House of Commons - Explanatory Note
Constitutional Reform Bill [HL] - continued          House of Commons

back to previous text


The Supreme Court

341.     The Supreme Court will be administered as a distinct constitutional entity with special funding arrangements to reflect its unique status. The staff will, however, be civil servants. The existing staff of the Judicial Office of the House of Lords have been given the opportunity to transfer to the new court and they will be supplemented by recruited staff to fill the role of those employed by the wider House and shared with the Judicial Office. At present, 21 staff are dedicated to the Judicial Office at a cost of £0.6 million. It is estimated that a further 20 posts will need to be created to fill the role of those shared with the wider House, at a cost of £0.5 million. In addition, a Chief Executive will be appointed through fair and open competition.

         The Judicial Appointments Commission

342.     The effects on public service manpower will be minimal for the Judicial Appointments Commission. The Commission will be an executive Non-Departmental Public Body sponsored by the Department for Constitutional Affairs. The Commission will be staffed by a combination of new recruits, and transferred or seconded staff from the Department of Constitutional Affairs. It is estimated that the Judicial Appointments Commission will have approximately 140 staff.

The Judicial Appointments and Conduct Ombudsman

343.     The Ombudsman's office will have a minimal effect on public service manpower and will be staffed by existing civil servants from the Department of Constitutional Affairs. The estimated workload of the Ombudsman's office is still under evaluation but it is thought that there will be a need for between 6 and 14 staff.


344.     The only provision in the Bill which will result in a slight increase in cost to business, charities or the voluntary sector are those in respect of the Supreme Court. The Regulatory Impact Assessments will be placed in the Library of the House and on the Department's website as accompanying documentation.

Supreme Court

345.     The Regulatory Impact Assessment (RIA) on the Supreme Court considers that there is a negligible impact on small businesses, charities and the voluntary sector. It further considers that there will be a limited impact on public and private expenditure as the majority of the costs will be defrayed across the wider civil jurisdictions from which cases come.

346.     The RIA considers options instead of statute to create the United Kingdom Supreme Court and concludes that primary legislation is the only viable way to transfer the necessary jurisdictions.


347.     Convention issues do not arise in relation to any specific provisions in the Constitutional Reform Bill. The Bill is in seven parts.

348.     Part 2 modifies the office of the Lord Chancellor and provides for the transfer and future exercise of certain functions presently vested in that office. The treatment of the Lord Chancellor's functions differs according to whether they are of a legislative, executive or judicial character. This part also confers a duty on Ministers of the Crown generally and particular duties on the Lord Chancellor to uphold the independence of the judiciary.

349.     The balance struck in this Part of the Bill between the separation of powers and the need for democratic accountability does not infringe the ECHR, and in particular, Article 6. In the most sensitive matters (such as the discipline and removal of Judges) the concurrence of the Lord Chief Justice will act as a necessary counterweight to the powers of the Lord Chancellor. In general, the degree of autonomy of the judiciary combined with procedural checks and balances such as this, will ensure that the independence and impartiality of the judiciary will be preserved as required by Article 6.

350.     Part 3 contains provisions for the creation, constitution, jurisdiction and resourcing of a new Supreme Court for the United Kingdom. The new court will exercise the existing appellate jurisdiction of the House of Lords (the Appellate Committee) and the jurisdiction of the Judicial Committee of the Privy Council in respect of devolution issues under the Scotland Act 1998, the Government of Wales Act 1998 and the Northern Ireland Act 1998.

351.     The arrangements are considered to be sufficient to entrench and safeguard judicial independence as required by Article 6, and to prevent any legitimate or objectively-justified fear of a lack of impartiality on the part of those coming before the new Supreme Court.

352.     Part 4 creates a new system for the appointment of judges in England and Wales, and for the appointment of those persons holding office of a judicial nature in England, Scotland and Wales who are currently appointed by the Lord Chancellor. The Part also makes provision for the creation of a judicial ombudsman, with responsibility for dealing with complaints about the appointment process and sets out the framework for judicial discipline.

353.     Although it is not legally binding on questions of compatibility, these provisions have regard to the Council of Europe Committee of Ministers recommendation No. R(94) 12 on the Independence, Efficiency and Role of Judges (adopted on 13th October 1994). That Recommendation states that judicial appointments should be made by a body independent of government and the administration. However, it also states that where national constitutional or legal provisions and traditions allow judges to be appointed by the government, there should be guarantees to ensure that the procedures to appoint judges are transparent and independent in practice and that the decisions will not be influenced by any reasons other than those related to objective criteria. The Recommendation goes on to state that these guarantees could take the form of a special independent and competent body to give the government advice which it follows in practice, and/or the right for an individual to appeal against a decision to an independent authority. The provisions are considered to be drafted in such a way as to ensure that the Judicial Appointments Commission will be an independent and competent body of the kind described in the Recommendation, and the process of review by the ombudsman will be a limited form of appeal to an independent authority.

354.     Part 6 removes the right of the Lord President of the Council to sit judicially. This removes a potential incompatibility with the ECHR, which could arise out of a Minister sitting as a judge.

355.     Mr Christopher Leslie, Parliamentary Under-Secretary of State in the Department of Constitutional Affairs, has made the following statement under section 19(1)(a) of the Human Rights Act 1998:

     "In my view the provisions of the Constitutional Reform Bill [HL] are compatible with the Convention rights.".

previous section contents  
House of Commons home page Houses of Parliament home page House of Lords home page search page enquiries ordering index

© Parliamentary copyright 2005
Prepared: 10 January 2005