Creating a Supreme Court

The below is a transcript of the lecture delivered by Lord Hope to the Middle Temple Historical Society on Tuesday 18 March 2025.

The UK Supreme Court had its 13th birthday last summer. It is alive and well.  Everyone knows what it is. It is already a much-respected institution at the head of our legal system. It lives in its own very well-furnished building in Parliament Square. It sits alongside Parliament, the Treasury and the Church. It welcomes many visitors in the course of its working week, as well as those who come to argue cases before it. But it could hardly have had a more unpromising birth. The announcement that the Law Lords were to be abolished and that we were to have a UK Supreme Court seemed to come out of nowhere.  

It was a Thursday evening. It was 12 June 2003, and I was on my way home to Edinburgh. The Law Lords, like the Supreme Court today, did not sit on Fridays.  I was in the BA lounge at Heathrow Airport when the breaking news appeared on the TV screen. We were told that the office of the Lord Chancellor was to be terminated and that the Lord Chancellor’s Department was to be wound up. There was to be a new department, the Department of Constitutional Affairs. The Law Lords were to be removed from the House of Lords, and there was to be a new Supreme Court. About when, where and on what terms this was to happen, nothing was said. There were no details.  

There had been no mention of this when I left the Law Lords corridor that evening. None of us, not even the Senior Law Lord, had been consulted. There had been no time for that. The decisions which were revealed to us by the media had been taken at the heart of Tony Blair’s government. There had been a crisis in the Cabinet. Derry Irvine, the Lord Chancellor, and David Blunkett, the Home Secretary, each had deeply entrenched views. It had come to the point that they could no longer work with each other. Rumours that Lord Irvine was to leave office had been circulating for some days. But the solution to the problem, which had to satisfy the Home Secretary, was much more far-reaching than had been expected. Tony Blair was, I suppose, fortunate that we do not have a written constitution. Parliament, where he had a huge majority, could do what it liked.  So could he.

The idea that we should have a Supreme Court was not new. Lord Steyn had been arguing for this for some time. He had set out his reasons in a lecture which he gave in All Souls College, Oxford, in March 2002. As he pointed out, William Bagehot had observed as long ago as 1867 that the country’s Supreme Court ought not to be hidden beneath the robes of a legislative assembly. Lord Bingham, who joined us as the Senior Law Lord in October 2003, made it clear too, sometimes in quite colourful language, that he had no time for the House of Lords. But there had been no attempt to take this idea further on the part of the government. Lord Irvine would have nothing to do with it, and that was an end to the matter so long as he remained the Lord Chancellor.

It became clear, as the Law Lords talked about the announcement in the days that followed the announcement, that we were equally divided as to whether we were in favour of this change to our existence. On the whole those of us, including myself, who had been on the Law Lords corridor the longest wanted to remain where we were. Amongst the reasons was a concern that we would lose the benefit that came from the fact that Parliament’s affairs, including our own, were not subject to the control of the Treasury or any other branch of government. We regarded our independence as something of value that should not be put at risk.  We also valued the great privilege of working in the historical splendour of the Palace of Westminster, with its unique atmosphere. And there was, of course, the natural human instinct to stick to what you know, for fear of something worse. 

But it was clear even then, for a variety of reasons, that we were not as well equipped, or as well organised, as we needed to be if we were to serve the public as a fully functioning supreme court. We were, after all, no more than a committee of the House, constrained by its strict rules and its internal geography.  So, to set the scene for the Supreme Court that was to come, I must say a bit about how things were before I move on to what followed upon the announcement.

The House of Lords conducts its affairs by a system of standing orders and, in addition to what goes on in the Chamber, by committees. Among its standing committees was the Appellate Committee, not to be confused with Judicial Committee of the Privy Council, which still exists. It was created in 1947 and was made up exclusively of the Law Lords, of whom there were 12 when I joined them in 1996. Apart from a week at the start of the legal year when, as Parliament was in recess, they were able to sit in the Chamber as they used to do before 1947, the hearing of appeals by the Law Lords took place in one of the committee rooms on the Committee Corridor. This is an enormously long corridor which extends along the whole of the east front of the Palace, overlooking the river. At the extreme south end of the corridor, there are two committee rooms, numbers one and two, which were the ones that the Law Lords used. This was about as far from the public entrances to the Palace on the west side of the building as could be imagined. Members of the public who were able to find the committee room through a maze of stairs and corridors, first had to get into the room and then to hear what was going on.

The committee rooms have two doors, one for the committee members and the other for the public. Neither have windows, so the visitor has no idea what is behind them. It requires some courage to open the door and then not to be put off by the many heads turning round to see who this intruder is. One’s instinct is, as I know from doing this myself, is to jump back and shut the door from the outside as quickly as possible. If you are bold enough to go in, you still have to find a seat. There were only three rows for members of the public. That does not give much room, and the further back you are, the more difficult it is to hear what is being said.

For counsel, entry into the committee room at the start of the proceedings was quite intimidating too. The practice, in common with all the committees of the House, was for the members of the committee to enter first and settle into their seats before the parties and their counsel were invited in. Your first sight of the Law Lords was when, after a call of ‘Their Lordships’ by the doorkeeper, you saw them enter the corridor from a door at the far end one by one, and then disappear into the committee room. There would then be a pause of several minutes until, on the call of ‘Counsel’ by the doorkeeper, you went in to take your place behind the bar. Facing you were the Law Lords, all in their seats, looking at you, pens in hand, ready to receive your opening words which you were expected to utter as soon as you reached the lectern.

In some respects, the setting appeared to be quite informal. The Law Lords did not wear robes, and they sat at the same level as everyone else in the room. They were, after all, just a committee. And you were able to lay your papers out on the table where you were to sit at the start of the day, before the room had to be closed to await the arrival of their Lordships. But you had to leave your place at the table and go to the lectern when it was your turn to speak. This meant that you were separated from your juniors and any assistance they might give. When, as happened very occasionally when the House itself was not sitting and the appeal was heard in the Chamber, communication was even more difficult. The place at the centre of the bar from which you had to speak had a step up to it, removing you from contact with your junior. And, if you were a silk, you had to wear a long wig extending over your ears.

At the end of the sitting, wherever it was, on the call of ‘Clear the bar’ by the doorkeeper, you had to leave the presence of their Lordships as quickly as you could, grabbing hold of what you could get your hands on as you did so. The door was then closed, and their Lordships were left in on their own to deliberate. They sat there in private for as long as they felt was required to reach a provisional view. This could be awkward if you had left something behind. There was no way back until after the Law Lords had ended their discussion and left the room.

Delivery of judgments had to take place in the Chamber. This was because they were being given as judgments of the House. The practice was for the members of the committee that had heard the appeal to attend in the Chamber to make speeches, after prayers with the mace on the woolsack, to give their opinions to the House. They then voted on their own motion that the appeal be allowed or dismissed. They delivered these opinions one by one, in order of seniority. But they did so in the briefest terms, which gave no indication to any member of the public who might be watching as to what the reasons were for the decision that was being reached. They referred simply to what was in their written judgments, saying that they were available in print. Very occasionally, as in the case of the Pinochet judgment, an attempt was made by the presiding Law Lord speaking from the Woolsack to explain a few words about what had been decided. But the proceedings overall had the character of a theatrical charade rather than that of a court of law.

Much of the Law Lords’ time, when they not hearing appeals, was spent in a place called the Law Lords’ Corridor. This was situated on the west front of the Palace facing Westminster Abbey. They each had their own rooms here. They were comfortable and amply provided with shelves and books. But there was only one rather small conference room and only one rather crowded room for our secretaries. There was room for only four judicial assistants, to be shared among the 12 Law Lords. The fact that they had their own corridor and were within easy reach of each other promoted a collegiate atmosphere as they were working out their decisions. But there is always pressure on the accommodation of this kind throughout the building. There was a feeling that they were there on sufferance, and there was no room for more.  

Now we were being told that all of this was to come to an end. The Law Lords were to cease to exist. We assumed that we had a legitimate expectation that our careers would not be terminated. But the announcement by the Leader of the House on the radio a few days later that the principle was to be that no judge should be a member of either House of Parliament did seem to raise a question about that.  Some of us, including Lord Bingham and myself, had received life peerages before we became Law Lords, which, as the law then stood, we could not renounce. A few days later, however, following urgent talks between Lord Bingham and Lord Falconer of Thoroton, the new Lord Chancellor, we were assured that the plan was that we were all to be removed sideways, as it was put, into the new court. But we were to be disqualified from sitting or voting in the House of Lords. 

Gradually, it seemed, some of the implications of the announcement were being appreciated by the government.  But, as Lord Steyn said in an article which was published in Counsel magazine in October 2003, the government had a heavy duty to ensure that the new court was able to discharge its functions effectively.  If it failed in that duty, lasting damage would have been done to our constitution. It was not clear, he said, from the discussions that had been taking place so far that the government was fully aware of what was needed. It was plain that, as we knew far more about what the new court would require than the government did, much of the work of creating it would be left to us.

There were three things, however, that only the government could provide: the legislative framework, a building for us to occupy and the money. What became the Constitutional Reform Act 2005 was anticipated in the Queen’s Speech of Wednesday 26 November 2003. It had its first reading in the House of Lords on Tuesday 24 February 2004. Among other things, it contained provisions about the creation, composition and administration of the new court. Among the consultation papers that had been circulated before the Bill was published was one about the new court. At the outset, it had been tacked onto the end of another paper about a new system for appointing judges, as the Lord Chancellor was to be removed almost entirely from this process. Following a protest by Lord Bingham, a separate paper was produced.  So we were at least able to ensure that our views were taken into account as the Bill was being drafted.  

There was never any issue about the name.  The term ‘Supreme Court’ had been used so often ever since William Bagehot’s day that we had all become well used to it, and no one could think of anything better. The risk of confusion with the US Supreme Court and its very different powers was there, of course.  But we were confident that this would soon disappear. There was disappointment in some quarters that the opportunity was not taken for a more far-reaching reform of the new court’s jurisdiction. But there was enough to do as it was and no appetite, at least on our part, to embark on such a far-reaching project. But we did achieve a commitment from the government that an order by which the provision about the creation of the Supreme Court of the United Kingdom would be brought into force would not be made unless the Lord Chancellor was satisfied that the Supreme Court would at that time be provided with accommodation that he had approved, and that it would provide us with accommodation that was appropriate for the purposes of the court.

But where was that accommodation to be? That was an anxious question, to which there was no immediate answer. It was clear that the government had no place in mind when the announcement was made. So somewhere had to be found.  Creating a new building was out of the question. It would be far too expensive, and would it take far too long. A project team was set up by the Lord Chancellor’s department during the summer of 2003. Its task was to find an existing building somewhere within a mile of Charing Cross in which we could be accommodated. We, for our part, created a small committee, which included me, whose remit was to examine and comment on any proposals that might be put before us by the project team.     

The first candidates were the New Wing of Somerset House and the Middlesex Guildhall. Lord Bingham was very much in favour of Somerset House, seeing it as a building of outstanding importance which would match the importance of the new court. He had equally strong views against the Middlesex Guildhall, recalling some very uncomfortable appearances before magistrates there in the early stages of his career. Neither building was favoured by the project team.  Middlesex Guildhall was seen as not available, as it was already occupied by the Crown Court. The interior of the New Wing of Somerset House was not thought to be suitable because of its low ceilings and the presence of pillars inside the building. And it was occupied by the Inland Revenue. But suitable alternatives were hard to find. We were presented with a variety of proposals. Some were on side streets, cramped and lacking any kind of character. Others were in buildings we would have to share with others. That presented security risks, and we felt that we deserved more. So in the end, after months of searching, the contest became between the New Wing of Somerset House and the Middlesex Guildhall.  

We paid visits to them both. We were invited to the Middlesex Guildhall for an official visit on Saturday 1 May 2004. The gloomy and claustrophobic atmosphere that we found there was not helped by a gathering thunderstorm outside. As we went from courtroom to courtroom, we were dismayed by the unsuitable layout and the heavy Victorian Gothic furniture. Attempts by the project team to persuade us that a few cosmetic changes would suffice were met with derision and disbelief. Lord Bingham’s disgust at what we were being offered was plain to see. It was clear that major alterations would be needed, which might not be acceptable to English Heritage. I suggested that it might be replaced by another building, but I was told that it was a World Heritage site and could not be pulled down. An article in The Guardian the next day said that it was the right site for the right reform. But there remained a serious question as to whether it was the right building.

We were invited to visit the New Wing of Somerset House which the Lord Chancellor was still considering on Thursday 1 July 2004. The name ‘Somerset House’ conjures up images of grace, space and luxury. But we found that the New Wing was an add-on structure which had none of these characteristics. It adjoins Lancaster Place, a noisy street which carries all the traffic to and from Waterloo Bridge. Public access from that street was poor. The two possible hearing rooms were affected by noise, vibration and visual disturbance from the street. The useable space was restricted by load bearing columns which could not be moved, and it was not possible to see how the building could be made secure.  I wrote a note to my colleagues that evening suggesting that all efforts should now be concentrated on the Middlesex Guildhall, and they all agreed.

The project team were still not giving up on Somerset House. We were told that a final decision would be taken in September. But it was not until the end of the year that this was achieved, and it was possible to concentrate on the practical things that had to be worked out. The interior of the Middlesex Guildhall would have to be redesigned if it were to have the quality that was to be expected of a Supreme Court. Obtaining consent for that from the planning authority would not be easy, and it would cost a lot of money. But at least, and at last, we had somewhere to go. Then, on Thursday 24 March 2005, the Constitutional Reform Act received the Royal Assent. Now we could start planning for our future.

Where do you start? In front of us was a clean sheet of paper. That was true of the civil servants in the Department of Constitutional Affairs too. An implementation team had now been set up, without prior consultation with us as to its terms of reference. Our first meeting with them took place in October 2005. We were presented with a set of papers that went far beyond a discussion of our accommodation and how it was to be made fit for our use. The whole organisational structure of the court was up for discussion, including the staff’s organisation and responsibilities, human resource issues, the corporate design for the new court, disciplinary procedures for the new justices, the funding arrangements and measures to ensure the corporate independence of the court. It seemed to me that we were being confronted with what, in comparison with the simplicity of our arrangements in the House of Lords, was an administrative nightmare.  

Of course, the work that the implementation team was doing was work that had to be done. It had been provided for by the statute. It was what preparing to run our own institution required. So I spent a morning with the civil servants in November 2006 going over what was needed. I found that they were keen to have guidance, and there was no friction. But the administrative changes we were facing were far-reaching. We were to have a chief executive, who was to decide on the number of officers and staff we would been to run the court. Our staff were to become civil servants and were made subject to the civil service pension rules when they moved to the new court. For some, including the clerk who ran our judicial office in the House of Lords, the different pension rules and the lack of promotion prospects were unacceptable. So we were going to lose some key members from our staff when we were likely to need them most. Concerns about the future of our staff grew when it was announced that our move to the new court would be delayed by a year from its original projected date of October 2008. This was because of the amount of work that had to be done to adapt the building to our use, and the need to find spaces for disabled parking close by.

It was plain to me that there were other challenges that we would have to face.  We would have to get our own act together if we were to create the kind of court that we would want to serve in. We had to create a distinct and lasting identity for the court, which would stand up to scrutiny when we opened for business. If we did not create that identity, others might try to do that for us. So the committee, which had been set up to scrutinise the proposals for our accommodation, was re-constituted with new membership. In place of others who were not going to be with us when the court opened in October 2009 came Baroness Hale and Lord Mance.  

The most pressing issue was how the interior of the building could be restructured. It had within it seven courtrooms, two of them large, a council chamber and a set of holding rooms in the basement for prisoners awaiting trial.  We needed three appeal court rooms, one suitable for a sitting of up to nine justices and we had no need of a council chamber or holding rooms. Changes on that scale required a lot of careful planning. Fortunately, the architects who had been appointed were quick to understand what we were looking for and come up with proposals for the changes we wanted. We were fortunate, too, because the government was willing to pay for what we needed. Three court rooms on the south side facing Westminster Abbey were to be stripped out and replaced by a single new one with big windows to let in the light. A single courtroom on the other side was to be retained for use by the Judicial Committee of the Privy Council when it moved from its premises in Downing Street. A large courtroom at ground level was to be converted into a library. The council chamber was to be completely redesigned and replaced by what was to be our largest courtroom. The holding rooms were to become an exhibition centre and a reception area.  

We gave a great deal of thought to how the character of the interior of the building might be improved. Lady Hale took the lead on this. She established contact with a remarkable team of artists and designers with whom a scheme for the furnishings was built up. A theme for this had to be found, and it was provided to us by the design of the official seal, which we were required to have by the statute. We decided not to adopt the coat of arms that is traditionally found in most of our courtrooms. The quartering that is used in England and Wales differs from that used in Scotland, and there were sensitivities in Northern Ireland which were best avoided. We thought of a set of scales and even of a single oak tree instead. But they were soon discarded in favour of a design that incorporated symbols of each of the four jurisdictions whom we were to serve.  

We consulted the Herald Painter who works with the Lyon King of Arms in Scotland for her advice. It was she who, after a few false starts, provided us with a design that we were able to approve: a rose for England, a thistle for Scotland, flax for Northern Ireland and a leek (not a daffodil) for Wales. The whole was surrounded by an omega to indicate that we were to be the final court of appeal.  That design was used for the flag that now flies above the building when the Supreme Court is sitting. It was also used as the theme for the artwork of the interior. Parts of it, such as thistle leaves, were used to decorate walls and curtains, and, in a simplified form, this design was incorporated into our carpets. It also found its way onto glass panels close to the entrance, which were to be used to admit as much light into the building as possible. They were decorated with carefully chosen words to underline the point that the rule of law was to be at the heart of what we were to do.  

Now it was time for us to turn to decisions as to how we were to organise ourselves. The only guidance that was given to us by the statute was that there were expected to be rules governing the practice and procedure to be followed by the court. Otherwise, we were entirely on our own.  There was no one, even within our own number, who was in a position to tell us what to do. We had to achieve everything by agreement among ourselves. We spent a lot of time in discussion, and of course, there were disagreements that had to be ironed out. But we knew what we were looking for, and for the most part, our decisions were reached quite easily. In the end, the process was completed without any lingering dissent or anything having to be left out.  

The way the rules were to be made appeared to us to be rather cumbersome. The statute said that we had to consult all the Bars and law societies across the United Kingdom, and that the rules themselves were to be made by statutory instrument, with all the Parliamentary procedure that that involves. The same system would have to be followed if we wanted to amend the rules. So we decided to supplement our rules with a series of practice directions which were to be under our own control and could be amended at any time without any further procedure. It was suggested to us that we had no power to make practice directions, as provision had not been made for this by the statute. But we decided to go ahead with them anyway, and to consult with a users’ committee when they were being formulated.  This system gave us so much more flexibility than we had had in the House of Lords, and it has worked very well in practice.

Turning our attention to the courtrooms, we decided to retain the arrangement which we had enjoyed in the House of Lords of seating ourselves at the same level as counsel. We asked that the tables at which we and counsel were to sit be formed with a slight curve to bring those at the ends of each table into closer touch with the discussion. The curve was important for us, as we knew from our time in the committee room in the House of Lords. The table at which we sat was curved, so we could see and maintain eye contact with each other during the hearing. That would not have been possible if we were sitting in a straight line side by side, especially if there were seven or nine of us on the appeal. We also decided to change the arrangement as to where counsel were to stand when addressing us. Instead of having to go to a lectern at the centre of the bar, they were to remain in the places where they had been sitting. This, of course, led to a discussion about what we and counsel were to wear and how we were to be addressed. 

The idea that we should wear some kind of everyday robe did not survive for very long. Nor did the idea that we might have wigs. We had enjoyed the informal way we were dressed in the committee room, and we did not want to lose the benefits that came from that. But wearing a robe for ceremonial occasions was another matter. One of our number had strong views. He said that he would never, ever, wear a robe again under any circumstances. But even he had to climb down when it was pointed out that we could not attend the State Openings if we were not robed. So robes were designed for us, which were modelled on those worn by the judges in the Court of Appeal. As for the form of address when we were in court, Lord Bingham was known to favour dispensing with the use of ‘Lord’ and ‘Lady’ altogether in favour of ‘Your honours’ and ‘Justice’. The statute had, after all, chosen to call us ‘Justices’. But the majority view was that we should stick with the terminology which was in use in the senior courts across the country, and that was the view that prevailed.    

Lastly, we had to work out how we were to deliver our judgments. It was suggested by some that we could dispense with giving judgments in open court, as this would save the expense of counsel having to attend, and we could issue them equally well online. But the majority felt that the public would expect to see and hear from us in open court what we had decided and why. We had regard, too, to the possibility of them being televised. The full text of the judgments, together with a short summary, were to be published on our carefully designed website.

It was here that we really were able to break free of the constraints in the House of Lords, which I mentioned earlier. It was no longer necessary for the individual written judgments to be given in order of seniority. As they were no longer to be speeches, and it was no longer possible for two or more of us to speak at once, two or more could combine in issuing a single judgment. As for the delivery in court, we decided that it should be given by the presiding justice in the form of a brief summary of what had been decided and why.  

In March 2009, the building was handed over to the Ministry of Justice by the contractors. The contractors’ huts, which had obscured the front, were removed, and the full impact of the cleaning of the stonework could now be seen. Here, we were pleased to see, and as we had hoped, there was a building that commanded attention. A few days later, we were introduced to our new quarters and had the opportunity to appreciate the many improvements that had been made. The interior had been cleaned and opened up to natural light wherever possible. The entrance hall was welcoming and full of interest. The rooms which we were to occupy were nicely carpeted with the pattern derived from our seal well equipped for our use. The process of transferring to our new surroundings was felt now to be much closer and to be much more attractive than it had seemed to be at the outset.      

In a lecture which I gave in December 2004, I had feared the worst. It appeared at that time that the project of adapting the Middlesex Guildhall to our needs would not have the support of the Treasury. It seemed to me that, if that were to be so, the building which was to provide the setting for the new court would be a shadow, a poor relation, of that which the Law Lords would have left behind them when they left. It would not be a Phoenix that would rise, reinvigorated, from the ashes when the House of Lords bid them farewell. ‘How I wish that I would be proved wrong’ I said. Well, indeed, I was proved wrong. Thanks to the efforts of those who were in a position to bring influence to bear where it was most needed, including the Lord Chancellor, Lord Falconer, the money was found, and the challenge of creating a building that was fit for our purpose was achieved.  The result, as we were to find when we finally moved to our new address, was a building that was much more suited to the needs of a Supreme Court than what we were leaving behind on the Law Lords corridor. The Phoenix had, after all, come to our rescue. We were entering into a new life which had so much more to offer to us, and to the public, than that which we were leaving behind. 

We had our last committee meeting with the implementation team on Monday 20 July 2009. There was little left to discuss. There were a few snagging details in the building and some final arrangements to make for the handover from the House of Lords during the long vacation which was about to begin. There was also a presentation of the plans for the exhibition which was to take the place of the Crown Court’s holding rooms on the lower floor. As we parted, we reflected on the fact that these meetings had been going on for about five years. They had served us well, as we were in this way able to take control of so many things that mattered to us. Almost everything that we had asked for had been achieved. Our aim had been to create a distinct and lasting identity for the court which would stand up to scrutiny when we opened for business. That, we felt, was what we had done.  

We met for the first time as Justices of the Supreme Court on Friday 2 October 2009. There was one final detail that had to be worked out. We had to be sworn in, but with whom was the process of administering the oath to start? Our President, Lord Phillips, said that he could not do that until he had been sworn in as President. In the absence of anyone else to do this for us, it fell to me as the Deputy President to swear him in, following which he swore me in before doing the same for all the other Justices. We did wonder afterwards whether the legitimacy of this procedure would stand up to scrutiny. But no one challenged us at the time, and of course, it is now too late.         

DAVID HOPE

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Lord Hope Image Credit: https://creativecommons.org/licenses/by/3.0/