Thank you for inviting me here tonight. I am pleased to note that the Constitutional Law Group has recently become the UK branch of the International Association of Constitutional Law. This adds weight to an already impressive body, under the leadership of Professor Anthony Bradley.
His contribution to this area cannot be underestimated. What he does not know about Constitutional Law is not worth knowing.
I want to offer a warm welcome to our guests from New Zealand, and in particular, Chief Justice Elias who I want to wish well in her new role as president of the new Supreme Court.
Our topic this evening is the Supreme Court. This is an important reform. I am very glad of the opportunity to set out our case in favour of this change.
We as a nation are proud, rightly so, of the success and incorruptibility of our institutions. Our parliament is the mother of parliaments. Our courts are a beacon of quality and incorruptibility throughout the world.
The quality of our institutions must make us wary of change. We must be convinced that any change that we make, improves the strength of our institutions.
But we must also recognise that the strength of our constitutional arrangements and institutions has come from their ability to evolve and change as circumstances demand. Sometimes gradually. More often through legislative change.
As a government we have taken constitutional change very seriously. Because it regulates the relationship between citizen, and the state. And because if constitutional those arrangements no longer reflect people's expectations then it becomes much harder to give effect to an agenda on change where it is necessary. And, We rely on those institutions just as important, to resist any tide of prejudice which mightwhere it threaten the values which underpin our society.
We do not believe that there is one large constitutional blueprint into which every change must fit. If we thought that then we would have made no changes, and indeed the constitution would hardly have moved on.
We should recognise that we cannot ignore what is already there. Because there is neither support for, nor good sense in scrubbing the whole constitution and starting again. There would be huge debate to start with as to what our constitution was.
But we do believe that there are certain guiding principles which must be applied to constitutional change:
First, enhancing the credibility and effectiveness of our public institutions;
Second, strengthening public engagement with decision making; and
third, increasing trust in public bodies.
Our human rights legislation enhances the credibility of our institutions because it subjects them to a pattern of rights which the citizen can enforce through our courts. Devolution brings decision-making closer to the citizens who are affected by those decisions. FOI increases public trust in public bodies.
Whilst constitutional consistency and theory will often be important guides as to whether a particular change is sensible, the ultimate test must be those I have proposedwhether it improves the relationship between citizen and state.
The Supreme Court proposal equally comes in the wake of very significant changes in the role the courts have played in our society over the last fifty years.
We have no written constitution. There is no grounded support for one. A written constitution implies a constitutional document superior to parliament. I do not believe that the public want issues which most of us would regard as political being resolved by the courts - capital punishment, abortion, racial discrimination - these are issues which the US Supreme Court has resolved, and which we rightly expect parliament to resolve.
But whilst we do not want the courts to resolve those political issues, we do want our court system to ensure that we are protected fully from an over-mighty executive.
In a period where people's faith in the reliability of many institutions is increasingly being reduced, the role of the courts is crucial. Because they are the final arbiter between the citizen and the state they must enjoy trust. They must be trusted to be independent and impartial. But they must also be trusted to be connected to, and to understand the wider views of society.
The final court of appeal for the court system throughout the whole of the UK is a committee of the legislature. It is unquestionably independent, and made up of judges of the highest quality.
But where clarity is most important - right at the top of the system - it is obscure. Our final appeal judges are appointed by being made a member of the legislature. They take part in the proceedings of the legislature. Quite often talking, sometimes voting. They conduct business in a committee room of the Lords - open to the public but difficult to get into. They deliver their judgements in the chamber of the House of Lords.
This lack of clarity and difficulty of access reflects an ambiguity in our system. At all other stages the separation between the courts and the rest of the state is marked, and clear, and jealously guarded. Except at the top.
Historically, the links between the law and politicians hadve been very strong - the House of Commons' hours were fixed for the convenience of barristers practicing in the courts. Westminster Hall, until the middle of the 19th century150 years ago, was the centre of the English court system. High Court Judges used to chair Select Committees of Parliament. All of these things have now changed. Because the clarity of the courts' role and its practical separation from the legislature is recognised as vital.
The quality of the judgments, and the unquestioned independence of the members of the Appellate Committee of the House of Lords should not distract us from the huge and increasing importance of an identifiably separate final court of appealindependent judiciary able to take on all comers in the state where issues of principle are involved.
That requires a final court of appeal which the public and the rest of the world can see and understand as a separate institution from the rest of the state apparatus.
When he gave evidence to the Constitutional Reform Bill Select Committee, Lord Bingham described the sense of confusion which existed over whether the House of Lords or the courts had decided that Pinochet should stand trial in our courts. Was it the politicans or the judges?
Listening to the evidence in the Constitutional Reform Bill of Lord Nicholls and Lord Hope before the Select Committee, several Law Lords describedin how their experience of being a members of the House of Lords might lead them to take a different view than they might have done if they had been sitting in the Royal Courts of Justice. tempered their views as judges because of their contact with the place gives rise to anxiety The public do not want the judges to operate in an environment where the ethos is of executive or legislative action.
This has become increasingly important as the issues which the court has increasingly dealt with are human rights issues - cases where the balance has to be struck between the state's interest and the citizen's interest.
Moreover that balance has frequently to be struck in the context of legislation passed by the very legislature of which the judges of the court are members.
Our proposal for the creation of a Supreme Court is supported by the most basic principles of the separation of powers. No sensible final court of appeal would conceivably be a member of the legislature whose laws they were frequently construing. But the theory of the separation of powers is not the reason we have proposed it now. It is because of a recognition of the need to have constitutional arrangements which people trust.
In our Human Rights legislation we have recognised the need for a code of rights for the citizen which the courts will enforce against the state. That step recognises that the citizen rightly and instinctively expects that there are certain protections to which he or she is entitled. He rightly expects the courts to provide him with that protection. But he also, often contradicting his own instinctive sense of his own rights, expects other people's rights not to infringe his own sense of security and freedom. So he does not want to be unfairly imprisoned, or have his property removed without justification or compensation. But he frequently wants any suspected terrorist to be in custody, and all gun clubs to be put out of business to reduce crime, withoutirrespective of issues of compensation of any sort.
The balance which needs to be struck has, frequentlyinevitably, to be struck by the courts.
A final court of appeal which, probably, does not, in its constitution, offend the European Convention on Human Rights, but which does not have clearly separate arrangements from the legislature, will not in our view withstand in the long-runthe pressures on it.
Lord Steyn wrote that an independent Supreme Court sitting within a constitutional framework where parliament is sovereign “would be a potent symbol of the allegiance of our country to the rule of law”. I, with the greatest respect to Lord Steyn, agree with that.
The Supreme Court must be one where there is impartiality in the appointment of its judges, autonomy in the running of its finances and administration, and a building whose quality and functionality is appropriate to the importance of the institution being created. It must also respect the separate traditions of the three systems of law - England and Wales, Scotland, and Northern Ireland - it will be adjudicating in. There is no intention of creating a new species of UK law.
As I have said, Iin the last 50 years, the role of the courts have become crucial in underpinning the principles on which our society is based, and in embodying and vindicating the values of freedom, and respect for each other which mark our society out from those who would seek undermine or to destroy those valuesit.
That is why I believe the independence of the final court of appeal must become a visible part of our constitution.
I have no doubt that the creation of a Supreme Court will establish a court which - in its quality, in its independence, and in its ability to establish and vindicate principles which other courts throughout the world will follow - will become a beacon of freedom and the rule of law.
And the people will understand what it does. And it will protect our freedoms and values in a way that is visible to the citizenwith confidence. No longer an institution misunderstood and obscure.
We need such an institution, and we need it now.