House of Commons - Constitutional Affairs

Select Committee on Constitutional Affairs Third Report

3 New Supreme Court

37. In our First Report, we said that both those in favour of the change and those against were united in emphasising that the present system was one which worked. The arguments for change were about principle and perception.[29]

38. There has been much debate about the principle of whether there should be a new Supreme Court. In the end, the House of Lords agreed that there should be a new Supreme Court. This House has given the Bill a Second Reading and so we refrain from commenting on the principle behind the Bill but confine ourselves to observations about practical arrangements for the new court.

Jurisdiction of the new court

39. In our First Report we said that the legislation will need to make clear the jurisdiction of the new court. It will need to establish the extent to which it is a United Kingdom court and the extent to which it is a final court of appeal serving each of the United Kingdom's three jurisdictions. It has been pointed out that the Treaty of Union specifically precludes appeals from a Scottish court to an English court. This point was not properly examined in the Government's consultation paper.[30]

40. The Government fulfilled a commitment made to the House of Lords Select Committee, and underlined in the recommendation at paragraph 283 of the Select Committee's report, to bring forward an amendment to safeguard the separate jurisdictions to be exercised by the Supreme Court in respect of Scottish, Northern Irish and English law. The concern which the amendment is designed to meet is that the establishment of the Supreme Court would set off a process of erosion of the distinctions between the separate and quite distinctive legal systems of England and Wales, of Scotland and of Northern Ireland—with the possible effect of making the smaller jurisdictions' traditions more like those of England and Wales. The new clause (Clause 38) introduced by this amendment sets out to forestall any such possibility.

41. Clause 38 (1) is a clear statement that nothing in this part of the Bill is to affect the distinctions between the separate legal systems of the parts of the United Kingdom. Subsection (2) states that a decision of the Supreme Court on appeal from a decision of a court of any part of the United Kingdom is to be regarded as the decision of a court of that part of the United Kingdom, except in relation to a devolution matter, which is dealt with in subsection (3).[31] This entirely satisfies the concern expressed by us in paragraph 27 of our First Report.

42. In paragraphs 29 to 32 of our First Report we discussed the potential difficulty relating to the treatment of devolution matters by the new Supreme Court. We noted the objection of the Law Lords to the extension of the jurisdiction of the Supreme Court, making it the final arbiter of devolution issues arising in the devolved jurisdiction. The debate has developed since we wrote our Report and it now appears that there is consensus that devolution matters should be dealt with by the Supreme Court. The Select Committee in the House of Lords agreed with a proposal to transfer jurisdiction in devolution matters from the Privy Council to the Supreme Court.[32] We are content that the new Supreme Court should exercise this jurisdiction.

43. Replicating the current jurisdiction of the Appellate Committee of the House of Lords, the Supreme Court will hear civil appeals from the Court of Session but will not deal with Scottish criminal appeals: the High Court of Justiciary will remain the highest court for Scottish criminal cases. Some commentators point out that these arrangements contain anomalies. Appellants in Scottish civil cases will be able to bring appeals to the Supreme Court without needing to seek permission of either the Court of Session or the Supreme Court itself (unlike their counterparts who are involved in civil claims in England and Wales or Northern Ireland). In Scottish criminal cases defendants will have no possibility of appeal to the Supreme Court, unless the appeal raises a "devolution issue" (usually in the form of an allegation that the prosecution process was not conducted in a way that is compatible with Convention rights), in which case the Supreme Court can deal with the matter. In the debates about the Supreme Court's jurisdiction there has, however, been little appetite for change. The House of Lords Select Committee concurred with the views of the Justice 2 Committee of the Scottish Parliament that no leave requirement should be imposed on Scottish civil appeals to the Supreme Court, and saw no need to confer upon the new court a general jurisdiction over Scottish criminal matters. Indeed, many view these issues as significant to the maintenance of Scottish law as a distinct entity.[33] They were not addressed when the Government first announced its proposals and we wanted the timetable for decisions on the Supreme Court to allow for proper resolution and discussion of them in the Scottish Parliament. The Scottish Parliament has now had a full opportunity to debate the proposals contained in the Bill. The new Clause, which we describe above, protects the position of Scots law.

Membership of the House of Lords

44. In our First Report we said:

"From the point of view of preserving the reality and appearance of judicial independence, there are dangers in introducing a system which involves exercising patronage in favour of specific individual judges. On balance we would prefer all judges in the Supreme Court to be made peers upon retirement, subject to the question of further reform of the House of Lords. However, if that option is not followed, then none of them should be made peers".[

In its Response to the Report the Government said:

We note that the Government has agreed with us on this question.

Selection and appointment of members of the court

45. The procedures under which members of the Supreme Court will be appointed are set out in Clauses 22 to 28; Schedule 7 defines who will sit on the selection commission to appoint judges to the Supreme Court. The selection and appointment of members to the new Supreme Court is an issue of overwhelming importance. The reputation of the new court, like its predecessor, will rest on the calibre of the judges who serve on it. We said in our First Report that the Constitutional Reform Bill will need to make clear provision for the arrangements relating to representation of the various parts of the United Kingdom. It will need to set out clearly the principles under which members of the new court are appointed.[36] Although the new court is likely to hear relatively few cases from Scotland and Northern Ireland, it will need expertise in the laws and understanding of the society in all parts of the United Kingdom; there must be an equal sense of ownership of the new court in all parts of the United Kingdom. The Bill does not expressly provide that there be two (or three) judges with experience of Scots law and one judge with experience of Northern Ireland law among the 12 members of the court. Clause 24(8) provides that "In making selections for the appointment of judges of the Court the commission must ensure that between them the judges will have knowledge of, and experience of practice in, the law of each part of the United Kingdom". We agree with the House of Lords Select Committee on the Bill that "It should remain a convention that … at least two Supreme Court Justices should have been Scottish judges".[37]

46. In our First Report, we drew attention to arrangements needed to enable the Supreme Court selection commission (which will meet only sporadically) to have continuity of practice and to develop recruitment policy.[38] In his evidence to us, the Lord Chancellor told us that "It is envisaged that one or more of the commissions in the three jurisdictions will be asked to supply secretarial and other support on an ad hoc basis when a vacancy is to be filled".[39] We found this to be "an insufficient answer" in February 2004, and twelve months later the picture is no clearer. The matter was not discussed in any detail in the report of the House of Lords Select Committee on the Bill or subsequently on the floor of the House of Lords.

47. In other respects, the proposed selection arrangements have changed significantly since the Bill was first introduced. The House of Lords Select Committee on the Bill made amendments (moved by the Government) designed to elucidate the respective roles of the selection commission, the Lord Chancellor, the devolved institutions and the senior judiciary. The arrangements in the Bill as introduced to the House of Commons provide for the following steps:

a) When a vacancy arises, the Minister will convene a "selection commission".

b) The selection commission will have five members: generally, the President of the Supreme Court (who will normally be its chair); the Deputy President; and one member from each of the judicial appointment commissions in England & Wales, Scotland and Northern Ireland nominated by the Minister on the recommendation of the relevant commission. One of the members drawn from the appointments commissions must be non-legally qualified. The Bill as originally introduced did not guarantee any lay involvement in the process.

c) The selection commission determines the process to be applied.

d) Selection must be on merit. Regard must also be had to the need for the Supreme Court to have knowledge and practical experience of each of the legal systems and to any guidance given by the Minister.

e) The selection commission must prepare a report for the Minister, stating among other things the name of the person who has been selected.

f) In a selection process, there will be two rounds of consultation. First, by the selection commission and second (after a candidate has been recommended) by the Minister. Those to be consulted include members of the senior judiciary and the heads of the devolved administrations.

g) The Minister may notify the selection to the Prime Minister, reject the selection, or require the commission to reconsider its selection. The Prime Minister transmits the name of the selected judge to the Queen, who makes the formal appointment.

48. One of the most significant changes to the Bill was a change to the number of candidates to be selected by the commission (and, consequently, the breadth of discretion left to the Minister to choose who should be appointed). In its original form, Clause 21 (3) (a) of the Bill provided for the selection committee to prepare a list of names for the Minister which "must consist of at least 2 and no more than 5 candidates." An amendment was announced by the Government at a very early stage, following consultations with senior members of the judiciary, that only a single name should be selected by the commission. Views differ as to whether in any appointment round it is possible confidently to identify a person who is objectively "the best" candidate—or whether there will more likely be several candidates all of whom meet the criteria of excellence.

49. An alternative approach to the stark choice between a shortlist or a single name would be for the selection commission to decide for itself, having surveyed the field of potential candidates for each vacancy, whether to provide the Minister with one or more names. This would recognise that in relation to some vacancies there may clearly be just one person who is singularly well-qualified (this may be particularly so where the commission is seeking to appoint a person from the smaller jurisdictions of Northern Ireland and Scotland). In other cases there may well be two or more equally appointable candidates and here it might be thought appropriate for the Executive branch of government to have a real involvement in the choice.

50. We recommend that the Bill be amended to allow the selection commission, if it so chooses, to decide whether to provide the Minister with a choice of more than one name. We said in our First Report:

The decisions of the House of Lords have created a Commission likely to be dominated by judges, which in our view makes parliamentary oversight even more important. We deal with this further in paragraph 77 below.

51. In our First Report, we said that vacancies in the new Court should be publicised and open to application in line with most other public service appointments, although it would still be necessary for some element of active searching for candidates to take place.[41] We regret that there is no provision for advertising appointments included in the Bill. If such amendment is not made to the Bill, we hope that any selection commission appointed under the Bill will as a matter of course publicise and leave open to application posts on the Supreme Court bench.

Court administration

52. Originally, the Government proposed that the Department for Constitutional Affairs should provide the secretariat and administrative support for the Supreme Court. In our First Report, we said:

The Department for Constitutional Affairs is not the appropriate organization to run the new court because it is too associated with the England and Wales court system and because giving the Government control over the administration of the new court could offend against the principle of judicial independence.[

53. We are pleased to see that the Bill has been amended to meet our concerns about the independence of the administration and budget of the Supreme Court. As the Bill now stands, the Supreme Court will be an independent statutory body with its own estimate within the overall DCA departmental expenditure limit and, as a result of a separate Estimate, independent financing from the Consolidated Fund through the normal supply process. The Chief Executive of the Supreme Court will be a separate accounting officer in right of the court itself and not a sub-accounting officer under the DCA Permanent Secretary. The Lord Chancellor will simply be a conduit for the Supreme Court bid and will not be able to alter it before passing it to the Treasury.[43]

54. This point is extremely important. We took a considerable amount of evidence on this from Professor I R Scott, the Chief Justice of New Zealand and other members of the recently established New Zealand Supreme Court and it featured as a major part of our inquiries during our visit to the Australian High Court and the new Supreme Court of New Zealand.

New court building

55. The new Supreme Court needs a building which is able to reflect the importance of the institution which it houses.[44] The proposal of the former Middlesex Guildhall as the location for the Supreme Court has the potential to meet this requirement. This has not been an easy decision because the choice of building involves many complex issues. We believe that these issues should continue to be the subject of the fullest consultation with the Law Lords. We are confident that this building, if chosen, will have the potential to be an excellent base for the new court of final appeal for the United Kingdom providing that it is adapted to allow the new court to function as a modern appellate court, as the judges have urged.

56. There are substantial extra capital and recurrent costs following the Government's decision to change the Supreme Court arrangements, but these are a necessary consequence of the creation of a Supreme Court which is separate from the legislature.

INTERIM ARRANGEMENTS UNTIL THE BUILDING IS READY

57. As things stand now, it seems certain that there will be considerable delay before the Supreme Court can move into its new premises; the Government anticipates that the court's first sitting will be in 2008.[45] In our First Report, we said that because the principal argument for establishing a Supreme Court was that the highest court should be seen to be separate from the legislature, it seemed perverse to implement the change in a way which leaves many of the same judges sitting in the House of Lords doing the same job in the same place, possibly with the same staff seconded by the House of Lords. We recommended that if more time was needed to establish the Court as a distinct body, the timing of its introduction should be adjusted accordingly. Such an important change should not be rushed.[46]

58. The Bill now says that Part 3 of the Bill shall not be brought into force unless the Lord Chancellor "is satisfied that the Supreme Court will at that time be provided with accommodation in accordance with written plans that he has approved" and he may "approve plans only if, having consulted the Lords of Appeal in Ordinary holding office at the time of the approval, he is satisfied that accommodation in accordance with the plans will be appropriate for the purposes of the Court".[47]

59. We note with approval the acceptance of our recommendation that implementation of this part of the Bill should not take place until the new Supreme Court could sit in its own building, thereby making clear the separation between the highest court of appeal in the United Kingdom and the legislature.

29 op cit, para 23 Back

30 op cit, para 27 Back

31 See HL Deb, 20 December, col 1597; and House of Lords, Report of the Select Committee on the Constitutional Reform Bill [HL], Session 2003-04, HL Paper 125, para 279 Back

32 op cit, para 456 Back

33 See Judicial appointments and a Supreme Court (court of final appeal), First Report of the Constitutional Affairs Committee, Session 2003-04, HC 48, para 39 Back

34 op cit, para 80 Back

35 op cit, para 22 Back

36 op cit, para 47 Back

37 op cit, para 171 Back

38 op cit, para 56 Back

39 HC 48-II, Ev 108, para 3(b) Back

40 op cit, para 86 Back