This table sets out the recommendations for action
in the Committee's First Report and the action taken subsequently.
| RECOMMENDATION IN FIRST REPORT
| ACTION TAKEN SINCE FIRST REPORT
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| Jurisdiction/Scottish Appeals
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| The legislation establishing the new court will need to make clear the jurisdiction of the court. It will need to establish the extent to which it is a United Kingdom court as opposed to a final court of appeal serving each of the United Kingdom's three jurisdictions. (Paragraph 27)
The jurisdiction of the Supreme Court over Scottish appeals and any changes will require legislation or a resolution of the Scottish Parliament. These issues are significant to the maintenance of Scottish law as a distinct entity. They were not addressed when the Government first announced its proposals and the timetable for decisions on the Supreme Court needs to allow for proper resolution and discussion of them in the Scottish Parliament. (Paragraph 39)
| Clause 38 (1) is a clear statement that nothing in part 3 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) The Bill makes no significant change to the jurisdiction over appeals from Scotland, except in relation to devolution matters. This entirely satisfies the concern expressed by us in paragraphs 27 and 39 of our First Report.
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| MEMBERSHIP OF THE COURT |
| There are two aspects which need to be kept in mind when discussing the membership of the new court. The first is the need for special expertise in the laws and understanding of the society in all parts of the United Kingdom—this is particularly true of the distinction between Scottish law and the law in the rest of the United Kingdom. The second is the need for there to be an equal sense of ownership of the new court in all parts of the United Kingdom. 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. (Paragraph 47)
| 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 "It should remain a convention that … at least two Supreme Court Justices should have been Scottish judges".
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| SELECTION AND APPOINTMENT PROCESS
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| 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. 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". We found this to be "an insufficient answer" in February 2004. (Paragraph 56)
| 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.
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| Vacancies in the new Court should be publicised and open to application in line with most other public service appointments. It will still be necessary for some element of active searching for candidates to take place. (Paragraph 64)
| We regret that there is no provision for advertising appointments included in the Bill.
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| RELATIONSHIP BETWEEN SUPREME COURT AND PARLIAMENT
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| 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. (Paragraph 80)
| In paragraph 22 of its Response to our First Report, the Government agreed with this recommendation.
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| 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. (Paragraph 80)
| The Government agrees with the Committee's recommendations that all Justices of the Supreme Court should be appointed to the House of Lords upon retirement.
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| OPERATIONAL (AND OTHER) MATTERS
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| 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. (Paragraph 100)
| 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.
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| As a minimum we would expect the new court to provide an Annual Report to Parliament of the use of the money in its budget and a description of its work over the course of the year. (Paragraph 81)
| Clause 51 places a duty on the Chief Executive of the Supreme Court to make an Annual Report to Parliament.
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| ACCOMMODATION |
| Delay in finding and making available … accommodation has raised the possibility that the new Court might continue to sit in the House of Lords. Given that the principal argument is that the highest court should be seen to be separate from the legislature, it seems 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. If more time is 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. (Paragraph 111)
If the reform is inaugurated in the form of a Supreme Court which is still temporarily sitting in the House of Lords, looking much like its predecessor, it will not meet the desire of the Government and the supporters of reform to make the Court appear clearly separate from the legislature. (Paragraph 192)
| 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". 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.
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| In the nineteenth century the great reform of the courts system involved the removal of the courts from Westminster Hall, their historic home for centuries, to the Royal Courts of Justice in the Strand. The new court of final appeal for the United Kingdom requires a building which is functionally effective, but which also reflects its authority and significance. (Paragraph 112)
| The final choice for a home for the new court still remains to be made, but the former Middlesex Guildhall is the Government's preferred option.
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| JUDICIAL APPOINTMENTS |
| The Government must make it a clear objective of the new Judicial appointments Commission to ensure that active efforts of the kind made by Lord Irvine to promote diversity will be continued in the future. (Paragraph 125)
| The House of Lords Select Committee amended the Bill so as to make express reference to the "encouragement of diversity in the range of persons available for selection" as one of the matters on which the Lord Chancellor may provide guidance to the JAC. This falls short of placing an express duty on the Judicial Appointments Commission to engage in a programme of action to promote diversity. We believe that the Bill should place a duty on the Judicial Appointments Commission of England and Wales to encourage diversity in the range of persons available for selection. There is a precedent for this in the duties placed on the Northern Ireland Judicial Appointments Commission.
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| Any system of appointment must be transparent and any discretion exercised by the Secretary of State will need to be open to challenge in the first instance by way of appeal to the Judicial Appointments and Conduct Referee. Under the current proposals the Secretary of State will be required to give reasons for any choice made. Although it is likely that these reasons will, in the first instance, be given in confidence to the Committee, they may well become public knowledge as a result of an appeal to the Referee. Although we do not regard this as a fatal objection to giving the Secretary of State a choice of names to appoint, it raises practical difficulties, mentioned by witnesses, relating to attracting good candidates who may be put off from applying by the prospect of too public a refusal. (Paragraph 132)
| The Bill now provides for only one name to be submitted to the Lord Chancellor and for greater confidentiality; therefore, we regard this concern as having been dealt with by the Bill in its amended form.
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| We accept that the judiciary as a whole will be improved by the recruitment of judges from a wider section of society. The problem relates to individual appointments, rather than how the judiciary as a whole should be composed. Any committed approach to increasing diversity will involve very much more than a new method of scrutinising appointments. (Paragraph 146)
| The Bill has been amended to make express reference to the "encouragement of diversity in the range of persons available for selection" as one of the matters on which the Lord Chancellor may provide guidance to the JAC. This falls short of placing an express duty on the Judicial Appointments Commission to engage in a programme of action to promote diversity. We believe that the Bill should place a duty on the Judicial Appointments Commission of England and Wales to encourage diversity in the range of persons available for selection. There is a precedent for this in the duties placed on the Northern Ireland Judicial Appointments Commission.
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| The rule of law is fundamental in maintaining basic freedoms; considerable emphasis is placed on judicial independence in the constitutional system. Judges (especially in the junior ranks) who wish to be promoted but who may be dealing with cases in which the Government is a party must not be put in a position where their future professional prospects are—or may seem to be—open to influence as a result of decisions in particular cases. This might be the case if a continental system of career judges were adopted. We agree that such a system would not fit with the legal system in England and Wales. (Paragraph 157)
| In paragraph 41 of its Response to our First Report, the Government agreed with this recommendation.
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| Flexibility in the system of selecting candidates and encouraging people to apply must not threaten—or seem to threaten—judicial independence. A career structure that involves an expectation of promotion makes it even more vital that the current freedom from partisan interference in appointing and promoting judges is maintained. (Paragraph 158)
| In paragraph 42 of its Response to our First Report, the Government agreed with this recommendation.
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| A successful approach to ensuring that there is a greater diversity in judicial appointments requires leadership. In the past, the Lord Chancellor has provided this, as we acknowledge Lord Irvine did during his tenure of office (see paragraph 125 above). The new Judicial Appointments Commission must provide this leadership by implementing strategies to widen the field of applicants for judicial office. Merit will remain the key criterion for appointment. The new Commission should define "merit". (Paragraph 159)
| We note with approval that the Bill has been amended to remove the Minister's power to define merit.
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| DISCIPLINARY POWERS |
| We regard it as self-evident that any powers to discipline judges or decision to promote them should be within a system that the judiciary and public believe preserves judicial independence. The Lord Chancellor has always played a central role in reaching a compromise between the conflicting imperatives of maintenance of discipline and judicial independence. There is—and always has been—a clear tension between the right of judges to hold office during good behaviour and the need to ensure proper standards are maintained. It is a reflection of the success of the system that up to now so few cases have caused serious controversy. Any new system of discipline will need to be firmly within the control of the judiciary in individual cases, and we believe that the Lord Chief Justice should be the person primarily responsible for it. The relevant provisions of the Bill will need to be very carefully examined. (Paragraph 165)
| We note that the Bill allocates dual responsibility for discipline to the Lord Chancellor and the Lord Chief Justice. We believe that the Concordat provides an appropriate framework for these responsibilities.
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| COMPOSITION OF THE JUDICIAL APPOINTMENTS COMMISSION
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| We recognise that members of the Commission should not regard themselves as representing a narrow sectional interest. However, it would be strange if leading members of the two branches of the legal profession were not included among the Commission's members. (Paragraph 175)
| Under the terms of the Bill as it now stands, there will be 15 members of the JAC (including the Chairman, who holds an office distinct from the other 14 Commissioners). There will be six non-lawyers (including the Chairman); five members who are professional judges; two members from the legal professions; a lay magistrate; and a tribunal chairman, tribunal member or arbitrator. The Bill has been amended to permit the Lord Chancellor by order, with the agreement of the Lord Chief Justice, to increase the number of Commissioners.
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| CHAIR OF THE JUDICIAL APPOINTMENTS COMMISSION
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| Notwithstanding the arguments in favour of a lay Chair, we believe that the Judicial Appointments Commission should be chaired by a judge. (Paragraph 185)
| The Bill in its present form provides that the Judicial Appointments Commission will be chaired by a lay person. We understand that this provision has the support of the judiciary. Viewed in the context of the Concordat, which adequately preserves judicial independence, and of the strong judicial element in the Judicial Appointments Commission we now believe that a lay chair is acceptable.
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| PROCESS OF DECISION MAKING
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| The abolition of the office of Lord Chancellor should be delayed until the reforms are established. (Paragraph 191)
The consultation process has been too short and the legislative timetable is too restrictive to deal with changes which are so far reaching in their effects. The reason for haste seems to be primarily political. In the light of the complex issues raised and the ambition on the part of the Government to create a new settlement for a final court of appeal for the United Kingdom we recommend that the Government proceed with the Constitutional Reform Bill on the basis of its being draft legislation—in particular in respect of the proposals for a new court of final appeal. If this course of action is followed, it is likely that many of the arrangements could be agreed on a consensual basis. If the plan is to create a court to last for centuries, then this must be an objective worth spending some time on. (Paragraph 193)
| Our previous inquiry, the Lords Select Committee and the Carry Over procedure have ensured that there has, after all, been proper examination of the Government's proposals set out in the Bill. In practical terms these processes gave the Bill the scrutiny that a draft Bill would expect to receive.
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