Joshua Rozenberg’s article reports Lord Neuberger’s warnings about the ‘peril’ of ‘mucking around’ with the British constitution by creating a UK Supreme Court (see [2009] Gazette, 3 September, 6). Lord Neuberger, the new Master of the Rolls, warns of the law of unintended consequences and fears that the Supreme Court, separated from parliament, ‘could start to become more powerful’ with ‘a real risk of confrontation between the judiciary and the legislature, and, indeed, between the judiciary and the executive’.

Lord Neuberger may be unaware of what gave rise to the pressing need to separate the powers of the law lords from the political branches of government. Before he was appointed to the Chancery Division, there had been cases in which lord chancellors, wearing three hats, had acted judicially in highly political cases. There had been instances of law lords entering the political arena by speaking and voting in controversial debates in the lords, even though the senior law lord, Lord Bingham, had asked them not to do so. On one occasion a serving law lord moved (but did not vote on) a highly controversial amendment which suited the political convenience of the government of the day.

As a matter of principle, it was no longer acceptable in a modern democracy based on the rule of law for this to continue, especially since our courts now decide constitutional and human rights cases. The European Court of Human Rights had indicated that a lack of separation of powers was in breach of article 6 of the European Convention on Human Rights. It was impossible to explain to members of the Venice Commission for Democracy through Law, or to constitution-builders in new democracies, how a country celebrated for its commitment to the rule of law could acquiesce in this anomalous and outmoded situation.

The cramped facilities in the committee rooms of the House of Lords for members of the public wishing to attend and hear cases being argued were also grossly inadequate. But attempts by Lord Browne-Wilkinson and Lord Bingham, the two successive senior law lords, to persuade their colleagues to move to more suitable premises were in vain. The pleasures of belonging to the best club in the world prevailed over the wider interests of justice.

That is why I and many others campaigned to reform the system, though we would have wished the changes to have been made without unseemly haste.

The fact that the Supreme Court will be, and will be seen to be, separate and independent from the government and parliament should be welcomed. That will strengthen the rights of the citizen against the misuse of the powers of the state.

Anthony Lester (Lord Lester of Herne Hill QC), House of Lords