Supreme Court to be overhauled to curtail its constitutional powers

Edward Malnick
·4 min read
Ministers are now looking with growing unease at the US, where Donald Trump has indicated that he intends to appeal to the American Supreme Court in an attempt to persuade its judges to set aside votes in multiple states following Joe Biden's successful bid for the presidency.
Ministers are now looking with growing unease at the US, where Donald Trump has indicated that he intends to appeal to the American Supreme Court in an attempt to persuade its judges to set aside votes in multiple states following Joe Biden's successful bid for the presidency.

Britain's Supreme Court is facing an overhaul that could see it renamed over concerns that US-style  controversies may become routine in the UK, The Telegraph can disclose.

Ministers are understood to be discussing plans to change the name of the court, cut the number of permanent judges and bring in those with "specialist" knowledge to hear individual cases.

The proposals are based on concerns that Tony Blair "botched" the reforms that introduced the body, leaving it increasingly under pressure to "settle political arguments".

The court, which was introduced by Mr Blair and Lord Falconer, the then Lord Chancellor, in 2005, drew the ire of senior Conservatives last year after ruling that Boris Johnson's prorogation of Parliament during a stand-off over Brexit was unlawful.

At the time, the Prime Minister said he "strongly disagreed" with the judgment, and ministers believe judges "overstepped" the jurisdiction of the court in its ruling. Jacob Rees-Mogg, the leader of the Commons, privately accused the Supreme Court judges of a "constitutional coup".

UK Supreme Court in December 2019   - PA 
UK Supreme Court in December 2019 - PA

Ministers are now looking with growing unease at the US, where Donald Trump has indicated that he intends to appeal to the American Supreme Court in an attempt to persuade its judges to set aside votes in multiple states following Joe Biden's successful bid for the presidency.

A Tory source said: "There's a feeling that Blair and Falconer made a complete dog's dinner of constitutional reform and that we're feeling the negative effects of it today.

"Just like in the US, campaigners are increasingly looking to the courts to settle political arguments and this puts the judiciary in a place most of its members really don't want to be."

The court was introduced by the 2005 Constitutional Reform Act, despite peers warning at the time that its judges "may themselves be encouraged into inappropriate judicial activism by the name 'Supreme Court'." Robert Buckland, the Justice Secretary and Lord Chancellor, is believed to be drawing up plans for reform of the legislation, which he is understood to regard as "riddled with imperfections."

Ministers fear that the Supreme Court is being increasingly viewed as a constitutional court, like those in the US and Germany. Asked about the planned reforms, a source pointed to the Conservatives' 2019 manifesto pledge to review the "relationship between the government, Parliament and the courts".

The Supreme Court's predecessor, the Appellate Committee of the House of Lords, was a parliamentary committee that acted as the highest court of appeal in civil and criminal cases - arbitration over points of law initially raised elsewhere in the legal system.  

Mr Blair's government said the new court was needed to further separate the judiciary from Parliament and to help members of the public to understand the legal system. Lord Falconer, who is now Sir Keir Starmer's shadow attorney general, also argued that the change would help the UK to comply with the European Convention on Human Rights.

But when Mr Blair and Lord Falconer introduced the Constitutional Reform Act 2005, MPs and peers warned that using the name Supreme Court could "confuse the public" who "will believe that the court's functions and powers are similar to that of the United States Supreme Court."

A report by peers highlighted a warning by Lord Rees-Mogg that Supreme Court judges "may themselves be encouraged into inappropriate judicial activism by the name 'Supreme Court' - Brian Smith 
A report by peers highlighted a warning by Lord Rees-Mogg that Supreme Court judges "may themselves be encouraged into inappropriate judicial activism by the name 'Supreme Court' - Brian Smith

A report by peers also highlighted a warning by Lord Rees-Mogg, the late former newspaper editor and father of Mr Rees-Mogg, that Supreme Court judges "may themselves be encouraged into inappropriate judicial activism by the name 'Supreme Court'."

Reforms now being considered include a new name for the body to make clear that it is not a US-style constitutional court.

Ministers are also understood to be considering reducing the current number of judges, known as justices, from 12, in order to have a smaller "core" which would be supplemented by expert judges from around the UK, brought in to hear cases in which they have specialist knowledge.

Mr Buckland is said to see the reforms as part of his legal role to defend the independence of the judiciary, amid concerns about the perception of the Supreme Court.

Marking the recent retirement of Baroness Hale, who was president of the Supreme Court, Richard Atkins, the chairman of the bar, said she had “dynamited her way into the public consciousness” to become a “single name celebrity” widely known simply as “Brenda”.

Meanwhile, the court has been advertising for a new justice via its Instagram channel.