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Scrap the Supreme Court, argues right-wing think tank

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UK’s highest bench is guilty of ‘excessive judicial activism’

The Supreme Court should be abolished and replaced with case-by-case panels of judges from the Court of Appeal, a right-wing think tank has argued.

The UK’s highest bench is guilty of “excessive judicial activism”, “institutional hubris” and often endorses “outcomes which conventional legal reasoning would struggle to sustain”, writes Derrick Wyatt QC in an essay for Policy Exchange.

Wyatt, an emeritus professor of law at the University of Oxford, says:

“If there is a problem with the judicial approach of the UK Supreme Court, I think it is its willingness on occasion to decide cases on policy grounds, without disclosing an adequate or convincing legal basis.”

Wyatt’s remarks come after the Supreme Court came under fire from “some lawyers” for taking upon “the role of policy-driven law reformer rather than analyst and legal interpreter” in controversial cases, such as the Miller case and last year’s ruling that Boris Johnson’s prorogation of parliament was unlawful.

The 18-page paper proposes replacing the Supreme Court with panels of five or more judges from the Court of Appeal of England and Wales, the Court of Appeal of Northern Ireland and Scotland’s Inner House of the Court of Session. Each panel would be assigned on a case-by-case basis.

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Wyatt, a former barrister at Brick Court Chambers, a London-based set specialising in commercial, competition and public law, also suggested naming the replacement the “Upper Court of Appeal” or “the UK Final Court of Appeal”. The new court could be located in the current Supreme Court building and could continue the practice of sitting in Belfast, Cardiff and Edinburgh where appropriate, he argues.

Wyatt says such structural reform would combat against the perception of the Supreme Court as “a judicial policy making centre independent of government or parliament”.

He continues:

“The result of the above change would be to broaden the judicial base of the final court of appeal, and to ensure that all judges sitting at the final stage of appeal were also judges deciding cases at the level below that final stage, and so remained accustomed to the discipline of writing judgments which would be subject to the scrutiny of their fellow judge.”

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20 Comments

To the gulag you go

In tonight’s breaking news, law breakers unhappy with being told they break the law.

(47)(93)

Anonymous

Honestly, the sooner policy exchange realise their own irrelevance, the better. Just because you don’t like a decision, doesn’t mean its ‘judicial activism’ 🤦 Judicial review is a tenet of democracy, it’s not judicial interference, it’s a process of holding the executive to account, like it was designed to.

(51)(105)

Anon

Policy Exchange is much less influential than they were in say 2011. It is a vestige of a center-right Tory Party that no longer exists in 2020.

(4)(27)

Anon

Good, about time someone said it. Interesting that most people who like the way the UKSC is going also tend to like to the SCOTUS and the US constitutional system, that tells you all you need to know about their ignorance of the UK’s constitution. Blair’s 2005 reforms were a disaster for the UK’s constitution and it is about time they are reversed, we can already see the clashes between the judiciary and executive caused by changing the office of Lord Chancellor and I need not talk about the damage done to the Lords by the 1999 reforms which resulted in it being packed with failed grubby politicians or those owed favours. Perhaps if people read Burke they would understand a little more about the precious heritage that we have in the UK and how carefully “reform” (and not perversion or destruction) has to be carried out.

(91)(30)

Person

The UKSC works more often than not, it’s irrational to use an old worn out system like law lords out of a sake of nostalgia. Comparing UKSC to SCOTUS is misleading. US justices serve life terms appointed by politicians while UKSC appointments are made by committee and have strict term limits.

I agree with you on the Lord reforms, they should do away with life peerage and either put in limits to how long you can be in the Lords or make it an elected position like the HoC with maybe something like a 15 year term (3 parliaments)

(2)(41)

Anonymous

I could get into so much depth on how problematic such a proposal is, but my biggest criticism is this: The reasoning being used to justify this proposal is policy driven in itself. The legal precedent is such that there is a House of Lords/ UKSC system in place with acts as the highest authority on common law decisions, and the proposal to change that to a ‘broader CA judicial base’ is solely a policy argument.

I appreciate that this think tank isn’t a judicial body, but that doesn’t change the somewhat hypocritical nature of their reasoning.

Edit: How exactly is it not perceived as an institution independent of government, if one of the decisions it made was to rule that the prorogation of parliament was unlawful? Something that THE GOVERNMENT had done. I think making rulings like that is proof that the current system is in fact already sufficiently independent.

I am very curious to find out where Wyatt is getting his funding from now that he is not at Brick Court, because I have my doubts that this line of thinking is the norm at Oxford.

(22)(44)

Alex

What makes Mr Wyatt so sure that panels would engage in any less political activism? Or perhaps Mr Wyatt would prefer its members shared the same political views as himself? Would Mr Wyatt offer to help assemble the panels?

(22)(45)

Policy Exchange Rubbish

Renaming it the “the UK Final Court of Appeal” is a brilliant idea, which makes it clear that it is the final court of appeal in the court hierarchy, and that the court is supreme….

(18)(42)

Anon

“…a right-wing think tank has argued”
i.e, unqualified people with highly questionable funding sources writing unsourced, unsupported opinion pieces filled with hyper-partisan whingeing, moon logic and “how hard can it be to fly a plane?” style technical blagging. File these straight to the bin.

(29)(64)

A grumpy barrister

Only a student could write such rubbish.

The paper’s authors are (1) a retired professor of law at Oxford and Brick Court barrister; and (2) a current professor of law at Oxford.

The paper’s forward is written by Lord Thomas, a very well respected lawyer and former Lord Chief Justice.

If you think those individuals are “unqualified” to express a view on judicial reform, who do you think is.

The knee-jerk reaction to this paper (by students who have not read it let alone practised) says more about the political views of those individuals than the authors’.

(45)(2)

Anon

Being a professor at Oxford does not automatically make you ‘qualified’ or correct.

(2)(31)

Anon

What a fatuous comment. It is not being suggested that simply being an Oxford professor automatically qualifies you to express a view on matters relating to the judiciary and/or that you would be automatically correct. But it is beyond reasonable argument that an Oxford law professor, who was also a practising barrister and QC at Brick Court, is qualified to comment on this topic. Whether he is correct is another matter.

(24)(1)

Derrick Wyatt

Summaries of papers do have to be selective, but there is always a risk that out of context quotations can uninentionally mislead. I also say in this paper

“Distinguishing between the legitimate role of the courts in the evolution of the common law, including its constitutional elements, and abuse of that role by prioritising judicial policy-making over legal principle, is not straightforward, and cannot be straightforward, in a legal system in which a substantial body of the law is judge-made law, and in which it is an acknowledged role of the courts to adapt that law to changing circumstances. Rather than taking sides in this debate (I do not subscribe completely to either of the narratives outlined above but I do accept that each is partly right), I shall explore the possibility that the final stage of the appellate process might be reformed in a way which might mitigate the negative tendencies identified by critics, while at the same time leaving intact the role of the judiciary as a whole in interpreting and applying the law, and thereby upholding the rule of law in the UK”
I also point out that
“Broadening the judicial base of the final court of appeal would make a valuable contribution to the diversity of the final court of appeal, in terms of gender balance, BAME representation, and perhaps socio-economic background too. Taking as a measure the current composition of the Supreme Court, and the appellate courts of England and Wales, Scotland and Northern Ireland, implementation of the proposal under discussion would dramatically increase the number of women hearing cases in the final court of appeal, and for the first time a BAME judge would hear cases in that court. There would also be a contribution to diversity of a rather different kind: an unprecedented number of judges from Scotland and Northern Ireland would hear cases at the final appeal stage.”

(47)(3)

THFC

Never thought I’d see somebody point to the Court of Appeal as a good source of diversity!

(8)(34)

Anon

“We are still sulking at being told closing parliament and trying to stop democratic review of the executive dishonestly was wrong”.

(13)(52)

Anonymous

Scrap the term “think tank”. Ffs drives me nuts.

(4)(12)

Sir Pip Squeak

I prefer brain panzer, mind sherman or thought challenger.

(2)(0)

Anon

Ah, the regular right wing campaign to abolish the SC resurfaces. Feels like it’s only been a few months since the last go.

I’ll just put the kettle on – they ought to have restarted the campaign to repeal the HRA by the time it’s finished boiling.

(16)(38)

DustyWig

Are there any ‘left wing’ think tanks? If so, why are they never labelled as such?

(27)(3)

Anonymous

There are, and they are.

(7)(22)

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