Saturday, July 18, 2009

England Gets A Supreme Court.

The Mother Country wants to be like her colonies.
For the first time in its history, Great Britain is establishing a Supreme Court. In the past, the role of the highest court of appeal has always been fulfilled by the so-called Law Lords — 12 senior judges sitting in the House of Lords, the upper house of the British Parliament.

In October 2009, all that will change in an upheaval of British tradition and jurisprudence.

Historically, the separation of powers among the three branches of government has never been part of Britain's unwritten constitution, says Lord Harry Woolf.

Until recently, Woolf was Lord Chief Justice, the head of the judiciary in England and Wales. He says there are numerous virtues in not having separation of powers.

"I had, under the old system, the advantage of being a member of, in effect, Congress, so I could and did come down to Parliament, and say, face to face, 'Look, we have these or those problems,'" he says.

Few people accused the Law Lords — the final court of appeal that was embedded in the House of Lords — of being too much in the government's pocket. There is little media coverage of the separation of powers issue, much less knowledge among average Britons — that the creation of the Supreme Court is taking place.

Tony Travers, a professor of politics at the London School of Economics, says there is a "profound sense of disengagement with traditional politics and distrust in politics."

"This has led to soul-searching about what might be changed constitutionally, believing that constitutional change might re-engage the public, and make them less suspicious of politics and politicians," he says.

As a result, the Supreme Court will open in Parliament Square, opposite the Houses of Parliament. But it's not just the relationship between judiciary and legislature that is being targeted for change.

The only half-reformed upper house of the British Parliament, the House of Lords, is still unelected. And the relationship between the executive — the government at No. 10 Downing Street — and Parliament, the British legislature that is supposed to place checks and balances upon the executive, is under scrutiny.

"The relationship is very close," says Andrew Turnbull, former head of the British Civil Service. "Indeed, you could say they are joined at the hip."

Turnbull was instrumental in pushing through the reforms that created a Supreme Court, and he wants to see more reforms across the British political landscape, including a reduction in the executive's ability to influence the legislature and a different way of choosing government ministers.

Under the current British system, the prime minister chooses his ministers from his own party's members of Parliament — as though President Obama chose his Cabinet only from the congressional members of his party. Turnbull says this means there is far too small a pool from which to choose capable ministers, and it can mean a conflict of interest for young ambitious members of Parliament.

"Those aspiring to make their way up the hierarchy will have tendency to pull punches, won't want to be too troublesome, won't want a reputation as part of the awkward squad. But that means the scrutiny of government business is not as robust as it might be," he says.

Finally, there is the underlying question of the constitution itself. Unlike the United States, Britain does not have a written constitution, relying instead on a mixture of parliamentary conventions, statutes and court judgments.

Now, some reformers say that along with all the other changes, the British need to break with their vaunted traditions and commit their constitution to writing.

But even at a time of change in the country, that radical idea still seems — at the moment, at least — as if it might be a step too far.

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