Lady Hale's Macfadyen Lecture published

The UK Supreme Court fulfils at least three important functions, its President, Lady Hale, said on examining the purpose of the court in the 2019 Macfadyen Lecture.

Lady Hale's address, delivered in the Signet Library, Edinburgh on 28 March, has just been published, and provides an interesting historical background of the evolution of the judicial role of the House of Lords as well as its transformation into the Supreme Court.

Dealing with the principal functions of the present court, the President identified these as, first, acting as a constitutional court for the United Kingdom; secondly, to provide an authoritative interpretation of law which applies throughout the United Kingdom; and thirdly, to give an in-depth examination of the legal issues raised by the cases appealed to the court.

As a constitutional court, the Supreme Court did not take on the role of striking down provisions in UK Acts of Parliament – except to the extent that it was given that role by Parliament itself, but its role in relation to devolution issues, its having to rule on "classic constitutional issues such as the respective powers of government and Parliament in relation to our leaving the European Union", and its role in ensuring compliance with the Human Rights Act and that Government and public authorities kept within their powers, all gave it that function.

With its second role, "The Supreme Court can resolve differences in interpretation which have arisen between the courts in different parts of the UK. But even if no differences have arisen, it should be clear that an interpretation given by the Supreme Court in a case coming from one part of the United Kingdom should also be binding in other parts of the United Kingdom. Otherwise discrepancies may well arise."

Lady Hale said she felt "a little embarrassed" about the court's third role, because hearing only a small number of cases compared with the lower appellate courts, it was able to devote more time and resources to each. "We can spend more time on each case. We can think about them more deeply. We can discuss them more thoroughly. We can bring at least five minds to bear upon the issue... We can expect more of the advocates who present the arguments to us. We also quite often have the benefit of public interest interventions which can give us a different perspective on the case. We can engage in research if we feel that some points have not been fully covered... In short, we are set up as a court for the resolution of difficult issues of principle. An important aspect of our role is the responsible and principled development of the common law. We have the luxury of having the resources of people and processes to enable us to do this."

Her address concluded: "So, all of those seem to me to be very good reasons why we have a Supreme Court for the whole United Kingdom. There was, of course, some fear when we were set up that we might get ideas above our station. For example, it was put to me by Clive Soley MP in the House of Commons Constitutional Affairs Committee, and also put to Lord Bingham by Ross Cranston MP (as he then was) that, respectively, the US Supreme Court and the High Court of Australia got bolder when they moved into their own prestigious accommodation. Lord Bingham was able to say that the theory did not work, because the High Court of Australia could not be described as an activist court.

"Well it all depends what you mean by ‘bolder’. If you mean that we shall start to misunderstand our constitutional role, and aggregate to ourselves the powers of a Supreme Court under a written Constitution, then there is no danger of that. If you mean that we are now better placed and better equipped to perform the constitutional role that we undoubtedly do have, then I hope that we are."

She added this thought: "The institution has gained a visibility and with it a strength that it did not have when it was hidden from view in the House of Lords. But it has also had to go through an extraordinary and unprecedented turnover of Justices in recent years. It will be a remarkable challenge of leadership for me and my successor to encourage the court to maintain and develop the ethos which has gone before."

Click here to view the full lecture. The Macfadyen Lecture is organised by the Scottish Council for Law Reporting, in honour of the late Lord Macfadyen.