For all the Labour government's failure to complete its reform of the House of Lords, it is worth remembering the modernisation that it did achieve. Most of the hereditary peers were excluded from the business of revising and delaying laws in 1999; and in 2009, the final court of appeal in the UK was removed from Parliament to a separate Supreme Court across the road.
Today, Lord Neuberger, the court's president, speaks exclusively to The Independent on Sunday. In an interview to mark the court's first five years, he looks back over its record and selects five of the most important cases it has heard. They would have been decided by the Law Lords, sitting in the House of Lords, before 2009 and the decisions would probably have been the same. But we should welcome two important differences.
One is that the judiciary has been separated from the legislature. Although the Law Lords had ceased, as a matter of convention, to take part in making laws as well as enforcing them, the formal separation of functions is important so that justice is not just done but seen to be done. If a developing country or one recently freed from Soviet rule allowed parliamentarians to be judges, we would see it as evidence of totalitarianism, and we would ignore the protestations of the individuals concerned that they were careful to avoid conflicts of interest.
The second change is even more important. As Lord Neuberger points out, the Supreme Court works in a more open way than the old Law Lords. The court is more accessible to the public, and its judges work more collaboratively. The convention that Law Lords did not discuss cases before hearings has been changed. "I think we're also more ready to discuss things afterwards," Lord Neuberger says.
These changes ought to have improved public understanding of the law at this level, and for lawyers and interested lay people this is certainly true. Yet it is unfortunate that another constitutional reform of the Blair government, the Human Rights Act, should be so unpopular and the status of the European Court of Human Rights so poorly understood by the wider public.
The Human Rights Act was supposed to "bring home" the rights enshrined in the European Convention, to make them part of British law so that they would win wider acceptance by no longer being seen as the imposition of a foreign court. The best that can be said of that cunning plan is that it was right in principle and well intentioned. The Conservative Party is still committed to repealing the Act, even if it cannot agree on the contents of the British Bill of Rights that would replace it, and the Home and Justice Secretaries are still flirting with repudiating the European Convention on Human Rights.
It is notable, therefore, that the first of Lord Neuberger's Supreme Court landmarks is the Horncastle case. The European Court of Human Rights had ruled that British rules allowing hearsay evidence were contrary to the Convention. The Supreme Court disagreed. The European court then accepted the Supreme Court's arguments. It is a striking example – along with the fact that prisoners in the UK still do not have the vote – of why Eurosceptics are wrong to suggest that the European court wields absolute power over us.
The success of the Supreme Court in its first five years ought to inspire us. First to complete the democratic reform of the Upper House, but second to encourage even more openness about the court and its work, the better to defeat the prejudice that "human rights" are an alien concept imposed upon us from outside. Lord Neuberger's interview is a welcome contribution to that better understanding of higher legal principles.Reuse content