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As has been stated above, in other constitutional systems, both civil, as in France, or common law, as in the US, not only is there a clear separation of powers between the judiciary, the executive and the legislature, but there is also a distinct Constitutional Court with the power to strike down legislation on the grounds of its being unconstitutional. It has to be emphasised that the UK Supreme Court will not be in the nature of these other supreme courts, in that it will not be a constitutional court as such and it will not have the powers to strike down legislation. Consequently, although the proposed alterations clearly increase the appearance of the separation of powers, the doctrine of parliamentary sovereignty remains unchallenged.
It remains to be seen, however, whether under the changed circumstances of the contemporary constitution the Supreme Court, as the highest court in the land, will simply assume the previously limited role of the House of Lords, or whether it will, with the passage of time, assume new function and increased powers as are consonant with Supreme Courts in other jurisdictions. This issue arose in September 2009 when the former Law Lord, Lord Neuberger, who gave up his position in the House of Lords to become Master of the Rolls, spoke on a BBC radio programme expressing the opinion that the advent of the Supreme Court was not unproblematic. As he put it, ‘the danger is that you muck around with a constitution like the British constitution at your peril because you do not know what the consequences of any change will be’. And that there was a real risk of ‘judges arrogating to themselves greater power than they have at the moment’.
Former Lord Chancellor, Lord Falconer, also expressed the view that the Supreme Court ‘will be bolder in vindicating both the freedoms of individuals and, coupled with that, being willing to take on the executive’, but Lord Phillips the President of the Supreme Court was more conciliatory towards the executive expressing the view that, although he could not predict how the court would function in the future, he did not foresee it changing in the way suggested by Lord Neuberger.
The changes will make little practical difference to the student of law; the previous decisions and precedents of the former House of Lords will still be binding and the previous rules of law and procedure for hearing appeals from lower courts will continue to operate. Consequently, the shift from House of Lords to the Supreme Court should be seamless and unproblematic.
More information about the Supreme Court may be found at the court’s own very informative website: www.supremecourt.gov.uk
Written by a member of the Paper F4 examining team