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It is sometimes forgotten – even by posters on this blog – that the Supreme Court is not an exclusively English institution.  Although, so far, it has heard only English appeals, it is of course a “Supreme Court of the United Kingdom”.  It is the highest court for the three main judicial systems of the United Kingdom: England and Wales, Scotland and Northern Ireland. 

Each of these systems has separate laws and a separate judiciary with a separate head.  The Lord Chief Justice of England and Wales holds the office of “President of the Courts of England and Wales” and is “Head of the Judiciary of England and Wales” (Constitutional Reform Act 2005, section 7). The Lord President is the head of the Scottish Judiciary – designated as such by section 2 of the Judiciary and Courts (Scotland) Act 2008.  The Lord Chief Justice of Northern Ireland is the Head of the Judiciary of Northern Ireland – designated by section 12(1) of the Justice Northern Ireland Act 2002 (as amended by section 11 of the Constitutional Reform Act 2005). 

In contrast, the President of the Supreme Court of the United Kingdom is not the head of the judiciary in any of the three jurisdictions and has no formal role in relation to them.  Curiously, by a Royal Warrant of 1 October 2009, the President takes “precedence” – for ceremonial purposes – over the other judges, ranking immediately after the Lord Speaker of the House of Lords and before the Lord Chief Justice.  This does not, however, give him any official duties or powers.

Section 41 of the Constitutional Reform Act 2005 is designed to make the position of the Supreme Court clear in relation to the different jurisdictions (see the  Explanatory Note to the Act).  This section is headed “Relation to other courts etc” and provides:

(1)  Nothing in this Part is to affect the distinctions between the separate legal systems of the parts of the United Kingdom.

(2)  A decision of the Supreme Court on appeal from a court of any part of the United Kingdom, other than a decision on a devolution matter, is to be regarded as the decision of a court of that part of the United Kingdom.

(3)  A decision of the Supreme Court on a devolution matter—

(a) is not binding on that Court when making such a decision;

(b) otherwise, is binding in all legal proceedings.

(4)  In this section “devolution matter” means—

(a) a question referred to the Supreme Court under section 33 of the Scotland Act 1998 (c. 46) or section 11 of the Northern Ireland Act 1998 (c. 47);

(b) a devolution issue as defined in Schedule 8 to the Government of Wales Act 1998 (c. 38), Schedule 6 to the Scotland Act 1998 (c. 46) or Schedule 10 to the Northern Ireland Act 1998 (c. 47);

In other words, when the Supreme Court decides an appeal from a court in England and Wales it is the highest court in that jurisdiction and similarly for Scotland and Northern Ireland.   Nevertheless, the large majority of business for the House of Lords was from England.  Only about 10% of appellate business was made up of Scottish appeals (see The Judicial House of Lords, 1876-2009, pp.283-284) and in the period 1921 to 2008 Northern Ireland appeals averaged only one a year (Ibid, p.309).  There is no reason to suppose that the mix of business from the three jurisdictions will change with the establishment of the Supreme Court. 

The Court’s role as a Supreme Court for the whole United Kingdom is reflected by the statutory requirement of consultation with the Lord Chancellor, the First Minister in Scotland, the First Minister for Wales and (anomalously) the Secretary of State for Northern Ireland when appointing justices.  Furthermore, when selecting justices the selecting commission “must ensure that between them the judges will have knowledge of, and experience in practice in, the law of each part of the United Kingdom” (Constitutional Reform Act 2005, section 27(8)).  This means that, in practice, the recently developed convention of two Scottish judges and one from Northern Ireland is likely to continue.

In addition, as section 41 makes clear the Supreme Court  has jurisdiction over what are called “devolution issues” – this was transferred from the Judicial Committee of the Privy Council (Constitutional Reform Act 2005, section 40 and Schedule 9) and was the only substantive change in the jurisdiction of the new Court.  Rather curiously the opportunity was not used to transfer jurisdiction over appeals from the other jurisdictions in the United Kingdom – Jersey, Guernsey and the Isle of Man – which are still dealt with by the Judicial Committee of the Privy Council.

“Devolution issues” can be raised in cases from Scotland, Northern Ireland or, curiously, from the Wales which is otherwise part of the single jurisdiction of England and Wales and take two forms. The Court can, on a reference, determine whether bills are within the legislative competence of the Scottish Parliament (Scotland Act, section 33) or the Northern Ireland Assembly (Northern Ireland Act, section 11).  Otherwise it can “devolution issues” which are in essence, issues as to whether the Scottish Parliament, Welsh Assembly or Northern Ireland Assembly are acting within  their legislative competence or whether the Scottish Executive or Northern Ireland Ministers are acting compatibly with Convention rights (and, in Northern Ireland, in breach of Community Law and certain other rights).   When making determinations on these issues the Supreme Court is acting clearly and directly as a “constitutional court”.  It can, for example, strike down legislation as being outside the powers of the relevant legislative body – the very power that the Human Rights Act 1998 was designed to avoid conferring on the Courts.    To date only two attempts to do this appear to have been made in the Scottish courts (A v The Scottish Ministers 2001 SLT 1331 and Adams v Scottish Ministers 2003 SC 171) – with a third pending in relation to Damages (Asbestos-related Conditions) (Scotland) Act 2009.  The former case reached JCPC (Anderson v Scottish Ministers [2003] 2 AC 602) and the same issue as raised in the latter was brought before the House of Lords in Whaley v Lord Advocate [2007] UKHL 53. 

It should be noted that when dealing with devolution issues by section 41(3)(a) (above) the Supreme Court is not bound by its own previous decisions.   The reason for this curious exception to the rule of stare decisis (which was found in the Scotland Act 1998) is not clear.

The “devolution issues” brought before the Judicial Committee of the Privy Council have been largely concerned with questions concerning the conduct of criminal cases by the Scottish Executive.  Consistently with this history, the only “devolution appeals” listed before the Supreme Court this term (Allison v HM Advocate and other cases, listed on 8 to 10 December) relate to the duties of disclosure in criminal cases.  The JCPC never considered any devolution issues from either Wales or Northern Ireland – although the House of Lords did consider a series of important cases bearing on the Northern Ireland peace process (see The Judicial House of Lords, 1876-2009, pp.268-269).

However, the Supreme Court of the United Kingdom does not occupy the same position in relation to each of the three jurisdictions of which it is final court of appeal.  For example, the Justices of the Supreme Court are members of the Court of Appeal of England and Wales (see Senior Courts Act 1981, section 2(2)(c)).  It was not uncommon for Lords of Appeal in Ordinary to sit as Court of Appeal judges although no Supreme Court Justice has done so since 1 October 2009.  When they sit in the Court of Appeal Supreme Court Justices rank in precedence immediately after the Lord Chief Justice and the Master of the Rolls (section 13(1)(b)).  There are no equivalent provisions in relation to Scotland or Northern Ireland and, indeed, under the Judiciary and Courts (Scotland) Act 1998, references to the Scottish judiciary are “references to the judiciary of any court established under the law of Scotland (other than the Supreme Court of the United Kingdom)” (s.2(5)).  Supreme Court Justices are part of the English and Welsh, but not the Scottish or Northern Ireland, judiciary.

In short, although 90% of the business of the Supreme Court is likely to be appeals in English cases, it is must be remembered that it is a court for all three jurisdictions in the United Kingdom.  In relation to England the court does not have what Lord Bingham has described as “the power most characteristic of supreme courts around the world, that of nullifying legislation as unconstitutional” (The Judicial House of Lords, 1876-2009, p.127).  However, it is often forgotten that, In relation to Scotland, Wales and Northern Ireland it does have such a power: it can carry out “constitutional review” of devolved legislation.  It will be interesting to see how – if it gets the opportunity – the court will approach the exercise of this power in the future.