A
comment by the Perfesser demonstrates that I wasn't clear enough in
my discussion of the House of Lords' rejection of arbitrary (in the technical, not pejorative, sense) detention of foreign terror suspects. To begin with, I'm not exercised that the UK hasn't completely adopted the US system; I'm a bit disturbed that they're
labelling it a "US-style" Supreme Court when it isn't. Labels do matter, and perhaps more in the law than anywhere else in modern Western society. The student of anthropology (and of literature) can justly note that this is merely a reification of the magical "rule of names" discussed in, among other places,
Frazer. If the UK wants to have a non-supreme court, that's fine with me; a truly independent supreme court probably isn't all that compatible with a governmental structure that merges the executive and legislative branches, but separates the head of state from the head of the government. That being the case, though, don't try to call a camel an "Arabian horse"!
The nitpicky substantial objection I had, though, is to the respect accorded the court's opinion. Whether the opinion was right or wrong, a judicial opinion holding that statute X is itself unlawful cannot be interpreted to allow statute X to continue in operation, without altering behavior, until the government fixes statute X (and, in this instance, any fix would require resubmission to the court). Instead, if statute X is itself unlawful, its operation must be completely suspended until it's fixed—unless one is relying upon common-law crimes, a practice that Parliament previously rejected. The continued operation of statute X reduces the Law Lords' opinion to little more than a white paper; this only reinforces my objection to calling the system an evolution toward a US-style Supreme Court.
Appearances do matter.
