This week US President Obama nominated Sonia Sotomayor, a liberal-minded New York judge of Hispanic background as one of the nine US Supreme Court Justices. This is likely to prove one of the most important decisions that Mr Obama will ever make, as the US Supreme Court has the final say on laws governing vital social issues, such as abortion or gay marriage. And Associate Justice Sotomayor is likely to remain in her post for many years after Mr Obama has left his.
Later this year, Britain will get 12 brand new Supreme Court Justices of her own. Why no fuss? For a start, most of these judges will be the same individuals who make up the Appellate Committee of the House of Lords (the Law Lords), currently the highest court in the land.
Secondly, despite the similar name, the UK version of the Supreme Court will be nothing like so supreme within its legal system as its American counterpart. It will not be able to strike down acts of parliament as happens to acts of Congress from time to time, but can only declare them to be “incompatible” with the Human Rights Act.
So is the creation of the UK Supreme Court anything more than window dressing? In one sense that is the point. The government has been keen to clearly separate the judiciary from the other branches of the state, namely the executive in itself and the legislature in parliament. Members of the Supreme Court will not be able to be government ministers or vote and speak in parliament. That has to be good for guaranteeing the court’s independence.
And regardless of the name change, it is likely that the UK Supreme Court will become more prominent in limiting how far government can go in limiting human and civil rights. In its current form as the Law Lords, the court has already applied the terms of the Human Rights Act in ruling as unlawful the government’s decisions to detain suspected terrorists without trial. In the famous Belmarsh judgment in 2004, Lord Hoffman said, “The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these. It calls into question the very existence of an ancient liberty of which this country has, until now, been very proud — freedom from arbitrary arrest and detention.”
But Lord Hoffman also had a central role in the Pinochet case in 1998, when a Spanish judge sought extradition of the former Chilean dictator from the UK. Lord Hoffman had failed to declare his links with Amnesty International which had an obvious interest in supporting the extradition request. The Law Lords had to review their decision to extradite Pinochet, which ended up with Pinochet escaping his appointment with justice.
So, whilst a court may be independent, its judges cannot. and should not, be expected to be free of personal affiliations. But these should be transparent, and it is not yet clear that they will be more so with the coming of the UK Supreme Court . Future judges will continue to be appointed by the Judicial Appointments Commission, a fairly recent body and an improvement on the shadowy system of the past. But so far, the variety in the background of judges remains disappointingly poor.
It is worth considering the American system of appointing Supreme Court judges. The president nominates a new judge and the Senate confirms them, subject to questioning their experience and judicial outlook. These are the very public checks and balances by which the executive and legislature keep the judiciary in touch with democracy.
So, as Britain’s courts become more obviously independent in their form, we should be careful not to allow our judges to become more adrift from society. As we seek to empower parliament in the face of a strong executive, one of the new roles we could give to our elected representatives is the confirmation of senior judicial appointments. That might make the appointment of our own equivalent Sonia Sotomayor happen much sooner.
Kevin Bonavia is Labour PPC for Rochford & Southend East and Chair of Young Labour Lawyers