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A page for me to get my thoughts together about issues and possibly spark debate.

Supreme Court


I understand that part of the forthcoming Lords Reform Bill will be the removal of the Law Lords from the House of Lords into a Supreme Court. The text of the Bill doesn't appear to have been published yet. The justification of this would appear to be separation of the judiciary from the legislature.

This seems to be a concept imported from the US, which enshrines the separation of executive, legislature and judiciary in its constitution. However, a system in which the populace elects the judiciary hardly seems to separate the judiciary from politics. Which is more important? (To research: how are the US Supreme Judges appointed?)

New Supreme Court Judges are appointed by the President when a vacancy arises.  So here it's not a case of direct populace election.  If it is an election, then it is an electoral college of one. --Nataku
Each judge has to be confirmed by the Senate. The constitutional language is that "the President, with the advice and consent of the Senate", appoints new USSC judges. In practice each nomination is discussed in committee, then submitted to the full senate for a floor vote. A simple majority is required for confirmation, although recently several of President Bush's nominees were filibustered by Senate Democrats - there is some debate as to whether or not this move was constitutional. --SF
To confirm - filibustering is debating a point for so long that there's no room for a vote?  If so, if they have majority, how can they prevent there being a vote, whether or not the merits of the candidate have been discussed fully?  (Of coure, they should be more likely to lose the vote)  Things in the states seem to work much better when the president and the senators disagree and have to compromise.  --Vitenka
See http://en.wikipedia.org/wiki/Filibuster
Dayamm - invading the senate with a small military force, in an attempt to install yourself as the leader.  What a cool way of stopping the president installing racist judges! ;)  Seriously, thanks for the definitional link - it seems a cheesy tactic when you have some support, but not enough.  I mean, heck - that's overboard even for a CouncilMeeting?.  --Vitenka
Question, can anyone tell me if I am remembering something very badly here or not: IIRC, in the UK the practice of talking too long to kill a bill was called Topping, and required that the person talking wore a top hat.  Bizarrely this meant that they could not be silenced by the Speaker, the wearing of a top hat symbolising that one is raising a point of order during a debate and cannot be interrupted, until such time as the session ended.  This was however probably killed off in the 1990's when top hats were made defunct. --Jumlian
In general the speaker can shut up any MP going on too long, including points of order (which did require a top hat to make). Points of Order did have priority over all other points to be raised and thus you could speak before anyone else using a top hat. In Britain at least there is a way to get around filibusting which is the imposition of a guillotine on a debate. Usually voted on at the begining of a debate it is a motion that after a certain period of time a vote is taken, whether everybody has made their point or not. I forget where this is acceptable but I know it has been used by the government in several key pieces of legislation to stop the opposition from blocking said bills. --Edith
Acceptable?  Like all tools, it can be used and it can be abused.  Though if it is used a lot, then (assuming fairly strict party obedience) a party that is not in majority may as well go home until after the next election.  It could seriously speed up parliment though - one hour per vote, perhaps? --Vitenka
More allowed than acceptable. It has been used to force through legislation on time (although generally the vote is taken quite late). The standard is 2 hours per reading of a bill I think and yes it does speed things up, and can (arguably) mean baddly thought through legislation doesn't get the ammendments it deserves. --Edith
(PeterTaylor) Thanks, Nataku. I understand (mainly from Fresh Prince and from Grisham novels) that judges for at least some of the lower courts are elected: are all appellate court judges appointed?

The role of the Law Lords, and presumably of the proposed Supreme Court, is to construe legislation. Is this task helped or hindered by sitting in the House of Lords? On the one hand, participation in the formation of the legislation could be argued to grant insight into the intentions of Parliament, which is the aim of construction. It would also allow the Law Lords the chance to query imprecision of language while a Bill is in passage - how often do they make oral or written questions? On the other hand, memory isn't always reliable, and to come at Parliament's intent solely through examination of the written record of debates in both Houses could lead to a more accurate construction.

Interesting points.  You miss one major pro of being in the house of lords - they can immediately give their opinions along the lines of "This proposed legislation is unenforceable" and why, thus preventing a lot of bad law from being passed.  As I understand it, in the US supreme judges are apointed pretty much the same way our law lords are - the president picks 'em, but they stay for life.  --Vitenka
(PeterTaylor) That's the kind of thing I was getting at with "query imprecision of language", although I agree it doesn't cover all enforcability issues.
Or until they take retirement. --Nataku

Separation of powers


The US Constitution defines clear separations between the executive, legislative and judiciary. In Britain, the three are all intertwined to some extent - the PM is an MP, the Cabinet is drawn from both Houses, the Law Lords sit in the House of Lords. In yesterday's (10th Feb 2004) Commons debate on Constitutional Affairs, the Tories asked about the Govt's plans to abolish the post of Lord Chancellor, and this was the reply, from the Parliamentary Under-Secretary of State for Constitutional Affairs:
''It is right not only because we need more clarity and transparency than the current blurred arrangement between the different branches of our constitution provides, but, more importantly, we need a more effective Parliament, Judiciary and Executive to ensure that each branch can focus on its core functions. We now have a ridiculous position whereby the head of the judiciary is a politician who also chairs the second Chamber, and the Prime Minister chooses who should chair the House of Lords.'
Does this mean the Govt plans to surprise us when the bill comes out by removing the PM's right to vote in the House? (Not that TonyBlair would miss it much - he has one of the worst voting records of any MP). Or did the minister mis-speak?

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