Of the four Consultation Papers produced by the Department for Constitutional Affairs over the summer of 2003, in many ways the most interesting was Constitutional Reform: A Supreme Court for the United Kingdom, not just for what it did say, but also for what it did not. For example, respondents were not asked whether the Government should replace the House of Lords with a Supreme Court or not. That was taken as a given. Yet the omission was all the more curious in the light of the fact, as subsequently became clear, that at least half of the current Law Lords do not favour the introduction of a Supreme Court.

Constitutional reform in the UK is usually pragmatic and piecemeal. Occasionally, however, comprehensive changes are proposed which are primarily driven by principle. The current proposals for constitutional change are a rare example of this type of reform. The abolition of the office of Lord Chancellor, the creation of a new Supreme Court and a Judicial Appointments Commission make up a package of measures intended to ‘redraw the relationship between the judiciary and the other branches of government’ and put it on a ‘modern footing’ by introducing a much clearer separation of powers between them.

The constitutional and political implications of a United Kingdom Supreme Court are far-reaching. This paper suggests that its establishment represents an increase in judicial independence, both in terms of the individual judge and institutionally. In so doing, it draws attention to the continued infringement of judicial independence, most notably through the use of senior judges to chair inquiries, and to the need for judicial independence to be safeguarded by the judges themselves. It argues that, somewhat paradoxically, the independence of the Court may increase the extent to which it is perceived as a political player and used for political purposes. It also argues that the requirement for greater transparency in the appointment of judges and the processes and decisions of the Court needs to be matched by the improved accountability of the Court and the Secretary of State for Constitutional Affairs. The paper ends by speculating on the longer-term constitutional implications of a Supreme Court, suggesting that it could result in the further diminution of parliamentary sovereignty, a more even distribution of power between the constitutional actors and the development of the United Kingdom into a constitutional democracy.

The Government's Consultation Paper Constitutional Reform: A Supreme Court for the United Kingdom (July 2003) is interesting in that it is written as an argument for a technical ‘fix’. The argument essentially is that we need to separate the Appellate Committee from the political House of Lords and abolish the Lord Chancellor. The discussion then focuses on how this can be done with the minimum change to the jurisdiction and composition of the existing courts. There is no attempt at strategic thinking. It is constitutional reform by way of incremental change. What I want to do here is to use some continental European experiences to suggest a number of strategic questions which either do not appear in the Consultation Paper from the Department of Constitutional Affairs or which are handled too rapidly, but which are important for the future functioning of a Supreme Court. There are only a limited number of lessons which can be learnt from any comparative survey. In this inquiry, as in many, the contrasts between legal systems only raise questions, rather than offering solutions. It is an agenda-setting exercise.

Traditionally, European continental judiciaries have been organised along a bureaucratic, civil service model. Early recruitment was complemented by the strong hierarchical character of the judicial organisation. Therefore, in this type of judiciary guarantees of independence have been problematic because of the influence hierarchical superiors (or in some cases the government itself) had on promotions.

Since the Second World War the need for change has been increasingly felt. The main aims have been to increase external independence, especially vis-à-vis the executive, and to protect lower ranking judges from negative influence by the senior judiciary, often considered to be too responsive to governmental wishes.

The High Court created by Australia's 1901 Constitution first sat on 6 October 1903. A century on, it is an apt time to consider how the record of the Court can contribute a different perspective to the debate over a possible Supreme Court for the United Kingdom. Of course, it cannot be assumed that common views are held of this record. Indeed, the role of the High Court and its place in the Australian political system remains hotly contested.

For a New Zealander one of the odder tourist experiences available in London - and soon to disappear - was to go to the top of Downing Street, and after a brief word with the police officer at the gates, to be ushered in to watch a hearing of the highest court of (though not actually in) New Zealand. Beginning with the arrival of British settlers the Judicial Committee of the Privy Council served as New Zealand's court of final appeal. Sitting in the very heart of London it was possible to hear lawyers with New Zealand accents argue about places and concepts quite literally a world away.

I sit an ocean and a legal culture away. Asked to comment on reforms in England and Wales, my response is shaped by knowledge of the legal system of the United States, which shares aspirations similar with and has been much influenced by the judicial system of England and Wales, but is also very different from it.

Yet judicial systems on both sides of the Atlantic (and in many other places) have to face difficult challenges. How can governments create, select, and equip a sufficient number of individual judges to respond to the tens of thousands of complainants who come before them?

Debates about the proper role and limits of judicial authority in the state are unusually heated, enduring and inconclusive. Talk about judicial review, the democratic deficit, the counter-majoritarian difficulty and the separation of powers matters, because what is at stake is the formal identification of the ultimate forum for political decision-making in a constitutional democracy.

‘We are here as on a darkling plain
Swept with confused alarms of struggle and flight,
Where ignorant armies clash by night.’
Matthew Arnold

It is said of statistics that what they reveal is interesting, but what they hide is crucial. Much the same can be said of the present British debate over constitutional change and the courts. The various constitutional reforms proposed seem to be obvious and long overdue - abolishing the post of Lord Chancellor; setting up a Supreme Court separate from the House of Lords; and establishing a judicial appointments committee. However, at least as presented and dealt with by the government and the judges, while these innovations are interesting and generally positive, what they fail to mention or address is much more crucial and revealing.