible for trying impeachments (the last of which was tried in 1806)."

Posted by: ohwilleke | Oct 21, 2009 2:58:19 PM

I'm afraid even the wig isn't sacred. Some civil and family law judges have abandoned the wig:


You'll meet with a great deal of disagreement among UK legal experts about the extent to which the US Supreme Court has influenced the new UK version.

Posted by: Derek Fincham | Oct 21, 2009 2:49:58 PM

Perhaps it is now time for American jurists to disrobe.

Posted by: Shag from Brookline | Oct 21, 2009 7:16:02 AM

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