Select Committee on Constitutional Reform Bill First Report


CHAPTER 3: The Supreme Court (Part 2 of the bill)

Issues relating to the Supreme Court

96.  The Committee have identified the following issues arising in evidence which relate to the proposed establishment of a Supreme Court.

-  Is the policy of the bill to replace the Appellate Committee of the House of Lords with a Supreme Court of the United Kingdom correct? (Clause 17(1))

-  If Part 2 of the bill is enacted, should it come into force before permanent premises are available for the Supreme Court? (Clause 103 is the commencement provision.)

-  Are the names "Supreme Court of the United Kingdom" (Clause 17(1)) and "Justice of the Supreme Court" (Clause 17 (7)) appropriate?

-  Is the policy of the bill to specify that "the maximum number of judges is 12" correct? (Clause 17(3))

-  Should the qualifications for appointment for a judge of the Supreme Court be amended? (Clause 19)

-  Should the composition of the Supreme Court Appointments Commission be amended? (Clause 20)

-  Should the Supreme Court appointments commission prepare a list of 2 to 5 names for the Minister, or provide a single name? (Clause 21(3))

-  Are the arrangements for consultation by the Minister satisfactory? (Clause 21 (4))

-  Should the Prime Minister, as well as the Minister, have a role in the appointments process? (Clause 21(5) and 22(1))

-  Are the arrangements for "acting judges" (Clause 29) and the "supplementary panel" (Clause 30) satisfactory?

-  Is it acceptable that Clause 31(1), by which the Supreme Court is designated "a superior court of record", extends to Scotland? (Clause 31 (1))

-  Does the bill satisfactorily define the jurisdiction of the Supreme Court over appeals from Scotland?

-  Is the policy of the bill to transfer devolution jurisdiction from the Judicial Committee of the Privy Council to the Supreme Court correct? (Clause 31(4) and Schedule 8)

-  Should Scottish appeals to the Supreme Court lie only with the permission of the Court of Session or the Supreme Court?

-  Is the provision for the making of rules for the Supreme Court satisfactory? (Clauses 35 and 36)

-  Are the duties placed upon the Secretary of State for Constitutional Affairs in relation to supporting the Supreme Court satisfactory? (Clauses 38 to 41)

-  Are the arrangements for setting fees payable to the Supreme Court satisfactory? (Clause 44)

-  Should Part 2 of the bill be amended to safeguard the separate identities of Scots law, Northern Irish law, and the law of England and Wales? If so, how is this best achieved?

We consider these issues below.

Is the policy of the bill to replace the Appellate Committee of the House of Lords with a Supreme Court of the United Kingdom correct? (Clause 17(1))

97.  The Lord Chancellor told the Committee that "The Law Lords are judges and not legislators: the separation between those two roles should be made explicit" (p 9). The bill seeks to achieve this in two ways: by creating a Supreme Court (Part 2) and by disqualifying serving judges from participating in the legislative and scrutiny work of the House of Lords (Clause 94 in Part 4). These are conceptually distinct policy choices. Different policies would be possible, for example

·  a Supreme Court could be established, while retaining a right of the serving Justices of the Supreme Court to sit in Parliament and in some way be involved in legislative and scrutiny work, or

·  the Appellate Committee of the House of Lords could be retained but the right of the serving Law Lords to speak or speak and vote in legislative and scrutiny business of the House be removed.

98.  At this point we consider the general policy to establish a Supreme Court. (The main issues relating to Clause 94 are considered below at para.390-407.) There is a natural temptation to view the debate as between those who are for and against the proposed Supreme Court. In fact—as Lord Bingham of Cornhill reminded us—the range of views "is actually a good deal more complex" than this (Q 463). The views made known to the Committee fall into five broad categories:

·  strong support for a Supreme Court as provided for in the bill;

·  conditional support for a Supreme Court, subject to being satisfied about matters such as funding arrangements and premises;

·  support for a Supreme Court coupled with regret that the reforms are not more radical in relation to the character and jurisdiction of the court;

·  strong support for the current arrangements;

·  support for the retention of the Appellate Committee while conceding that some reform may be appropriate—for example, a new convention that the Law Lords in office and others who are authorised to sit judicially do not speak or vote at all.

THE GOVERNMENT'S CASE FOR CHANGE

99.  The Government's case for the Supreme Court is set out in the Lord Chancellor's written and oral evidence to the Committee (p 1; QQ 1-149), as well as in the Department for Constitutional Affairs' consultation papers issued in July 2003[8] and in speeches in Parliament.[9] The reforms are proposed in the context of other constitutional changes. Judicial review has developed into a significant check on the lawful exercise of central and local government powers. In recent years, on average approximately a fifth of the appeals heard by the Appellate Committee of the House of Lords originated from the Administrative Court. Moreover, when applying European Union law and the Human Rights Act 1998, courts are now able to call into question legislative provisions passed by Parliament. The Supreme Court will have important powers to adjudicate on devolution issues which may involve disputes about the powers of the United Kingdom Government and Parliament.

100.  The Government say, first, that "the Law Lords are judges and not legislators: the separation between those two roles should be made explicit", as it is in many other democracies (Lord Chancellor, p 9). The reasons for this were alluded to by Baroness Hale of Richmond. Writing of her first three months as a Law Lord, she told the Committee "… this is an intensely political place. This may have become more apparent since the party political balance became closer and the House of Lords has felt much freer to engage in serious challenges to the House of Commons. This is none of our business as judges: yet if we take an interest we risk compromising our neutrality and if we do not we are seen as remote and stand-offish" (p 364). The Government are supported in this argument by Lords Bingham of Cornhill, Steyn, Saville of Newdigate, and Walker of Gestingthorpe: "the separation of the judiciary at all levels from the legislature and the executive as a cardinal feature of a modern, liberal, democratic state governed by the rule of law" (p 116). We also heard evidence in support of this position from the Law Society (Q 540), the Bar Council (Q 540), JUSTICE (Q 295), and academics including Professors Robert Stevens (Q 155) and Diana Woodhouse (QQ 345 & 363). Sir Thomas Legg QC, a former permanent secretary of the Lord Chancellor's Department, told us that establishment of a Supreme Court "is an item of long and outstanding unfinished business from 1875 and I am sure it is a good move" (Q 679).

101.  The Government argue that it is not only the principle of separation of powers that is important, but that "there have in fact been a number of very practical examples where a dual role of the Law Lords as members of the Appellate Committee and of the Upper Chamber have raised questions about their ability to sit in specific cases". While the Lord Chancellor is not suggesting that the Law Lords' independence has ever been compromised, his evidence states that the growth in the number of judicial review cases over the past half a century has increased the chance of Law Lords being placed in constitutionally difficult positions (Lord Chancellor, p 1).

102.  Secondly, the Government say that a new Supreme Court would help public understanding of the legal system. The Lord Chancellor told the Committee that "it must be sensible to have constitutional arrangements that reflect the reality. Take the judges out of the legislature, make it clear that they are judges, have a beacon of legal excellence that is the Supreme Court of the United Kingdom. Everybody can then see how our system works" (Q 93).

103.  Some witnesses agreed that the current arrangements lead to confusion about the role of the House of Lords and the judges within it. Lord Bingham of Cornhill told us that "people just have no understanding at all of the function of the Law Lords" (Q 405). He suggested that separating the position of senior judges and members of the House of Lords would "make the British public appreciate that actually we are judges" (Q 405). Professor Diana Woodhouse told us "seeing the final and top court in its own building is very important psychologically for public confidence and perception about judicial independence" (Q 363). We were also told that even aspiring law students commonly regard the Court of Appeal as the highest court in the land (Q 405).

104.  Thirdly, the Government and others argue that a Supreme Court separate from Parliament is required in order to comply with the requirements of Article 6 of the European Convention on Human Rights (ECHR), which requires that judges "must be independent, impartial and free of any prejudice or bias—both real and perceived. For this to be ensured, judicial independence needs not just to be preserved in practice, but also to be buttressed by appropriate and effective constitutional guarantees. The establishment of a Supreme Court will provide those guarantees" (Lord Chancellor, p 10).

105.  Professor Woodhouse supported this view, saying that the ECHR makes the perception of our arrangements even more important: there is a "need for there to be compatibility, and evident compatibility, with the European Convention of Human Rights and with the requirement that judges are not only independent but are seen to be independent. Appearances are becoming increasingly important" (Q 345).

106.  Fourthly, the Lord Chancellor told the Committee that the accommodation for the Law Lords in the Palace of Westminster "leaves a lot to be desired". It is said that the offices of the Law Lords are cramped and inconveniently located, constraints on space limit the number of support staff who may be employed for the court, and "the presence of the Appellate Committee within Parliament makes it difficult for members of the public to gain access to the building, and to see our highest court in action" (p 10). The Lord Chancellor stated that "in the proposed UK Supreme Court, none of these artificial constraints would apply" (p 10). Lord Bingham of Cornhill said: "I would certainly hope that wherever it ends up it is in a place, subject obviously to security procedures, that the public can have access to and one would hope that in the course of time it would be in a building that people would actually feel proud of. If you drive around Singapore everybody says 'That is the Supreme Court of Singapore'. If you go to New Delhi exactly the same is true, and true in Canada, true in Australia. These buildings are regarded as belonging to the people and they are buildings that they are proud of. I cannot actually see why the fourth richest economy in the world cannot do that" (Q 404).

107.  Fifthly, some supporters—and indeed some critics (Professor J A Jolowicz, p 365)—point to the benefits of enabling "devolution issue" jurisdiction to be transferred to the Supreme Court. Since 1998, the Judicial Committee of the Privy Council rather than the Appellate Committee of the House of Lords has been the final court of appeal for cases involving devolution issues. Of the 13 cases so far heard by the Judicial Committee, all have come from Scotland and almost all have raised the question whether the Scottish Executive has breached a right under the European Convention on Human Rights. In other situations, such legal issues would arise under the Human Rights Act 1998 and the House of Lords would be the final court of appeal. Aidan O'Neill QC sought to demonstrate in his written evidence that this "dual apex" to the United Kingdom's court systems has contributed to inconsistent case law (p 384).

108.  Finally, it is part of the case for change that the costs of creating suitable accommodation for the Supreme Court, and the higher running costs, are merited by "the importance which a liberal society attaches to the rule of law" (Bingham, Constitution Unit Spring Lecture, 1 May 2003, quoted by Lord Chancellor p 15). In his written evidence to the Committee, the Lord Chancellor set out information about the estimated running costs of the Supreme Court:

TABLE 2

Estimate of Supreme Court Running Costs
Budget HeadEstimated Costs Comment
Judicial Salaries£2,100,000 Unchanged
Staff Salaries£1,000,000 £600,000 currently - the increase represents the additional staffing requirement of the Court, including the Chief Executive, additional research assistants and support services currently provided by the House (e.g. librarians, messengers etc)
Library£250,000 £90,000 currently - although this represents the cost of maintaining the Judicial Office library collection only; the Law Lords also enjoy access to the wider library of the House which would need replication, and maintenance, in part.
General Admin£750,000 Covers utilities, telephones, postage, reprographics, soft services (cleaning, catering, security) etc
Building costs£1,600,000 - £6,500,000 Annual building costs vary significantly between options and depending on procurement route. However, this figure represents a realistic estimate for a 'conventionally' (i.e. non-PFI) procured solution. The figure includes maintenance, rent (where appropriate), rates/capital charge.

109.  Against these estimated running costs, the current running costs of the House of Lords Judicial Office have also to be taken into account. In addition to Judicial Office staff salaries and office administration costs (£680,000 for 2002/03), a further £180,000 is apportioned to the Judicial Office for the cost of utilities, accommodation, overheads, telephones and postage. The Judicial Office also benefits from the use of staff employed by the wider House of Lords (library services, security, catering, cleaning and so on)—a conservative estimate of the latter being around £250,000. As to accommodation for the Supreme Court there will also be additional capital costs. At the outset the Lord Chancellor told the Committee that the set up costs have been calculated as between £6 million and £32.5 million. He later informed us that the choice had been narrowed to two options—Middlesex Guildhall and Somerset House—and that the likely set up costs will be at the top end of the range.

110.  Aside from the as yet unknown costs of acquiring suitable accommodation for the Supreme Court, the Government estimate that in order to support the ongoing costs of running an independent Supreme Court they will have to invest "a figure of slightly over £3 million per annum in addition to that which is already spent on the judicial work of the House of Lords". Nevertheless they are confident that this will be "money well spent". The Lord Chancellor's written evidence to the Committee states: "The Government is confident that arguments both of principle and practicality justify such a cost, and that the proposals will represent value for money. Once established the court will allow tangible benefits to be realised" (p 15).

CRITICISMS OF THE GOVERNMENT'S CASE FOR CHANGE

111.  First, many critics of Part 2 of the bill say there is no theoretical constitutional principle in the United Kingdom requiring separation of judicial and legislative functions. Sir Robert Carnwath (a judge of the Court of Appeal of England and Wales and former chairman of the Law Commission of England and Wales) told us in his written evidence that "Under the British constitution Parliament, under the Crown, is supreme. In different ways, both the executive and the judiciary are servants of Parliament's will" (p 311). On this view, the United Kingdom operates under principles that include judicial independence and the rule of law—but neither of these principles dictates that the Appellate Committee of the House of Lords should cease to exist (see also Garnier, p 356).

112.  Lord Jauncey of Tullichettle reiterated the point that there "was not and never has been a strict separation of powers in the English constitution". Indeed, we recall that the Royal Commission on the Reform of the House of Lords, echoing evidence they had received from the late Lord Wilberforce, concluded that "as long as certain basic conventions (which we recommend should be set out in writing) continue to be observed, there is insufficient reason to change the present arrangements. Indeed, we see some advantage in having senior judges in the legislature where they can be made aware of the social developments and political balances which underlie most legislation." (Cm 4534, p 6) It may be added that in November 2001, the Government's White Paper on reform of the House of Lords accepted that recommendation and stated that "The Government is committed to maintaining judicial membership within the House of Lords. In practice, it has been recognised that the formal judicial function constrains the judicial capacity of active Law Lords to comment on legislation and issues of the day. However, Law Lords represent a significant body of expertise and experience, which can benefit the House beyond the period when they sit judicially. … The Government proposes that … all those appointed as judicial members should continue to be members of the Lords until age 75, whether or not they sit judicially" (The House of Lords - Completing the Reform, Cm 5291).

113.  A related confusion, we were told, is the assumption made by many advocates for change that the upper House is simply a legislature. This, Lord Cooke of Thorndon states, is "a half truth" as "the House of Lords is more than a chamber of a legislature" ("The Law Lords: an Endangered Heritage" (2003) Vol.119 Law Quarterly Review at 49). He drew our attention to the terms of section 4 of the Appellate Jurisdiction Act 1876 which make it clear that the House of Lords is a court: "Every appeal shall be brought by way of petition to the House of Lords, praying that the matter of the order or judgment appealed against may be reviewed before Her Majesty the Queen in her court of Parliament, in order that the said Court may determine what of right, and according to the law and custom of this realm, ought to be done in the subject-matter of such appeal". Professor J A G Griffith agrees: "The House of Lords as part of the High Court of Parliament has existed for centuries. The working constitution is a complex piece of machinery which depends on a commixture of functions, not their separation. There is no anomaly" (p 362).

114.  As to the practical problem of Law Lords needing to avoid sitting in judgement in cases where they had been involved in the making of legislation, Professor J A Jolowicz of Cambridge University reminded us that this is nothing new: "more than 100 years ago, Lord Halsbury explicitly refrained from writing a judgement on the sole ground that he had been concerned with the drafting of the legislation the interpretation of which was before the House (Hilder v Dexter [1902] AC 474, 477-478)" (p 367). We were also told that the June 2000 statement by Lord Bingham of Cornhill was merely a reflection of general restrictions that apply to judges sitting in all courts. Problems are as likely to occur following statements made outside Parliament as they are on the floor of the House (Nicholls Q 411).

115.  In this context, some of those in favour of retaining the Appellate Committee of the House of Lords are willing to contemplate reform. Lord Brightman told the Committee of his idea for a new convention that "the Law Lords in office, [and] others who are authorised to sit judicially, do not speak or vote at all. That is a total answer to the problem" (p 328). Lord Hope of Craighead told us "one solution might be to deal with our position by means of a standing order" which would prevent Law Lords from voting (Q 652).

116.  Secondly, critics were unconvinced about the accuracy or relevance of the Government's assertions about public perception—a "belief that the public really not only do not understand what role the Law Lords play but actually believe that the Law Lords are in some way biased, that their decisions are political decisions made for reasons which are not judicial at all" (Lloyd Q 199). Lord Norton of Louth told us that the Government has produced no empirical evidence of such perceptions and, moreover, "reliance on the perceptions of the ordinary citizen—the Government's perception of perception—is not justifiable as the basis for proceeding with a fundamental measure of constitutional reform" (p 138) (see also Cullen Q 872, Martin Q 851).

117.  To the extent that we have been able to assess public perception both of the current situation and of the proposed changes the most we can say is that opinion does not run high. As Professor Stevens said to us, "I am not certain that there is really any public opinion". He recounted how in 1874 "when the right of the Conservative Party was trying to sabotage the Imperial Court of Appeal and they claimed that public opinion was opposed to it and The Times commented… 'there is no public opinion on this subject any more than there is on the transit of Venus'. I suspect not much has changed since 1874" (Q 199). The e-consultation exercise conducted on our behalf by the Hansard Society received relatively few responses from the general public (see Appendix 7).

118.  Thirdly, several witnesses rejected the Government's reliance on Article 6 of the European Convention on Human Rights. Sir Robert Carnwath stated: "The European Court of Human Rights does not insist on a rigid division of functions between the judges and the legislature. It is concerned with specific connections in individual cases. The Law Lords have responded by a self-imposed restriction on participation in parliamentary debates. There is no reason to think that this is ineffective. Nor is there any evidence that the independence of the Law Lords is in doubt, or perceived to be so by government or anyone else" (p 331) (see also: Garnier p 356, Nugee p 379, Jauncey p 364).

119.  Fourthly, some witness disagreed with the proposition that the Palace of Westminster provided inadequate accommodation for the Law Lords, either from the Law Lord's point of view or that of the general public. Lord Hope told us that the statements that the existing accommodation for the Law Lords leaves a lot to be desired are "exaggerated" and that in his view the Law Lords do not need more staff or space for staff (p 189). He also told us that the Law Lords "receive many visitors in the course of our year from many places for a variety of reasons", though he conceded that more could be done to improve accessibility (Q 676).

120.  Fifthly, some opponents of the creation of a Supreme Court are particularly critical of the plan to transfer devolution issue jurisdiction from the Judicial Committee of the Privy Council. (This question is considered more fully at para.227-36 below.)

121.  Sixthly, many critics of Part 2 of the bill are wholly unconvinced that a new Supreme Court will constitute value for money and yield tangible benefits. Lord Mackay of Clashfern stated that "The costs involved in this proposal are considerable and I very much question whether these additional costs on litigants, not only in the Supreme Court itself, but also in all the other civil courts of the United Kingdom is justified by the benefit claimed for the proposal" (p 80) (see also: Brightman p 328, Ackner p 100, Garnier p 356, Hobhouse p 125).

122.  A seventh concern relates to judicial activism. Lord Rees-Mogg expressed the fear that should a Supreme Court be established, it might encourage senior judges to usurp the principle of parliamentary supremacy: "I think if we send the Law Lords out into some new place with pillars in front that they will think that the separation of powers is the basis on which we have done it and that, therefore, they have got their powers" (Q 239; Nicholls Q 432).

123.  Finally, some witnesses think that the formidable reputation of the Appellate Committee is in itself the most compelling reason for retaining the current arrangements. Even people who are in favour of reform identify the risks involved in change. Richard Cornes told us that the new Supreme Court will not automatically inherit "the aura of authority" enjoyed by the Appellate Committee and "the very act of reform (including the events of last year) have destabilised" the "unwritten understandings" which have underpinned the legitimacy of the United Kingdom's highest courts (p 339).

Calls for more radical reform

124.  Some critics of Part 2 by contrast welcome the removal of judicial business from the House of Lords but say that the bill does not go far enough in reforming the United Kingdom's top level court and in changing its character. Several witnesses were disappointed that the bill merely seeks to replicate most of the features of the Appellate Committee in the new Court and misses opportunities (for instance) to create a Supreme Court with truly United Kingdom-wide jurisdiction, including over Scottish criminal appeals, or to create a court which sits en banc (we consider this latter question at para.161-4 below).

125.  Aidan O'Neill QC told us that the creation of a Supreme Court with jurisdiction over devolution issues was a necessary but not sufficient step to "ensure constitutional coherence and stability for the Union". He called for a new post within the Supreme Court, similar in position to that of the Advocates General to the European Court of Justice, the function of which "would be, prior to the Supreme Court's judgment, to draw the attention of the parties, the court and the public at large to the general implications of the Court's decision in the individual case before it, both for the separate jurisdictions making up the Union, as well as for the UK as a whole" (p 384).

126.  Sir Robert Carnwath called for a "full review of the function of the Appellate Committee in the 21st century, and its relationship to the lower courts in the three jurisdictions". He pointed out that "in other countries the judges of the final court may have a valuable role as 'think tanks' for law reform, or pre-legislative scrutiny". He said, "… if their [the Law Lords'] true role is 'system-wide' correction, more of their time might usefully be devoted to helping to correct legislative muddles in advance, rather than sorting them out retrospectively (and much more expensively). There is no necessary conflict between these two roles. Both are concerned with improving the structure of the law. From the point of view of those affected it does not much matter whether this is achieved by legislative action or judicial precedent" (p 332).

127.  In a similar vein, Baroness Hale of Richmond asked, in her written evidence, "if we are to have all the upheaval …, is it not worth contemplating doing something a little more radical?". In her view, "only cases of real constitutional importance should go to the Supreme Court", along with ordinary civil and criminal cases "but only on the basis that a serious inconsistency had arisen between two of more jurisdictions of the United Kingdom in the interpretation of United Kingdom legislation or the development of the common law on a subject where the law ought to be same throughout the realm". She urged that the Supreme Court be given exclusive power to select which cases to hear and that the criteria for selections should be set out in legislation (p 364).

THE VIEWS OF THE JUDGES

128.  A decision to remove judicial business from the House of Lords has obvious importance far beyond the wishes and concerns of judges. The views of those actively involved in the life and work of the courts—some of whom we have already cited—do, however, illustrate the stark differences of opinion about the future for the Law Lords. In their response to the Department for Constitutional Affairs consultation in July 2003, the then serving Law Lords were not of one mind, some supporting the general policy of a Supreme Court,[10] others opposed to it, [11] and one choosing to express no concluded view[12] (p 116). Since then, three of the Law Lords have retired and three new appointees have taken their place: Baroness Hale of Richmond supports a Supreme Court but would prefer "an even more radical reform than that proposed by the Government" (p 342); in December 2003, Lord Carswell told that House of Commons Constitutional Affairs Committee that he was inclined to the view that if the Appellate Committee "is functioning satisfactorily you might make more trouble from changing it just because of perception" (HC 48-II. Ev 66); Lord Brown of Eaton-under-Heywood has not expressed any public view. We were told by Sir Brian Kerr, the Lord Chief Justice of Northern Ireland, that there was a variety of views in Northern Ireland (Q 1028). The Senators of the College of Justice, the collective body of the senior Scottish judiciary, are unanimously in favour of retaining the existing arrangements (p 249; Q 899). The Judges' Council of England and Wales have not expressed a collective view on the desirability, or otherwise, of the Supreme Court, though Lord Woolf told us that

"So far as the Supreme Court is concerned, I recognise the different views about that and that the House of Lords is split on that. I do not think one can say, even if you are committed to the Supreme Court, that it has to happen tomorrow. That is not as urgent a matter …" (Q 511).

THE COMMON GROUND

129.  It is helpful to identify issues on which there is a broad degree of agreement. First, there is almost no support for the former practice of the Lord Chancellor occasionally sitting and presiding in the Appellate Committee of the House of Lords.[13] . Moreover, the Concordat specifically provides, as one of its guiding principles, that the "Secretary of State will not be a judge and shall not sit in a judicial capacity" (para.8. See Appendix 6). It therefore seems clear that whether there is a Supreme Court, or whether the Appellate Committee is retained, the Minister responsible for judiciary-related matters will not sit as a judge in it.

130.  Secondly, the overwhelming view—which the Government accepted from the outset—is that the Appellate Committee of the House of Lords has a high reputation at home and abroad for excellence of its judgments, its efficiency and the probity of its judges. It is accepted that as a matter of fact the Law Lords are independent of pressure of any kind (other than through counsel's submissions) from either Parliament or the Government. Lord Nicholls of Birkenhead told us: "I have never been approached in connection with any case I have been involved in by a member of government, by a fellow Peer or anybody at all. Nor have I ever heard of any other judge being so approached" (Q 408).

131.  Thirdly, it is accepted that setting up a new Supreme Court will incur some additional public cost and recurrent expenditure will be higher than it has been for the Law Lords accommodated in the Palace of Westminster.

OPINION OF THE COMMITTEE

132.  There was a clear division of opinion within the Committee between those members who agreed that the Appellate Committee of the House of Lords should be replaced by a Supreme Court of the United Kingdom and those members who did not. Accordingly, we make no recommendation to the House.

133.  We are agreed however that, were a Supreme Court to be established, it should be housed in a building befitting its importance but it is not for us to make the choice.

134.  Given the necessarily limited range of financial information provided to the Committee and the lack of figures for costs of accommodating the current occupiers of premises capable of housing the Supreme Court, the Committee agrees that no conclusion can be arrived at by us as to cost and benefit.

If Part 2 of the bill is enacted, should it come into force before permanent premises are available for the Supreme Court? (Clause 103 is the commencement provision.)

135.  The Lord Chancellor told the Committee of the relationship between the bill and the building: "you cannot make progress about the building without there being a legislative process to create the Supreme Court and you cannot get the Supreme Court up and running effectively unless there is a building on its way" (Q 53).

136.  The Committee was told by the Lord Chancellor that a process of conducting two searches across London for suitable properties to convert for use as the Supreme Court, and sites to construct a new building, had revealed six potential options (p 16). Following further evaluation against the criteria of suitability, deliverability, prestige and location, and affordability and value for money, two of these options were rejected.

137.  On 30 April 2004, Lord Bingham of Cornhill wrote a memorandum to the Committee, reflecting the consensus among the serving Law Lords, in which he expressed concerns about the use of the existing Middlesex Guildhall for the Supreme Court (p 114). The Middlesex Guildhall was built in 1913 for use as criminal trial courts and its historical court rooms of traditional layout and forbidding aspect would be "entirely unsuited to the work" of the Supreme Court. Lord Bingham of Cornhill concluded that "With Parliament Square and the Palace of Westminster to the east, and with Westminster Abbey to the south, the Guildhall site in our view deserves a building very much more distinguished than the Guildhall is or can ever be".

138.  The Lord Chancellor conceded that "it is inevitable that, even once identified, it will take time to equip the building" and stated: "While we would not wish to rule out any interim arrangements at this point, I can assure the committee that there is no possibility that we will enact legislation on the Supreme Court without ultimately providing suitable accommodation" (p 17).

139.  Lord Bingham of Cornhill's memorandum to the Committee estimated that a delay of three to four years would appear to be the minimum before the Supreme Court could move into its new accommodation.

140.  We considered what should happen between the enactment of Part 2 and the time when the Supreme Court's permanent accommodation is ready for occupation. The Lord Chancellor told us that "I think it would be very, very unlikely that they would go from here [the Palace of Westminster] to one place and then to a permanent Supreme Court building" (Q 73). He also said: "Let us see where we are in relation to the building. The building is bound not to be ready by March 2005, assuming that is the date that the bill passes. There would then be a choice about whether or not one waited until the building was ready or one made some transitional arrangement" (Q 91).

141.  There appear, therefore, to be two options.

·  Part 2 could be brought into force before the permanent building is ready, with the Supreme Court, using the Palace of Westminster as its location in the interim.

·  The commencement of Part 2 could be delayed until the court building is completed.

142.  The Law Lords were clear in their evidence that if the bill were enacted the second of these options was the preferable one. "We think it essential that new legislation creating a Supreme Court should not come into effect until there is accommodation in which the Court can be established". The reason for this preference was explained in the following way: "There would be no practical problem if, during the period of delay, the Appellate Committee and the Judicial Committee continue to function as they now do. But an intolerable situation would arise if the new arrangements were to take effect before there was accommodation to which the judges could transfer. 'Old' appointees would continue to be peers and as such entitled, presumably, to use the facilities of the House. 'New' appointees, unless they were peers, would have no claim to use the facilities of the House or to occupy any of its space. It is not at all clear how the financing of the Court, the employment of staff etc could be handled during the interim period, which would call for very detailed transitional provisions" (p 115).

143.  Lord Nolan, a retired Law Lord, agreed. He told us that "the suggestion that the Supreme Court should temporarily (though for an indefinite period) occupy the same accommodation [that is, the Palace of Westminster] will not, I hope, be pursued" (p 379). It is argued that, if it is necessary to demonstrate to the public the separate identity of the Supreme Court, this message is wholly lost if the new court comes into being with the same people doing the same work in the same place as before. Lord Lester of Herne Hill QC, submitting evidence on behalf of the Odysseus Trust, supported deferring the commencement of Part 2 of the bill until suitable accommodation (and resources) had become available (p 382), as did JUSTICE (p 94).

OPINION OF THE COMMITTEE

144.  The Committee is divided on the question of whether commencement of Part 2 of the bill should be delayed pending a move to permanent premises and make no recommendation to the House.

Are the names "Supreme Court of the United Kingdom" (Clause 17(1))and "Justice of the Supreme Court" (Clause 17 (7)) appropriate?

145.  In response to the Department for Constitutional Affairs consultation paper, and since, a number of people have expressed dissatisfaction with the new court's title: "the Supreme Court of the United Kingdom". Four main concerns have been articulated as to why the title is misleading or otherwise not apt.

146.  First, the court will not be the court of final appeal for Scottish criminal cases and it is therefore not a Supreme Court of the whole of the United Kingdom (Mackay of Clashfern Q 238).

147.  Secondly, the bill does not create a new level of "United Kingdom" law separate from the laws of the three jurisdictions (England and Wales, Northern Ireland and Scotland) and, indeed, we recommend below (para.283) that the bill be amended to provide expressly for this. The Supreme Court will not in this sense be a Court "of the United Kingdom"—but, according to the case it is hearing, a court of England and Wales, Northern Ireland or Scotland. Only in relation to devolution issue appeals will its judgments be binding in all three jurisdictions. Lord President of the Court of Session in written evidence said: "The title of 'Supreme Court' is perhaps not appropriate, having regard to the different functions which the new court would exercise" (p 251).

148.  Thirdly, some fear that the title is apt to confuse the public, who will believe that the court's functions and powers are similar to that of the United States Supreme Court. Lord Norton of Louth told us: "The argument [in favour of a Supreme Court] is that it will introduce clarity and so what happens you call it the Supreme Court—anybody with informed knowledge of the American judicial system will probably read into it a completely different role to that which it will have" (Q 489).

149.  Fourthly, Lord Rees-Mogg suggested that the judges of the Court may themselves be encouraged into inappropriate judicial activism by the name "Supreme Court". Lord Mackay of Clashfern agreed: "The concerns that Lord Rees-Mogg expressed about the Supreme Court, and that perhaps the use of the name may be influential in this connection, I think have to be taken quite seriously" (Q 238).

150.  We heard relatively little evidence as to what the court might be called if not the Supreme Court of the United Kingdom. Lord Mackay of Clashfern tentatively suggested "High Court of the United Kingdom", on the grounds that this had greater similarity to the High Court of Parliament, mirrors practice in Australia (where the High Court of Australia is the highest court), and avoided the pitfalls associated with "Supreme Court" (QQ 273-277).

151.  Lord Bingham of Cornhill takes a different view to those set out above. He told us: "I think it is a totally appropriate title. I appreciate that it has been suggested that it should be called the High Court. There is already a High Court in England, there is a High Court in Justiciary in Scotland, there is a High Court in Northern Ireland and we do not want another high court. The Supreme Court has existed with the Court of Appeal and the High Court since 1875 and it is not a title that is unfamiliar to us. I can see no reason why everybody should have a rush of blood to the head as a result of this title, which is, while not completely accurate, very nearly so. That does not suggest for an instant that anybody has any agenda to create a body of United Kingdom law, nor does it suggest that some takeover bid for the criminal law of Scotland is going to be made, which it most emphatically is not. The truth is that it is the nearest we have got to the apex of the jurisdictional, curial pyramid in the jurisdictions of England, Wales, Scotland and Northern Ireland, and that is the proper name for it in my opinion" (Q 434).

Consequential amendments upon establishing a Supreme Court of the United Kingdom

152.  As the Government acknowledged in their July 2003 consultation paper, "there is already an entity known as the Supreme Court of England and Wales, which consists of the Court of Appeal, the High Court and the Crown Court". Similarly, there is a Supreme Court of Northern Ireland. Moreover, in Scotland, the term Supreme Court has also been used on an administrative basis to refer to the Court of Session and the High Court of Jusiticiary collectively. The Government stated that "to avoid confusion, in the future the title of Supreme Court will be reserved for the Court to be created as a result of this consultation" (Constitutional Reform: a Supreme Court for the United Kingdom, CP 11/03, para.58). The bill does not, however, make any provision to change the name of the Supreme Court of England and Wales, the Supreme Court of Judicature of Northern Ireland, or the short title of the Supreme Court Act 1981 and other primary and subordinate legislation in which the words "Supreme Court" appear in the title. The Lord Chancellor told us that the Government's policy is to rename the existing Supreme Court of England and Wales as The Senior Courts of England and Wales, and for the Supreme Court of Judicature of Northern Ireland to be renamed as the Court of Judicature of Northern Ireland. Amendments to introduce these provisions will be tabled at a later stage of the bill.

OPINION OF THE COMMITTEE

153.  The Committee agree, with varying degrees of enthusiasm, that, if the bill is enacted, the name "Supreme Court of the United Kingdom" and the title "Justice of the Supreme Court" are appropriate. The Supreme Court of England and Wales and the Supreme Court of Judicature of Northern Ireland should be renamed and, where necessary to avoid possible confusion, the short titles of legislation relating to those courts should also be changed.

Is the policy of the bill to specify that "the maximum number of judges is 12" correct? (Clause 17(3))

154.  We considered several issues relating to the number of judges.

-  How many judges will be needed to despatch the business of the Supreme Court?

-  Should the Supreme Court sit en banc i.e. all together or, as the Appellate Committee does, sit in panels?

-  What provision should there be as to the number of judges from England and Wales, Northern Ireland and Scotland?

155.  The Lord Chancellor told us that he intended to move an amendment to Clause 17 "to provide that the number of Supreme Court judges may, by affirmative resolution, be increased or further increased from 12 to some greater number, but that their number cannot be less than 12. Whereas there may, in future be a need to increase the number of judges to cope with additional workload it would be appropriate for this to be exercisable by secondary legislation as at present for the number of Lords of Appeal in Ordinary, I am persuaded that it would not be appropriate to decrease the membership of the Supreme Court except by primary legislation"
(pp 418-9).

THE OVERALL NUMBER OF JUDGES

156.  The number of judges needed by a court depends on two main factors: how many cases are received; and how the court organises itself to hear those cases—in particular whether it sits en banc (meaning all the judges of the court sit together to hear all the cases) or in panels (meaning that sub-committees of the court, for example five out of 12 judges, hear cases).

157.  The likely caseload of the new Supreme Court can be expected to reflect the current caseload of the Appellate Committee of the House of Lords and the devolution jurisdiction of the Judicial Committee of the Privy Council. In large part, the case load of the Appellate Committee is in the hands of the Law Lords. In the great majority of cases, they select for themselves which appeals to hear and only a small proportion of cases come "as of right" or with leave granted by a lower court. The same arrangements will apply to the Supreme Court. Another factor affecting judicial time is the caseload of the Judicial Committee of the Privy Council. Here there have been and will be significant changes: appeals from bodies such as the General Medical Council are no longer heard; with the setting up of the New Zealand Supreme Court, more than a dozen appeals a year will no longer come to London; and in the foreseeable future, the Caribbean Court of Justice will begin operation with the effect that a further dozen or so cases a year will no longer be heard by Law Lords sitting in the Judicial Committee of the Privy Council.

158.  Several witnesses called for the Supreme Court to have 15 (rather than 12) permanent members at its inception. Two main reasons were advanced for this. First, as Roger Smith of JUSTICE told us, there is a general case for a court of 15 as this would provide a "permanent core of justices at the very top of the system" (Q 289) and so reduce the need to call upon members of the supplementary panel.

159.  Secondly, a particular case was made for a court of 15 in order to accommodate three (rather than two) judges from Scotland; this issue is considered below.

160.  One objection to increasing the size of the court to 15 relates to the "collegiate" nature of the court. Lord Hope of Craighead explained to us that "As far as the difference between 12 and 15 is concerned, my concern is not so much with costs as with the collegiate nature of the body. Our experience has been that we gain a great deal from interaction with each other in the committee system and it is achieved by the way in which the sittings are organised… If you expand the body you make it a little bit more difficult to achieve that constitutionality, and the more the building tends to separate people off from each other, as indeed the building I have seen tends to do, the more likely that is but, more importantly, it is important to make sure that the present system, which operates within the number of 12, is not lost. I think the balance is correctly struck here" (Q 645).

SHOULD THE SUPREME COURT SIT EN BANC?

161.  The bill, in Clause 32, envisages that the Supreme Court will continue the practice of the Appellate Committee of the House of Lords and hear most cases by constituting itself into panels—usually of five, but on occasion seven and exceptionally nine judges.

162.  Several witnesses told us of their preference for the Supreme Court to sit en banc. If the court did sit en banc, it would require fewer judges (probably nine). This is the view of, among others, Sir Thomas Legg QC (Q 679), Professor Diana Woodhouse (Q 345), the solicitors firm Clifford Chance LLP (p 316), and Richard Cornes (p 338). The General Council of the Bar of England and Wales commented that "an important question which should be addressed is whether the Supreme Court should not always sit 'en banc' rather than in separate committees" (p 162). The bill does not permit all 12 Justices to sit to hear a case, as the Supreme Court will be duly constituted only if "the Court consists of an uneven number of judges" (Clause 31(1)(a)).

163.  The clear disadvantage of a court sitting en banc is that it could hear far fewer cases than a court of 12 judges sitting in panels of five (though this begs questions as to how many cases the Supreme Court should decide). We were told of two main advantages that accrue to courts that sit en banc. One is that this method of deciding cases promotes consistency and legal certainty.

164.  A further advantage of sitting en banc is that it would "thereby avoid speculation about who will sit and what criteria are used to determine this" (Professor Diana Woodhouse p 108). Lord Bingham of Cornhill told the Committee that in the past the Lord Chancellor "used to set the panels, the constitutions which sat, and in amazingly recent memory was willing to manipulate the panels to achieve a certain result—I am not suggesting within the governmental experience of any one person! That is a prerogative that he has entirely given up, it has been in the hands of the two senior Law Lords for the last ten years and out of the hands of the Permanent Secretary since then" (Q 402).

THE APPOINTMENT OF JUDGES FROM SCOTLAND AND NORTHERN IRELAND

165.  The great proportion of appeals heard by the Appellate Committee of the House of Lords emanate from the courts of England and Wales. This will continue to be so in the Supreme Court. No one therefore doubts that the majority of judges appointed to the Supreme Court should have a background in the law of England and Wales. If current patterns are replicated in the Supreme Court, there will be on average one case from Northern Ireland every eight months or so, and approximately eight appeals from Scottish courts a year (from the Court of Session in civil cases and the High Court of Justiciary and other courts where a "devolution issue" is raised). We therefore considered what arrangements should be in place to ensure appropriate representation from the two smaller jurisdictions of the United Kingdom.

166.  The considerations relating to Scotland and to Northern Ireland are rather different. We were told by Sir Brian Kerr, the Lord Chief Justice of Northern Ireland, that the laws and procedures in Northern Ireland were broadly similar to those applying in England and Wales (QQ 1012-1013). In Scotland, many aspects of criminal and civil law and court procedures are significantly different from that in the other parts of the United Kingdom. A further difference is that there is a long-standing constitutional convention that two Law Lords are appointed from Scotland, whereas the practice of appointing a Law Lord from the Northern Ireland is much more recent and less well-established.

167.  Several witnesses from Scotland told us that there should ideally be three permanent Law Lords with knowledge of Scots law. This would have the consequence that when an issue of Scots law is being decided by a panel of five judges, or the court is dealing with a devolution appeal relating to Scotland, the majority of the panel could have expertise in Scots law. The use of Scottish judges as "acting judges" was not regarded as a satisfactory measure, the view being taken that acting judges should be used only in genuine emergencies such as illness. The witnesses were agreed that it would not be appropriate to have three out of 12 judges on the Court from Scotland (this would be too high a proportion), and so came the suggestion that the Supreme Court should have a minimum permanent body of 15 judges.

168.  A further question relating to the appointment of judges from Scotland and Northern Ireland is whether the bill should state expressly that there are to be two (or three) judges with experience of Scots law and one judge with experience of the law of Northern Ireland. The bill before us makes no express provision for the number of judges from these jurisdictions. The Lord Chancellor told us that the Government wished to make provision for the following (p 416)

·  The Supreme Court selection commission will be responsible for assessing both merit and territorial balance, following consultations with the senior judiciary in each jurisdiction, the judges of the Supreme Court (other than the President and Deputy President who are themselves members of the commission), the heads of the devolved administrations and the Minister.

·  The Minister will be able, before the selection commission convenes, to provide non-binding guidance relating to the vacancy that has arisen by, for example, drawing attention to the existing and future jurisdictional balance and requirements of the Supreme Court.

169.  Some views we received were generally content to leave the question of appointment of Scottish and Northern Ireland judges to the Supreme Court to be dealt with as a matter of constitutional convention. The Scottish Ministers told us that they did not consider it necessary to set a minimum number on the face of the bill, though they "were concerned to establish a proper mechanism for the continuation of the convention" of two Scottish judges, and that they are in discussions with the Department for Constitutional Affairs "about the mechanisms for enshrining the convention" (p 298). The Lord Advocate, Colin Boyd QC, was content for the number to be a matter for convention (Q 1094). Sir Brian Kerr told us that he was "agnostic" about whether the bill should expressly require a Northern Irish judge or whether that was achieved as a matter of constitutional convention (Q 1015).

170.  Others expressed different views. The Senators of the College of Justice—the collective body of senior Scottish judges—urged that Clause 17 "should be amended to provide that the composition of the Supreme Court is to include at least two judges who have held high judicial office in Scotland. Where a Supreme Court judge who held high judicial office in Scotland resigns, retires or dies, he or she should be replaced by another judge who has held high judicial office in Scotland. In our view, such an amendment is necessary to protect the administration of justice in Scotland and the distinctive principles of Scots law" (p 249). The Faculty of Advocates supports this view (p 234), as did the Law Society of Scotland (Q 815).

OPINION OF THE COMMITTEE

171.  The Committee agrees that the number of Supreme Court Justices should be 12. We have amended the bill to allow the Minister by Order in Council (by affirmative resolution of both Houses of Parliament) to increase that number. It should remain a convention that within that number at least two Supreme Court Justices should have been Scottish judges. The Committee further agree that the Supreme Court should sit in panels, the size of which may be varied at the Court's discretion according to the importance of the case.

Should the qualifications for appointment for a judge of the Supreme Court be amended? (Clause 19)

172.  Clause 19 of the bill sets out the formal qualifications for appointment to the Supreme Court. They reproduce the existing qualification requirements for Lords of Appeal in Ordinary. To be eligible for appointment a person must

·  have held "high judicial office" for a period of at least two years (as defined by Clause 48), or

·  be a legal practitioner of at least 15 years' standing.

173.  The question of formal qualification is distinct from issues relating to the criterion of "merit". The Lord Chancellor indicated at an early stage his intention to move amendments to Part 2 of the bill to state expressly that appointments to the Supreme Court shall be on merit and we have agreed those amendments after Clause 19. ("Merit" in relation to appointments by the Judicial Appointments Commission in England and Wales is discussed fully at para.323-35 below.)

174.  We heard a variety of criticisms of Clause 19. Lord Cullen of Whitekirk told us that appointments should be restricted to judges who have experience of sitting in appellate courts. In his view, and that of the Senators of the College of Justice, it was not appropriate to appoint practitioners directly to the Supreme Court, even though a number of distinguished Law Lords—including Lords Reid and Macmillan—had been appointed in this way (QQ 884-885; p 249). He explained that "simply to take over into this bill the provisions of the 1876 Act as to qualifications is perhaps not really in accordance with modern reality. In other words, somebody should demonstrate a proven track record bringing up qualities that show he or she is suitable for promotion to an appellate job. In other words, I see this as a promoting post" (Q 884).

175.  Others told us that the problem with Clause 19 was that it was overly restrictive. Lord Lester of Herne Hill QC and The Odysseus Trust argued that Clause 19 was too narrow and that the criteria should be sufficiently flexible to include solicitors and legal scholars—they say this will ensure greater diversity (p 382). Baroness Hale of Richmond suggests non-practising lawyers should be eligible for appointment. She told us that the House of Lords has, and Supreme Court will continue to have, "a role in shaping the law which is quite different from that of the first tier appeal courts in any of the three jurisdictions. It is often involved in questions of legal policy. It needs a variety of legal and life experiences to feed into that discussion" (p 364).

176.  In their response to the House of Commons Constitutional Affairs Committee report of February 2004, the Government stated

"It is vital to maintain the same calibre of judges in the Supreme Court as presently serve in the Appellate Committee. For this reason the Government is proposing that the criteria for eligibility for appointment to the Supreme Court remain the same as those for the House of Lords Appellate Committee…….Whilst it could be argued that this would improve diversity on the bench, the Government recognises that it may be of considerable importance that the members of the Supreme Court should have active experience of presiding in the lower courts" (The Government's response to the report of the Constitutional Affairs Committee, Judicial Appointments and a Supreme Court (court of final appeal), para.20, April 2004, Cm 6150).

177.  In his written evidence (p 402), Sir Konrad Schiemann argued that the definition of "high judicial office" in Clause 48 ought to be expanded to include judges of the European Court of Justice, the Court of First Instance and the European Court of Human Rights. There was little advantage, he told us, of ruling out as a matter of principle someone who has been appointed to one of the European Courts after less than 15 years as a practitioner in the United Kingdom. A further point arises in respect of the eligibility of retired judges of these courts to be members of the supplementary panel.

OPINION OF THE COMMITTEE

178.  The Committee agrees with the qualifications for appointment to the Supreme Court as provided in Clause 19. The Lord Chancellor has undertaken to consider further the issue of eligibility of judges of the European courts.

Should the composition of the Supreme Court selection commission be amended? (Clause 20)

179.  Clause 20 of the bill sets out the composition of the selection commission for the Supreme Court. The commission must consist of the following members:

·  the President of the Supreme Court

·  the Deputy President of the Supreme Court

·  one member of each of the judicial appointments commissions in England and Wales, Northern Ireland and Scotland.

180.  The Government indicated at an early stage their intention to move amendments so that "the Secretary of State will always be in a position to ensure that at least one member of the Commission is lay".

181.  Lay membership of judicial appointments commissions is regarded as important for two reasons. First, it ensures that the commission is informed by the widest possible range of appointments and human resource experience. Secondly, it enhances public confidence in the independence and impartiality of the judiciary and the appointments processes. The Commission for Judicial Appointments takes the view that there should always be a lay majority on appointments commissions (p 278).

182.  In their written evidence, the Commission for Judicial Appointments told us (p 266) that "there should be a requirement for the three national appointing bodies to be represented by a lay (i.e. non-judicial, non-legal) member on the Supreme Court appointments commission. (In the two cases of Scotland and England and Wales at least this could perhaps most readily be achieved by providing that the chairs of the Judicial Appointments Board for Scotland and the JAC respectively, who are both lay, should normally be their territorial representatives on the Supreme Court appointments commission). This requirement would ensure a lay majority (3 out of 5) on the SCAC". The Law Society of England and Wales suggested that the commission should have eight persons, of whom half should be lay and that there should be a lay chair (p 162).

OPINION OF THE COMMITTEE

183.  We agree that at least one member of the commission to select a Supreme Court judge should be lay and on the basis of an amendment proposed by the Lord Chancellor have inserted a new Schedule on Supreme Court selection which includes such a provision.

184.  Members of the Committee expressed the view that the selection commission should have an equal number of judges and lay members, in reflection of the arrangements in the bill for appointing judges to the Court of Appeal of England and Wales. We make no recommendation and leave the matter for further consideration by the House.

Should the Supreme Court selection commission prepare a list of 2 to 5 names for the Secretary of State, or provide a single name? (Clause 21 (3))

185.  Clause 21(3)(a) of the bill requires the Supreme Court selection commission to prepare a list of names for the Minister which "must consist of at least 2 and no more than 5 candidates". The Government indicated their intention to move amendments to this Clause so that the Minister "will receive one name from the Selection Commission along with details of the other candidates seriously considered" (p 418).

186.  We heard a number of views in support of such an amendment (Commission for Judicial Appointments p 263, Lester and the Odysseus Trust p 382, Cornes p 338, General Council of the Bar of England and Wales p 160).

187.  Several witnesses expressed views against the amendment. Professor Robert Hazell told us that for very senior appointments in England and Wales and to the Supreme Court there should be a list rather than a single name provided to the minister—though this should be coupled with appropriate parliamentary scrutiny (Q 152). He argued that "to present ministers with a single name in my view assumes too simplistic a notion of merit". Professor Robert Stevens broadly supported this approach (Q 155), as did Professor Diana Woodhouse. She told us "I am concerned that if only one name is given then the Commission might always produce, or is in danger of producing, the 'no risk' candidates at all times because they would be so scared of getting it wrong. If there is a degree of choice then in the end it is still going be the minister who gets the blame, as it were, if he chooses the wrong one. After all, he is the one who is accountable ultimately to Parliament so I think that putting the onus on the minister is not a bad thing" (Q 382).

188.  Lord Hope of Craighead thought there should be a shortlist of two (Q 668). Sir Thomas Legg QC was also in favour of the minister having more than one candidate to choose from "because I for my part believe the appointment of judges is a political and governmental act in which the Executive should play a real, important and accountable part. If it is going to do that I think ministers should have a choice" (Q 679). Dr Kate Malleson suggested that bill should enable the appointments commission to decide for itself, in each case, whether to provide the Secretary of State with a list or a single name: "It may well be that sometimes there is one outstanding candidate and the Commission should be able to say we think this person is so far above anyone else, this is the name we want to put forward. There may be other times when there are two or three or four equally excellent candidates and the Commission may say we think any of these would be appointable, but they have different backgrounds and characteristics which the Secretary of State might want to take into account" (Q 154).

OPINION OF THE COMMITTEE

189.  We agree that a commission for the selection of a Supreme Court judge should provide the name of only one candidate for appointment. Accordingly, we have amended the bill on the basis of a new Clause amendment proposed by the Lord Chancellor.

Are the arrangements for consultation by the Minister satisfactory? (Clause 21)

190.  Clause 21 of the bill as introduced requires the selection commission to consult the devolved administrations and senior judiciary before making a recommendation. It then requires the Minister to consult the same persons and bodies again about the person nominated.

191.  We heard four main criticisms of the consultation process laid down by Clause 21. First, it may be thought that consultation by the Secretary of State is a wasteful duplication of effort (Commission for Judicial Appointments p 263). A second concern is that the Minister consulting fellow politicians in the devolved administrations may be liable to arouse suspicions of inappropriate political involvement in the judicial appointments process. Sir Colin Campbell described the consultation requirement as "realpolitik" (Q 971).

192.  Thirdly, the bill requires that "the National Assembly for Wales" be consulted (Clause 21(4)(c)). In relation to Scotland and Northern Ireland, the requirement is to consult with the First Ministers. The bill is expressed as it is in relation to Wales because the National Assembly is a corporate body. Sir Colin Campbell told us that consulting with "an assembly does seem to me to be a bit tricky" (Q 971) and raises questions about how confidentiality will be maintained.

193.  Fourthly, the definition of "the senior judges" to be consulted by the selection commission and the Secretary of State, set down by Clause 21(7), may present difficulties. Lord Cullen of Whitekirk, writing on behalf of the Senators of the College of Justice, said: "If the Lord President were to be a candidate for appointment this would lead to a rather odd situation. We are of the view that the Lord Justice Clerk (the second most senior judge in Scotland) should be added to the list of people to be consulted. Moreover, where Scottish candidates are being considered, it seems somewhat anomalous that the Lord Chief Justice, the Master of the Rolls and the Heads of Division are to be consulted, whereas the only member of the Scottish judiciary to be consulted is the Lord President of the Court of Session" (p 251).

OPINION OF THE COMMITTEE

194.  The majority of the Committee took the view that consultation with senior judges and devolved administrations should be undertaken by the selection commission before submitting their choice to the Minister. They saw no need for the Minister to repeat that consultation. However, having heard from the Lord Chancellor that it is the wish of the Scottish Executive that there be ministerial consultations too, the Committee agreed to amendments moved by the Lord Chancellor to provide for both.

195.  The Committee further agreed, so far as concerns consultation with the devolved administrations, that such consultation should be exclusively with the First Minister in Scotland, the First Minister in Wales and the First Minister and deputy First Minister in Northern Ireland (or the Secretary of State for Northern Ireland until such time as the relevant powers are devolved). This issue remains to be resolved so far as concerns the National Assembly for Wales.

Should the Prime Minister, as well as the Minister, have a role in the appointments process? (subclauses 21 (5) and 22 (1))

196.  Under subclauses 21(5) and 22(1), the Prime Minister receives the name of the candidate considered to be most suitable by the Minister and makes a recommendation to Her Majesty that that person be appointed to the Supreme Court.

197.  This is the only role given to the Prime Minister by the bill. Under the current arrangements, the Prime Minister—as the sovereign's principal adviser—makes recommendations to Her Majesty in respect of judicial appointment as: Lord of Appeal in Ordinary, Head of Division of the Supreme Court of England and Wales, and Lord Justice of Appeal (Court of Appeal judges in England and Wales). Other judicial appointments by Her Majesty are made on the advice of the Lord Chancellor. The bill therefore considerably diminishes the role of the Prime Minister in judicial appointments, confining it to the Supreme Court of the United Kingdom.

198.  We considered the role of the Prime Minister in the appointments process. JUSTICE told us that "in view of the importance of the appointment [to the Supreme Court], we think it appropriate that the role of the Prime Minister be more than as a 'post-box' for the Secretary of State. The proposed roles for both, should be collapsed into Prime Ministerial responsibility and Clause 21(5) and 22 modified accordingly" (p 94). Lord Cullen of Whitekirk and the Senators of the College of Justice support such a view: "Appointments to the Supreme Court are of such importance that any decision should be taken by the Prime Minister" (p 251). Lord Lester of Herne Hill QC and the Odysseus Trust stated that the appointing commission's nomination "should be submitted, not to the minister, unless we have a Minister of Justice, but to the Prime Minister" (p 382).

199.  We also considered whether the Prime Minister's inevitably higher political profile might be more liable to fuel suspicions about party political bias in judicial appointments, and whether therefore it should be the Secretary of State who makes the formal recommendations to Her Majesty. Like JUSTICE's suggestion, this would avoid the fragmentation of ministerial responsibility for Supreme Court appointments.

OPINION OF THE COMMITTEE

200.  We agree that the role of the Prime Minister in the procedures for appointing a Supreme Court Justice should solely be to act as a conduit between the Minister and The Queen. We see no reason to make any change to the provisions of the bill in this regard.

Are the arrangements for "acting judges" (Clause 29) and the "supplementary panel" (Clause 30) satisfactory?

201.  In addition to the 12 permanent members of the Supreme Court, the bill provides that "acting judges" will be eligible to hear cases (Clause 29). The bill provides for two types of acting judge. First, there will be senior serving judges—a person who holds "high judicial office". High judicial office is defined in Clause 48(1) as the office of a judge in the Supreme Court of the United Kingdom (not relevant here), the Court of Appeal, the High Court or the Court of Session. The Lord Chancellor has agreed to provide an amendment at a later stage of the bill which will restrict eligibility to those who are judges of the appellate courts in each territorial jurisidiction.

202.  Secondly, an acting judge may be drawn from the "supplementary panel" described in Clause 30 of the bill. Essentially, this will consist of people under the age of 75 who have retired from a "high judicial office", who are members of the Privy Council, and who are invited by the President of the Supreme Court to serve on the panel. The Lord Chancellor has agreed to provide an amendment at a later stage of the bill which will restrict eligibility to those who are judges of the appellate courts in each territorial jurisdiction. A person who is a member of the panel and a peer will be disqualified from sitting and voting in the House of Lords (Clause 94). In future, senior judges with peerages—or who are contemplating accepting a peerage—will have to make a choice between sitting occasionally as a judge in the Supreme Court or taking part in the legislative and scrutiny work of the House of Lords. The bill does not permit them to do both.

203.  Acting judges may be useful in two main situations. One is where there is a shortage of permanent Supreme Court Justices, for example because of the illness. The other is where it is thought desirable for a judge with particular expertise (for example in Scots law) to sit on a panel of the Supreme Court. The Supreme Court may also draw upon the assistance of "specially qualified advisers" (see Clause 34).

204.  Concerns were expressed to us about the use of acting judges. Roy Martin QC, vice-dean of the Faculty of Advocates, told us that "reliance on temporary judges or part-time judges or ad hoc appointments or whatever one calls them is potentially undermining to the independence of the judiciary" (Q 843). Roger Smith of JUSTICE said "there should be no use or very little use of supplementary justices, and it would be better to bite the bullet and have a slightly larger number of justices than is currently the case" (Q 289). Lord Lester of Herne Hill QC and the Odysseus Trust expressed concern "that the supplementary panel proposed in Clause 30 is contrary to the important constitutional role of the Supreme Court" (p 383). Sir Thomas Legg QC said "the amount of part-time judicial reinforcement at this level I think should be as small as possible" (Q 681).

205.  The bill fails to provide for the first members of the supplementary panel (analogous to Clause 18(a), which states that first members of the Supreme Court will be the Lords of Appeal in Ordinary). The Government has indicated that they will move an amendment "to ensure that those who are currently eligible to sit on appeals in the House of Lords as 'Lords of Appeal' within the meaning of section 5(3) of the Appellate Jurisdiction Act 1876 should continue to be available to assist the Supreme Court by becoming members of the supplementary panel" (p 419).[14] If they choose to serve, they will, under Clause 94, be disqualified from sitting and voting in the House of Lords.

OPINION OF THE COMMITTEE

206.  The Committee agrees that acting judges should be drawn from the appellate courts.

207.  The Committee agrees with the other arrangements in the bill for "acting judges" and we understand that, by virtue of sections 5 and 24 of the Interpretation Act 1978, Northern Ireland judges will also be eligible to serve.

208.  The Committee also agrees with the arrangements for the supplementary panel. The Lord Chancellor has undertaken to amend Clause 30 to ensure that the Lords of Appeal within the meaning of section 5(3) of the Appellate Jurisdiction Act 1876 who are currently eligible to assist by sitting on appeals in the House of Lords will also be available to assist the Supreme Court.[15] This will fill a lacuna in the bill as currently drafted.

Is it acceptable that Clause 31(1), by which the Supreme Court is designated "a superior court of record", extends to Scotland? (Clause 31 (1))

209.  A permanent record of the judicial business of the House of Lords, like all other aspects of the House's work, is kept as part of the proceedings of Parliament. As the Supreme Court will not be part of Parliament, alternative arrangements must be made for record keeping. Clause 31(1) of the bill provides that "The Supreme Court is a superior court of record". By Clause 46, the records of the Supreme Court are defined as "public records" for the purposes of the Public Records Act 1958, and copies of them will be kept as part of the National Archives at the Public Record Office in Kew.

210.  The term "court of record" is widely used in common law jurisdictions to describe a court which keeps a permanent record of its acts and proceedings, and which has the power to punish by imprisonment or fine for contempt of its authority. Several courts and tribunals with jurisdiction throughout the United Kingdom are, or have in the past been, designated as a "superior court of record" e.g. the Special Immigration Appeals Commission, the Employment Appeal Tribunal and the Courts-Martial Appeal Court.

211.  We nevertheless heard expressions of concern that Clause 31(1) was inappropriate for Scotland. Professor Hector MacQueen in his written evidence asked: "Why is the provision that the court is to be a 'superior court of record' not confined to England and Wales, where alone this expression has meaning?" (p 375). For similar reasons, Lord Cullen of Whitekirk and the other Senators of the College of Justice said in their written evidence "We are of the view that it should be made clear that Clause 31(1) does not relate to the jurisdiction referred to in sub-Clause (3)" (p 251).[16]

212.  Lord Hope of Craighead was less critical of this provision. He told us: "The Scottish system [for keeping court records] is provided for by what are known as the Books of Council and Session which are held in the Public Record Office in Scotland. All records of the Court of Session and the High Court of Judiciary go there. I think it is pre-Union legislation that provided this. I do not see any point in sending records from the new Supreme Court to the Courts of Council and Session and I hope that actually they will not particularly want to receive them. I want to make it clear that while the wording is a bit odd from my point of view the result is a perfectly sensible one, which I respectfully endorse" (Q 645).

OPINION OF THE COMMITTEE

213.  The Committee sees no need to change the designation of the Supreme Court as a "superior court of record under Clause 31".

Does the bill satisfactorily define the jurisdiction of the Supreme Court over appeals from Scotland?

214.  Clause 31(3) provides that "An appeal lies to the [Supreme] Court from any order or judgment of a court in Scotland if an appeal lay from that court to the House of Lords at or immediately before the commencement of this section". Broadly speaking, this means that the Supreme Court will hear civil appeals from the Court of Session but will not deal with Scottish criminal appeals: the High Court of Judiciary will remain the highest court for Scottish criminal cases.

215.  In 1876 in the case of Mackintosh v Lord Advocate the House of Lords decided that "since as a matter of history there had been no right of appeal from the Court of Justiciary to the Parliament of Scotland, no such right of appeal had been created by the Act of Union" in 1707 (Faculty of Advocates p 239). The prohibition on criminal appeal to the House of Lords is now on a statutory basis in section 124(2) of the Criminal Procedure (Scotland) Act 1995.

216.  We considered three questions relating to these arrangements.

·  Does the bill fail to rectify an anomaly created by the Scotland Act 1998 and the Human Rights Act 1998 in relation to the Law Lords' jurisdiction over Scottish criminal appeals?

·  Should the Supreme Court have a general jurisdiction over Scottish criminal appeals?

·  Should the Supreme Court have jurisdiction over Scottish civil appeals?

THE DEVOLUTION ANOMALY

217.  The Scotland Act 1998 and the Human Rights Act 1998 create an anomaly that was unforeseen at the time of devolution (O'Neill p 384). Thus, if a criminal defendant alleges that the Scottish prosecuting authorities (the Lord Advocate who heads the Crown Office and Procurator Fiscal Service) have breached a Convention right, this is a "devolution issue" and the ultimate court of appeal is the Judicial Committee of the Privy Council.[17] Of the 13 devolution appeals heard so far, 12 arose in the context of Scots criminal law and procedure. Colin Boyd QC, the Lord Advocate, agreed that there an anomaly but told us "What I think can be said as a justification for the continuation of it is this: devolution issues in criminal cases involve, almost invariably, matters involving the European Convention on Human Rights and I think there is a good argument that there should be a common interpretation of the European Convention insofar as it relates to the United Kingdom, so I do not have any problems with these continuing to come to a Supreme Court" (Q 1131).

218.  In a review of the practice and procedure of the High Court of Justiciary for the Scottish Executive, the Hon. Lord Bonomy, a Senator of the College of Justice in Scotland, recommended that "Schedule 6 of the Scotland Act should be amended to make it clear that acts or failures to act by the Lord Advocate as prosecutor, and anyone acting on his authority or on his behalf as prosecutor, are excluded from the definition of a devolution issue. The Scottish Executive should urge the United Kingdom Parliament to make that amendment" (Improving Practice: the 2002 Review of the Practices and Procedure of the High Court of Justiciary, para. 17.14). Lord Mackay of Clashfern told us "I doubt whether it is wise to have it [the Supreme Court] dealing with human rights issues arising in the criminal field" from Scotland (Q 238).

219.  It is arguable that the bill pursues two contradictory policies: it transfers devolution jurisdiction from the Privy Council to the Supreme Court, while at the same time seeking to continue a policy of excluding jurisdiction over Scots criminal law and procedure. Unless and until the anomaly described above is addressed, it may be doubted whether the latter can be fully achieved.

SHOULD THE SUPREME COURT HAVE A GENERAL JURISDICTION OVER SCOTTISH CRIMINAL APPEALS?

220.  A second and different criticism of the bill is that it is wrong to perpetuate what is in effect an ouster Clause, now contained in section 124(2) of the Criminal Procedure (Scotland) Act 1995, which provides that "every interlocutor and sentence pronounced by the High Court [of Justiciary] under this Part of this Act shall be final and conclusive and not subject to review by any court whatsoever and it shall be incompetent to stay or suspend any execution or diligence issuing from the High Court under this Part of this Act".

221.  This denies defendants in criminal trials in Scotland the opportunity to appeal to the Appellate Committee of the House of Lords and, under the bill, the Supreme Court. In his written evidence to us, Lord Donaldson of Lymington questioned "whether it would be such a bad thing if rights of appeal were the same throughout the United Kingdom, particularly in relation to criminal law … can it really be desirable that what is or is not a crime or that the elements of a criminal offence shall be different on either side of a land border?" (p 351). The Judges' Council (of England and Wales) in their response to the DCA consultation paper similarly posed the question "If criminal appeals from Scotland which raise devolution issues are in future to go to the new Supreme Court, it might be a matter for consideration whether the new Supreme Court should be the final court of appeal for all criminal cases from Scotland". In her written evidence, Baroness Hale of Richmond told us that she "would favour a universal … jurisdiction in Scottish as well as English, Welsh and [Northern] Irish criminal cases" (p 364).

222.  A contrary view was set out by the Lords of Appeal in Ordinary in their response to the DCA consultation. Of Scots criminal law, they stated that "It is not a jurisdiction which the Supreme Court (save for its Scottish members) would be well-fitted to discharge. If there is any desire for change in this regard, we would not support it" (p 117). Lord Hope of Craighead told us: "It is difficult to emphasise how different Scots criminal law is, both in terms of substance and procedure. I am not criticising my colleagues in this but I think it is quite difficult for them to grasp not just the terminology, which in almost every respect is different, but how differently cases are handled, how differently judges deal with cases when they sum up at the end of the trial; the whole feel of it is quite different. Without having worked in the system and known something about it it is difficult to grasp the depth of the difference" (Q 646).

223.  The Faculty of Advocates in their written evidence did not altogether rule out change, but concluded that the case for innovation "has not been made out" (p 240).

SHOULD THE SUPREME COURT HAVE JURISDICTION OVER SCOTTISH CIVIL APPEALS?

224.  A third question brought to our attention is whether the Supreme Court should hear civil appeals from Scotland. Professor Hector MacQueen questioned whether "in the light of the very small number of Scottish appeals to the House of Lords over the last 40 years, and the even smaller number of them that succeed in reversing the court below, the appeal should be discontinued" (p 375).

225.  Others take a different view. Aidan O'Neill QC stated "The abolition of appeals from Scotland would, in my view be a retrograde step and not one to be recommended if the intention is that the Union is to be maintained. Scotland is a small country and its legal system, lawyers and judges all benefit from appeals to London. It is psychologically very important for all judges to think that they may [be] judged in another forum—the classic 'quis custodiet ipsos custodes?' problem—so that even if they are not appealed against, they know that they might be, and their reasoning there analysed and held up to rigorous scrutiny" (p 384).

OPINION OF THE COMMITTEE

226.  The Committee sees no need to change the provisions of the bill in respect of Scottish civil and criminal appeals at Clause 31(3), which reflect current practice.

Is the policy of the bill to transfer devolution jurisdiction from the Judicial Committee of the Privy Council to the Supreme Court correct? (Clause 31 (4) and Schedule 8)

227.  The policy of the bill is to transfer jurisdiction over "devolution issues" from the Judicial Committee of the Privy Council to the Supreme Court (Clause 31(4) and Schedule 8). We heard evidence both for and against this policy.

228.  The Privy Council, rather than the Appellate Committee of the House of Lords, was selected as the final court of appeal for cases raising "devolution issues" by the Scotland Act 1998, the Government of Wales Act 1998 and the Northern Ireland Act 1998. Various reasons were advanced to justify that decision.

·  The Appellate Committee of the House of Lords, as part of Parliament, would have been an inappropriate court because, devolution issues may raise issues about the powers of United Kingdom Parliament to legislate on devolved issues.

·  The House of Lords has no jurisdiction to hear criminal cases from Scotland and, as some devolution issues would relate to Scottish criminal procedure and law, it was inappropriate to for the Appellate Committee have jurisdiction.

·  Concerns were expressed that the Appellate Committee of the House of Lords might become overloaded with devolution cases and therefore be unable to deliver prompt judgments.

·  A broader range of judges are eligible to sit on panels of the Judicial Committee of the Privy Council than in the Appellate Committee of the House of Lords.

·  The Government of Ireland Act 1920 provided a precedent for using the Privy Council to deal with home rule questions.

229.  The devolution Acts provide that any decision of the Judicial Committee shall be binding in all legal proceedings (except those of the Judicial Committee itself), including those before the Appellate Committee of the House of Lords.

ARGUMENTS IN FAVOUR OF TRANSFER

230.  In the July 2003 consultation paper (CP11/03), the Government stated that "on balance" they believed it was right to transfer devolution issue jurisdiction to the Supreme Court: "The argument in favour of this transfer is that there would no longer be any perceived conflict of interest in which a party with an interest in a dispute about jurisdiction—the UK Parliament—was apparently sitting in judgment over the case. The new Supreme Court represents a very material change in circumstances. It will in no way be connected to the UK Parliament. The establishment of the new Court accordingly gives us the opportunity to restore a single apex to the UK's judicial system where all the constitutional issues can be considered. It would ensure that there is no longer a danger of conflicting judgments arising, for example on human rights cases which might have come to the Judicial Committee as devolution issues and to the House of Lords as ordinary appeal cases" (para.20).

ARGUMENTS IN FAVOUR OF RETAINING PRIVY COUNCIL JURISDICTION IN DEVOLUTION CASES

231.  The policy of the bill to transfer devolution jurisdiction to the Supreme Court has been criticised. In their response to the DCA consultation paper of July 2003, the Law Lords reluctantly concluded that the status quo should be retained (p 116). One factor prompting this is that the Judicial Committee of the Privy Council enables "issues to be decided by judges drawn from the devolved jurisdictions", in addition to the Law Lords (or Justices of the Supreme Court). This flexibility of membership of the Court is regarded as important in relation to devolution cases, but not one that should apply in all Supreme Court cases.

232.  The experience of deciding devolution cases between 1998 and April 2004 does not, however, reveal any significant use of judges other than the Law Lords in the Privy Council. Thirteen cases have been decided—11 full appeals and 2 petitions for leave. In all but two of these cases the panels were drawn exclusively from the full-time Law Lords. In one case a retired Law Lord (Lord Mackay of Clashfern) sat because one of the Scottish Law Lords had been involved that case prior to his elevation to the House of Lords. In another case a Court of Session judge joined the two Scottish Law Lords on a panel of five. In practice, then, the flexibility of membership offered by the Privy Council has not been greatly used.

233.  Lord Cullen of Whitekirk and the other Senators of the College of Justice also told us of their opposition to the transfer of devolution issue jurisdiction: "This jurisdiction already results in the anomalous situations in which judges whose training and experience have been in England have to make decisions relating to Scottish criminal trials. The transfer of this jurisdiction to the Supreme Court could result in devolution issues on matters touching on Scots criminal law being decided by a majority composed of English judges, and a growing influence of English law on its reasoning" (pp 249-50; see also Q 846).

234.  In his oral evidence, Lord Cullen of Whitekirk said that while "it would be highly desirable that there should be three members there simply in order to make sure that there is as wide a range of expertise as is available" he did not believe that it should be mandatory for panels of the Court to include a majority of Scottish judges. Of the 11 full appeals decided by the Privy Council so far, in only two of them have the panel consisted of a majority of Scottish judges.

235.  The Faculty of Advocates (p 234) support the general policy of the bill to transfer devolution issue jurisdiction. The Department for Constitutional Affairs states that following the July 2003 consultation in which respondents were asked "Do you agree that the jurisdiction of the new Court should include devolution cases presently heard by the Judicial Committee?", "Of the 87 responses to this question 75 (86%) were in favour of the new Supreme Court taking on the devolution jurisdiction of the Judicial Committee of the Privy Council, 12 (14%) of respondents were against the proposal" (Summary of Responses to the Consultation Paper Constitutional Reform: a supreme court for the United Kingdom, January 2004).

OPINION OF THE COMMITTEE

236.  We agree with the proposals to transfer devolution jurisdiction from the Privy Council to the Supreme Court.

Should Scottish appeals to the Supreme Court lie only with the permission of the Court of Session or the Supreme Court?

237.  Appeals from the courts of England and Wales and Northern Ireland to the Supreme Court may be made only with the permission (or "leave") of the court against whose judgment the appeal is brought, or the Supreme Court itself (Clause 31(6)). Several witnesses told us that it was wrong that no similar requirement is placed on litigants seeking to appeal from Scottish courts. The current Scottish practice, by which an appellant is required to obtain a certificate signed by two counsels that the appeal is one that ought to be heard, will continue.

238.  The leave requirement for appeals to the House of Lords was first introduced in 1934 for cases in England and Wales. The principal criterion for granting a petition for leave to the Lords is whether there is "a point of law of general public importance" to be decided. In England and Wales it is now rare for leave to be granted by the Court of Appeal, that Court adopting the view that in most cases it ought to be for the House of Lords to decide for itself whether an appeal should be heard. A significant proportion of petitions of leave presented to the House of Lords each year are refused. In 2001, the House of Lords disposed of 269 petitions for leave to appeal (260 from England and Wales, 9 from Northern Ireland), allowing 73 to go forward to a full hearing (27 per cent)[18]. Petitions for appeal are determined by panels of three Law Lords sitting as the Appeal Committee; occasionally a hearing is held, but often the decision is made on the basis of the written documents.

239.  In its July 2003 consultation paper (para.56), the Government set out three reasons for not imposing a permission requirement on appeals from Scottish courts:

"It could be argued … that it is an unjustified anomaly that citizens in different parts of the Kingdom have different rights of access to its highest court. The disadvantages of changing this are threefold. First, in respect of Scotland, the arrangement where by Scottish civil cases currently lie to the House of Lords as of right is long established; there is no evidence that change is needed; and there are strong arguments for leaving the position unchanged. The second disadvantage, in all respects, is that it would mean that more of the work of the Court would be absorbed in deciding what cases to hear, rather than hearing them. It would lead, in practice, to fewer cases being heard or to cases taking longer to come before the Court. The third disadvantage is that it would mean that all those seeking the judgment of the Court would have to incur the cost of petitioning for the right to appeal".

240.  In addition, some witnesses asserted that the pre-Union right of appeal from the Court of Session to the Scottish Parliament, which was asserted in the Claim of Right of 1689, was transformed into an unqualified right of appeal to the United Kingdom Parliament. (Aidan O'Neill QC took a rather different view (p 394)).

241.  Several witnesses from Scotland supported the policy of the bill on not requiring permission for Scottish appeals, including the Law Society of Scotland (Q 608), the Faculty of Advocates (p 234) and Lord Cullen of Whitekirk—who nevertheless conceded that "If one were starting with a completely fresh slate without the history of the matter I dare say one would say, 'Why should there be a difference?', but we are looking at a situation in which leave has not been required for many cases for centuries" (Q 894). In their report on the bill, the Justice 2 Committee of the Scottish Parliament recommended that no leave requirement be introduced for Scottish cases (SP Paper 163, para.12).

242.  On the other hand, we also heard criticism of the failure of the bill to require Scottish appeals to be put on a similar footing—through the requirement of permission—to those from courts in the United Kingdom's other two jurisdictions. In her written evidence, Baroness Hale of Richmond told us: "I would favour a universal leave requirement" (p 364) and "There is no justification for continuing to discriminate between the Scots and the rest. Everyone should be subject to a leave filter" (Response by Dame Brenda Hale to DCA Consultation Paper CP11/03).

243.  In their response to the DCA consultation, the Law Lords were divided. Some regard the present arrangement as an anomaly that "however rarely" may result in an unmeritorious appeal, while others "would not wish to disturb a long-standing procedure which gives rise to minimal difficulty in practice" (p 122). In relation to all the responses to the consultation, the DCA reports that "There are 67 responses to this question of which 35 (52%) favour retaining the present position regarding Scottish appeals. Thirty two respondents (48%) argue that it should be altered" (Summary of Responses to the Consultation Paper Constitutional Reform: a supreme court for the United Kingdom, January 2004, para.21).

OPINION OF THE COMMITTEE

244.  The Committee see no reason for changing the leave arrangements for Scottish civil appeals.

Is the provision for the making of rules for the Supreme Court satisfactory? (Clauses 35 and 36).

245.  The basic provisions governing the conduct of judicial business are contained in the Standing Orders relating to the judicial business of the House of Lords. These are published in the Practice Directions and Standing Orders Applicable to Civil Appeals (there are separate practice directions for criminal appeals but the Standing Orders are the same). Changes to the Standing Orders relating to judicial business are proposed by the Law Lords, who consult the Lord Chancellor, and they are then moved by the Lord Chancellor and agreed to by the House at public business (in practice this is a formal motion).

246.  The meaning of the Standing Orders governing judicial business is explained in detail in the Practice Directions. New and amended Practice Directions are agreed to by the Lords of Appeal in Ordinary sitting as an Appeal Committee and announced in the form of Reports. A recent example is that on 8 May 2003, when all twelve Lords of Appeal in Ordinary made the Thirty-Eighth Report from the Appeal Committee, entitled Petitions for Leave to Appeal: Reasons for the Refusal of Leave (HL 89), as a result of which they adopted the practice of giving brief statements for the refusal of petitions for leave to appeal and amended the practice directions accordingly.

247.  For the convenience of the public, litigants and the legal profession the Clerk of the Parliaments promulgates the Standing Orders and Practice directions relating to judicial business in three main publications:

·    The "Blue Book" is applicable to civil appeals;

·    The "Red Book" regulates criminal appeals;

·  ?The "Green Book" deals with judicial taxations (that is, assessments of costs).

248.  Thus, although traditionally the Lord Chancellor has been consulted about changes to the Standing Orders, proposals for change originate from the Law Lords and not from the Lord Chancellor and in practice he has usually agreed to their proposals. And the Practice Directions are wholly within the control of the Law Lords.

249.  Clauses 35 and 36 of the bill make provision for a new system for making rules will be needed for the Supreme Court. By Clause 35 the President may make the Supreme Court Rules. This power must be exercised with a view to securing that "the court is accessible, fair and efficient" and "the rules are both simple and simply expressed". Clause 36 requires the President to submit all Supreme Court Rules to the Secretary of State for Constitutional Affairs who may allow, or disallow, them. The Supreme Court Rules will take the form of statutory instruments, subject to annulment pursuant to a resolution of either House of Parliament. The Rules "come into force on such days as the Minister directs".

250.  We considered whether these arrangements are appropriate. It might be thought wrong that the Minister will acquire a controlling power over the rules of the Supreme Court which is not currently possessed by the Lord Chancellor in relation to the judicial business of the House of Lords. This arrangement may do little, either as a matter of reality or public perception, to enhance the independence of the new Court from the Executive—one of the key goals of the policy to create a new Court. It might also be thought wrong that Parliament will now have a veto over changes to the Standing Orders and Practice directions when in the past it has not. Having the rules take the form of a statutory instrument subject to annulment may decrease the flexibility of the Supreme Court rules which at the moment can be quickly adjusted in response to changing circumstances. Finally it might be asked whether a statutory instrument is likely to express rules any more simply than the current Standing Orders.

251.  Set against this, however, is the need for accountability and the need for the broader public interest to be brought to bear on the Supreme Court's rule-making.

OPINION OF THE COMMITTEE

252.  We do not think that the Minister should be able to allow or disallow such Supreme Court Rules as may be submitted to him by the President of the Supreme Court. Instead, we agree that the rules should be made by the Supreme Court in consultation with the Minister who will have no power to amend them. An amendment to that effect will be brought forward by the Lord Chancellor at a later stage of the bill.

253.  We accept that, in the changed circumstances which would be brought about if the bill were enacted, the rules should be contained in statutory instruments subject to annulment, as proposed in Clause 36(4).

Are the duties placed upon the Minister in relation to supporting the Supreme Court satisfactory? (Clauses 38 to 41)

254.  Clauses 38 to 41 of the bill place duties on the Minister to "ensure that there is an efficient and effective system to support the carrying on of the business of the Supreme Court" and "ensure that appropriate services are provided for the Supreme Court". We considered the role of the Minister in relation to the Supreme Court's budget and administration. This raises important issues relating to the independence of the Court and to accountability for public funds.

WHAT WAS PROPOSED BY THE BILL AS INTRODUCED

255.  The Lord Chancellor told the Committee that "the Government's proposals aim to guarantee genuine independence and autonomy" (p 13). The central features of the funding process envisaged for the Supreme Court are as follows (p 13; Q 56).

·  The Chief Executive Officer and the President of the Supreme Court will consider the resources required for the Supreme Court in line with the Government expenditure planning timescales, and will forward their projections to the Minister.

·  The Minister must satisfy himself that the bid is reasonable and affordable: in all democratic systems there must be a mechanism for ensuring courts are not wasteful in their use of public funds.

·  The Minister will bid for resources to Her Majesty's Treasury (HMT) in the context of the overall bid for the Department for Constitutional Affairs.

·  When HMT allocates resources to the Department, the funds for the Supreme Court will be ring fenced by the Minister as a separate block of funds within the Estimate, which is subject to parliamentary scrutiny and approval.

CONCERNS ABOUT BUDGETARY ARRANGEMENTS

256.  In assessing the budgetary arrangements, we noted the views expressed by the House of Commons Constitutional Affairs Committee in their February 2004 report Judicial appointments and the Supreme Court (court of final appeal) HC48-I:

"100. Clearly the new court must be seen to be independent. … the reality of day to day administration is as important for safeguarding the independence of the judiciary as any theory. The argument that Parliament should be able to dismiss all those to whom it votes money is ingenious, if theoretical—there is no prospect of a minister in modern political circumstances being dismissed by Parliament. The ordinary reality of having independence in managing the affairs of the new court is more important. Close attention should be paid to the Australian system, which preserves independence of the High Court within a parliamentary tradition similar to the one in the United Kingdom. "The Department of 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."

257.  Some supporters of the general policy to establish a Supreme Court attach great importance to the Court being well funded. The General Council of the Bar stated in their written evidence: "We support the formation of a Supreme Court, provided it is fully and properly resourced and housed in a building appropriate for its purpose and standing. Unless these resources are to be made available, it would be preferable to retain the existing arrangements …" (p 161).

258.  We also heard expressions of concern that the arrangements for determining the Supreme Court's annual budget failed to promote the independence of the Court. Although not advocating any particular model for the budgetary arrangements for the Court, Lord Cullen of Whitekirk told us "if independence from the executive as a matter of perception is important then I would have thought that in both the reality and in the matter of perception it is important that the Supreme Court should be as independent as possible from the executive" (Q 860).

259.  In considering what arrangements should apply to the Supreme Court, it is important to bear in mind the current system for funding the judicial business of the House of Lords. While the salaries of the Lords of Appeal in Ordinary are paid direct from the Consolidated Fund, the administrative costs of the Judicial Office (and of course of accommodation) are borne on the House of Lords vote, or request for resources, and accounted for by the Clerk of the Parliaments. The estimates are laid by the Treasury, in like manner as far as a non-departmental public body, though they are not cash limited. While these arrangements differ from those of the House of Commons, whose estimates are laid by the Speaker, it may be thought that they afford the finances of the final court of appeal a degree of independence from the executive. (In addition, the Clerk of the Parliaments is Registrar of the court, and as Corporate Officer employs the staff.)

260.  Although no detailed models were presented to the Committee, we were told that an alternative to the budgetary arrangements set out in the bill would be one where the Minister was not interposed between the Supreme Court and HM Treasury. In his written evidence, Professor Ian Scott of the University of Birmingham stated: "The Court, with the assistance of its executive officers should prepare its own budget and should collect and keep its own fees. The budget should be negotiated directly with the Treasury. Any Treasury objection to this should be met with the robust argument that the Court is not simply another government agency or service whose entreaties for money should be filtered through a ministry, but an organization sitting at the top of a co-equal branch of government and exercising prerogative power" (p 409).

261.  The practical benefits of such an arrangement are not indisputable. We were told that there might be benefits for the Supreme Court in retaining a role for the Minister. Lord Hope of Craighead told us: "I am a little concerned, using my background as Lord President, where I dealt with the Secretary of State in managing the court affairs, about being separated out from ministerial accountability and indeed the value of having a minister to argue one's position where it needs to be argued. I found it quite useful to be able to go to the Secretary of State for Scotland and make representations to him about how I thought our court should be run and discuss with him points about administration and other matters. I am not myself alarmed by the idea of the matter being handled through the department" (Q 653).

262.  In addition to general concerns about the role of the Minister in determining the reasonableness of the Supreme Court's budget, some witnesses from Scotland expressed a third and more particular anxiety in relation to budgetary arrangements and Article 19 of the Treaty and Act of Union 1707. In their written evidence, the Royal Society of Edinburgh told us: "It will also be important for a Supreme Court's United Kingdom character, to be administered and funded by an independent Supreme Court Service rather than by the Department of Constitutional Affairs which is responsible for the English but not the Scottish legal system" (p 399). The Faculty of Advocates told us: "first, and I think the most important, is the control of the Court's resources by the Department for Constitutional Affairs and the Minister (I am referring in particular to Clauses 38 to 43 of the bill). The Faculty takes issue with this from the point of view of Article XIX of the Act of Union, but I think it stands consideration from a much more general perspective … the Supreme Court Service should be an independent body under the control of the President of the Court and provided for by a one­line budget in Parliament. This is a model which I think exists elsewhere, in particular the High Court of Australia which is a court of similar significance, including constitutional significance and a reasonable parallel" (Q 815).

263.  This final criticism is viewed as misconceived by the Government and was anticipated by the Department for Constitutional Affairs in its July 2003 consultation paper, in which it stated: "The Government proposes that the administration and resources for the new Court should come within the responsibility of the Department for Constitutional Affairs. Although the bulk of the Lord Chancellor's Department's responsibilities for the courts system traditionally did not extend outside England and Wales, it already has some responsibilities for tribunals which go beyond England and Wales. Like most other departments, it can fulfil both a UK jurisdiction where the law requires it, and an England/Wales one (only) where the law requires that. Its responsibility for the constitutional settlement is already a UK-wide function and responsibility for the Supreme Court would be consistent with that. The new Court will have jurisdiction throughout the UK which will be defined in statute. In the Government's view, therefore, this will be a sufficient guarantee of separation from the judicial system in England and Wales to be compliant with the terms of the Act of Union with Scotland" (Constitutional Reform: a Supreme Court for the United Kingdom CP11/03, para.64; see also Lord Chancellor p 14).

COURT ADMINISTRATION

264.  We considered the arrangements for the administration of the court set out in the bill. Clauses 38 to 42 of the bill make provision not only for the financial resources but for the administration and staff of the Supreme Court. The Minister will have a duty to provide them.

265.  As already noted, the Lord Chancellor told the Committee that under the arrangements set out in the bill, it will be the Chief Executive of the Supreme Court who determines how the annual budget is spent, reporting to the Justices of the Supreme Court. The Chief Executive will hire employees of the Court: "In essence, it will be a body with its own budget, with its own chief executive and its own ability to determine how it spends the money assigned to it by the Treasury" (Q 56).

266.  In assessing these arrangements, we noted a memorandum to the Delegated Powers Committee from the Department for Constitutional Affairs in which the Government stated:

"13. The Secretary of State for Constitutional Affairs is, by virtue of Clause 38, under a duty to ensure that there is an efficient and effective system to support the carrying on of the business of the Supreme Court, and that appropriate services are provided to the Court. Clause 40 empowers the Secretary of State for Constitutional Affairs to make such staffing arrangements with third parties as he considers appropriate for discharging that general duty. He may only make such arrangements if authorised by an order made by him under subsection (3). Before making such an order, he must consult the senior judiciary listed in subsection (5); and by virtue of subsections (1) and (2) of Clause 99; such an order is to be made by statutory instrument subject to negative resolution procedure. This level of Parliamentary control for such a function, allied to the requirement of prior consultation, is considered appropriate for a function which does not fall within the affirmative resolution categories of the Brooke Report, and is precedented in the Courts Act 2003". (Published as Annex 1 to the Tenth Report of the House of Lords Select Committee on Delegated Powers and Regulatory Reform, HL 55).

267.  Some concerns were expressed to us about the approach adopted in the bill towards providing administrative support to the Court. Professor Ian Scott in his written evidence told us: "The Court should be responsible for its own administration. Whether administrative authority should be given to the senior judge or to the judges collectively is not a matter that should be difficult to resolve. The Court should appoint its own administrative officers and employ its own staff. The Court should have its own library and IT facilities" (p 409). In their response to the DCA consultation, the Law Lords agreed, stating that is was "essential that the new Supreme Court should enjoy corporate independence in the sense used by Professor Ian Scott … The independence of the judges requires not only that they be free of extraneous pressure but also that the court be institutionally free of administrative pressures" (p 116).

OPINION OF THE COMMITTEE

268.  While some members of the Committee agree with those witnesses who saw some advantage in the financial and administrative arrangements provided for in the bill, a majority considered that the Supreme Court should have greater financial and administrative autonomy than currently envisaged under Clauses 38 to 41. The Committee therefore agree that the Supreme Court should be established according to the model of a non-ministerial department. Funding would go direct from the Treasury to the Supreme Court (not into the DCA's budget). The degree of ministerial involvement would be slight, but remains an issue for some members of the Committee. The Lord Chancellor will bring forward amendments at a later stage of the bill.

Are the arrangements for setting fees payable to the Supreme Court satisfactory? (Clause 44)

269.  The Supreme Court will be funded from two main sources. First, some aspects of its work—criminal appeals and devolution cases—will be financed directly by the Department for Constitutional Affairs through general taxation.

270.  A second source of funding will be from fees from civil claims in courts throughout the United Kingdom, including the Supreme Court which, under Clause 44, through its own fee structure will contribute towards that fee income. The principle of recouping the costs from fees in all civil courts is enunciated in the Lord Chancellor's written evidence: "So far as England, Wales and Northern Ireland are concerned, Government policy was announced to the House of Lords by Lord Irvine of Lairg on 19 November 1998. This was that all the costs of administering the civil courts (including capital and judicial costs) should be recovered, through fees, from users of the civil courts. The justification for this policy is that services provided by the Government should be paid for by those who use them, rather than spread among the generality of taxpayers. Concerns about levying fees preventing access to justice are met by the system of exemptions, remissions and subsidies. In relation to the civil courts of England and Wales, this issue was extensively debated by the House of Lords in relation the Courts bill on 18 February 2003 and 27 March 2003 and an amendment was carried against the Government excluding judicial costs from the calculation. But the Other Place disagreed, and asserted its privilege to legislate on areas concerning finance. This was accepted by this House when the bill returned to the Commons on 12 November 2003. The policy is therefore settled in respect of all civil business arising in England, Wales and Northern Ireland, and will naturally apply to the civil work of the Supreme Court" (p 14).

271.  In Scotland, the financing of the civil justice system is a devolved matter under the Scotland Act 1998. The Lord Chancellor told us that the "Government is therefore in discussion with the Scottish Executive over the arrangements, which should apply to the funding of the Supreme Court in the UK in respect of that part of its workload attributable to civil appeals from Scotland" (p 15).

272.  Further information about the role of fees in funding the work of the Supreme Court has been set out by the Department for Constitutional Affairs in their Regulatory Impact Assessment on Constitutional Reform Bill, which states:[19] "The costs of the UK Supreme Court attributable to civil business will be recovered through fee recovery. The Supreme Court will have a UK Wide jurisdiction and will be the final court of appeal for all civil matters in the United Kingdom. The precedents set by the Supreme Court will be of value to all litigants in the England & Wales civil jurisdiction (in relation to cases heard under the law of England & Wales), Northern Ireland civil jurisdiction and the Scottish civil jurisdiction (in relation to cases heard under the law of Scotland). The fee structure for the Supreme Court will be based upon that applicable to the Appellate Committee, but will be restructured in order to bring it into line with fee structures in the lower courts. The total revenue to be for the court is projected to amount to £4.5M-£5M per annum. This is based upon assumptions made at present regarding accommodation costs, administrative overheads (including non-judicial staff salaries), building refurbishment capital charge and judicial salaries. At present no location has yet been chosen for the Supreme Court and so these figures are only approximate. The costs of the court attributed to criminal appeals and devolution cases are likely to amount to approximately £1.7M and will be met by direct taxation via the DCA vote".

273.  We heard expressions of concern about the funding arrangements and in particular fees. Lord Mackay of Clashfern was concerned that in setting Supreme Court fees the Minister was required to consult but not seek concurrence from heads of division and others listed at subclause 44(4): "In Section 130, I think it is, of the Supreme Court Act the Lord Chancellor was bound to secure the concurrence in civil fees on three out of the four heads of division (no doubt on the view that one of them might be absent for some reason) and the Lord Chancellor on criminal cases. You have to get their consent. It is purely consultation that is here" (Q 268).

274.  The Law Society of Scotland were concerned that spreading the costs through fees charged across all civil courts was unfair: "There are aspects of civil litigation in small claims which it is anticipated, I think, from the Explanatory Memorandum would have increased costs who have no right of appeal to a Supreme Court in those matters. There are matters of Employment Tribunal work where there is a right of appeal to the Supreme Court which would have no impact on their costs because no costs are payable for those. We think it is a matter of principle that the value of cases being decided and the law being clarified in the Supreme Court have greater general application beyond the parties in any particular dispute" (Q 612).

275.  Lord Hope of Craighead in his written evidence pointed out that there was no mechanism in the bill for securing a contribution through Scottish civil court fees towards the costs of the Supreme Court: "Fees are recovered from litigants in the Scottish courts under regulations made under section 2 of the Courts of Law Fees (Scotland) Act 1895, which refers to fees payable to any officer of any office or department connected with the Scottish courts the expenses of which are paid wholly or partly out of the Consolidated Fund or out of moneys provided by Parliament. The definition of 'the Scottish courts' does not mention the House of Lords, and there is no provision for the recovery of fees payable in one of the courts listed in the definition to be used to subsidise the cost of running another." (Hope pp 191-2). The Royal Society of Edinburgh makes a similar point, stating that the bill would need an amendment so fees charged to litigants in the Scottish courts could be surcharged by the amount needed to contribute to the cost of the Supreme Court. (p 399)

276.  Some witnesses (JUSTICE p 92; Law Society of Scotland p 92 and p 162; Law Society of England and Wales (Q 557)) object to the proposal that litigation fees might rise, even by the 0.8-1.0% suggested in the Explanatory Notes to the bill. They point out the role of the Supreme Court is the development of the law and not the settlement of private disputes.

OPINION OF THE COMMITTEE

277.  So far as concerns the setting of the Supreme Court's own fees, the Committee broadly agrees with the provisions of Clause 44 as drafted, although one member wished to see them pegged in real terms to the fee structure currently in force.

278.  So far as concerns the Government's intention to recover the civil appeal administrative costs of the Supreme Court from fees charged by the civil courts system as a whole, opinion within the Committee differed. The Committee acknowledges that these arrangements lie outside the scope of the bill and are matters for the Treasury and the rest of the civil court system. Nevertheless, the issue is an important one which we draw to the attention of the House.

Should Part 2 of the bill be amended to safeguard the separate identities of Scots law, Northern Irish law, and the law of England and Wales? If so, how is this best achieved?

279.  We heard criticism of Clause 31(3) and Part 2 of the bill relating to the fact that they fail to provide sufficient protection for the separateness of Scots law.

280.  Lord Cullen of Whitekirk told us that if "one is moving to a United Kingdom court there might be a tendency to take the view that because it is a United Kingdom court now perhaps what really matters is a solution right for the United Kingdom and hence a tendency to find an easy way to avoid abiding by Scots law" (Q 857). Lord Hope of Craighead told us that "what is missing from the bill … is a Clause which recognises the separate existence of the jurisdictions. It needs to be emphasised … that under the existing system in the House of Lords, according to our own jurisprudence, the appeal systems are separate" (Q 645).

281.  The Government have responded to these concerns and indicated their intention to move an amendment which "will make clear that a decision of the Supreme Court on an appeal from one jurisdiction within one jurisdiction within the United Kingdom is not to have effect as a binding judicial precedent in any other such jurisdiction, or in a subsequent appeal before the Supreme Court from another such jurisdiction". The Lord Chancellor told us "This provision is essentially declaratory of the position which is generally accepted to pertain in proceedings on appeal before the House of Lords" (p 418).

282.  This provision will not apply to devolution issue appeals, where a United Kingdom-wide jurisdiction is created by the Scotland Act 1998, the Government of Wales Act 1998 and the Northern Ireland Act 1998.

OPINION OF THE COMMITTEE

283.  The Committee agrees that an amendment which safeguards the separate jurisdictions to be exercised by the Supreme Court in respect of Scottish, Northern Irish, and English and Welsh law is desirable. An amendment to that effect will be brought forward by the Lord Chancellor at a later stage of the bill.

Summary of changes made or recommended by the Committee to Part 2 of the bill

284.  It will be helpful to pull together the principal changes we have made to Part 2 of the bill and those changes which, largely in consequence of our deliberations, will be brought forward by the Government at a later stage.

SUMMARY OF AMENDMENTS MADE TO THE BILL AS INTRODUCED

285.  The principal amendments we made to Part 2 of the bill as introduced, all of them proposed by the Lord Chancellor, are as follows. First, following our amendment, the Minister will have power to increase—but not decrease—the number of Justices, which initially will be 12, by Order in Council subject to affirmative resolution procedure (para.171). Secondly, there is a new requirement that at least one of the five person selection commission be a lay member (para.183). Thirdly, the bill now makes explicit that the criterion for appointment is merit (para.173). Fourthly, the selection commission will recommend to the Minister only one name for each vacancy, not a list of two to five names as provided for in the bill as introduced (para.189). In carrying out its task, the selection commission will be responsible for assessing both merit and the territorial balance of the Supreme Court. The Minister will be able, before the selection commission convenes, to provide non-binding guidance relating to the vacancy that has arisen, by for example drawing attention to the existing and future territorial needs of the Supreme Court and its requirements for expertise in particular fields of law. In carrying out the selection the Commission will consult the senior judiciary and the devolved administrations. Having received the Commission's choice, the Minister will consult the same bodies. The Minister will have the power to ask the selection commission to reconsider its recommendation or to reject its recommendation outright; he will be able to exercise each of these options only one and must provide his reasons in writing. These amendments bring the procedure for Supreme Court appointments more broadly into line with the procedure for judicial appointments in England and Wales provided for in Part 3 of the bill.

SUMMARY OF FURTHER AMENDMENTS PROPOSED BY THE GOVERNMENT

286.  The Lord Chancellor indicated to us his intention to bring forward further amendments as a later stage, as follows. First, an amendment will restrict eligibility to be an acting judge of the Supreme Court—whether as serving judge in a court or a retired judge under the age of 75—to those judges who are or were judges of the appellate courts in each of the United Kingdom's territorial jurisdictions (para.201-2). Secondly, a Clause will be introduced to make provision for the initial members of the supplementary panel of retired judges able to be called upon to sit in the Supreme Court (para.208). Thirdly, an amendment will be introduced to give power to the Supreme Court rather than the Minister to make the Supreme Court Rules (para.252). Fourthly, amendments will be brought forward to give the Supreme Court the status of a non-ministerial department enjoying a high degree of financial and administrative autonomy (para.268). Fifthly, the Minister told us of his intention to bring forward an amendment to safeguard the separate identity of the jurisdictions of the United Kingdom in the case law of the Supreme Court (para.283). All of these amendments are in principle broadly supported by the Committee.

Constitutional Reform Bill [HL]

CHAPTER 1: Introduction

Background to the Committee

1.  The Constitutional Reform Bill [HL] makes provision for replacing the office of Lord Chancellor and to abolish that office; to establish a Supreme Court for the United Kingdom and to abolish the appellate jurisdiction of the House of Lords; to establish for England and Wales a Judicial Appointments Commission to recommend appointment of all judges (other than those of the Supreme Court); and for introducing new arrangements for judicial discipline.

2.  Although some aspects of the policy of the bill had been under consideration by the Government for some time—particularly, but not exclusively, the question of judicial appointments—the immediate catalyst for change was the specific announcement by the Government on 12 June 2003 of its intention to abolish the office of Lord Chancellor and establish a Supreme Court. There followed a period of public consultation on the three principal elements of reform (Lord Chancellor, Supreme Court, and judicial appointments), and the Government published summaries of the responses on 26 January 2004.[20] Meanwhile the Supreme Court and judicial appointments issues were also considered by the Constitutional Affairs Committee of the House of Commons, which reported on 3 February 2004.[21] One of its recommendations (at para.188) was that the Constitutional Reform Bill would be "a clear candidate for examination in draft" and a number of speakers in a keenly argued debate in the House of Lords on 12 February 2004 made the same point (HL Deb col.1211-1344).

3.  The Government took a different view and the bill was introduced into the House of Lords on 24 February 2004 (HL Bill 30). During the Second Reading debate on 8 March a number of speakers advanced the case for referring the bill to a Select Committee (there having been no opportunity for pre-legislative scrutiny) and following a vote on a motion in the name of Lord Lloyd of Berwick the bill was committed to a Select Committee, rather than to a Committee of the Whole House which would have been the usual course.

Select Committees on Public Bills

4.  The practice of committing a bill to a Select Committee has been very rarely used in respect of Government bills in recent times (though not unusual in respect of contentious private members' bills).[22] Indeed the most recent precedents for so doing by agreement lie in the period during and just after the First World War.

5.  The orders of reference of a Select Committee on a public bill are the bill itself. It has power to receive evidence on the policy of the bill and to determine whether or not the bill should proceed. The Committee also has power to amend the bill, so the bill may be reported to the House with or without amendments. Any amendments are made in the context of the Committee's private deliberations and printed in the minutes of proceedings appended to the report. The bill is reprinted as amended and re-committed to a Committee of the Whole House.

6.  The order of the House establishing our Committee required us to report by 24 June. We embarked upon a programme of twice weekly meetings between 24 March and 22 June, nine of which were assigned to hearing evidence and eleven of which were deliberative. The Committee appointed Professor Andrew Le Sueur, Barber Professor of Jurisprudence at the University of Birmingham, as its specialist adviser. The Committee is grateful to him for his invaluable assistance. We also commissioned an e-consultation exercise the conclusions of which are summarised at Appendix 7. The Justice 2 Committee of the Scottish Parliament conducted an inquiry into the bill between March and May 2004 and we were able to take account of their report (4th Report, 2004 (Session 2), SP Paper 163).

7.  In exercising our powers, we took the view early on that it was not appropriate in this case to prevent the bill from proceeding to its next stage of Committee of the Whole House (on recommitment). Having heard a wide range of evidence we identified those Clauses of the bill which raised issues on which we should comment. To the extent that is practicable our report is based on those issues in the sequence in which they are raised by the bill. Where we have been unable to reach agreement we decided to register that disagreement in the terms of our report, rather than by voting. Consistent with that approach all the amendments we have made to the bill—there are over 400 of them—have been made by agreement and on the basis that they improve and clarify the bill while leaving the main structure of the bill in its present form. These changes have, however, been made without prejudice to the fact that on at least two central features of the bill—the abolition of the office of Lord Chancellor and the establishment of a Supreme Court—the Committee's views have been more or less evenly divided. We thus wish to make it clear that, in those areas of disagreement, the fact that we have stood the Clauses and Schedules part of the bill does not imply that we all acquiesce in them, nor will it inhibit some of us from registering such disagreements at the later stages of the bill.

8.  In our consideration of the issues, we have made every effort to set out the full range of arguments which emerged in the evidence we have received, both orally and in writing. In some cases, where we have agreed on a policy matter, it is clear that we have accorded more weight to some views than to others. But in those policy areas where we have been unable to agree, we express no view upon, nor do we attempt to ascribe weight to, the evidence set out. We see no advantage in attempting to "count heads" in support of a particular line of argument. Moreover, although we sometimes disagree, that should not be taken to imply that we have not discussed those issues of disagreement exhaustively amongst ourselves. But ultimately it will be for the House itself to take a view on these matters and we hope that our report will be a helpful aid in that respect.

9.  The amendments we have made fall into a number of categories. They include amendments which the Lord Chancellor[23] announced at Second Reading and amendments brought forward by the Lord Chancellor as a result of the Committee's deliberations. These are all substantive amendments and are for the most part referred to in the body of our report. A further group of amendments were deemed necessary by the Government to fulfil more completely the Concordat with the Lord Chief Justice. (The Concordat is printed at Appendix 6.) Finally, the opportunity has been taken to incorporate into the bill a large number of minor and technical amendments. All the amendments agreed to by the Committee are published in the Minutes of Proceedings at Appendix 3. Unless otherwise indicated references to Clauses are to the bill as introduced. The bill is reprinted As Amended in Select Committee as HL Bill 91.

CHAPTER 2: ARRANGEMENTS TO REPLACE THE OFFICE OF LORD CHANCELLOR (PART 1 OF THE BILL)

Issues relating to the office of Lord Chancellor

10.  The Committee have identified the following issues arising in evidence which relate to the proposed replacement of the office of Lord Chancellor.

-  Is the policy of the bill to abolish the office of Lord Chancellor the correct one? If not, how should the office of Lord Chancellor be redefined and retained? (Clause 12)

-  Should the Minister hold a legal qualification? If so, should the Minister in addition swear a judicial oath upon appointment?

-  Should the Minister responsible for judiciary-related matters be a member of the House of Lords rather than the House of Commons ?

-  Should Part 1 be amended to place a statutory duty upon ministers generally, or the Minister in particular, to uphold the rule of law?

-  Should Clause 1 (Guarantee of continued judicial independence) be amended to:

-  prevent its implied repeal by later Acts of Parliament?

-  require the Minister to have more than merely "regard to" the factors set out in subclauses (4)(a)-(c)?

-  In relation to the Concordat,

-  should the principles set out in that agreement be put on a statutory footing even if the office of Lord Chancellor is retained?

-  should its continuing importance be recognised by making specific reference to it in the bill, in the Explanatory Notes, or in some other way?

-  should Clause 2 of the bill be amended to refer to the Lord Chief Justice's responsibility for ensuring that appropriate structures are in place for the deployment of individual members of the judiciary (Concordat, para.4(c))?

-  should the bill be amended to require the concurrence of the Lord Chief Justice before the appointment of Judges to public inquiries, etc by the Minister?

-  Should Clause 1 (Guarantee of continued judicial independence) be extended to Scotland?

-  Speakership of the House of Lords. (Clause 11)

We consider these issues below.



Is the policy of the bill to abolish the office of Lord Chancellor the correct one? If not, how should the office of Lord Chancellor be redefined and retained? (Clause 12)

11.  One of the main concerns of the Committee has been to examine whether it is right to abolish the office of Lord Chancellor, as proposed by Clause 12 of the bill. The question is not whether to return to the position on 11 June 2003,[24] but rather whether, as part of the reform process now underway,

·  the office of Lord Chancellor should be abolished, or

·  the office should instead be redefined and retained.

12.  One aspect of this question concerns simply the title of the office in dispute. Should it be designated (as in the first announcement of the Government's decision to make the change) as "Secretary of State for Constitutional Affairs"? Or should we retain the ancient title "Lord Chancellor", which has for centuries been part of the fabric of the United Kingdom's constitutional framework. This—or something like it—is a choice which will have to be made, when Parliament has determined the final shape of the bill. (Until then—and throughout this report—we propose to follow the example set in Clause 97 of the bill by using the neutral description "the Minister". For convenience, we refer to Lord Falconer of Thoroton—whose full ministerial title is "Secretary of State for Constitutional Affairs and Lord Chancellor for the transitional period"—simply as the Lord Chancellor.)

13.  The substantive criticism of Clause 12 is more far-reaching, concerning much more than the choice of name, and relates to the formal qualifications and personal characteristics of the person who is the Government minister

·  responsible for "judiciary-related matters" (a shorthand expression for the provision of systems to support the carrying on of the business of courts and tribunals, judicial appointments, and overseeing judicial discipline), and

·  who has special responsibilities as the "constitutional conscience" of Government, defending judicial independence and the rule of law in Cabinet.

14.  The bill proposes that this minister be a Secretary of State. The Prime Minister would be free to select a person without a background in the law and who might be a member of the House of Commons rather than the House of Lords. According to many critics of Clause 12, it is essential that this minister should continue to be a senior lawyer, a member of the House of Lords and accordingly a person of stature and status, without the pressures of party political career aspirations.

THE CASE FOR ABOLITION OF THE OFFICE OF LORD CHANCELLOR

15.  The Government's case for abolition of the office of Lord Chancellor is set out in the Lord Chancellor's written and oral evidence to the Committee (p 1, QQ 1-149), as well as in the Department for Constitutional Affairs' consultation papers issued in July 2003[25] and in speeches in Parliament.[26]

16.  In bare outline, the positive case presented to the Committee for abolition of the Lord Chancellor is that each of the functions currently performed by the Lord Chancellor—being a Cabinet minister responsible for judiciary-related matters, head of the judiciary of England and Wales, a judge, and Speaker of the House of Lords—"would be better performed if they were not fused in the office of Lord Chancellor" (Q 29). The bill therefore proposes that

·  the ministerial functions of the Lord Chancellor will be transferred to the Secretary of State for Constitutional Affairs,

·  the Lord Chief Justice of England and Wales will assume the role as head of the judiciary in that jurisdiction, with express statutory responsibilities for representing the views of the judiciary to Parliament and the Government,

·  the Lord Chancellor's role as a judge, in particular his entitlement to participate in the work of the United Kingdom's top-level courts, will end with the abolition of the office, and

·  the House of Lords will decide for itself its own arrangements for the Speakership.

17.  In relation to the ministerial functions, the Government's view is that the Prime Minister should have an unfettered choice in selecting a minister with the skills and attributes best able to deliver important public policy goals relating to the courts and constitutional matters generally. The departmental duties of the Lord Chancellor have grown dramatically since the mid-1970s, and today the Department for Constitutional Affairs and its executive agencies have tens of thousands of employees and a budget in excess of £3 billion. The Lord Chancellor told the Committee: "In performing his ministerial role, the qualities which will make him or her a success are the same as his other ministerial colleagues. Yet the current system involves the office holder being drawn from a restricted pool—those with senior legal and political standing" (p 3).

18.  In relation to the head of the judiciary, the Government's view is that it is now appropriate to recognise that the Lord Chief Justice of England and Wales should exercise this role. Clause 2 of the bill makes provision for this. The Lord Chancellor told the Committee: "Once you take away the fact that he [the Lord Chancellor] is a judge—because everybody agrees he should not sit as a judge—once you take away the driving role in appointing judges, which again, everybody agrees that you should; once you take away his deployment and disciplining role in relation to judges, you cannot ultimately say with any degree of conviction he is this powerful judicial figure that historically he had been". (Q 9)

19.  The Government also rests its case for abolition of the office of Lord Chancellor on two areas of difficulty, said to be inherent in the office. First, it is said that the workload of the office, in relation to the Lord Chancellor's role as a minister, has increased significantly. Lord Bingham of Cornhill told us: "The old days when the Lord Chancellor spent the first half of his day sitting judicially and the second half sitting as Speaker for better or worse have clearly gone forever" (Q 415).

20.  Secondly, there are said to be a variety of tensions between the functions placed upon the Lord Chancellor. The Committee was told that it was increasingly difficult to reconcile being a member of the Cabinet, subject to collective responsibility, while at the same time having "a representative function on behalf of the judiciary" within Government. The Lord Chancellor told the Committee that the judges' "views on policy may well, quite understandably, be different from the views on policy that you as a Government Minister and your colleagues might take, the differences being perfectly legitimate" (Q 2). He gave as examples of such differences: views on criminal procedure as contained in the Criminal Justice Bill 2003; how particular tribunals operate; and reforms of trial by jury (Q 6). Although these are sometimes presented as rule of law issues, in reality they are "policy disagreements". The tensions have become greater in recent years as the judges have, since the abrogation of the Kilmuir Rules, been much more willing to express their views publicly about issues where they disagree with the Government (Q 17).

21.  The proposal for abolition of the office of Lord Chancellor broadly on the grounds advanced by the Government was supported by a number of witnesses and in written evidence received by the Committee (for example, Professor Diana Woodhouse p 106, Clifford Chance LLP p 336). Professor Vernon Bogdanor, in his written evidence, argued that the office of Lord Chancellor was defended because it "worked"—"the system 'worked' since, although in theory, the Lord Chancellor could regularly sit as a judge, he has rarely done so in recent years; and although he could, in theory, act as a partisan Cabinet minister by making political appointments to the judiciary, this too did not happen in modern times" (p 325). He pointed to three objections to the argument that the old system "worked". First, it has worked in a broadly satisfactory manner only in recent years. Second, "there have been cases when the supposed conventions were not observed, even in recent years". Thirdly and most importantly, Professor Bogdanor argues, "even if the conventions worked perfectly, it would still not be satisfactory to retain a system based so largely upon them. What may have been acceptable a hundred years ago is hardly likely to be acceptable to day in a world in which deference has largely disappeared and political and judicial arrangements are expected to be capable of rational and public justification. Indeed, one central theme of the process of constitutional reforms since 1997 is the need to refashion our political system so that it no longer depends on tacit understandings, but is based upon clear public principles for organizing and controlling power".

CRITICISMS OF THE ABOLITION OF THE OFFICE OF LORD CHANCELLOR

22.  The Committee heard objections to the proposal to abolish the office. First, it may deprive the Cabinet of a senior lawyer able to influence Government thinking on important constitutional issues. One of the functions of the office of Lord Chancellor has been to protect important constitutional values at the heart of Government. The Law Lords, in their collective response to the Department's consultation paper, said that they were "very greatly concerned that the important constitutional values which the office of Lord Chancellor protected should continue to be effectively protected" (p 116). Lord Bingham of Cornhill, the Senior Law Lord, told us that while he doubted whether a minister responsible for judiciary-related matters could be regarded as head of the judiciary if he did not sit as a judge, he continued to have "a very strong belief in the role of the Lord Chancellor as a guardian of constitutional propriety" (Q 416). One aspect of this line of argument is the contention that the presence of the Lord Chancellor, as head of the judiciary, and as a member of the executive Government, has the advantage of providing "a link between two sets of institutions" (Lord Alexander of Weedon Working Party, p 465).

23.  A second and related concern is that the Secretary of State for Constitutional Affairs may in time become "over influenced by party political considerations", prompting the suggestion that the Secretary of State should by convention be a member of the House of Lords rather than the House of Commons (Law Society p 162). Lady Justice Arden stressed to us the importance of the judicial appointments process remaining apolitical—"something of which this country can be extremely proud". "It is, I would have thought, better to have, in the position of the Minister receiving the selections from his Appointments Commission, a person who is not in the throes of a political career" (Q 797).

24.  Thirdly, some fear that the Secretary of State for Constitutional Affairs may lack sufficient seniority. In the Full List of Her Majesty's Government published on 2 April 2004, the office of "Secretary of State for Constitutional Affairs and Lord Chancellor for a transitional period" was ranked 20th out of the 21 members of the Cabinet. The General Council of the Bar stated: "While we are neutral on whether it is appropriate to retain the title [of Lord Chancellor] or not, we feel very strongly that the minister who is responsible for the judicial system should be of sufficient seniority to protect the integrity of the system in Cabinet and publicly, to bid properly for resources to support the system and to ensure that the judges' concerns are heard in Cabinet. A convention needs to grow up that the Secretary of State for Constitutional Affairs has this level of seniority" (p 162).

25.  As Lord Mackay of Clashfern said, the position of Lord Chancellor brought with it the long established convention of political seniority. "In my experience until then [12 June 2003] the Lord Chancellor, notwithstanding how junior he might be in the Cabinet in terms of service, was always regarded as a pretty senior member of the Cabinet" (Q 238). Lord Bingham of Cornhill said: "I would have no difficulty in agreeing that the protection would be the more effective the more clout the person had" (Q 456), a proposition with which Lord Woolf agreed (Q 523).

26.  Fourthly, some doubt was expressed as to whether the transfer of functions from the Lord Chancellor to the Secretary of State for Constitutional Affairs will do much to reduce some of the tensions associated with the former office. Under the bill, the Secretary of State for Constitutional Affairs will be under a statutory duty to defend the independence of the judiciary and, if amended to this effect, also to uphold the rule of law. Professor Robert Hazell told the Committee that there is a "tension which is universal between the values of justice on the one hand and the values of law and order on the other. Post 11 September 2001, the conflict between those two values has become really acute and very difficult…. this tension is universal, all governments have to address it and generally in most governments there is one figure, call him the Minister of the Interior or whatever, who upholds the values of order and there is another figure, often called the Minister of Justice, who upholds the values of justice. They will always clash" (Q 182). (See also Lord Alexander of Weedon Working Party pp 467-9.)

27.  A fifth concern is that the transfer of functions after the abolition of the Lord Chancellor will place unduly heavy burdens upon the office of Lord Chief Justice, who will assume the role as head of the judiciary in England and Wales. Administrative workload might, it was suggested, prevent the Lord Chief Justice sitting regularly as a judge; it might in future deter distinguished judges from taking up the office. Lord Bingham of Cornhill told us that "I have expressed worries to Lord Woolf and others that he is going to have so many responsibilities for appointing judges, disciplining judges, this, that and the other, as to whether he will still have enough time to give a serious and very important Judicial Office the judicial time it needs. This is a very real worry I have and although, of course, you can delegate and have assistant this and assistant that, there is always a good deal of most difficult decision making that ends up on the desk of the top man" (Q 427). Lord Mackay of Clashfern expressed similar concerns: "I wonder whether we will be appointing Lord Chief Justices in the future for their judgements or for their administration" (Q 251).

28.  For the Government, it was said that the Lord Chief Justice in practice already performs quite a lot of the functions (Lord Chancellor Q 39). The Senior Presiding Judge of England and Wales disagreed with the proposition that the Lord Chief Justice would be overloaded: "I am fairly sure, seeing this from the inside, that the Lord Chief Justice will be able to discharge all the functions and able to carry out what is his paramount duty which is to sit in court and judge" (Lord Justice Thomas Q 714).

THE COMMON GROUND

29.  Before setting out the case for redefining and retaining the office and title of Lord Chancellor, it is helpful to identify the common ground between the proponents and opponents of abolition.

30.  The first area of broad agreement is that it has long been impracticable for the Lord Chancellor to sit as a judge. Lord Bingham of Cornhill told the Committee that "the days when the highest court of the land should be presided over by somebody who, whatever his other qualities, has almost certainly not been selected for his qualities as a judge have gone and gone for ever" (Q 415). The Committee heard differing views on whether the practice of the Lord Chancellor sitting in the Appellate Committee of the House of Lords ran the risk of a successful challenge being made under Article 6 of the European Convention on Human Rights, which requires a court hearing a case to be "independent and impartial". Whatever the merits of the rival analyses, the practical constraints on the Lord Chancellor have long been clear. Lord Bingham of Cornhill said: "In the three years until Lord Irvine retired when I was here he sat on two cases. It was agreed between us that he could not do anything to do with crime because that affected his colleague, the Home Secretary, he could not deal with human rights because he piloted the bill through the House, he could not deal with judicial review because it was of governmental interest and he could not deal with commercial cases because they always went on for much longer than he could possibly sit. That left him in that period of three years with two cases, one about whether premises could be a dwelling for purposes of the Rent Act if they did not have a kitchen and one about the construction of a mortgage deed. This was the result of both of us trying to find cases on which he could sit. I came to form the view that really no useful purpose was served" (Q 415).

31.  A second point of broad agreement is that, whatever the future of the office of Lord Chancellor, the principles of "the Concordat" should be put into legislation in accordance with the strong views expressed by the Lord Chief Justice of England and Wales and the Judges' Council (the non-statutory body of 20 judges from all levels of courts in England and Wales which has the task of making collective decisions on behalf of the judiciary). In response to the Government's announcement of its proposals in June 2003, the Lord Chancellor and the Lord Chief Justice agreed a set of principles to determine the allocation of the Lord Chancellor's functions between the Secretary of State for Constitutional Affairs and the Lord Chief Justice, when the office of Lord Chancellor was abolished. The text has been published by the Department for Constitutional Affairs under the title Constitutional Reform: the Lord Chancellor's judiciary-related functions - proposals, and has come to be widely known as "the Concordat". It is re-published with this report at Appendix 6.

32.  In his oral evidence to the Committee, Lord Woolf said that the judges unanimously want to see the principles of the Concordat put into legislation "irrespective of whatever else happens as a result of this bill" (Q 493). It would, he said, "be a terrible shame if, as a result of other aspects of the reform, this, what I regard as a huge step forward which will really provide protection for the judiciary in the future should be lost" (Q 493). In a supplementary note, Lord Woolf told us: "By far the most important outcome that the judiciary are seeking from the current parliamentary process is the implementation of the Concordat which has been reached between the judiciary and the Government. The Concordat seeks to define the relationship that should exist, in future, between the Lord Chief Justice, as Head of the Judiciary, and the Government Minister who will exercise the responsibilities which fall properly to the Executive in respect of the judiciary and the courts" (p 463). Lady Justice Arden, the chairman of the Judges' Council working group on the bill, confirmed that the judiciary's view was that the Concordat "should be given effect to as soon as it is reasonably practicable" (Q 724). Among the principles set out in the Concordat, to which the bill seeks to give effect, are:

·  the key respective responsibilities of the minister responsible for judiciary-related matters and the Lord Chief Justice should be set out in statute, so as to provide clarity and transparency in this relationship;

·  the minister will not be a judge and shall not sit in a judicial capacity;

·  it is important to ensure that the roles and responsibilities of the most senior judiciary are clear in the new arrangements;

·  it will not be appropriate for judges to be sworn in by the minister; those who do so now should instead take their oaths in the presence of the Lord Chief Justice.

33.  The Concordat, and the oral statement to the House of Lords by the Lord Chancellor on 26 January 2004, made clear that the proposals set out in the Concordat "are, of course, conditional on parliamentary approval". Subject to that, it is apparent that the Concordat places constraints on both the Government's policy for reform and those who argue for the retention of the office of Lord Chancellor. Lord Woolf sought to make clear to us "that the judiciary as a whole has not taken a position on the question of whether the office of Lord Chancellor should be abolished" (p 463).

34.  A third area of consensus is that there should be an independent judicial appointments commission for England and Wales. Although the Committee heard a range of views on the powers of such a commission, and the extent of the discretion (if any) left to the Government to reject appointees identified by the commission, almost no one doubted that a commission was a desirable development. A judicial appointments commission will significantly change the role of the government minister responsible for judicial appointments—whether he or she is a Secretary of State for Constitutional Affairs or a Lord Chancellor.

THE CASE FOR REDEFINITION AND RETENTION OF THE OFFICE OF LORD CHANCELLOR

35.  Several witnesses told us that, contrary to the policy of the bill, the office of Lord Chancellor should be retained in some way, including Lord Bingham of Cornhill (Q 415), Lord Mackay of Clashfern (Q 238; p 79), Lord Ackner (Q 313), Professor Robert Hazell (Q 156), Professor Robert Stevens (QQ 165-166), Professor the Lord Norton of Louth (Q 475), Lord Morris of Aberavon (p 478), and Lord Alexander of Weedon's Working Party (p 469). On the basis of this and other evidence, during our deliberations we were able to identify three principal options for the future of the office of Lord Chancellor.

·  To retain the title of Lord Chancellor and preserve and enhance several crucial features of the office, including that the minister be a senior lawyer and a member of the House of Lords, while recognising that the office should change following the Concordat.

·  To redefine the office of Lord Chancellor so that the office-holder is more of a judicial figure than a political one and transferring responsibility for major areas of spending (including legal aid) to other ministers.

·  To use the title "Lord Chancellor" for the ministerial post set out and called Secretary of State for Constitutional Affairs in the bill.

A common feature of all the proposals is that the Lord Chancellor no longer should sit as a judge.

36.  The first model seeks to retain not only the title, but also to preserve and enhance several crucial features of the character of the office of Lord Chancellor. Unlike the Secretary of State for Constitutional Affairs, the office of Lord Chancellor would be required to be held by a senior member of the legal profession who is a member of the House of Lords (rather than the House of Commons). Accordingly, the Lord Chancellor would continue to be a person who has reached the pinnacle as well as the culmination of his political and legal careers, without any need or expectation of further promotion. Not only would this ensure that the Lord Chancellor was a senior figure, it is likely to have the consequence that Lord Chancellors will continue to hold office for significantly longer periods than is typically the case for other ministers. A Lord Chancellor would, accordingly, be in a better position to exercise the duties set down by the bill relating to defending the independence of the judiciary and the rule of law than would an ordinary Secretary of State. In this model, the Lord Chancellor would continue to be the minister responsible for the whole range of court and judiciary-related policy areas, including legal aid (Lord Alexander of Weedon Working Party pp 471-2). There may, however, be merit in reversing some of the recent accretions of responsibility for areas of policy to the Lord Chancellor's Department/ Department for Constitutional Affairs—which are set out in the table below—to allow the Lord Chancellor to focus on judiciary-related matters. It is this first model that some members of the Committee, opposed to abolishing the office of Lord Chancellor, found most compelling. Further aspects of this option, including retaining the requirement that the minister responsible for judiciary-related matters be a lawyer and a member of the House of Lords, are examined further below.

TABLE 1

Acquisition of Responsibilities: Lord Chancellor's Department/Department for Constitutional Affairs
Subject matterDate acquired by LCD/ DCA From where
Human rights, open government, freedom of information, data protection and identity, church and hereditary issues, Lords Lieutenants, the Channel Islands and the Isle of Man 2001Home Office
House of Lords reform policy2001 Cabinet Office
Electoral Commission, policy on electoral law, referendums and political party funding 2002Department of the Environment, Transport and the Regions
Devolution policy and administrative responsibility for the Scotland Office and the Wales Office 2003

37.  A second model for the future also envisages that the Lord Chancellor would continue to be a senior lawyer who is a member of the House of Lords—but the areas of policy falling within the remit of the Lord Chancellor would be very significantly narrower than those envisaged in the first model described above. Lord Mackay of Clashfern told the Committee that the Lord Chancellor's job should effectively be about "running the courts" (Q 238, Q 254). He supported the idea that responsibility for legal aid—which has risen to £2 billion in the past year—should be removed from the Lord Chancellor; and he envisaged that a minister, who might be in the House of Commons and who need not be a lawyer, could be responsible for legal aid and some other matters currently within the ambit of the Department for Constitutional Affairs (Mackay of Clashfern Q 256). He argued that Lord Chancellor should be "be a judicial rather than a political figure" (Q 246), and he might also have the formal title of President of the Supreme Court of England and Wales (the Government proposes to rename this The Senior Courts of England and Wales), though he would not sit as a judge (Q 243). In his written evidence, Lord Morris of Aberavon also suggested that the role of the Lord Chancellor should be reduced; he "should no longer have any responsibility as a Minister of the Crown for any significant spending accountability, many of which have accrued since the advent of legal aid and the Beeching reforms, coupled with a recent transfer of many duties, including responsibility for magistracy" (p 478). Given the "non-political and non-spending nature" of the functions, Lord Morris of Aberavon envisages the Lord Chancellor carrying out—including appointing judges on the recommendation of the Judicial Appointments Commission—there is, he argues, "no reason why it should be carried out by a minister of the Crown at all", prompting him to suggest that the office of Lord Chancellor should be held by the judge who is the senior Law Lord, or President of the Supreme Court of the United Kingdom (p 478).

38.  A third model is to use the title "Lord Chancellor" for the ministerial post referred to in the bill as the Secretary of State for Constitutional Affairs. Thus, it would not be necessary for the Lord Chancellor to be a lawyer. Nor would the title "Lord Chancellor" require the office-holder to be a peer. (A parallel may be drawn here with the office of Lord Privy Seal). Professor Robert Hazell, who proposed this model to the Committee, agreed that the difference between this model and the arrangements set out in the bill related only to the title of the minister (Q 160, Q 214). The rationale for this model is that the continued use of the title Lord Chancellor would help preserve the confidence and respect which has been attached to the office of Lord Chancellor in modern times. It may be added that the role of the Lord Chancellor has altered significantly since the 1970s without it being thought necessary (until now) to change the title of the office.

CRITICISMS OF THE PROPOSALS TO REDEFINE AND RETAIN THE OFFICE OF LORD CHANCELLOR

39.  One objection to the continued use of the title "Lord Chancellor", anticipated by the Department for Constitutional Affairs' consultation paper in September 2003, is that this would lead to confusion. "Some suggest that the title of Lord Chancellor (but not its current wide range of responsibilities) should be retained for use in relation to another public office to maintain the link with the past. However, until the office is abolished, clearly the title cannot be used in relation to any other office. Part of the purpose of reforming the office of Lord Chancellor is to address the confusion of roles his office has produced. To create a new office (or rename an existing one) will in all probability add to that confusion, rather than reduce it" (Constitutional reform: reforming the office of Lord Chancellor, CP13/03, para.8-9). In a supplementary note to the Committee, Lord Woolf warned that "because of an accumulation of events, including the fact that the role of the Government Minister envisaged in the Concordat is very different from the historic role of the Lord Chancellor, I have real reservations as to whether it is possible to retain the title" (p 464).

40.  Secondly, some witnesses expressed the view that it was now too late to revive the office of Lord Chancellor. The reality of the situation is that, whether the minister is called a Secretary of State or Lord Chancellor, he "is not going to have the power and authority in Cabinet that the old office of Lord Chancellor had" (Dr Kate Malleson Q 183). Even Robert Hazell, who proposed the idea, conceded that "the damage may well have been done … The Government having decided to abolish the office in a way may have broken the vase and it may be too late to put the pieces together again" (Q 178).

41.  A third concern was a danger that the continued existence of the office of Lord Chancellor, occupied by a senior lawyer who is a member of the House of Lords, might now risk undermining the status and authority of the Lord Chief Justice of England and Wales, who by the bill is made head of the judiciary. Lord Woolf told us that this risk has to an extent already materialised in recent years: "What has happened up till now, and I hope that as a result of the legislation this would no longer be the situation, is that because of the Lord Chancellor's position as it had been, that he was the constitutional head of the judiciary, the role of the Chief Justice was undermined to that extent. A constitutional monarch does not get in the way of a Prime Minister. There are various views both within this jurisdiction and without, but to have somebody who is clearly the head of the judiciary who is a judge—as I see it now—is important" (Q 519). Lord Woolf in his supplementary note to the Committee rejected the idea that it might be appropriate to have two Heads of the Judiciary—the Lord Chief Justice as the "professional" Head and the Lord Chancellor as the "constitutional" Head: "Such an approach would create a serious risk of confusion and the potential for future conflict between the two office holders. It would be quite possible for them to have very different ideas as to the proper boundaries of their respective roles. It is precisely this lack of clarity, and the consequent risk of encroachment on the independence of the judiciary, that the Concordat is intended to avoid" (p 464).

42.  Fourthly, doubt was expressed about whether a Lord Chancellor, as envisaged by Lord Mackay of Clashfern in the second model described above, would be a "plausible political figure" (Lord Chancellor Q 22). This model envisages a Lord Chancellor with reduced departmental responsibilities. He would, in effect, be "a non-executive judicial chairman of a ministry of justice" (Q 13) or a "judge in the Cabinet" (Q 21), the Lord Chancellor told us.

OPINION OF THE COMMITTEE

43.  The Committee agrees that in view of the Concordat the future duties of the Lord Chancellor/ Secretary of State office-holder should be responsibility for "judiciary-related" matters (that is, the provision of systems to support the carrying on of the business of courts and tribunals, judicial appointments, and overseeing judicial discipline); and responsibilities as the "constitutional conscience" of Government, defending judicial independence and the rule of law in Cabinet.

44.  There was a clear division of opinion within the Committee between those members who considered that the office-holder should be called Lord Chancellor, be a senior lawyer, and sit in the House of Lords on the one hand; and those members who considered that the name of Lord Chancellor should not be continued (since its retention would be confusing), and that there was no necessity for the office-holder to hold a legal qualification or sit in the House of Lords on the other hand (that is, the policy of the bill). Accordingly we make no recommendation to the House.

45.  We are not attracted to the proposal to retain the traditional office of Lord Chancellor radically reduced in scope.

46.  Some of us wish to record that we are attracted to the idea that the minister responsible for judiciary-related matters should be called the Secretary of State, or Minister, for Justice. This title would carry more status and be more easily understood than that of Secretary of State for Constitutional Affairs. Those of us for whom the traditions of the Lord Chancellor's role remain of real practical importance believe that it would be possible to get the best of both worlds by retaining the title of Lord Chancellor, as head of the Ministry of Justice.

Should the Minister hold a legal qualification? If so, should the Minister in addition swear a judicial oath upon appointment?

47.  In modern times, as a matter of constitutional convention rather than law, Lord Chancellors have been lawyers of some seniority. Almost all have been members of the Bar of England and Wales, although Lord Mackay of Clashfern, Lord Chancellor 1987-97, held a qualification as an Advocate in Scotland. The office has never been held by a solicitor. The bill contains no requirement that the Minister be a lawyer.

48.  In the past, there was a statutory requirement that the Permanent Secretary to the Lord Chancellor's Department (now the Department for Constitutional Affairs) be a barrister or solicitor of at least 10 years' standing. This was modified in 1990 to enable the Permanent Secretary to be a barrister or solicitor of 10 years' standing, or a civil servant with 5 years' service in the Lord Chancellor's Department. These restrictions on appointment were removed by the Supreme Court (Offices) Act 1997.

49.  The bill opens up the prospect that, at some point in the future, neither the minister nor the department's most senior official will have any background in the law.

SHOULD THE MINISTER BE A LAWYER?

50.  The reason for suggesting that the Minister should be required to be a lawyer is the special nature of the duties placed upon this office by Clause 1 of the bill. In addition to the general duty on all ministers to uphold judicial independence:

·  the Minister will have a specific duty to defend that independence (Clause 1(4)(a));

·  if the bill is amended, the Minister may have placed upon him express duties in relation to upholding the rule of law;

·  the Minister will be required to make judgements about whether to reject nominations by the Judicial Appointments Commission for England and Wales, and the appointments commission that will make recommendations to fill vacancies on the Supreme Court;

·  he will also be involved in matters relating to judicial discipline and rule-making for the courts.

51.  For all these reasons, it may be thought that the Minister will be more than merely "another mainstream minister" and that the Prime Minister should be required to select as the office-holder only someone who has a legal qualification and perhaps experience as a practitioner. The Prime Minister's discretion is, of course, constrained in a similar way in relation to the Law Officers (Attorney General, Solicitor General) of Her Majesty's Government. Indeed, it was tentatively suggested to the Committee that the office of Secretary of State for Constitutional Affairs could be "perhaps defined as the senior law officer which would be classed in the list as separate from other members of the Cabinet and that would also provide the implication that the holder should be a lawyer, and the benefits which flow from that" (Norton Q 464).

52.  For the Government, it is said that to amend the bill to include such a requirement, or for there to be a constitutional convention that this ministerial post be held only by a lawyer, would cut across the rationale for change: "In performing his ministerial role, the qualities which will make him or her a success are the same as his other ministerial colleagues. Yet the current system involves the office holder being drawn from a restricted pool—those with senior legal and political standing" (p 3). The Lord Chancellor and some other witnesses argued that it was unnecessary to be a lawyer to defend judicial independence and understand the imperative of upholding the rule of law: "The rule of law in the questions that we are talking about is not has the Government complied with the law … we are talking about big constitutional issues which are identifiable to all members of the Cabinet. The question boils down very often to is it only a lawyer who can identify these sorts of rule of law issues? I do not believe that it is, I believe that all constitutional politicians can spot them. How they respond in a particular case is a different question" (Q 50).

53.  Several witnesses agreed with the Government's view that it is not essential for the Minister to be a lawyer in order to carry out his functions under the bill (see for example Roger Smith of JUSTICE Q 291). Within the Scottish Executive, there is no requirement that the Minister for Justice be a lawyer and the Committee was told by Roy Martin QC, vice-dean of the Faculty of Advocates, that his assessment of the experience in Scotland—where, of the two Ministers for Justice since devolution, one was a lawyer and one was not—is that it does not make a particular difference (Q 837).

54.  A different view was expressed by Lady Justice Arden, who told the Committee that she sees a great advantage in the Minister being a senior lawyer. She expressed concern for maintaining an apolitical appointments process, "something of which this country can be extremely proud". She believes that it is better for the Minister receiving recommendations from the judicial appointments commissions, to be senior lawyer at the pinnacle of his career, "a person who is not in the throes of a political career" (Q 797).

IF THE MINISTER IS REQUIRED TO BE A LAWYER, SHOULD HE OR SHE SWEAR A JUDICIAL OATH UPON APPOINTMENT?

55.  While members of the public are familiar with the process whereby a telephone call from Number 10 starts a ministerial career, little tends to be known of the formal process by which ministers assume office. This normally happens at a meeting of the Queen in Council (i.e. a meeting of the Privy Council in the presence of Her Majesty). The oaths are tendered by the Clerk of the Council.

56.  The Promissory Oaths Act 1868 Act requires a Secretary of State to take both the oath of allegiance

"I, … , do swear that I will be faithful and bear true allegiance to Her Majesty Queen [Elizabeth II], her heirs and successors, according to law"

and the official oath

"I, … , do swear that I will well and truly serve Her Majesty Queen [Elizabeth II] in the office of … So help me God"

57.  The 1868 Act requires judges in England and Wales to take the following oath:

"I, … , do swear that I will well and truly serve our Sovereign Lady Queen [Elizabeth II] in the office of … , and I will do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill will. So help me God."

58.  It is often said that the Lord Chancellor is marked out as different from his fellow ministers not only by the fact that (until June 2003) he sat occasionally as a judge (although the last time a Lord Chancellor sat judicially was in 2001), but also by the fact that he has taken a judicial oath. Indeed, it was probably the fact of this oath, as much as his occasional presiding over the Appellate Committee of the House of Lords, that by convention led the Lord Chancellor to be accepted as head of the judiciary in England and Wales.

59.  We considered whether it would be appropriate for the Minister, because of his continued judiciary-related functions, to swear a judicial oath (QQ 797-801). Lord Woolf told us that, as any future Lord Chancellor will not sit as a judge, it would not be appropriate for him to take the judicial oath (p 464). Lady Justice Arden pointed out that, as an alternative, it would be possible to create a new form of oath (Q 800).

OPINION OF THE COMMITTEE

60.  There was a clear division of opinion between those members who thought that the Minister had to be a senior lawyer and those who considered that there was no need for the office-holder to hold a legal qualification. Accordingly, we make no recommendation.

61.  The Committee agrees that the future duties of the Lord Chancellor/Secretary of State office-holder are such as not to require the taking of a judicial oath.

62.  The Committee is divided on the question of whether some alternative form of oath should be taken by the Minister and leave this for the House to determine.

Should the Minister responsible for judiciary-related matters be a member of the House of Lords rather than the House of Commons?

63.  As noted above, one of the major differences between the office of Lord Chancellor and that of the Secretary of State for Constitutional Affairs is that while Lord Chancellors have been members of the House of Lords, the Prime Minister will be free in future to choose as the Minister someone who is a member of the House of Commons or of the House of Lords. The main justification for the Commons is that the Department for Constitutional Affairs has become a major spending department and it is therefore constitutionally appropriate for its ministerial head to be accountable to the House of Commons. Lord Morris of Aberavon told us that "Since the last half of the 17th century, it became established that the granting of supply and its appropriation was a matter for the Commons. It follows that the head of a significant spending department should be directly accountable to the grantor of supply—the House of Commons" (p 478). The increasing budget of the Lord Chancellor's Department prompted the House of Commons to establish a select committee with oversight of its work in January 2003, now called the Constitutional Affairs Committee.

64.  In his evidence to us, Sir Hayden Phillips, the permanent secretary of the Department for Constitutional Affairs, described for us the changes that have and are taking place in the size and role of the DCA: "First, there has been a great growth in the nature and the size of the Department. … We are moving a staff now of 13,500, which is already very large, to 23,500 by April next year. It will grow beyond that when the unified tribunal service is created to a budget of between £3 billion and £4 billion and staff over the next two years getting nearer to 30,000, which is a major department of state. Second, the Department has come increasingly central to the delivery of Government policy, especially in relation to criminal justice and on asylum and immigration, indeed Lord Falconer is the Chairman of the National Criminal Justice Board along with the Home Secretary…. The third, between 2001 and 2003 we were given a range of responsibilities from across other parts of Government for a number of sensitive and complex constitutional issues—I will not go into the detail—and that added a whole new dimension to our work and to the Lord Chancellor's political importance" (Q 679). In relation to the budget of the Department, the increase is mainly attributable to its "core" judiciary-related functions—notably legal aid. Similarly, the increase in staff stems from court related matters, in particular the creation of Her Majesty's Court Service which, from April 2005, will bring the administration of magistrates' courts into a unified court service for the whole of England and Wales.

65.  Evidence we received suggested that there were several advantages to retaining the Minister responsible for judiciary-related matters as a member of the House of Lords. While making it clear that he did not have a strong view as to the whether the minister should be in the House of Lords or the House of Commons, Professor Hazell told us that the House of Lords "has a particularly important role to play as a guardian of the constitution. That was recognised in the report of the Royal Commission chaired by Lord Wakeham and I think has been endorsed in subsequent White Papers and comment and debate about the role of this House, however composed. If, as I have suggested, one important function of the Lord Chancellor or Secretary of State is to be a guardian of the constitution, then, in that respect, it is entirely appropriate for that minister to be a Member of this House" (Q 180). Secondly, a requirement that the minister be in the House of Lords may also help reinforce another desirable characteristic of the office of Lord Chancellor—that the minister be someone approaching the end of his political career rather than someone seeking further advancement. Thirdly, having the Lord Chancellor in the House of Lords also makes the House more effective in influencing Government. Lord Elton told us that "The House of Lords has, by convention, a direct line into the Cabinet in the person of the Leader of the House and the Lord Chancellor. Without some other, compensating step, the abolition of the office of Lord Chancellor would leave it with only a single voice in Cabinet secured to it by convention. … The influence of the House would thus be significantly diminished in a forum where it is of value" (p 353). Finally, as we have already noted (para.23 above) a number of witnesses saw advantage in keeping the Secretary of State in the Lords, out of the more politically charged atmosphere of the Commons (Law Society p 162, Arden Q 797).

OPINION OF THE COMMITTEE

66.  There was a division of opinion on the question whether there should be a presumption that the Minister responsible for judiciary-related matters should be a member of the House of Lords or, at the discretion of the Prime Minister, of either the Commons or the Lords.

Should Part 1 be amended to place a statutory duty upon ministers generally, or the Minister in particular, to uphold the rule of law?

67.  Part 1 of the bill, we were told, fails to make arrangements for the continued performance of one of the Lord Chancellor's principal functions—to act as a guardian of the rule of law within Cabinet and the Government more broadly. Lord Mackay of Clashfern spelt out his view of the ambit of the Lord Chancellor's function in relation to the rule of law, telling us that "… in the Cabinet his job is to ensure that the Cabinet decides and takes executive action in accordance with the law, but he is not the legal adviser. I think there have been mistakes in the past when the Lord Chancellor has assumed the task of advising the Government about the law. That is not the Lord Chancellor's function; the Lord Chancellor is a judge and it would be improper for him, in fact, to act as legal adviser in that sense. The legal adviser is the Attorney General, but the Lord Chancellor's job is to see that if an issue arises which requires legal advice is taken, because often non-lawyers do not appreciate—naturally enough, because they are not lawyers—there is a legal question involved" (QQ 277, 278, 285).

REASONS FOR ADVOCATING A RULE OF LAW DUTY

68.  Lord Ackner told the Committee "that Clause 1 must in terms say that there is an obligation upon ministers to maintain and support the rule of law" (Q 313, and also p 100). Lord Ackner's view is that had such a statutory duty been in place, the current Lord Chancellor's support for the ouster Clause in the Asylum and Immigration (Treatment of Claimants etc) Bill "would have been automatically ruled out". Similar views were expressed by Lord Donaldson of Lymington (p 344). Lord Woolf supported the idea of a statutory duty, saying "It seems to me that it is very desirable that there should be a clear statement which reflects the need for the protection of the rule of law and I can well see that there is a very important role for the individual, whether he be called the Lord Chancellor or whether he be Secretary of State…" (Q 501).

69.  More generally, it may be thought that if one obligation that is currently placed on the Lord Chancellor as a matter of constitutional convention (that is, to defend judicial independence) is put on a statutory footing, then a duty to uphold the rule of law—undoubtedly another duty that currently exists as a matter of convention—should similarly be translated into legislative form.

REASONS FOR CAUTION IN CREATING A RULE OF LAW DUTY

70.  The evidence presented to the Committee suggests a number of reasons for caution in amending Clause 1 to include reference to the rule of law. First, the concept of the rule of law was said by some witnesses to be ill-defined or contested. Sir Thomas Legg QC, a former permanent secretary to the Lord Chancellor's Department, argued that the rule of law "is a very tricky, slippery concept a lot of the time, at least in general terms. My own feeling is there would not be very much to be gained from the protection of the public by putting a requirement into statute that ministers, and so on, should uphold the rule of law because in any given case people can have disagreement about what that means" (Q 689). The Lord Chancellor told the Committee that policy differences between the Government and the judiciary—on issues such as trial by jury and criminal procedure—were sometimes, wrongly, presented as rule of law issues (Q 6).

71.  Secondly, we were told that it was unnecessary to impose a rule of law duty specifically on the Minister. Professor Diana Woodhouse said that the Attorney General could fulfil the role as guardian of the rule of law. The fact that the Attorney General was not a member of the Cabinet was not significant; most government decisions affecting the rule of law were not made at Cabinet level (Q 378). (The Attorney General's current role is to give legal advice.)

72.  Thirdly, several witnesses warned us of the patchy history of Lord Chancellors in upholding the rule of law. Lord Ackner, who proposed amending Clause 1 to include a duty relating to the rule of law nevertheless said: "… we have history going back over 40 years when there were a number of very unsatisfactory Lord Chancellors and I think the strength of the executive is such that you could have that situation in the future" (Q 340). Lord Alexander of Weedon's Working Party accepted that "it is not clear how often the Lord Chancellor in fact used his position to influence policy—he is likely, inevitably, to have felt it right to defer to the views of elected colleagues." (p 468) Lord Bingham of Cornhill echoed this in his evidence. He had "very strong belief in the role of the Lord Chancellor as a guardian of constitutional propriety". He also noted that "anecdotally those people who have served in cabinets have tended to tell me that Lord X or Lord Y has been very silent and never opened his mouth. I simply do not know whether that is true or not" (Q 415). The Lord Chancellor made a similar point (Q 50). Fourthly, there were some concerns expressed that to impose a statutory rule of law duty could provide new grounds for litigation, which many felt would not be the appropriate method by which such issues should be resolved. Related to this there are concerns that such a provision could undermine Parliamentary Sovereignty and, possibly, the role of the courts.

OPINION OF THE COMMITTEE

73.  During our deliberations we were able to agree, without difficulty, that it is desirable for the bill to make reference to the rule of law. We also agreed, first, that the reference to the rule of law should replicate, as far as possible, the responsibilities in regard to the rule of law currently discharged by the Lord Chancellor. Secondly, we agreed that while other Ministers have responsibilities in regard to the rule of law (for example, they abide by decisions of the courts), the Lord Chancellor/Secretary of State for Constitutional Affairs has and should continue to have a special role in relation to the rule of law within the Cabinet.

74.  Most of us also agreed that the responsibility of the Lord Chancellor for the rule of law is not and should not be directly enforced through the courts, but stems from his position in Cabinet and is exercised by way of his influence in discussions with colleagues.

75.  We were unable to agree a new Clause tabled by the Lord Chancellor on the rule of law and accordingly leave this matter for the House to determine. (The new Clause amendment and other amendments on this issue which were moved and withdrawn may be found in the Minutes of Proceedings at Appendix 3.)

Should Clause 1 (Guarantee of continued judicial independence) be amended to:

- prevent its implied repeal by later Acts of Parliament?

- require the Minister to have more than merely "regard to" the factors set out in subclauses (4)(a)-(c)?

76.  The Committee received evidence expressing concern that the duties placed upon ministers by Clause 1, relating to the guarantee of continued judicial independence, were insufficiently robust. Evidence from a number of witnesses established that Clause 1 as drafted is a declaratory provision which is unlikely to be enforceable in the courts. Lord Woolf compared it to declaratory provisions that had been included in education and National Health Service legislation, and told the Committee that it was not intended that such declaratory provisions should be enforceable in the courts, and that a minister failing to fulfil the responsibilities set out in the Clause "would be answerable to Parliament and the public for the failure to do so" (QQ 501, 527-528). Other witnesses believed that the duties set out in Clause 1 might, in some situations, be enforced by a claim for judicial review; and Lady Justice Arden argued that, if it was required, it should be possible to draft a clause that was enforceable. Other witnesses expressed doubts as to enforceability (Lord Alexander of Weedon Working Party p 473).

PROTECTION AGAINST INADVERTENT IMPLIED REPEAL

77.  Lady Justice Arden, on behalf of a working group of the Judges' Council, argued that Clause 1 of the bill "… should be given some enhanced status to prevent inadvertent implied repeal. It is not a question of entrenching it because it would be open to Parliament to depart from judicial independence if it wished to do so, although it would have to use clear language. The enhanced status would be achieved by imposing an interpretative obligation along the lines of section 3 of the Human Rights Act 1998. That provides that, so far as it is possible to do so, primary and subordinate legislation must be read in effect in a way which is compatible with convention rights. We suggest that that could be adapted to Clause 1 of the Constitutional Reform Bill and what goes for the independence of the judiciary goes for the rule of law as well if Parliament thought it right to include that in Clause 1 or a similar Clause. We suggest that there is plenty of precedent for this approach. It may be found either in the Human Rights Act or in the Interpretation Act 1978 where other certain meanings apply in later legislation unless the contrary intention appears. It is also a principle by which the courts construe legislation implementing legislation of the European Union. How the principle should be expressed is of course a matter for parliamentary counsel, but, in essence, the effect would be that Clause 1 would apply unless Parliament expressly stated to the contrary or clearly stated to the contrary in future legislation" (Q 713). The Lord Chancellor raised two concerns in relation to amending the bill along the lines of section 3 of the Human Rights Act 1998 to prevent inadvertent implied repeal. He first observed that the Convention rights are a well-established body of law, refined and elaborated over many years by the case law of the European Court of Human Rights. An interpretative obligation linked in with this body of law therefore carries with it a significant degree of legal certainty, while the rule of law was untested as a stand-alone directly-applicable legal doctrine. He drew attention to the fact that both academic and judicial opinions on the rule of law differ substantially as to its meaning. Secondly, he was concerned lest such a provision might be thought to impinge upon the Sovereignty of Parliament, unless it was heavily qualified.

THE MINISTER'S OBLIGATION TO "HAVE REGARD TO…" (CLAUSE 1(4)).

78.  Lord Ackner told us: "I have also taken the phrase in Clause 1(4) 'must have regard to', as being pretty meaningless. You have regard to it if you consider it but, having considered it, you are perfectly within your entitlement to reject it. I have said that I think there is substance in the point made by JUSTICE in its memorandum to expand the phrase quite considerably in order the better to express what is needed. I think it should be borne in mind that the phrase 'independence of the judiciary' can be in any event open to doubt as to what it means" (Q 313; p 100). JUSTICE said, in its written evidence, that "The Lord Chancellor's role as guarantor of the independence of the judiciary within government has been removed. Clause 1(4) of the bill merely gives the Secretary of State the duty to 'have regard to … the need to defend [judicial] independence'" (p 93). Mr Roger Smith the Director of JUSTICE said: "The bill would be improved by some more ringing declaration of the independence of the judiciary rather than measly words requiring a Secretary of State to have regard to judicial independence" (Q 289). The Lord Chancellor informed the Committee that the purpose of the Minister's obligation to "have regard to" in Clause 1(4) was to create additional and special duties on the Minister, in line with the Concordat. In order to do this consistently with existing constitutional conventions, the considered it necessary to employ the distinctive language in the bill. The drafting of Clause 1(4) had been considered very carefully in consultation with the senior judiciary. The Lord Chancellor also argued that there was a risk that a change to the drafting could cut across the doctrine of Cabinet collective responsibility.

OPINION OF THE COMMITTEE

79.  The Committee is divided on the question of whether any further strengthening of the judicial independence provision in Clause 1 is required. Accordingly, we make no recommendation.

In relation to the Concordat,

- should the principles set out in that agreement be put on a statutory footing even if the office of Lord Chancellor is retained?

- should its continuing importance be recognised by making specific reference to it in the bill, in the Explanatory Notes, or in some other way?

- should Clause 2 of the bill be amended to refer to the Lord Chief Justice's responsibility for ensuring that appropriate structures are in place for the deployment of individual members of the judiciary (Concordat, para.4(c))?

- should the bill be amended to require the concurrence of the Lord Chief Justice before the appointment of Judges to public inquiries, etc by the Minister?

RECOGNISING THE IMPORTANCE OF THE CONCORDAT IN THE BILL

80.  Many of the powers and duties created by Part 1 and Part 3 of the bill are intended to give effect to the Concordat. The Concordat has no formal status and is not referred to in the bill. Lady Justice Arden, giving evidence on behalf of the Judges' Council, said "there is a role for the Concordat even after the bill has been enacted. If it is the intention of Parliament that the Concordat should pass into law, the intention of Parliament in that regard should be made clear either in the Act or in the Explanatory Notes. This point is very important to the smooth running of the Act in the years to come" (Q 713). She added "… not every iota of the Concordat can be reflected in statutory language. There are some matters which have to, as it were, survive within the Concordat and one way in which the Concordat may be relevant in future is when the court is construing what will then be the Constitutional Reform Act, it may be necessary for it to look at the Concordat. Now, it may not be possible for the court to do that unless there is a clear indication that it was Parliament's intention to implement the Concordat" (Q 726). The Lord Chief Justice also told us of his and the Judges' Council's desire to retain the provisions of the Concordat, "irrespective of whatever else happens as a result of this bill" (Q 493).

DEPLOYMENT OF INDIVIDUAL MEMBERS OF THE JUDICIARY

81.  In their written evidence to the Committee (p 213), the working party of the Judges' Council led by Lady Justice Arden draw attention to a number of respects in which the bill does not conform with the Concordat. Lord Woolf in a written note to the committee said that while Clause 2(2)(c) of the bill clearly stated that the maintenance of appropriate arrangements for the deployment of the judiciary of England and Wales, and the allocation of work within courts, is the responsibility of the Lord Chief Justice, Clause 2 needed to be amended to more accurately reflect the Concordat. It should state that the arrangements for deployment include appointments of judges to committees, boards and similar bodies and the Lord Chief Justice should have to agree to such appointments where a serving judge is invited to sit on such bodies as a representative of the judiciary and/or where such an appointment could interfere with the performance of his judicial duties (p 464).

APPOINTMENT OF JUDGES TO PUBLIC INQUIRIES

82.  A further issue relating to the deployment of judges is the appointment of judges to chair public inquiries. Lord Woolf told us in a written note that this topic was overlooked in the negotiations leading up to the Concordat, but he and the Judges' Council had reached the firm view that the Lord Chief Justice should have to concur with any appointments to a public inquiry (p 464). Lord Woolf offered two justifications for this. First, the Lord Chief Justice must have the right to say whether a particular judge can be released to conduct an inquiry, as placing a serving judge on an inquiry prevents him from being deployed in his normal judicial duties. Secondly, "Whilst some inquiries are appropriate for a judge to sit on, other inquiries are of a highly politically sensitive nature and it is not appropriate for a judge to be involved. The Lord Chief Justice should be entitled to say not only who, but whether, a judge should conduct an inquiry at all" (p 465).

83.  The Lord Chancellor told us on the other hand: "My own view would be that consultation is enough on the basis that a judgment has ultimately got to be made and there is a balance to be struck and, therefore, as long as there is appropriate consultation, that would be sufficient. … This is not about judicial deployment, although it involved judges, and a balance has got to be struck against the urgent demands of the judiciary to do, as it were, ordinary judicial business against the public interests. For example, there have been grievous losses sustained by the judiciary and the current Master of the Rolls spent a very long and productive time looking into BSE, I think it was, which resulted in a grievous loss to the judiciary while he was away, but obviously the public interest required that he do it" (QQ 732-733).

OPINION OF THE COMMITTEE

84.  The Committee agrees that the terms of the Concordat should be fulfilled and that, to the extent that statutory provision is required, this bill should be the vehicle for effecting those changes. Accordingly, we have made many of the amendments referred to by the Lord Chancellor in his paper "Government Amendments to the Bill" (pp 420-5) and a large number of minor and drafting changes.

85.  We do not consider it possible, beyond the provisions made by the bill, to accord the Concordat a quasi-statutory status. However, we have decided that greater publicity might be given to the document (hitherto published by the Department of Constitutional Affairs as "The Lord Chancellor's judiciary-related functions: Proposals") were we to publish it as an Appendix to this report. Accordingly, it may be found at Appendix 6.

86.  We agree that the Minister should consult the Lord Chief Justice over the appointment of judges to boards, committees and public inquiries, rather than seek his concurrence. We consider that convention will suffice and accordingly make no change to the bill in this connection.

Should Clause 1 (Guarantee of continued judicial independence) be extended to Scotland?

87.  Several witnesses expressed concern that Clause 1 of the bill, guaranteeing continued judicial independence, extended only to England and Wales. Section 1 of the Justice (Northern Ireland) Act 2002 creates similar duties in relation to Northern Ireland.

88.  The Law Society of Scotland said that "on the basis of symmetry applying throughout all the constituent jurisdictions in the United Kingdom", Clause 1 should extend to Scotland. "If it is not extended to Scotland then we could be in an anomalous situation. Ministers of the Crown are defined inter alia in the Scotland Act 1998, section 117, as those ministers who include Scottish ministers, so therefore Scottish ministers would be in the position of having an obligation to uphold the independence of the judiciary in England and Wales but would not, apparently, be under a similar duty quoad Scotland. That could be an anomalous situation. It would also create the situation that two Cabinet ministers, the Secretary of State for Scotland and the Advocate General for Scotland, who have a role more appropriately in the UK and would be definitely caught by this provision, would be responsible for upholding the independence of the judiciary in England and Wales. We think that all in all, on the basis of symmetry and to make sure that there are no difficulties about interpretation, this provision should have application in Scotland" (Q 594).

89.  Support for the extension of Clause 1 to Scotland also come from the Royal Society of Edinburgh (p 399); Professor Hector MacQueen (p 375); and the Lord President of the Court of Session and the other Senators of the College of Justice (p 249).

90.  On the other hand, the Lord Chancellor questioned whether the UK Parliament or the Scottish Parliament should deal with the application of this provision in Scotland. The Law Society of Scotland replied that "we might wait for some time for the Scottish Parliament to be able to enact a similar protection. For the purposes of symmetry and until such time as the Scottish Parliament has the opportunity to legislate on this issue this would be a useful mechanism to use." (Q 597)

91.  Part 1 of the bill relates to the arrangement to replace the office of Lord Chancellor. Historically, the Lord Chancellor has had little or no role in Scotland. It might therefore be thought incongruous for Clause 1 to extend to Scotland. There is a case for saying that it would be preferable for the Scottish Parliament to enact legislation to protect the independence of the Scottish judiciary. The Law Society of Scotland takes a pragmatic view: that the bill "provides a convenient vehicle" (Q 595) for creating such a duty and, moreover, Part 2 of the bill creating the Supreme Court of the United Kingdom, would apply to Scotland.

92.  The Lord Advocate, however, took a robust line. The Scottish Executive did not consider such an extension necessary. The provision as they see it arises out of the abolition of the office of Lord Chancellor and functions performed in respect of England and Wales, so "at the moment we are not inclined to say to Westminster that they should impose a similar duty on Scottish ministers…" (Q 1096). The Scottish Executive plan to introduce legislation to put the Scottish Judicial Appointments Board on a statutory footing and will consider at that time whether or not there should be a duty on ministers similar to that in Clause 1 (Q 1100). In their report on the bill, the Justice 2 Committee of the Scottish Parliament expressed the view that "if such a duty is required, the vehicle should be a Scottish Parliament bill and in those circumstances the Scottish Executive should seek an early opportunity to legislate" (SP Paper 163, para.30).

OPINION OF THE COMMITTEE

93.  We agree with the advice of the Lord Advocate and the opinion of the Justice 2 Committee of the Scottish Parliament that the provisions of Clause 1 should not be extended to Scotland.

Speakership of the House of Lords (Clause 11)

94.  Clause 11 and Schedule 6 provide for certain statutory functions in relation to the House of Lords currently performed by the "Lord Chancellor" to be performed from commencement by the "Speaker of the House of Lords". Lord Norton of Louth was alone in suggesting to us that the title Lord Chancellor be used for the person who performs the functions of Speaker of the House of Lords. He argued that the office of Lord Chancellor should be put "at the disposal of the House" (p 139) and "retaining the position of the Lord Chancellor for parliamentary purposes would provide for some element of continuity, not just formally but in practice" (p 140).

OPINION OF THE COMMITTEE

95.  The Committee takes the view that the question of the future of the Speakership of the House of Lords is not a statutory matter and so we make no comment on the policy whereby the Lord Chancellor would cease to sit as Speaker. Alternative arrangements are for the House as a whole, and not this Committee, to determine.

CHAPTER 3: The Supreme Court (Part 2 of the bill)

Issues relating to the Supreme Court

96.  The Committee have identified the following issues arising in evidence which relate to the proposed establishment of a Supreme Court.

-  Is the policy of the bill to replace the Appellate Committee of the House of Lords with a Supreme Court of the United Kingdom correct? (Clause 17(1))

-  If Part 2 of the bill is enacted, should it come into force before permanent premises are available for the Supreme Court? (Clause 103 is the commencement provision.)

-  Are the names "Supreme Court of the United Kingdom" (Clause 17(1)) and "Justice of the Supreme Court" (Clause 17 (7)) appropriate?

-  Is the policy of the bill to specify that "the maximum number of judges is 12" correct? (Clause 17(3))

-  Should the qualifications for appointment for a judge of the Supreme Court be amended? (Clause 19)

-  Should the composition of the Supreme Court Appointments Commission be amended? (Clause 20)

-  Should the Supreme Court appointments commission prepare a list of 2 to 5 names for the Minister, or provide a single name? (Clause 21(3))

-  Are the arrangements for consultation by the Minister satisfactory? (Clause 21 (4))

-  Should the Prime Minister, as well as the Minister, have a role in the appointments process? (Clause 21(5) and 22(1))

-  Are the arrangements for "acting judges" (Clause 29) and the "supplementary panel" (Clause 30) satisfactory?

-  Is it acceptable that Clause 31(1), by which the Supreme Court is designated "a superior court of record", extends to Scotland? (Clause 31 (1))

-  Does the bill satisfactorily define the jurisdiction of the Supreme Court over appeals from Scotland?

-  Is the policy of the bill to transfer devolution jurisdiction from the Judicial Committee of the Privy Council to the Supreme Court correct? (Clause 31(4) and Schedule 8)

-  Should Scottish appeals to the Supreme Court lie only with the permission of the Court of Session or the Supreme Court?

-  Is the provision for the making of rules for the Supreme Court satisfactory? (Clauses 35 and 36)

-  Are the duties placed upon the Secretary of State for Constitutional Affairs in relation to supporting the Supreme Court satisfactory? (Clauses 38 to 41)

-  Are the arrangements for setting fees payable to the Supreme Court satisfactory? (Clause 44)

-  Should Part 2 of the bill be amended to safeguard the separate identities of Scots law, Northern Irish law, and the law of England and Wales? If so, how is this best achieved?

We consider these issues below.

Is the policy of the bill to replace the Appellate Committee of the House of Lords with a Supreme Court of the United Kingdom correct? (Clause 17(1))

97.  The Lord Chancellor told the Committee that "The Law Lords are judges and not legislators: the separation between those two roles should be made explicit" (p 9). The bill seeks to achieve this in two ways: by creating a Supreme Court (Part 2) and by disqualifying serving judges from participating in the legislative and scrutiny work of the House of Lords (Clause 94 in Part 4). These are conceptually distinct policy choices. Different policies would be possible, for example

·  a Supreme Court could be established, while retaining a right of the serving Justices of the Supreme Court to sit in Parliament and in some way be involved in legislative and scrutiny work, or

·  the Appellate Committee of the House of Lords could be retained but the right of the serving Law Lords to speak or speak and vote in legislative and scrutiny business of the House be removed.

98.  At this point we consider the general policy to establish a Supreme Court. (The main issues relating to Clause 94 are considered below at para.390-407.) There is a natural temptation to view the debate as between those who are for and against the proposed Supreme Court. In fact—as Lord Bingham of Cornhill reminded us—the range of views "is actually a good deal more complex" than this (Q 463). The views made known to the Committee fall into five broad categories:

·  strong support for a Supreme Court as provided for in the bill;

·  conditional support for a Supreme Court, subject to being satisfied about matters such as funding arrangements and premises;

·  support for a Supreme Court coupled with regret that the reforms are not more radical in relation to the character and jurisdiction of the court;

·  strong support for the current arrangements;

·  support for the retention of the Appellate Committee while conceding that some reform may be appropriate—for example, a new convention that the Law Lords in office and others who are authorised to sit judicially do not speak or vote at all.

THE GOVERNMENT'S CASE FOR CHANGE

99.  The Government's case for the Supreme Court is set out in the Lord Chancellor's written and oral evidence to the Committee (p 1; QQ 1-149), as well as in the Department for Constitutional Affairs' consultation papers issued in July 2003[27] and in speeches in Parliament.[28] The reforms are proposed in the context of other constitutional changes. Judicial review has developed into a significant check on the lawful exercise of central and local government powers. In recent years, on average approximately a fifth of the appeals heard by the Appellate Committee of the House of Lords originated from the Administrative Court. Moreover, when applying European Union law and the Human Rights Act 1998, courts are now able to call into question legislative provisions passed by Parliament. The Supreme Court will have important powers to adjudicate on devolution issues which may involve disputes about the powers of the United Kingdom Government and Parliament.

100.  The Government say, first, that "the Law Lords are judges and not legislators: the separation between those two roles should be made explicit", as it is in many other democracies (Lord Chancellor, p 9). The reasons for this were alluded to by Baroness Hale of Richmond. Writing of her first three months as a Law Lord, she told the Committee "… this is an intensely political place. This may have become more apparent since the party political balance became closer and the House of Lords has felt much freer to engage in serious challenges to the House of Commons. This is none of our business as judges: yet if we take an interest we risk compromising our neutrality and if we do not we are seen as remote and stand-offish" (p 364). The Government are supported in this argument by Lords Bingham of Cornhill, Steyn, Saville of Newdigate, and Walker of Gestingthorpe: "the separation of the judiciary at all levels from the legislature and the executive as a cardinal feature of a modern, liberal, democratic state governed by the rule of law" (p 116). We also heard evidence in support of this position from the Law Society (Q 540), the Bar Council (Q 540), JUSTICE (Q 295), and academics including Professors Robert Stevens (Q 155) and Diana Woodhouse (QQ 345 & 363). Sir Thomas Legg QC, a former permanent secretary of the Lord Chancellor's Department, told us that establishment of a Supreme Court "is an item of long and outstanding unfinished business from 1875 and I am sure it is a good move" (Q 679).

101.  The Government argue that it is not only the principle of separation of powers that is important, but that "there have in fact been a number of very practical examples where a dual role of the Law Lords as members of the Appellate Committee and of the Upper Chamber have raised questions about their ability to sit in specific cases". While the Lord Chancellor is not suggesting that the Law Lords' independence has ever been compromised, his evidence states that the growth in the number of judicial review cases over the past half a century has increased the chance of Law Lords being placed in constitutionally difficult positions (Lord Chancellor, p 1).

102.  Secondly, the Government say that a new Supreme Court would help public understanding of the legal system. The Lord Chancellor told the Committee that "it must be sensible to have constitutional arrangements that reflect the reality. Take the judges out of the legislature, make it clear that they are judges, have a beacon of legal excellence that is the Supreme Court of the United Kingdom. Everybody can then see how our system works" (Q 93).

103.  Some witnesses agreed that the current arrangements lead to confusion about the role of the House of Lords and the judges within it. Lord Bingham of Cornhill told us that "people just have no understanding at all of the function of the Law Lords" (Q 405). He suggested that separating the position of senior judges and members of the House of Lords would "make the British public appreciate that actually we are judges" (Q 405). Professor Diana Woodhouse told us "seeing the final and top court in its own building is very important psychologically for public confidence and perception about judicial independence" (Q 363). We were also told that even aspiring law students commonly regard the Court of Appeal as the highest court in the land (Q 405).

104.  Thirdly, the Government and others argue that a Supreme Court separate from Parliament is required in order to comply with the requirements of Article 6 of the European Convention on Human Rights (ECHR), which requires that judges "must be independent, impartial and free of any prejudice or bias—both real and perceived. For this to be ensured, judicial independence needs not just to be preserved in practice, but also to be buttressed by appropriate and effective constitutional guarantees. The establishment of a Supreme Court will provide those guarantees" (Lord Chancellor, p 10).

105.  Professor Woodhouse supported this view, saying that the ECHR makes the perception of our arrangements even more important: there is a "need for there to be compatibility, and evident compatibility, with the European Convention of Human Rights and with the requirement that judges are not only independent but are seen to be independent. Appearances are becoming increasingly important" (Q 345).

106.  Fourthly, the Lord Chancellor told the Committee that the accommodation for the Law Lords in the Palace of Westminster "leaves a lot to be desired". It is said that the offices of the Law Lords are cramped and inconveniently located, constraints on space limit the number of support staff who may be employed for the court, and "the presence of the Appellate Committee within Parliament makes it difficult for members of the public to gain access to the building, and to see our highest court in action" (p 10). The Lord Chancellor stated that "in the proposed UK Supreme Court, none of these artificial constraints would apply" (p 10). Lord Bingham of Cornhill said: "I would certainly hope that wherever it ends up it is in a place, subject obviously to security procedures, that the public can have access to and one would hope that in the course of time it would be in a building that people would actually feel proud of. If you drive around Singapore everybody says 'That is the Supreme Court of Singapore'. If you go to New Delhi exactly the same is true, and true in Canada, true in Australia. These buildings are regarded as belonging to the people and they are buildings that they are proud of. I cannot actually see why the fourth richest economy in the world cannot do that" (Q 404).

107.  Fifthly, some supporters—and indeed some critics (Professor J A Jolowicz, p 365)—point to the benefits of enabling "devolution issue" jurisdiction to be transferred to the Supreme Court. Since 1998, the Judicial Committee of the Privy Council rather than the Appellate Committee of the House of Lords has been the final court of appeal for cases involving devolution issues. Of the 13 cases so far heard by the Judicial Committee, all have come from Scotland and almost all have raised the question whether the Scottish Executive has breached a right under the European Convention on Human Rights. In other situations, such legal issues would arise under the Human Rights Act 1998 and the House of Lords would be the final court of appeal. Aidan O'Neill QC sought to demonstrate in his written evidence that this "dual apex" to the United Kingdom's court systems has contributed to inconsistent case law (p 384).

108.  Finally, it is part of the case for change that the costs of creating suitable accommodation for the Supreme Court, and the higher running costs, are merited by "the importance which a liberal society attaches to the rule of law" (Bingham, Constitution Unit Spring Lecture, 1 May 2003, quoted by Lord Chancellor p 15). In his written evidence to the Committee, the Lord Chancellor set out information about the estimated running costs of the Supreme Court:

TABLE 2

Estimate of Supreme Court Running Costs
Budget HeadEstimated Costs Comment
Judicial Salaries£2,100,000 Unchanged
Staff Salaries£1,000,000 £600,000 currently - the increase represents the additional staffing requirement of the Court, including the Chief Executive, additional research assistants and support services currently provided by the House (e.g. librarians, messengers etc)
Library£250,000 £90,000 currently - although this represents the cost of maintaining the Judicial Office library collection only; the Law Lords also enjoy access to the wider library of the House which would need replication, and maintenance, in part.
General Admin£750,000 Covers utilities, telephones, postage, reprographics, soft services (cleaning, catering, security) etc
Building costs£1,600,000 - £6,500,000 Annual building costs vary significantly between options and depending on procurement route. However, this figure represents a realistic estimate for a 'conventionally' (i.e. non-PFI) procured solution. The figure includes maintenance, rent (where appropriate), rates/capital charge.

109.  Against these estimated running costs, the current running costs of the House of Lords Judicial Office have also to be taken into account. In addition to Judicial Office staff salaries and office administration costs (£680,000 for 2002/03), a further £180,000 is apportioned to the Judicial Office for the cost of utilities, accommodation, overheads, telephones and postage. The Judicial Office also benefits from the use of staff employed by the wider House of Lords (library services, security, catering, cleaning and so on)—a conservative estimate of the latter being around £250,000. As to accommodation for the Supreme Court there will also be additional capital costs. At the outset the Lord Chancellor told the Committee that the set up costs have been calculated as between £6 million and £32.5 million. He later informed us that the choice had been narrowed to two options—Middlesex Guildhall and Somerset House—and that the likely set up costs will be at the top end of the range.

110.  Aside from the as yet unknown costs of acquiring suitable accommodation for the Supreme Court, the Government estimate that in order to support the ongoing costs of running an independent Supreme Court they will have to invest "a figure of slightly over £3 million per annum in addition to that which is already spent on the judicial work of the House of Lords". Nevertheless they are confident that this will be "money well spent". The Lord Chancellor's written evidence to the Committee states: "The Government is confident that arguments both of principle and practicality justify such a cost, and that the proposals will represent value for money. Once established the court will allow tangible benefits to be realised" (p 15).

CRITICISMS OF THE GOVERNMENT'S CASE FOR CHANGE

111.  First, many critics of Part 2 of the bill say there is no theoretical constitutional principle in the United Kingdom requiring separation of judicial and legislative functions. Sir Robert Carnwath (a judge of the Court of Appeal of England and Wales and former chairman of the Law Commission of England and Wales) told us in his written evidence that "Under the British constitution Parliament, under the Crown, is supreme. In different ways, both the executive and the judiciary are servants of Parliament's will" (p 311). On this view, the United Kingdom operates under principles that include judicial independence and the rule of law—but neither of these principles dictates that the Appellate Committee of the House of Lords should cease to exist (see also Garnier, p 356).

112.  Lord Jauncey of Tullichettle reiterated the point that there "was not and never has been a strict separation of powers in the English constitution". Indeed, we recall that the Royal Commission on the Reform of the House of Lords, echoing evidence they had received from the late Lord Wilberforce, concluded that "as long as certain basic conventions (which we recommend should be set out in writing) continue to be observed, there is insufficient reason to change the present arrangements. Indeed, we see some advantage in having senior judges in the legislature where they can be made aware of the social developments and political balances which underlie most legislation." (Cm 4534, p 6) It may be added that in November 2001, the Government's White Paper on reform of the House of Lords accepted that recommendation and stated that "The Government is committed to maintaining judicial membership within the House of Lords. In practice, it has been recognised that the formal judicial function constrains the judicial capacity of active Law Lords to comment on legislation and issues of the day. However, Law Lords represent a significant body of expertise and experience, which can benefit the House beyond the period when they sit judicially. … The Government proposes that … all those appointed as judicial members should continue to be members of the Lords until age 75, whether or not they sit judicially" (The House of Lords - Completing the Reform, Cm 5291).

113.  A related confusion, we were told, is the assumption made by many advocates for change that the upper House is simply a legislature. This, Lord Cooke of Thorndon states, is "a half truth" as "the House of Lords is more than a chamber of a legislature" ("The Law Lords: an Endangered Heritage" (2003) Vol.119 Law Quarterly Review at 49). He drew our attention to the terms of section 4 of the Appellate Jurisdiction Act 1876 which make it clear that the House of Lords is a court: "Every appeal shall be brought by way of petition to the House of Lords, praying that the matter of the order or judgment appealed against may be reviewed before Her Majesty the Queen in her court of Parliament, in order that the said Court may determine what of right, and according to the law and custom of this realm, ought to be done in the subject-matter of such appeal". Professor J A G Griffith agrees: "The House of Lords as part of the High Court of Parliament has existed for centuries. The working constitution is a complex piece of machinery which depends on a commixture of functions, not their separation. There is no anomaly" (p 362).

114.  As to the practical problem of Law Lords needing to avoid sitting in judgement in cases where they had been involved in the making of legislation, Professor J A Jolowicz of Cambridge University reminded us that this is nothing new: "more than 100 years ago, Lord Halsbury explicitly refrained from writing a judgement on the sole ground that he had been concerned with the drafting of the legislation the interpretation of which was before the House (Hilder v Dexter [1902] AC 474, 477-478)" (p 367). We were also told that the June 2000 statement by Lord Bingham of Cornhill was merely a reflection of general restrictions that apply to judges sitting in all courts. Problems are as likely to occur following statements made outside Parliament as they are on the floor of the House (Nicholls Q 411).

115.  In this context, some of those in favour of retaining the Appellate Committee of the House of Lords are willing to contemplate reform. Lord Brightman told the Committee of his idea for a new convention that "the Law Lords in office, [and] others who are authorised to sit judicially, do not speak or vote at all. That is a total answer to the problem" (p 328). Lord Hope of Craighead told us "one solution might be to deal with our position by means of a standing order" which would prevent Law Lords from voting (Q 652).

116.  Secondly, critics were unconvinced about the accuracy or relevance of the Government's assertions about public perception—a "belief that the public really not only do not understand what role the Law Lords play but actually believe that the Law Lords are in some way biased, that their decisions are political decisions made for reasons which are not judicial at all" (Lloyd Q 199). Lord Norton of Louth told us that the Government has produced no empirical evidence of such perceptions and, moreover, "reliance on the perceptions of the ordinary citizen—the Government's perception of perception—is not justifiable as the basis for proceeding with a fundamental measure of constitutional reform" (p 138) (see also Cullen Q 872, Martin Q 851).

117.  To the extent that we have been able to assess public perception both of the current situation and of the proposed changes the most we can say is that opinion does not run high. As Professor Stevens said to us, "I am not certain that there is really any public opinion". He recounted how in 1874 "when the right of the Conservative Party was trying to sabotage the Imperial Court of Appeal and they claimed that public opinion was opposed to it and The Times commented… 'there is no public opinion on this subject any more than there is on the transit of Venus'. I suspect not much has changed since 1874" (Q 199). The e-consultation exercise conducted on our behalf by the Hansard Society received relatively few responses from the general public (see Appendix 7).

118.  Thirdly, several witnesses rejected the Government's reliance on Article 6 of the European Convention on Human Rights. Sir Robert Carnwath stated: "The European Court of Human Rights does not insist on a rigid division of functions between the judges and the legislature. It is concerned with specific connections in individual cases. The Law Lords have responded by a self-imposed restriction on participation in parliamentary debates. There is no reason to think that this is ineffective. Nor is there any evidence that the independence of the Law Lords is in doubt, or perceived to be so by government or anyone else" (p 331) (see also: Garnier p 356, Nugee p 379, Jauncey p 364).

119.  Fourthly, some witness disagreed with the proposition that the Palace of Westminster provided inadequate accommodation for the Law Lords, either from the Law Lord's point of view or that of the general public. Lord Hope told us that the statements that the existing accommodation for the Law Lords leaves a lot to be desired are "exaggerated" and that in his view the Law Lords do not need more staff or space for staff (p 189). He also told us that the Law Lords "receive many visitors in the course of our year from many places for a variety of reasons", though he conceded that more could be done to improve accessibility (Q 676).

120.  Fifthly, some opponents of the creation of a Supreme Court are particularly critical of the plan to transfer devolution issue jurisdiction from the Judicial Committee of the Privy Council. (This question is considered more fully at para.227-36 below.)

121.  Sixthly, many critics of Part 2 of the bill are wholly unconvinced that a new Supreme Court will constitute value for money and yield tangible benefits. Lord Mackay of Clashfern stated that "The costs involved in this proposal are considerable and I very much question whether these additional costs on litigants, not only in the Supreme Court itself, but also in all the other civil courts of the United Kingdom is justified by the benefit claimed for the proposal" (p 80) (see also: Brightman p 328, Ackner p 100, Garnier p 356, Hobhouse p 125).

122.  A seventh concern relates to judicial activism. Lord Rees-Mogg expressed the fear that should a Supreme Court be established, it might encourage senior judges to usurp the principle of parliamentary supremacy: "I think if we send the Law Lords out into some new place with pillars in front that they will think that the separation of powers is the basis on which we have done it and that, therefore, they have got their powers" (Q 239; Nicholls Q 432).

123.  Finally, some witnesses think that the formidable reputation of the Appellate Committee is in itself the most compelling reason for retaining the current arrangements. Even people who are in favour of reform identify the risks involved in change. Richard Cornes told us that the new Supreme Court will not automatically inherit "the aura of authority" enjoyed by the Appellate Committee and "the very act of reform (including the events of last year) have destabilised" the "unwritten understandings" which have underpinned the legitimacy of the United Kingdom's highest courts (p 339).

Calls for more radical reform

124.  Some critics of Part 2 by contrast welcome the removal of judicial business from the House of Lords but say that the bill does not go far enough in reforming the United Kingdom's top level court and in changing its character. Several witnesses were disappointed that the bill merely seeks to replicate most of the features of the Appellate Committee in the new Court and misses opportunities (for instance) to create a Supreme Court with truly United Kingdom-wide jurisdiction, including over Scottish criminal appeals, or to create a court which sits en banc (we consider this latter question at para.161-4 below).

125.  Aidan O'Neill QC told us that the creation of a Supreme Court with jurisdiction over devolution issues was a necessary but not sufficient step to "ensure constitutional coherence and stability for the Union". He called for a new post within the Supreme Court, similar in position to that of the Advocates General to the European Court of Justice, the function of which "would be, prior to the Supreme Court's judgment, to draw the attention of the parties, the court and the public at large to the general implications of the Court's decision in the individual case before it, both for the separate jurisdictions making up the Union, as well as for the UK as a whole" (p 384).

126.  Sir Robert Carnwath called for a "full review of the function of the Appellate Committee in the 21st century, and its relationship to the lower courts in the three jurisdictions". He pointed out that "in other countries the judges of the final court may have a valuable role as 'think tanks' for law reform, or pre-legislative scrutiny". He said, "… if their [the Law Lords'] true role is 'system-wide' correction, more of their time might usefully be devoted to helping to correct legislative muddles in advance, rather than sorting them out retrospectively (and much more expensively). There is no necessary conflict between these two roles. Both are concerned with improving the structure of the law. From the point of view of those affected it does not much matter whether this is achieved by legislative action or judicial precedent" (p 332).

127.  In a similar vein, Baroness Hale of Richmond asked, in her written evidence, "if we are to have all the upheaval …, is it not worth contemplating doing something a little more radical?". In her view, "only cases of real constitutional importance should go to the Supreme Court", along with ordinary civil and criminal cases "but only on the basis that a serious inconsistency had arisen between two of more jurisdictions of the United Kingdom in the interpretation of United Kingdom legislation or the development of the common law on a subject where the law ought to be same throughout the realm". She urged that the Supreme Court be given exclusive power to select which cases to hear and that the criteria for selections should be set out in legislation (p 364).

THE VIEWS OF THE JUDGES

128.  A decision to remove judicial business from the House of Lords has obvious importance far beyond the wishes and concerns of judges. The views of those actively involved in the life and work of the courts—some of whom we have already cited—do, however, illustrate the stark differences of opinion about the future for the Law Lords. In their response to the Department for Constitutional Affairs consultation in July 2003, the then serving Law Lords were not of one mind, some supporting the general policy of a Supreme Court,[29] others opposed to it, [30] and one choosing to express no concluded view[31] (p 116). Since then, three of the Law Lords have retired and three new appointees have taken their place: Baroness Hale of Richmond supports a Supreme Court but would prefer "an even more radical reform than that proposed by the Government" (p 342); in December 2003, Lord Carswell told that House of Commons Constitutional Affairs Committee that he was inclined to the view that if the Appellate Committee "is functioning satisfactorily you might make more trouble from changing it just because of perception" (HC 48-II. Ev 66); Lord Brown of Eaton-under-Heywood has not expressed any public view. We were told by Sir Brian Kerr, the Lord Chief Justice of Northern Ireland, that there was a variety of views in Northern Ireland (Q 1028). The Senators of the College of Justice, the collective body of the senior Scottish judiciary, are unanimously in favour of retaining the existing arrangements (p 249; Q 899). The Judges' Council of England and Wales have not expressed a collective view on the desirability, or otherwise, of the Supreme Court, though Lord Woolf told us that

"So far as the Supreme Court is concerned, I recognise the different views about that and that the House of Lords is split on that. I do not think one can say, even if you are committed to the Supreme Court, that it has to happen tomorrow. That is not as urgent a matter …" (Q 511).

THE COMMON GROUND

129.  It is helpful to identify issues on which there is a broad degree of agreement. First, there is almost no support for the former practice of the Lord Chancellor occasionally sitting and presiding in the Appellate Committee of the House of Lords.[32] . Moreover, the Concordat specifically provides, as one of its guiding principles, that the "Secretary of State will not be a judge and shall not sit in a judicial capacity" (para.8. See Appendix 6). It therefore seems clear that whether there is a Supreme Court, or whether the Appellate Committee is retained, the Minister responsible for judiciary-related matters will not sit as a judge in it.

130.  Secondly, the overwhelming view—which the Government accepted from the outset—is that the Appellate Committee of the House of Lords has a high reputation at home and abroad for excellence of its judgments, its efficiency and the probity of its judges. It is accepted that as a matter of fact the Law Lords are independent of pressure of any kind (other than through counsel's submissions) from either Parliament or the Government. Lord Nicholls of Birkenhead told us: "I have never been approached in connection with any case I have been involved in by a member of government, by a fellow Peer or anybody at all. Nor have I ever heard of any other judge being so approached" (Q 408).

131.  Thirdly, it is accepted that setting up a new Supreme Court will incur some additional public cost and recurrent expenditure will be higher than it has been for the Law Lords accommodated in the Palace of Westminster.

OPINION OF THE COMMITTEE

132.  There was a clear division of opinion within the Committee between those members who agreed that the Appellate Committee of the House of Lords should be replaced by a Supreme Court of the United Kingdom and those members who did not. Accordingly, we make no recommendation to the House.

133.  We are agreed however that, were a Supreme Court to be established, it should be housed in a building befitting its importance but it is not for us to make the choice.

134.  Given the necessarily limited range of financial information provided to the Committee and the lack of figures for costs of accommodating the current occupiers of premises capable of housing the Supreme Court, the Committee agrees that no conclusion can be arrived at by us as to cost and benefit.

If Part 2 of the bill is enacted, should it come into force before permanent premises are available for the Supreme Court? (Clause 103 is the commencement provision.)

135.  The Lord Chancellor told the Committee of the relationship between the bill and the building: "you cannot make progress about the building without there being a legislative process to create the Supreme Court and you cannot get the Supreme Court up and running effectively unless there is a building on its way" (Q 53).

136.  The Committee was told by the Lord Chancellor that a process of conducting two searches across London for suitable properties to convert for use as the Supreme Court, and sites to construct a new building, had revealed six potential options (p 16). Following further evaluation against the criteria of suitability, deliverability, prestige and location, and affordability and value for money, two of these options were rejected.

137.  On 30 April 2004, Lord Bingham of Cornhill wrote a memorandum to the Committee, reflecting the consensus among the serving Law Lords, in which he expressed concerns about the use of the existing Middlesex Guildhall for the Supreme Court (p 114). The Middlesex Guildhall was built in 1913 for use as criminal trial courts and its historical court rooms of traditional layout and forbidding aspect would be "entirely unsuited to the work" of the Supreme Court. Lord Bingham of Cornhill concluded that "With Parliament Square and the Palace of Westminster to the east, and with Westminster Abbey to the south, the Guildhall site in our view deserves a building very much more distinguished than the Guildhall is or can ever be".

138.  The Lord Chancellor conceded that "it is inevitable that, even once identified, it will take time to equip the building" and stated: "While we would not wish to rule out any interim arrangements at this point, I can assure the committee that there is no possibility that we will enact legislation on the Supreme Court without ultimately providing suitable accommodation" (p 17).

139.  Lord Bingham of Cornhill's memorandum to the Committee estimated that a delay of three to four years would appear to be the minimum before the Supreme Court could move into its new accommodation.

140.  We considered what should happen between the enactment of Part 2 and the time when the Supreme Court's permanent accommodation is ready for occupation. The Lord Chancellor told us that "I think it would be very, very unlikely that they would go from here [the Palace of Westminster] to one place and then to a permanent Supreme Court building" (Q 73). He also said: "Let us see where we are in relation to the building. The building is bound not to be ready by March 2005, assuming that is the date that the bill passes. There would then be a choice about whether or not one waited until the building was ready or one made some transitional arrangement" (Q 91).

141.  There appear, therefore, to be two options.

·  Part 2 could be brought into force before the permanent building is ready, with the Supreme Court, using the Palace of Westminster as its location in the interim.

·  The commencement of Part 2 could be delayed until the court building is completed.

142.  The Law Lords were clear in their evidence that if the bill were enacted the second of these options was the preferable one. "We think it essential that new legislation creating a Supreme Court should not come into effect until there is accommodation in which the Court can be established". The reason for this preference was explained in the following way: "There would be no practical problem if, during the period of delay, the Appellate Committee and the Judicial Committee continue to function as they now do. But an intolerable situation would arise if the new arrangements were to take effect before there was accommodation to which the judges could transfer. 'Old' appointees would continue to be peers and as such entitled, presumably, to use the facilities of the House. 'New' appointees, unless they were peers, would have no claim to use the facilities of the House or to occupy any of its space. It is not at all clear how the financing of the Court, the employment of staff etc could be handled during the interim period, which would call for very detailed transitional provisions" (p 115).

143.  Lord Nolan, a retired Law Lord, agreed. He told us that "the suggestion that the Supreme Court should temporarily (though for an indefinite period) occupy the same accommodation [that is, the Palace of Westminster] will not, I hope, be pursued" (p 379). It is argued that, if it is necessary to demonstrate to the public the separate identity of the Supreme Court, this message is wholly lost if the new court comes into being with the same people doing the same work in the same place as before. Lord Lester of Herne Hill QC, submitting evidence on behalf of the Odysseus Trust, supported deferring the commencement of Part 2 of the bill until suitable accommodation (and resources) had become available (p 382), as did JUSTICE (p 94).

OPINION OF THE COMMITTEE

144.  The Committee is divided on the question of whether commencement of Part 2 of the bill should be delayed pending a move to permanent premises and make no recommendation to the House.

Are the names "Supreme Court of the United Kingdom" (Clause 17(1))and "Justice of the Supreme Court" (Clause 17 (7)) appropriate?

145.  In response to the Department for Constitutional Affairs consultation paper, and since, a number of people have expressed dissatisfaction with the new court's title: "the Supreme Court of the United Kingdom". Four main concerns have been articulated as to why the title is misleading or otherwise not apt.

146.  First, the court will not be the court of final appeal for Scottish criminal cases and it is therefore not a Supreme Court of the whole of the United Kingdom (Mackay of Clashfern Q 238).

147.  Secondly, the bill does not create a new level of "United Kingdom" law separate from the laws of the three jurisdictions (England and Wales, Northern Ireland and Scotland) and, indeed, we recommend below (para.283) that the bill be amended to provide expressly for this. The Supreme Court will not in this sense be a Court "of the United Kingdom"—but, according to the case it is hearing, a court of England and Wales, Northern Ireland or Scotland. Only in relation to devolution issue appeals will its judgments be binding in all three jurisdictions. Lord President of the Court of Session in written evidence said: "The title of 'Supreme Court' is perhaps not appropriate, having regard to the different functions which the new court would exercise" (p 251).

148.  Thirdly, some fear that the title is apt to confuse the public, who will believe that the court's functions and powers are similar to that of the United States Supreme Court. Lord Norton of Louth told us: "The argument [in favour of a Supreme Court] is that it will introduce clarity and so what happens you call it the Supreme Court—anybody with informed knowledge of the American judicial system will probably read into it a completely different role to that which it will have" (Q 489).

149.  Fourthly, Lord Rees-Mogg suggested that the judges of the Court may themselves be encouraged into inappropriate judicial activism by the name "Supreme Court". Lord Mackay of Clashfern agreed: "The concerns that Lord Rees-Mogg expressed about the Supreme Court, and that perhaps the use of the name may be influential in this connection, I think have to be taken quite seriously" (Q 238).

150.  We heard relatively little evidence as to what the court might be called if not the Supreme Court of the United Kingdom. Lord Mackay of Clashfern tentatively suggested "High Court of the United Kingdom", on the grounds that this had greater similarity to the High Court of Parliament, mirrors practice in Australia (where the High Court of Australia is the highest court), and avoided the pitfalls associated with "Supreme Court" (QQ 273-277).

151.  Lord Bingham of Cornhill takes a different view to those set out above. He told us: "I think it is a totally appropriate title. I appreciate that it has been suggested that it should be called the High Court. There is already a High Court in England, there is a High Court in Justiciary in Scotland, there is a High Court in Northern Ireland and we do not want another high court. The Supreme Court has existed with the Court of Appeal and the High Court since 1875 and it is not a title that is unfamiliar to us. I can see no reason why everybody should have a rush of blood to the head as a result of this title, which is, while not completely accurate, very nearly so. That does not suggest for an instant that anybody has any agenda to create a body of United Kingdom law, nor does it suggest that some takeover bid for the criminal law of Scotland is going to be made, which it most emphatically is not. The truth is that it is the nearest we have got to the apex of the jurisdictional, curial pyramid in the jurisdictions of England, Wales, Scotland and Northern Ireland, and that is the proper name for it in my opinion" (Q 434).

Consequential amendments upon establishing a Supreme Court of the United Kingdom

152.  As the Government acknowledged in their July 2003 consultation paper, "there is already an entity known as the Supreme Court of England and Wales, which consists of the Court of Appeal, the High Court and the Crown Court". Similarly, there is a Supreme Court of Northern Ireland. Moreover, in Scotland, the term Supreme Court has also been used on an administrative basis to refer to the Court of Session and the High Court of Jusiticiary collectively. The Government stated that "to avoid confusion, in the future the title of Supreme Court will be reserved for the Court to be created as a result of this consultation" (Constitutional Reform: a Supreme Court for the United Kingdom, CP 11/03, para.58). The bill does not, however, make any provision to change the name of the Supreme Court of England and Wales, the Supreme Court of Judicature of Northern Ireland, or the short title of the Supreme Court Act 1981 and other primary and subordinate legislation in which the words "Supreme Court" appear in the title. The Lord Chancellor told us that the Government's policy is to rename the existing Supreme Court of England and Wales as The Senior Courts of England and Wales, and for the Supreme Court of Judicature of Northern Ireland to be renamed as the Court of Judicature of Northern Ireland. Amendments to introduce these provisions will be tabled at a later stage of the bill.

OPINION OF THE COMMITTEE

153.  The Committee agree, with varying degrees of enthusiasm, that, if the bill is enacted, the name "Supreme Court of the United Kingdom" and the title "Justice of the Supreme Court" are appropriate. The Supreme Court of England and Wales and the Supreme Court of Judicature of Northern Ireland should be renamed and, where necessary to avoid possible confusion, the short titles of legislation relating to those courts should also be changed.

Is the policy of the bill to specify that "the maximum number of judges is 12" correct? (Clause 17(3))

154.  We considered several issues relating to the number of judges.

-  How many judges will be needed to despatch the business of the Supreme Court?

-  Should the Supreme Court sit en banc i.e. all together or, as the Appellate Committee does, sit in panels?

-  What provision should there be as to the number of judges from England and Wales, Northern Ireland and Scotland?

155.  The Lord Chancellor told us that he intended to move an amendment to Clause 17 "to provide that the number of Supreme Court judges may, by affirmative resolution, be increased or further increased from 12 to some greater number, but that their number cannot be less than 12. Whereas there may, in future be a need to increase the number of judges to cope with additional workload it would be appropriate for this to be exercisable by secondary legislation as at present for the number of Lords of Appeal in Ordinary, I am persuaded that it would not be appropriate to decrease the membership of the Supreme Court except by primary legislation"
(pp 418-9).

THE OVERALL NUMBER OF JUDGES

156.  The number of judges needed by a court depends on two main factors: how many cases are received; and how the court organises itself to hear those cases—in particular whether it sits en banc (meaning all the judges of the court sit together to hear all the cases) or in panels (meaning that sub-committees of the court, for example five out of 12 judges, hear cases).

157.  The likely caseload of the new Supreme Court can be expected to reflect the current caseload of the Appellate Committee of the House of Lords and the devolution jurisdiction of the Judicial Committee of the Privy Council. In large part, the case load of the Appellate Committee is in the hands of the Law Lords. In the great majority of cases, they select for themselves which appeals to hear and only a small proportion of cases come "as of right" or with leave granted by a lower court. The same arrangements will apply to the Supreme Court. Another factor affecting judicial time is the caseload of the Judicial Committee of the Privy Council. Here there have been and will be significant changes: appeals from bodies such as the General Medical Council are no longer heard; with the setting up of the New Zealand Supreme Court, more than a dozen appeals a year will no longer come to London; and in the foreseeable future, the Caribbean Court of Justice will begin operation with the effect that a further dozen or so cases a year will no longer be heard by Law Lords sitting in the Judicial Committee of the Privy Council.

158.  Several witnesses called for the Supreme Court to have 15 (rather than 12) permanent members at its inception. Two main reasons were advanced for this. First, as Roger Smith of JUSTICE told us, there is a general case for a court of 15 as this would provide a "permanent core of justices at the very top of the system" (Q 289) and so reduce the need to call upon members of the supplementary panel.

159.  Secondly, a particular case was made for a court of 15 in order to accommodate three (rather than two) judges from Scotland; this issue is considered below.

160.  One objection to increasing the size of the court to 15 relates to the "collegiate" nature of the court. Lord Hope of Craighead explained to us that "As far as the difference between 12 and 15 is concerned, my concern is not so much with costs as with the collegiate nature of the body. Our experience has been that we gain a great deal from interaction with each other in the committee system and it is achieved by the way in which the sittings are organised… If you expand the body you make it a little bit more difficult to achieve that constitutionality, and the more the building tends to separate people off from each other, as indeed the building I have seen tends to do, the more likely that is but, more importantly, it is important to make sure that the present system, which operates within the number of 12, is not lost. I think the balance is correctly struck here" (Q 645).

SHOULD THE SUPREME COURT SIT EN BANC?

161.  The bill, in Clause 32, envisages that the Supreme Court will continue the practice of the Appellate Committee of the House of Lords and hear most cases by constituting itself into panels—usually of five, but on occasion seven and exceptionally nine judges.

162.  Several witnesses told us of their preference for the Supreme Court to sit en banc. If the court did sit en banc, it would require fewer judges (probably nine). This is the view of, among others, Sir Thomas Legg QC (Q 679), Professor Diana Woodhouse (Q 345), the solicitors firm Clifford Chance LLP (p 316), and Richard Cornes (p 338). The General Council of the Bar of England and Wales commented that "an important question which should be addressed is whether the Supreme Court should not always sit 'en banc' rather than in separate committees" (p 162). The bill does not permit all 12 Justices to sit to hear a case, as the Supreme Court will be duly constituted only if "the Court consists of an uneven number of judges" (Clause 31(1)(a)).

163.  The clear disadvantage of a court sitting en banc is that it could hear far fewer cases than a court of 12 judges sitting in panels of five (though this begs questions as to how many cases the Supreme Court should decide). We were told of two main advantages that accrue to courts that sit en banc. One is that this method of deciding cases promotes consistency and legal certainty.

164.  A further advantage of sitting en banc is that it would "thereby avoid speculation about who will sit and what criteria are used to determine this" (Professor Diana Woodhouse p 108). Lord Bingham of Cornhill told the Committee that in the past the Lord Chancellor "used to set the panels, the constitutions which sat, and in amazingly recent memory was willing to manipulate the panels to achieve a certain result—I am not suggesting within the governmental experience of any one person! That is a prerogative that he has entirely given up, it has been in the hands of the two senior Law Lords for the last ten years and out of the hands of the Permanent Secretary since then" (Q 402).

THE APPOINTMENT OF JUDGES FROM SCOTLAND AND NORTHERN IRELAND

165.  The great proportion of appeals heard by the Appellate Committee of the House of Lords emanate from the courts of England and Wales. This will continue to be so in the Supreme Court. No one therefore doubts that the majority of judges appointed to the Supreme Court should have a background in the law of England and Wales. If current patterns are replicated in the Supreme Court, there will be on average one case from Northern Ireland every eight months or so, and approximately eight appeals from Scottish courts a year (from the Court of Session in civil cases and the High Court of Justiciary and other courts where a "devolution issue" is raised). We therefore considered what arrangements should be in place to ensure appropriate representation from the two smaller jurisdictions of the United Kingdom.

166.  The considerations relating to Scotland and to Northern Ireland are rather different. We were told by Sir Brian Kerr, the Lord Chief Justice of Northern Ireland, that the laws and procedures in Northern Ireland were broadly similar to those applying in England and Wales (QQ 1012-1013). In Scotland, many aspects of criminal and civil law and court procedures are significantly different from that in the other parts of the United Kingdom. A further difference is that there is a long-standing constitutional convention that two Law Lords are appointed from Scotland, whereas the practice of appointing a Law Lord from the Northern Ireland is much more recent and less well-established.

167.  Several witnesses from Scotland told us that there should ideally be three permanent Law Lords with knowledge of Scots law. This would have the consequence that when an issue of Scots law is being decided by a panel of five judges, or the court is dealing with a devolution appeal relating to Scotland, the majority of the panel could have expertise in Scots law. The use of Scottish judges as "acting judges" was not regarded as a satisfactory measure, the view being taken that acting judges should be used only in genuine emergencies such as illness. The witnesses were agreed that it would not be appropriate to have three out of 12 judges on the Court from Scotland (this would be too high a proportion), and so came the suggestion that the Supreme Court should have a minimum permanent body of 15 judges.

168.  A further question relating to the appointment of judges from Scotland and Northern Ireland is whether the bill should state expressly that there are to be two (or three) judges with experience of Scots law and one judge with experience of the law of Northern Ireland. The bill before us makes no express provision for the number of judges from these jurisdictions. The Lord Chancellor told us that the Government wished to make provision for the following (p 416)

·  The Supreme Court selection commission will be responsible for assessing both merit and territorial balance, following consultations with the senior judiciary in each jurisdiction, the judges of the Supreme Court (other than the President and Deputy President who are themselves members of the commission), the heads of the devolved administrations and the Minister.

·  The Minister will be able, before the selection commission convenes, to provide non-binding guidance relating to the vacancy that has arisen by, for example, drawing attention to the existing and future jurisdictional balance and requirements of the Supreme Court.

169.  Some views we received were generally content to leave the question of appointment of Scottish and Northern Ireland judges to the Supreme Court to be dealt with as a matter of constitutional convention. The Scottish Ministers told us that they did not consider it necessary to set a minimum number on the face of the bill, though they "were concerned to establish a proper mechanism for the continuation of the convention" of two Scottish judges, and that they are in discussions with the Department for Constitutional Affairs "about the mechanisms for enshrining the convention" (p 298). The Lord Advocate, Colin Boyd QC, was content for the number to be a matter for convention (Q 1094). Sir Brian Kerr told us that he was "agnostic" about whether the bill should expressly require a Northern Irish judge or whether that was achieved as a matter of constitutional convention (Q 1015).

170.  Others expressed different views. The Senators of the College of Justice—the collective body of senior Scottish judges—urged that Clause 17 "should be amended to provide that the composition of the Supreme Court is to include at least two judges who have held high judicial office in Scotland. Where a Supreme Court judge who held high judicial office in Scotland resigns, retires or dies, he or she should be replaced by another judge who has held high judicial office in Scotland. In our view, such an amendment is necessary to protect the administration of justice in Scotland and the distinctive principles of Scots law" (p 249). The Faculty of Advocates supports this view (p 234), as did the Law Society of Scotland (Q 815).

OPINION OF THE COMMITTEE

171.  The Committee agrees that the number of Supreme Court Justices should be 12. We have amended the bill to allow the Minister by Order in Council (by affirmative resolution of both Houses of Parliament) to increase that number. It should remain a convention that within that number at least two Supreme Court Justices should have been Scottish judges. The Committee further agree that the Supreme Court should sit in panels, the size of which may be varied at the Court's discretion according to the importance of the case.

Should the qualifications for appointment for a judge of the Supreme Court be amended? (Clause 19)

172.  Clause 19 of the bill sets out the formal qualifications for appointment to the Supreme Court. They reproduce the existing qualification requirements for Lords of Appeal in Ordinary. To be eligible for appointment a person must

·  have held "high judicial office" for a period of at least two years (as defined by Clause 48), or

·  be a legal practitioner of at least 15 years' standing.

173.  The question of formal qualification is distinct from issues relating to the criterion of "merit". The Lord Chancellor indicated at an early stage his intention to move amendments to Part 2 of the bill to state expressly that appointments to the Supreme Court shall be on merit and we have agreed those amendments after Clause 19. ("Merit" in relation to appointments by the Judicial Appointments Commission in England and Wales is discussed fully at para.323-35 below.)

174.  We heard a variety of criticisms of Clause 19. Lord Cullen of Whitekirk told us that appointments should be restricted to judges who have experience of sitting in appellate courts. In his view, and that of the Senators of the College of Justice, it was not appropriate to appoint practitioners directly to the Supreme Court, even though a number of distinguished Law Lords—including Lords Reid and Macmillan—had been appointed in this way (QQ 884-885; p 249). He explained that "simply to take over into this bill the provisions of the 1876 Act as to qualifications is perhaps not really in accordance with modern reality. In other words, somebody should demonstrate a proven track record bringing up qualities that show he or she is suitable for promotion to an appellate job. In other words, I see this as a promoting post" (Q 884).

175.  Others told us that the problem with Clause 19 was that it was overly restrictive. Lord Lester of Herne Hill QC and The Odysseus Trust argued that Clause 19 was too narrow and that the criteria should be sufficiently flexible to include solicitors and legal scholars—they say this will ensure greater diversity (p 382). Baroness Hale of Richmond suggests non-practising lawyers should be eligible for appointment. She told us that the House of Lords has, and Supreme Court will continue to have, "a role in shaping the law which is quite different from that of the first tier appeal courts in any of the three jurisdictions. It is often involved in questions of legal policy. It needs a variety of legal and life experiences to feed into that discussion" (p 364).

176.  In their response to the House of Commons Constitutional Affairs Committee report of February 2004, the Government stated

"It is vital to maintain the same calibre of judges in the Supreme Court as presently serve in the Appellate Committee. For this reason the Government is proposing that the criteria for eligibility for appointment to the Supreme Court remain the same as those for the House of Lords Appellate Committee…….Whilst it could be argued that this would improve diversity on the bench, the Government recognises that it may be of considerable importance that the members of the Supreme Court should have active experience of presiding in the lower courts" (The Government's response to the report of the Constitutional Affairs Committee, Judicial Appointments and a Supreme Court (court of final appeal), para.20, April 2004, Cm 6150).

177.  In his written evidence (p 402), Sir Konrad Schiemann argued that the definition of "high judicial office" in Clause 48 ought to be expanded to include judges of the European Court of Justice, the Court of First Instance and the European Court of Human Rights. There was little advantage, he told us, of ruling out as a matter of principle someone who has been appointed to one of the European Courts after less than 15 years as a practitioner in the United Kingdom. A further point arises in respect of the eligibility of retired judges of these courts to be members of the supplementary panel.

OPINION OF THE COMMITTEE

178.  The Committee agrees with the qualifications for appointment to the Supreme Court as provided in Clause 19. The Lord Chancellor has undertaken to consider further the issue of eligibility of judges of the European courts.

Should the composition of the Supreme Court selection commission be amended? (Clause 20)

179.  Clause 20 of the bill sets out the composition of the selection commission for the Supreme Court. The commission must consist of the following members:

·  the President of the Supreme Court

·  the Deputy President of the Supreme Court

·  one member of each of the judicial appointments commissions in England and Wales, Northern Ireland and Scotland.

180.  The Government indicated at an early stage their intention to move amendments so that "the Secretary of State will always be in a position to ensure that at least one member of the Commission is lay".

181.  Lay membership of judicial appointments commissions is regarded as important for two reasons. First, it ensures that the commission is informed by the widest possible range of appointments and human resource experience. Secondly, it enhances public confidence in the independence and impartiality of the judiciary and the appointments processes. The Commission for Judicial Appointments takes the view that there should always be a lay majority on appointments commissions (p 278).

182.  In their written evidence, the Commission for Judicial Appointments told us (p 266) that "there should be a requirement for the three national appointing bodies to be represented by a lay (i.e. non-judicial, non-legal) member on the Supreme Court appointments commission. (In the two cases of Scotland and England and Wales at least this could perhaps most readily be achieved by providing that the chairs of the Judicial Appointments Board for Scotland and the JAC respectively, who are both lay, should normally be their territorial representatives on the Supreme Court appointments commission). This requirement would ensure a lay majority (3 out of 5) on the SCAC". The Law Society of England and Wales suggested that the commission should have eight persons, of whom half should be lay and that there should be a lay chair (p 162).

OPINION OF THE COMMITTEE

183.  We agree that at least one member of the commission to select a Supreme Court judge should be lay and on the basis of an amendment proposed by the Lord Chancellor have inserted a new Schedule on Supreme Court selection which includes such a provision.

184.  Members of the Committee expressed the view that the selection commission should have an equal number of judges and lay members, in reflection of the arrangements in the bill for appointing judges to the Court of Appeal of England and Wales. We make no recommendation and leave the matter for further consideration by the House.

Should the Supreme Court selection commission prepare a list of 2 to 5 names for the Secretary of State, or provide a single name? (Clause 21 (3))

185.  Clause 21(3)(a) of the bill requires the Supreme Court selection commission to prepare a list of names for the Minister which "must consist of at least 2 and no more than 5 candidates". The Government indicated their intention to move amendments to this Clause so that the Minister "will receive one name from the Selection Commission along with details of the other candidates seriously considered" (p 418).

186.  We heard a number of views in support of such an amendment (Commission for Judicial Appointments p 263, Lester and the Odysseus Trust p 382, Cornes p 338, General Council of the Bar of England and Wales p 160).

187.  Several witnesses expressed views against the amendment. Professor Robert Hazell told us that for very senior appointments in England and Wales and to the Supreme Court there should be a list rather than a single name provided to the minister—though this should be coupled with appropriate parliamentary scrutiny (Q 152). He argued that "to present ministers with a single name in my view assumes too simplistic a notion of merit". Professor Robert Stevens broadly supported this approach (Q 155), as did Professor Diana Woodhouse. She told us "I am concerned that if only one name is given then the Commission might always produce, or is in danger of producing, the 'no risk' candidates at all times because they would be so scared of getting it wrong. If there is a degree of choice then in the end it is still going be the minister who gets the blame, as it were, if he chooses the wrong one. After all, he is the one who is accountable ultimately to Parliament so I think that putting the onus on the minister is not a bad thing" (Q 382).

188.  Lord Hope of Craighead thought there should be a shortlist of two (Q 668). Sir Thomas Legg QC was also in favour of the minister having more than one candidate to choose from "because I for my part believe the appointment of judges is a political and governmental act in which the Executive should play a real, important and accountable part. If it is going to do that I think ministers should have a choice" (Q 679). Dr Kate Malleson suggested that bill should enable the appointments commission to decide for itself, in each case, whether to provide the Secretary of State with a list or a single name: "It may well be that sometimes there is one outstanding candidate and the Commission should be able to say we think this person is so far above anyone else, this is the name we want to put forward. There may be other times when there are two or three or four equally excellent candidates and the Commission may say we think any of these would be appointable, but they have different backgrounds and characteristics which the Secretary of State might want to take into account" (Q 154).

OPINION OF THE COMMITTEE

189.  We agree that a commission for the selection of a Supreme Court judge should provide the name of only one candidate for appointment. Accordingly, we have amended the bill on the basis of a new Clause amendment proposed by the Lord Chancellor.

Are the arrangements for consultation by the Minister satisfactory? (Clause 21)

190.  Clause 21 of the bill as introduced requires the selection commission to consult the devolved administrations and senior judiciary before making a recommendation. It then requires the Minister to consult the same persons and bodies again about the person nominated.

191.  We heard four main criticisms of the consultation process laid down by Clause 21. First, it may be thought that consultation by the Secretary of State is a wasteful duplication of effort (Commission for Judicial Appointments p 263). A second concern is that the Minister consulting fellow politicians in the devolved administrations may be liable to arouse suspicions of inappropriate political involvement in the judicial appointments process. Sir Colin Campbell described the consultation requirement as "realpolitik" (Q 971).

192.  Thirdly, the bill requires that "the National Assembly for Wales" be consulted (Clause 21(4)(c)). In relation to Scotland and Northern Ireland, the requirement is to consult with the First Ministers. The bill is expressed as it is in relation to Wales because the National Assembly is a corporate body. Sir Colin Campbell told us that consulting with "an assembly does seem to me to be a bit tricky" (Q 971) and raises questions about how confidentiality will be maintained.

193.  Fourthly, the definition of "the senior judges" to be consulted by the selection commission and the Secretary of State, set down by Clause 21(7), may present difficulties. Lord Cullen of Whitekirk, writing on behalf of the Senators of the College of Justice, said: "If the Lord President were to be a candidate for appointment this would lead to a rather odd situation. We are of the view that the Lord Justice Clerk (the second most senior judge in Scotland) should be added to the list of people to be consulted. Moreover, where Scottish candidates are being considered, it seems somewhat anomalous that the Lord Chief Justice, the Master of the Rolls and the Heads of Division are to be consulted, whereas the only member of the Scottish judiciary to be consulted is the Lord President of the Court of Session" (p 251).

OPINION OF THE COMMITTEE

194.  The majority of the Committee took the view that consultation with senior judges and devolved administrations should be undertaken by the selection commission before submitting their choice to the Minister. They saw no need for the Minister to repeat that consultation. However, having heard from the Lord Chancellor that it is the wish of the Scottish Executive that there be ministerial consultations too, the Committee agreed to amendments moved by the Lord Chancellor to provide for both.

195.  The Committee further agreed, so far as concerns consultation with the devolved administrations, that such consultation should be exclusively with the First Minister in Scotland, the First Minister in Wales and the First Minister and deputy First Minister in Northern Ireland (or the Secretary of State for Northern Ireland until such time as the relevant powers are devolved). This issue remains to be resolved so far as concerns the National Assembly for Wales.

Should the Prime Minister, as well as the Minister, have a role in the appointments process? (subclauses 21 (5) and 22 (1))

196.  Under subclauses 21(5) and 22(1), the Prime Minister receives the name of the candidate considered to be most suitable by the Minister and makes a recommendation to Her Majesty that that person be appointed to the Supreme Court.

197.  This is the only role given to the Prime Minister by the bill. Under the current arrangements, the Prime Minister—as the sovereign's principal adviser—makes recommendations to Her Majesty in respect of judicial appointment as: Lord of Appeal in Ordinary, Head of Division of the Supreme Court of England and Wales, and Lord Justice of Appeal (Court of Appeal judges in England and Wales). Other judicial appointments by Her Majesty are made on the advice of the Lord Chancellor. The bill therefore considerably diminishes the role of the Prime Minister in judicial appointments, confining it to the Supreme Court of the United Kingdom.

198.  We considered the role of the Prime Minister in the appointments process. JUSTICE told us that "in view of the importance of the appointment [to the Supreme Court], we think it appropriate that the role of the Prime Minister be more than as a 'post-box' for the Secretary of State. The proposed roles for both, should be collapsed into Prime Ministerial responsibility and Clause 21(5) and 22 modified accordingly" (p 94). Lord Cullen of Whitekirk and the Senators of the College of Justice support such a view: "Appointments to the Supreme Court are of such importance that any decision should be taken by the Prime Minister" (p 251). Lord Lester of Herne Hill QC and the Odysseus Trust stated that the appointing commission's nomination "should be submitted, not to the minister, unless we have a Minister of Justice, but to the Prime Minister" (p 382).

199.  We also considered whether the Prime Minister's inevitably higher political profile might be more liable to fuel suspicions about party political bias in judicial appointments, and whether therefore it should be the Secretary of State who makes the formal recommendations to Her Majesty. Like JUSTICE's suggestion, this would avoid the fragmentation of ministerial responsibility for Supreme Court appointments.

OPINION OF THE COMMITTEE

200.  We agree that the role of the Prime Minister in the procedures for appointing a Supreme Court Justice should solely be to act as a conduit between the Minister and The Queen. We see no reason to make any change to the provisions of the bill in this regard.

Are the arrangements for "acting judges" (Clause 29) and the "supplementary panel" (Clause 30) satisfactory?

201.  In addition to the 12 permanent members of the Supreme Court, the bill provides that "acting judges" will be eligible to hear cases (Clause 29). The bill provides for two types of acting judge. First, there will be senior serving judges—a person who holds "high judicial office". High judicial office is defined in Clause 48(1) as the office of a judge in the Supreme Court of the United Kingdom (not relevant here), the Court of Appeal, the High Court or the Court of Session. The Lord Chancellor has agreed to provide an amendment at a later stage of the bill which will restrict eligibility to those who are judges of the appellate courts in each territorial jurisidiction.

202.  Secondly, an acting judge may be drawn from the "supplementary panel" described in Clause 30 of the bill. Essentially, this will consist of people under the age of 75 who have retired from a "high judicial office", who are members of the Privy Council, and who are invited by the President of the Supreme Court to serve on the panel. The Lord Chancellor has agreed to provide an amendment at a later stage of the bill which will restrict eligibility to those who are judges of the appellate courts in each territorial jurisdiction. A person who is a member of the panel and a peer will be disqualified from sitting and voting in the House of Lords (Clause 94). In future, senior judges with peerages—or who are contemplating accepting a peerage—will have to make a choice between sitting occasionally as a judge in the Supreme Court or taking part in the legislative and scrutiny work of the House of Lords. The bill does not permit them to do both.

203.  Acting judges may be useful in two main situations. One is where there is a shortage of permanent Supreme Court Justices, for example because of the illness. The other is where it is thought desirable for a judge with particular expertise (for example in Scots law) to sit on a panel of the Supreme Court. The Supreme Court may also draw upon the assistance of "specially qualified advisers" (see Clause 34).

204.  Concerns were expressed to us about the use of acting judges. Roy Martin QC, vice-dean of the Faculty of Advocates, told us that "reliance on temporary judges or part­time judges or ad hoc appointments or whatever one calls them is potentially undermining to the independence of the judiciary" (Q 843). Roger Smith of JUSTICE said "there should be no use or very little use of supplementary justices, and it would be better to bite the bullet and have a slightly larger number of justices than is currently the case" (Q 289). Lord Lester of Herne Hill QC and the Odysseus Trust expressed concern "that the supplementary panel proposed in Clause 30 is contrary to the important constitutional role of the Supreme Court" (p 383). Sir Thomas Legg QC said "the amount of part-time judicial reinforcement at this level I think should be as small as possible" (Q 681).

205.  The bill fails to provide for the first members of the supplementary panel (analogous to Clause 18(a), which states that first members of the Supreme Court will be the Lords of Appeal in Ordinary). The Government has indicated that they will move an amendment "to ensure that those who are currently eligible to sit on appeals in the House of Lords as 'Lords of Appeal' within the meaning of section 5(3) of the Appellate Jurisdiction Act 1876 should continue to be available to assist the Supreme Court by becoming members of the supplementary panel" (p 419).[33] If they choose to serve, they will, under Clause 94, be disqualified from sitting and voting in the House of Lords.

OPINION OF THE COMMITTEE

206.  The Committee agrees that acting judges should be drawn from the appellate courts.

207.  The Committee agrees with the other arrangements in the bill for "acting judges" and we understand that, by virtue of sections 5 and 24 of the Interpretation Act 1978, Northern Ireland judges will also be eligible to serve.

208.  The Committee also agrees with the arrangements for the supplementary panel. The Lord Chancellor has undertaken to amend Clause 30 to ensure that the Lords of Appeal within the meaning of section 5(3) of the Appellate Jurisdiction Act 1876 who are currently eligible to assist by sitting on appeals in the House of Lords will also be available to assist the Supreme Court.[34] This will fill a lacuna in the bill as currently drafted.

Is it acceptable that Clause 31(1), by which the Supreme Court is designated "a superior court of record", extends to Scotland? (Clause 31 (1))

209.  A permanent record of the judicial business of the House of Lords, like all other aspects of the House's work, is kept as part of the proceedings of Parliament. As the Supreme Court will not be part of Parliament, alternative arrangements must be made for record keeping. Clause 31(1) of the bill provides that "The Supreme Court is a superior court of record". By Clause 46, the records of the Supreme Court are defined as "public records" for the purposes of the Public Records Act 1958, and copies of them will be kept as part of the National Archives at the Public Record Office in Kew.

210.  The term "court of record" is widely used in common law jurisdictions to describe a court which keeps a permanent record of its acts and proceedings, and which has the power to punish by imprisonment or fine for contempt of its authority. Several courts and tribunals with jurisdiction throughout the United Kingdom are, or have in the past been, designated as a "superior court of record" e.g. the Special Immigration Appeals Commission, the Employment Appeal Tribunal and the Courts-Martial Appeal Court.

211.  We nevertheless heard expressions of concern that Clause 31(1) was inappropriate for Scotland. Professor Hector MacQueen in his written evidence asked: "Why is the provision that the court is to be a 'superior court of record' not confined to England and Wales, where alone this expression has meaning?" (p 375). For similar reasons, Lord Cullen of Whitekirk and the other Senators of the College of Justice said in their written evidence "We are of the view that it should be made clear that Clause 31(1) does not relate to the jurisdiction referred to in sub-Clause (3)" (p 251).[35]

212.  Lord Hope of Craighead was less critical of this provision. He told us: "The Scottish system [for keeping court records] is provided for by what are known as the Books of Council and Session which are held in the Public Record Office in Scotland. All records of the Court of Session and the High Court of Judiciary go there. I think it is pre-Union legislation that provided this. I do not see any point in sending records from the new Supreme Court to the Courts of Council and Session and I hope that actually they will not particularly want to receive them. I want to make it clear that while the wording is a bit odd from my point of view the result is a perfectly sensible one, which I respectfully endorse" (Q 645).

OPINION OF THE COMMITTEE

213.  The Committee sees no need to change the designation of the Supreme Court as a "superior court of record under Clause 31".

Does the bill satisfactorily define the jurisdiction of the Supreme Court over appeals from Scotland?

214.  Clause 31(3) provides that "An appeal lies to the [Supreme] Court from any order or judgment of a court in Scotland if an appeal lay from that court to the House of Lords at or immediately before the commencement of this section". Broadly speaking, this means that the Supreme Court will hear civil appeals from the Court of Session but will not deal with Scottish criminal appeals: the High Court of Judiciary will remain the highest court for Scottish criminal cases.

215.  In 1876 in the case of Mackintosh v Lord Advocate the House of Lords decided that "since as a matter of history there had been no right of appeal from the Court of Justiciary to the Parliament of Scotland, no such right of appeal had been created by the Act of Union" in 1707 (Faculty of Advocates p 239). The prohibition on criminal appeal to the House of Lords is now on a statutory basis in section 124(2) of the Criminal Procedure (Scotland) Act 1995.

216.  We considered three questions relating to these arrangements.

·  Does the bill fail to rectify an anomaly created by the Scotland Act 1998 and the Human Rights Act 1998 in relation to the Law Lords' jurisdiction over Scottish criminal appeals?

·  Should the Supreme Court have a general jurisdiction over Scottish criminal appeals?

·  Should the Supreme Court have jurisdiction over Scottish civil appeals?

THE DEVOLUTION ANOMALY

217.  The Scotland Act 1998 and the Human Rights Act 1998 create an anomaly that was unforeseen at the time of devolution (O'Neill p 384). Thus, if a criminal defendant alleges that the Scottish prosecuting authorities (the Lord Advocate who heads the Crown Office and Procurator Fiscal Service) have breached a Convention right, this is a "devolution issue" and the ultimate court of appeal is the Judicial Committee of the Privy Council.[36] Of the 13 devolution appeals heard so far, 12 arose in the context of Scots criminal law and procedure. Colin Boyd QC, the Lord Advocate, agreed that there an anomaly but told us "What I think can be said as a justification for the continuation of it is this: devolution issues in criminal cases involve, almost invariably, matters involving the European Convention on Human Rights and I think there is a good argument that there should be a common interpretation of the European Convention insofar as it relates to the United Kingdom, so I do not have any problems with these continuing to come to a Supreme Court" (Q 1131).

218.  In a review of the practice and procedure of the High Court of Justiciary for the Scottish Executive, the Hon. Lord Bonomy, a Senator of the College of Justice in Scotland, recommended that "Schedule 6 of the Scotland Act should be amended to make it clear that acts or failures to act by the Lord Advocate as prosecutor, and anyone acting on his authority or on his behalf as prosecutor, are excluded from the definition of a devolution issue. The Scottish Executive should urge the United Kingdom Parliament to make that amendment" (Improving Practice: the 2002 Review of the Practices and Procedure of the High Court of Justiciary, para. 17.14). Lord Mackay of Clashfern told us "I doubt whether it is wise to have it [the Supreme Court] dealing with human rights issues arising in the criminal field" from Scotland (Q 238).

219.  It is arguable that the bill pursues two contradictory policies: it transfers devolution jurisdiction from the Privy Council to the Supreme Court, while at the same time seeking to continue a policy of excluding jurisdiction over Scots criminal law and procedure. Unless and until the anomaly described above is addressed, it may be doubted whether the latter can be fully achieved.

SHOULD THE SUPREME COURT HAVE A GENERAL JURISDICTION OVER SCOTTISH CRIMINAL APPEALS?

220.  A second and different criticism of the bill is that it is wrong to perpetuate what is in effect an ouster Clause, now contained in section 124(2) of the Criminal Procedure (Scotland) Act 1995, which provides that "every interlocutor and sentence pronounced by the High Court [of Justiciary] under this Part of this Act shall be final and conclusive and not subject to review by any court whatsoever and it shall be incompetent to stay or suspend any execution or diligence issuing from the High Court under this Part of this Act".

221.  This denies defendants in criminal trials in Scotland the opportunity to appeal to the Appellate Committee of the House of Lords and, under the bill, the Supreme Court. In his written evidence to us, Lord Donaldson of Lymington questioned "whether it would be such a bad thing if rights of appeal were the same throughout the United Kingdom, particularly in relation to criminal law … can it really be desirable that what is or is not a crime or that the elements of a criminal offence shall be different on either side of a land border?" (p 351). The Judges' Council (of England and Wales) in their response to the DCA consultation paper similarly posed the question "If criminal appeals from Scotland which raise devolution issues are in future to go to the new Supreme Court, it might be a matter for consideration whether the new Supreme Court should be the final court of appeal for all criminal cases from Scotland". In her written evidence, Baroness Hale of Richmond told us that she "would favour a universal … jurisdiction in Scottish as well as English, Welsh and [Northern] Irish criminal cases" (p 364).

222.  A contrary view was set out by the Lords of Appeal in Ordinary in their response to the DCA consultation. Of Scots criminal law, they stated that "It is not a jurisdiction which the Supreme Court (save for its Scottish members) would be well-fitted to discharge. If there is any desire for change in this regard, we would not support it" (p 117). Lord Hope of Craighead told us: "It is difficult to emphasise how different Scots criminal law is, both in terms of substance and procedure. I am not criticising my colleagues in this but I think it is quite difficult for them to grasp not just the terminology, which in almost every respect is different, but how differently cases are handled, how differently judges deal with cases when they sum up at the end of the trial; the whole feel of it is quite different. Without having worked in the system and known something about it it is difficult to grasp the depth of the difference" (Q 646).

223.  The Faculty of Advocates in their written evidence did not altogether rule out change, but concluded that the case for innovation "has not been made out" (p 240).

SHOULD THE SUPREME COURT HAVE JURISDICTION OVER SCOTTISH CIVIL APPEALS?

224.  A third question brought to our attention is whether the Supreme Court should hear civil appeals from Scotland. Professor Hector MacQueen questioned whether "in the light of the very small number of Scottish appeals to the House of Lords over the last 40 years, and the even smaller number of them that succeed in reversing the court below, the appeal should be discontinued" (p 375).

225.  Others take a different view. Aidan O'Neill QC stated "The abolition of appeals from Scotland would, in my view be a retrograde step and not one to be recommended if the intention is that the Union is to be maintained. Scotland is a small country and its legal system, lawyers and judges all benefit from appeals to London. It is psychologically very important for all judges to think that they may [be] judged in another forum—the classic 'quis custodiet ipsos custodes?' problem—so that even if they are not appealed against, they know that they might be, and their reasoning there analysed and held up to rigorous scrutiny" (p 384).

OPINION OF THE COMMITTEE

226.  The Committee sees no need to change the provisions of the bill in respect of Scottish civil and criminal appeals at Clause 31(3), which reflect current practice.

Is the policy of the bill to transfer devolution jurisdiction from the Judicial Committee of the Privy Council to the Supreme Court correct? (Clause 31 (4) and Schedule 8)

227.  The policy of the bill is to transfer jurisdiction over "devolution issues" from the Judicial Committee of the Privy Council to the Supreme Court (Clause 31(4) and Schedule 8). We heard evidence both for and against this policy.

228.  The Privy Council, rather than the Appellate Committee of the House of Lords, was selected as the final court of appeal for cases raising "devolution issues" by the Scotland Act 1998, the Government of Wales Act 1998 and the Northern Ireland Act 1998. Various reasons were advanced to justify that decision.

·  The Appellate Committee of the House of Lords, as part of Parliament, would have been an inappropriate court because, devolution issues may raise issues about the powers of United Kingdom Parliament to legislate on devolved issues.

·  The House of Lords has no jurisdiction to hear criminal cases from Scotland and, as some devolution issues would relate to Scottish criminal procedure and law, it was inappropriate to for the Appellate Committee have jurisdiction.

·  Concerns were expressed that the Appellate Committee of the House of Lords might become overloaded with devolution cases and therefore be unable to deliver prompt judgments.

·  A broader range of judges are eligible to sit on panels of the Judicial Committee of the Privy Council than in the Appellate Committee of the House of Lords.

·  The Government of Ireland Act 1920 provided a precedent for using the Privy Council to deal with home rule questions.

229.  The devolution Acts provide that any decision of the Judicial Committee shall be binding in all legal proceedings (except those of the Judicial Committee itself), including those before the Appellate Committee of the House of Lords.

ARGUMENTS IN FAVOUR OF TRANSFER

230.  In the July 2003 consultation paper (CP11/03), the Government stated that "on balance" they believed it was right to transfer devolution issue jurisdiction to the Supreme Court: "The argument in favour of this transfer is that there would no longer be any perceived conflict of interest in which a party with an interest in a dispute about jurisdiction—the UK Parliament—was apparently sitting in judgment over the case. The new Supreme Court represents a very material change in circumstances. It will in no way be connected to the UK Parliament. The establishment of the new Court accordingly gives us the opportunity to restore a single apex to the UK's judicial system where all the constitutional issues can be considered. It would ensure that there is no longer a danger of conflicting judgments arising, for example on human rights cases which might have come to the Judicial Committee as devolution issues and to the House of Lords as ordinary appeal cases" (para.20).

ARGUMENTS IN FAVOUR OF RETAINING PRIVY COUNCIL JURISDICTION IN DEVOLUTION CASES

231.  The policy of the bill to transfer devolution jurisdiction to the Supreme Court has been criticised. In their response to the DCA consultation paper of July 2003, the Law Lords reluctantly concluded that the status quo should be retained (p 116). One factor prompting this is that the Judicial Committee of the Privy Council enables "issues to be decided by judges drawn from the devolved jurisdictions", in addition to the Law Lords (or Justices of the Supreme Court). This flexibility of membership of the Court is regarded as important in relation to devolution cases, but not one that should apply in all Supreme Court cases.

232.  The experience of deciding devolution cases between 1998 and April 2004 does not, however, reveal any significant use of judges other than the Law Lords in the Privy Council. Thirteen cases have been decided—11 full appeals and 2 petitions for leave. In all but two of these cases the panels were drawn exclusively from the full-time Law Lords. In one case a retired Law Lord (Lord Mackay of Clashfern) sat because one of the Scottish Law Lords had been involved that case prior to his elevation to the House of Lords. In another case a Court of Session judge joined the two Scottish Law Lords on a panel of five. In practice, then, the flexibility of membership offered by the Privy Council has not been greatly used.

233.  Lord Cullen of Whitekirk and the other Senators of the College of Justice also told us of their opposition to the transfer of devolution issue jurisdiction: "This jurisdiction already results in the anomalous situations in which judges whose training and experience have been in England have to make decisions relating to Scottish criminal trials. The transfer of this jurisdiction to the Supreme Court could result in devolution issues on matters touching on Scots criminal law being decided by a majority composed of English judges, and a growing influence of English law on its reasoning" (pp 249-50; see also Q 846).

234.  In his oral evidence, Lord Cullen of Whitekirk said that while "it would be highly desirable that there should be three members there simply in order to make sure that there is as wide a range of expertise as is available" he did not believe that it should be mandatory for panels of the Court to include a majority of Scottish judges. Of the 11 full appeals decided by the Privy Council so far, in only two of them have the panel consisted of a majority of Scottish judges.

235.  The Faculty of Advocates (p 234) support the general policy of the bill to transfer devolution issue jurisdiction. The Department for Constitutional Affairs states that following the July 2003 consultation in which respondents were asked "Do you agree that the jurisdiction of the new Court should include devolution cases presently heard by the Judicial Committee?", "Of the 87 responses to this question 75 (86%) were in favour of the new Supreme Court taking on the devolution jurisdiction of the Judicial Committee of the Privy Council, 12 (14%) of respondents were against the proposal" (Summary of Responses to the Consultation Paper Constitutional Reform: a supreme court for the United Kingdom, January 2004).

OPINION OF THE COMMITTEE

236.  We agree with the proposals to transfer devolution jurisdiction from the Privy Council to the Supreme Court.

Should Scottish appeals to the Supreme Court lie only with the permission of the Court of Session or the Supreme Court?

237.  Appeals from the courts of England and Wales and Northern Ireland to the Supreme Court may be made only with the permission (or "leave") of the court against whose judgment the appeal is brought, or the Supreme Court itself (Clause 31(6)). Several witnesses told us that it was wrong that no similar requirement is placed on litigants seeking to appeal from Scottish courts. The current Scottish practice, by which an appellant is required to obtain a certificate signed by two counsels that the appeal is one that ought to be heard, will continue.

238.  The leave requirement for appeals to the House of Lords was first introduced in 1934 for cases in England and Wales. The principal criterion for granting a petition for leave to the Lords is whether there is "a point of law of general public importance" to be decided. In England and Wales it is now rare for leave to be granted by the Court of Appeal, that Court adopting the view that in most cases it ought to be for the House of Lords to decide for itself whether an appeal should be heard. A significant proportion of petitions of leave presented to the House of Lords each year are refused. In 2001, the House of Lords disposed of 269 petitions for leave to appeal (260 from England and Wales, 9 from Northern Ireland), allowing 73 to go forward to a full hearing (27 per cent)[37]. Petitions for appeal are determined by panels of three Law Lords sitting as the Appeal Committee; occasionally a hearing is held, but often the decision is made on the basis of the written documents.

239.  In its July 2003 consultation paper (para.56), the Government set out three reasons for not imposing a permission requirement on appeals from Scottish courts:

"It could be argued … that it is an unjustified anomaly that citizens in different parts of the Kingdom have different rights of access to its highest court. The disadvantages of changing this are threefold. First, in respect of Scotland, the arrangement where by Scottish civil cases currently lie to the House of Lords as of right is long established; there is no evidence that change is needed; and there are strong arguments for leaving the position unchanged. The second disadvantage, in all respects, is that it would mean that more of the work of the Court would be absorbed in deciding what cases to hear, rather than hearing them. It would lead, in practice, to fewer cases being heard or to cases taking longer to come before the Court. The third disadvantage is that it would mean that all those seeking the judgment of the Court would have to incur the cost of petitioning for the right to appeal".

240.  In addition, some witnesses asserted that the pre-Union right of appeal from the Court of Session to the Scottish Parliament, which was asserted in the Claim of Right of 1689, was transformed into an unqualified right of appeal to the United Kingdom Parliament. (Aidan O'Neill QC took a rather different view (p 394)).

241.  Several witnesses from Scotland supported the policy of the bill on not requiring permission for Scottish appeals, including the Law Society of Scotland (Q 608), the Faculty of Advocates (p 234) and Lord Cullen of Whitekirk—who nevertheless conceded that "If one were starting with a completely fresh slate without the history of the matter I dare say one would say, 'Why should there be a difference?', but we are looking at a situation in which leave has not been required for many cases for centuries" (Q 894). In their report on the bill, the Justice 2 Committee of the Scottish Parliament recommended that no leave requirement be introduced for Scottish cases (SP Paper 163, para.12).

242.  On the other hand, we also heard criticism of the failure of the bill to require Scottish appeals to be put on a similar footing—through the requirement of permission—to those from courts in the United Kingdom's other two jurisdictions. In her written evidence, Baroness Hale of Richmond told us: "I would favour a universal leave requirement" (p 364) and "There is no justification for continuing to discriminate between the Scots and the rest. Everyone should be subject to a leave filter" (Response by Dame Brenda Hale to DCA Consultation Paper CP11/03).

243.  In their response to the DCA consultation, the Law Lords were divided. Some regard the present arrangement as an anomaly that "however rarely" may result in an unmeritorious appeal, while others "would not wish to disturb a long-standing procedure which gives rise to minimal difficulty in practice" (p 122). In relation to all the responses to the consultation, the DCA reports that "There are 67 responses to this question of which 35 (52%) favour retaining the present position regarding Scottish appeals. Thirty two respondents (48%) argue that it should be altered" (Summary of Responses to the Consultation Paper Constitutional Reform: a supreme court for the United Kingdom, January 2004, para.21).

OPINION OF THE COMMITTEE

244.  The Committee see no reason for changing the leave arrangements for Scottish civil appeals.

Is the provision for the making of rules for the Supreme Court satisfactory? (Clauses 35 and 36).

245.  The basic provisions governing the conduct of judicial business are contained in the Standing Orders relating to the judicial business of the House of Lords. These are published in the Practice Directions and Standing Orders Applicable to Civil Appeals (there are separate practice directions for criminal appeals but the Standing Orders are the same). Changes to the Standing Orders relating to judicial business are proposed by the Law Lords, who consult the Lord Chancellor, and they are then moved by the Lord Chancellor and agreed to by the House at public business (in practice this is a formal motion).

246.  The meaning of the Standing Orders governing judicial business is explained in detail in the Practice Directions. New and amended Practice Directions are agreed to by the Lords of Appeal in Ordinary sitting as an Appeal Committee and announced in the form of Reports. A recent example is that on 8 May 2003, when all twelve Lords of Appeal in Ordinary made the Thirty-Eighth Report from the Appeal Committee, entitled Petitions for Leave to Appeal: Reasons for the Refusal of Leave (HL 89), as a result of which they adopted the practice of giving brief statements for the refusal of petitions for leave to appeal and amended the practice directions accordingly.

247.  For the convenience of the public, litigants and the legal profession the Clerk of the Parliaments promulgates the Standing Orders and Practice directions relating to judicial business in three main publications:

·    The "Blue Book" is applicable to civil appeals;

·    The "Red Book" regulates criminal appeals;

·  ?The "Green Book" deals with judicial taxations (that is, assessments of costs).

248.  Thus, although traditionally the Lord Chancellor has been consulted about changes to the Standing Orders, proposals for change originate from the Law Lords and not from the Lord Chancellor and in practice he has usually agreed to their proposals. And the Practice Directions are wholly within the control of the Law Lords.

249.  Clauses 35 and 36 of the bill make provision for a new system for making rules will be needed for the Supreme Court. By Clause 35 the President may make the Supreme Court Rules. This power must be exercised with a view to securing that "the court is accessible, fair and efficient" and "the rules are both simple and simply expressed". Clause 36 requires the President to submit all Supreme Court Rules to the Secretary of State for Constitutional Affairs who may allow, or disallow, them. The Supreme Court Rules will take the form of statutory instruments, subject to annulment pursuant to a resolution of either House of Parliament. The Rules "come into force on such days as the Minister directs".

250.  We considered whether these arrangements are appropriate. It might be thought wrong that the Minister will acquire a controlling power over the rules of the Supreme Court which is not currently possessed by the Lord Chancellor in relation to the judicial business of the House of Lords. This arrangement may do little, either as a matter of reality or public perception, to enhance the independence of the new Court from the Executive—one of the key goals of the policy to create a new Court. It might also be thought wrong that Parliament will now have a veto over changes to the Standing Orders and Practice directions when in the past it has not. Having the rules take the form of a statutory instrument subject to annulment may decrease the flexibility of the Supreme Court rules which at the moment can be quickly adjusted in response to changing circumstances. Finally it might be asked whether a statutory instrument is likely to express rules any more simply than the current Standing Orders.

251.  Set against this, however, is the need for accountability and the need for the broader public interest to be brought to bear on the Supreme Court's rule-making.

OPINION OF THE COMMITTEE

252.  We do not think that the Minister should be able to allow or disallow such Supreme Court Rules as may be submitted to him by the President of the Supreme Court. Instead, we agree that the rules should be made by the Supreme Court in consultation with the Minister who will have no power to amend them. An amendment to that effect will be brought forward by the Lord Chancellor at a later stage of the bill.

253.  We accept that, in the changed circumstances which would be brought about if the bill were enacted, the rules should be contained in statutory instruments subject to annulment, as proposed in Clause 36(4).

Are the duties placed upon the Minister in relation to supporting the Supreme Court satisfactory? (Clauses 38 to 41)

254.  Clauses 38 to 41 of the bill place duties on the Minister to "ensure that there is an efficient and effective system to support the carrying on of the business of the Supreme Court" and "ensure that appropriate services are provided for the Supreme Court". We considered the role of the Minister in relation to the Supreme Court's budget and administration. This raises important issues relating to the independence of the Court and to accountability for public funds.

WHAT WAS PROPOSED BY THE BILL AS INTRODUCED

255.  The Lord Chancellor told the Committee that "the Government's proposals aim to guarantee genuine independence and autonomy" (p 13). The central features of the funding process envisaged for the Supreme Court are as follows (p 13; Q 56).

·  The Chief Executive Officer and the President of the Supreme Court will consider the resources required for the Supreme Court in line with the Government expenditure planning timescales, and will forward their projections to the Minister.

·  The Minister must satisfy himself that the bid is reasonable and affordable: in all democratic systems there must be a mechanism for ensuring courts are not wasteful in their use of public funds.

·  The Minister will bid for resources to Her Majesty's Treasury (HMT) in the context of the overall bid for the Department for Constitutional Affairs.

·  When HMT allocates resources to the Department, the funds for the Supreme Court will be ring fenced by the Minister as a separate block of funds within the Estimate, which is subject to parliamentary scrutiny and approval.

CONCERNS ABOUT BUDGETARY ARRANGEMENTS

256.  In assessing the budgetary arrangements, we noted the views expressed by the House of Commons Constitutional Affairs Committee in their February 2004 report Judicial appointments and the Supreme Court (court of final appeal) HC48-I:

"100. Clearly the new court must be seen to be independent. … the reality of day to day administration is as important for safeguarding the independence of the judiciary as any theory. The argument that Parliament should be able to dismiss all those to whom it votes money is ingenious, if theoretical—there is no prospect of a minister in modern political circumstances being dismissed by Parliament. The ordinary reality of having independence in managing the affairs of the new court is more important. Close attention should be paid to the Australian system, which preserves independence of the High Court within a parliamentary tradition similar to the one in the United Kingdom. "The Department of 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."

257.  Some supporters of the general policy to establish a Supreme Court attach great importance to the Court being well funded. The General Council of the Bar stated in their written evidence: "We support the formation of a Supreme Court, provided it is fully and properly resourced and housed in a building appropriate for its purpose and standing. Unless these resources are to be made available, it would be preferable to retain the existing arrangements …" (p 161).

258.  We also heard expressions of concern that the arrangements for determining the Supreme Court's annual budget failed to promote the independence of the Court. Although not advocating any particular model for the budgetary arrangements for the Court, Lord Cullen of Whitekirk told us "if independence from the executive as a matter of perception is important then I would have thought that in both the reality and in the matter of perception it is important that the Supreme Court should be as independent as possible from the executive" (Q 860).

259.  In considering what arrangements should apply to the Supreme Court, it is important to bear in mind the current system for funding the judicial business of the House of Lords. While the salaries of the Lords of Appeal in Ordinary are paid direct from the Consolidated Fund, the administrative costs of the Judicial Office (and of course of accommodation) are borne on the House of Lords vote, or request for resources, and accounted for by the Clerk of the Parliaments. The estimates are laid by the Treasury, in like manner as far as a non-departmental public body, though they are not cash limited. While these arrangements differ from those of the House of Commons, whose estimates are laid by the Speaker, it may be thought that they afford the finances of the final court of appeal a degree of independence from the executive. (In addition, the Clerk of the Parliaments is Registrar of the court, and as Corporate Officer employs the staff.)

260.  Although no detailed models were presented to the Committee, we were told that an alternative to the budgetary arrangements set out in the bill would be one where the Minister was not interposed between the Supreme Court and HM Treasury. In his written evidence, Professor Ian Scott of the University of Birmingham stated: "The Court, with the assistance of its executive officers should prepare its own budget and should collect and keep its own fees. The budget should be negotiated directly with the Treasury. Any Treasury objection to this should be met with the robust argument that the Court is not simply another government agency or service whose entreaties for money should be filtered through a ministry, but an organization sitting at the top of a co-equal branch of government and exercising prerogative power" (p 409).

261.  The practical benefits of such an arrangement are not indisputable. We were told that there might be benefits for the Supreme Court in retaining a role for the Minister. Lord Hope of Craighead told us: "I am a little concerned, using my background as Lord President, where I dealt with the Secretary of State in managing the court affairs, about being separated out from ministerial accountability and indeed the value of having a minister to argue one's position where it needs to be argued. I found it quite useful to be able to go to the Secretary of State for Scotland and make representations to him about how I thought our court should be run and discuss with him points about administration and other matters. I am not myself alarmed by the idea of the matter being handled through the department" (Q 653).

262.  In addition to general concerns about the role of the Minister in determining the reasonableness of the Supreme Court's budget, some witnesses from Scotland expressed a third and more particular anxiety in relation to budgetary arrangements and Article 19 of the Treaty and Act of Union 1707. In their written evidence, the Royal Society of Edinburgh told us: "It will also be important for a Supreme Court's United Kingdom character, to be administered and funded by an independent Supreme Court Service rather than by the Department of Constitutional Affairs which is responsible for the English but not the Scottish legal system" (p 399). The Faculty of Advocates told us: "first, and I think the most important, is the control of the Court's resources by the Department for Constitutional Affairs and the Minister (I am referring in particular to Clauses 38 to 43 of the bill). The Faculty takes issue with this from the point of view of Article XIX of the Act of Union, but I think it stands consideration from a much more general perspective … the Supreme Court Service should be an independent body under the control of the President of the Court and provided for by a one­line budget in Parliament. This is a model which I think exists elsewhere, in particular the High Court of Australia which is a court of similar significance, including constitutional significance and a reasonable parallel" (Q 815).

263.  This final criticism is viewed as misconceived by the Government and was anticipated by the Department for Constitutional Affairs in its July 2003 consultation paper, in which it stated: "The Government proposes that the administration and resources for the new Court should come within the responsibility of the Department for Constitutional Affairs. Although the bulk of the Lord Chancellor's Department's responsibilities for the courts system traditionally did not extend outside England and Wales, it already has some responsibilities for tribunals which go beyond England and Wales. Like most other departments, it can fulfil both a UK jurisdiction where the law requires it, and an England/Wales one (only) where the law requires that. Its responsibility for the constitutional settlement is already a UK-wide function and responsibility for the Supreme Court would be consistent with that. The new Court will have jurisdiction throughout the UK which will be defined in statute. In the Government's view, therefore, this will be a sufficient guarantee of separation from the judicial system in England and Wales to be compliant with the terms of the Act of Union with Scotland" (Constitutional Reform: a Supreme Court for the United Kingdom CP11/03, para.64; see also Lord Chancellor p 14).

COURT ADMINISTRATION

264.  We considered the arrangements for the administration of the court set out in the bill. Clauses 38 to 42 of the bill make provision not only for the financial resources but for the administration and staff of the Supreme Court. The Minister will have a duty to provide them.

265.  As already noted, the Lord Chancellor told the Committee that under the arrangements set out in the bill, it will be the Chief Executive of the Supreme Court who determines how the annual budget is spent, reporting to the Justices of the Supreme Court. The Chief Executive will hire employees of the Court: "In essence, it will be a body with its own budget, with its own chief executive and its own ability to determine how it spends the money assigned to it by the Treasury" (Q 56).

266.  In assessing these arrangements, we noted a memorandum to the Delegated Powers Committee from the Department for Constitutional Affairs in which the Government stated:

"13. The Secretary of State for Constitutional Affairs is, by virtue of Clause 38, under a duty to ensure that there is an efficient and effective system to support the carrying on of the business of the Supreme Court, and that appropriate services are provided to the Court. Clause 40 empowers the Secretary of State for Constitutional Affairs to make such staffing arrangements with third parties as he considers appropriate for discharging that general duty. He may only make such arrangements if authorised by an order made by him under subsection (3). Before making such an order, he must consult the senior judiciary listed in subsection (5); and by virtue of subsections (1) and (2) of Clause 99; such an order is to be made by statutory instrument subject to negative resolution procedure. This level of Parliamentary control for such a function, allied to the requirement of prior consultation, is considered appropriate for a function which does not fall within the affirmative resolution categories of the Brooke Report, and is precedented in the Courts Act 2003". (Published as Annex 1 to the Tenth Report of the House of Lords Select Committee on Delegated Powers and Regulatory Reform, HL 55).

267.  Some concerns were expressed to us about the approach adopted in the bill towards providing administrative support to the Court. Professor Ian Scott in his written evidence told us: "The Court should be responsible for its own administration. Whether administrative authority should be given to the senior judge or to the judges collectively is not a matter that should be difficult to resolve. The Court should appoint its own administrative officers and employ its own staff. The Court should have its own library and IT facilities" (p 409). In their response to the DCA consultation, the Law Lords agreed, stating that is was "essential that the new Supreme Court should enjoy corporate independence in the sense used by Professor Ian Scott … The independence of the judges requires not only that they be free of extraneous pressure but also that the court be institutionally free of administrative pressures" (p 116).

OPINION OF THE COMMITTEE

268.  While some members of the Committee agree with those witnesses who saw some advantage in the financial and administrative arrangements provided for in the bill, a majority considered that the Supreme Court should have greater financial and administrative autonomy than currently envisaged under Clauses 38 to 41. The Committee therefore agree that the Supreme Court should be established according to the model of a non-ministerial department. Funding would go direct from the Treasury to the Supreme Court (not into the DCA's budget). The degree of ministerial involvement would be slight, but remains an issue for some members of the Committee. The Lord Chancellor will bring forward amendments at a later stage of the bill.

Are the arrangements for setting fees payable to the Supreme Court satisfactory? (Clause 44)

269.  The Supreme Court will be funded from two main sources. First, some aspects of its work—criminal appeals and devolution cases—will be financed directly by the Department for Constitutional Affairs through general taxation.

270.  A second source of funding will be from fees from civil claims in courts throughout the United Kingdom, including the Supreme Court which, under Clause 44, through its own fee structure will contribute towards that fee income. The principle of recouping the costs from fees in all civil courts is enunciated in the Lord Chancellor's written evidence: "So far as England, Wales and Northern Ireland are concerned, Government policy was announced to the House of Lords by Lord Irvine of Lairg on 19 November 1998. This was that all the costs of administering the civil courts (including capital and judicial costs) should be recovered, through fees, from users of the civil courts. The justification for this policy is that services provided by the Government should be paid for by those who use them, rather than spread among the generality of taxpayers. Concerns about levying fees preventing access to justice are met by the system of exemptions, remissions and subsidies. In relation to the civil courts of England and Wales, this issue was extensively debated by the House of Lords in relation the Courts bill on 18 February 2003 and 27 March 2003 and an amendment was carried against the Government excluding judicial costs from the calculation. But the Other Place disagreed, and asserted its privilege to legislate on areas concerning finance. This was accepted by this House when the bill returned to the Commons on 12 November 2003. The policy is therefore settled in respect of all civil business arising in England, Wales and Northern Ireland, and will naturally apply to the civil work of the Supreme Court" (p 14).

271.  In Scotland, the financing of the civil justice system is a devolved matter under the Scotland Act 1998. The Lord Chancellor told us that the "Government is therefore in discussion with the Scottish Executive over the arrangements, which should apply to the funding of the Supreme Court in the UK in respect of that part of its workload attributable to civil appeals from Scotland" (p 15).

272.  Further information about the role of fees in funding the work of the Supreme Court has been set out by the Department for Constitutional Affairs in their Regulatory Impact Assessment on Constitutional Reform Bill, which states:[38] "The costs of the UK Supreme Court attributable to civil business will be recovered through fee recovery. The Supreme Court will have a UK Wide jurisdiction and will be the final court of appeal for all civil matters in the United Kingdom. The precedents set by the Supreme Court will be of value to all litigants in the England & Wales civil jurisdiction (in relation to cases heard under the law of England & Wales), Northern Ireland civil jurisdiction and the Scottish civil jurisdiction (in relation to cases heard under the law of Scotland). The fee structure for the Supreme Court will be based upon that applicable to the Appellate Committee, but will be restructured in order to bring it into line with fee structures in the lower courts. The total revenue to be for the court is projected to amount to £4.5M-£5M per annum. This is based upon assumptions made at present regarding accommodation costs, administrative overheads (including non-judicial staff salaries), building refurbishment capital charge and judicial salaries. At present no location has yet been chosen for the Supreme Court and so these figures are only approximate. The costs of the court attributed to criminal appeals and devolution cases are likely to amount to approximately £1.7M and will be met by direct taxation via the DCA vote".

273.  We heard expressions of concern about the funding arrangements and in particular fees. Lord Mackay of Clashfern was concerned that in setting Supreme Court fees the Minister was required to consult but not seek concurrence from heads of division and others listed at subclause 44(4): "In Section 130, I think it is, of the Supreme Court Act the Lord Chancellor was bound to secure the concurrence in civil fees on three out of the four heads of division (no doubt on the view that one of them might be absent for some reason) and the Lord Chancellor on criminal cases. You have to get their consent. It is purely consultation that is here" (Q 268).

274.  The Law Society of Scotland were concerned that spreading the costs through fees charged across all civil courts was unfair: "There are aspects of civil litigation in small claims which it is anticipated, I think, from the Explanatory Memorandum would have increased costs who have no right of appeal to a Supreme Court in those matters. There are matters of Employment Tribunal work where there is a right of appeal to the Supreme Court which would have no impact on their costs because no costs are payable for those. We think it is a matter of principle that the value of cases being decided and the law being clarified in the Supreme Court have greater general application beyond the parties in any particular dispute" (Q 612).

275.  Lord Hope of Craighead in his written evidence pointed out that there was no mechanism in the bill for securing a contribution through Scottish civil court fees towards the costs of the Supreme Court: "Fees are recovered from litigants in the Scottish courts under regulations made under section 2 of the Courts of Law Fees (Scotland) Act 1895, which refers to fees payable to any officer of any office or department connected with the Scottish courts the expenses of which are paid wholly or partly out of the Consolidated Fund or out of moneys provided by Parliament. The definition of 'the Scottish courts' does not mention the House of Lords, and there is no provision for the recovery of fees payable in one of the courts listed in the definition to be used to subsidise the cost of running another." (Hope pp 191-2). The Royal Society of Edinburgh makes a similar point, stating that the bill would need an amendment so fees charged to litigants in the Scottish courts could be surcharged by the amount needed to contribute to the cost of the Supreme Court. (p 399)

276.  Some witnesses (JUSTICE p 92; Law Society of Scotland p 92 and p 162; Law Society of England and Wales (Q 557)) object to the proposal that litigation fees might rise, even by the 0.8-1.0% suggested in the Explanatory Notes to the bill. They point out the role of the Supreme Court is the development of the law and not the settlement of private disputes.

OPINION OF THE COMMITTEE

277.  So far as concerns the setting of the Supreme Court's own fees, the Committee broadly agrees with the provisions of Clause 44 as drafted, although one member wished to see them pegged in real terms to the fee structure currently in force.

278.  So far as concerns the Government's intention to recover the civil appeal administrative costs of the Supreme Court from fees charged by the civil courts system as a whole, opinion within the Committee differed. The Committee acknowledges that these arrangements lie outside the scope of the bill and are matters for the Treasury and the rest of the civil court system. Nevertheless, the issue is an important one which we draw to the attention of the House.

Should Part 2 of the bill be amended to safeguard the separate identities of Scots law, Northern Irish law, and the law of England and Wales? If so, how is this best achieved?

279.  We heard criticism of Clause 31(3) and Part 2 of the bill relating to the fact that they fail to provide sufficient protection for the separateness of Scots law.

280.  Lord Cullen of Whitekirk told us that if "one is moving to a United Kingdom court there might be a tendency to take the view that because it is a United Kingdom court now perhaps what really matters is a solution right for the United Kingdom and hence a tendency to find an easy way to avoid abiding by Scots law" (Q 857). Lord Hope of Craighead told us that "what is missing from the bill … is a Clause which recognises the separate existence of the jurisdictions. It needs to be emphasised … that under the existing system in the House of Lords, according to our own jurisprudence, the appeal systems are separate" (Q 645).

281.  The Government have responded to these concerns and indicated their intention to move an amendment which "will make clear that a decision of the Supreme Court on an appeal from one jurisdiction within one jurisdiction within the United Kingdom is not to have effect as a binding judicial precedent in any other such jurisdiction, or in a subsequent appeal before the Supreme Court from another such jurisdiction". The Lord Chancellor told us "This provision is essentially declaratory of the position which is generally accepted to pertain in proceedings on appeal before the House of Lords" (p 418).

282.  This provision will not apply to devolution issue appeals, where a United Kingdom-wide jurisdiction is created by the Scotland Act 1998, the Government of Wales Act 1998 and the Northern Ireland Act 1998.

OPINION OF THE COMMITTEE

283.  The Committee agrees that an amendment which safeguards the separate jurisdictions to be exercised by the Supreme Court in respect of Scottish, Northern Irish, and English and Welsh law is desirable. An amendment to that effect will be brought forward by the Lord Chancellor at a later stage of the bill.

Summary of changes made or recommended by the Committee to Part 2 of the bill

284.  It will be helpful to pull together the principal changes we have made to Part 2 of the bill and those changes which, largely in consequence of our deliberations, will be brought forward by the Government at a later stage.

SUMMARY OF AMENDMENTS MADE TO THE BILL AS INTRODUCED

285.  The principal amendments we made to Part 2 of the bill as introduced, all of them proposed by the Lord Chancellor, are as follows. First, following our amendment, the Minister will have power to increase—but not decrease—the number of Justices, which initially will be 12, by Order in Council subject to affirmative resolution procedure (para.171). Secondly, there is a new requirement that at least one of the five person selection commission be a lay member (para.183). Thirdly, the bill now makes explicit that the criterion for appointment is merit (para.173). Fourthly, the selection commission will recommend to the Minister only one name for each vacancy, not a list of two to five names as provided for in the bill as introduced (para.189). In carrying out its task, the selection commission will be responsible for assessing both merit and the territorial balance of the Supreme Court. The Minister will be able, before the selection commission convenes, to provide non-binding guidance relating to the vacancy that has arisen, by for example drawing attention to the existing and future territorial needs of the Supreme Court and its requirements for expertise in particular fields of law. In carrying out the selection the Commission will consult the senior judiciary and the devolved administrations. Having received the Commission's choice, the Minister will consult the same bodies. The Minister will have the power to ask the selection commission to reconsider its recommendation or to reject its recommendation outright; he will be able to exercise each of these options only one and must provide his reasons in writing. These amendments bring the procedure for Supreme Court appointments more broadly into line with the procedure for judicial appointments in England and Wales provided for in Part 3 of the bill.

SUMMARY OF FURTHER AMENDMENTS PROPOSED BY THE GOVERNMENT

286.  The Lord Chancellor indicated to us his intention to bring forward further amendments as a later stage, as follows. First, an amendment will restrict eligibility to be an acting judge of the Supreme Court—whether as serving judge in a court or a retired judge under the age of 75—to those judges who are or were judges of the appellate courts in each of the United Kingdom's territorial jurisdictions (para.201-2). Secondly, a Clause will be introduced to make provision for the initial members of the supplementary panel of retired judges able to be called upon to sit in the Supreme Court (para.208). Thirdly, an amendment will be introduced to give power to the Supreme Court rather than the Minister to make the Supreme Court Rules (para.252). Fourthly, amendments will be brought forward to give the Supreme Court the status of a non-ministerial department enjoying a high degree of financial and administrative autonomy (para.268). Fifthly, the Minister told us of his intention to bring forward an amendment to safeguard the separate identity of the jurisdictions of the United Kingdom in the case law of the Supreme Court (para.283). All of these amendments are in principle broadly supported by the Committee.


8   Constitutional Reform: reforming the office of the Lord Chancellor (CP 13/03); Constitutional Reform: a new way of appointing judges (CP 10/03); Constitutional Reform: a Supreme Court for the United Kingdom (CP 11/03). Back

9   See, especially: 26 January 2004, cols 12-30 (judiciary-related functions of the office of Lord Chancellor); 9 Feb 2004, cols 926-941 (Supreme Court); 12 February 2004, cols 1211-1324 (Supreme Court Judicial Reforms); 8 March 2004, cols 979ff (Second Reading of the Constitutional Reform Bill [HL]). Back

10   Lords Bingham of Cornhill, Steyn, Saville of Newdigate and Walker of Gestingthorpe (i.e. four of the 12 Law Lords). The late Lord Hobhouse of Woodborough argued in favour of the principle but not the current proposals (see his supplementary response, para.124-6). Back

11   Lords Nicholls of Birkenhead, Hoffmann, Hope of Craighead, Hutton, Millett and Roger of Earslferry
(i.e. six). 
Back

12   Lord Scott of Foscote. Bingham, Q 450. Back

13   Upon appointment as Lord Chancellor in June 2003, Lord Falconer of Thoroton announced that he would not exercise his right to sit judicially. Back

14   The first members of the supplementary panel might therefore include: Lord Browne-Wilkinson (30 March 2005), Lord Clyde (29 January 2007), Lord Hutton (29 June 2007), Lord Irvine of Lairg (23 June 2015), Lord Millett (23 June 2007), Lord Mustill (10 May 2006) and Lord Slynn of Hadley (17 February 2005). The dates indicate the day up to which they are entitled to sit by reason of age. Back

15   This provides for "Such Peers of Parliament as are for the time being holding or have held any of the offices in this Act described as high judicial offices" to be eligible to sit, up to the age of 75 years. Back

16   Clause 31(3) provides that "An appeal lies to the [Supreme] Court from any order or judgment of a court in Scotland if an appeal lay from that court to the House of Lords at or immediately before the commencement of this section". Back

17   The Lord Advocate is a Minister in, and member of, the Scottish Executive and by section 57(2) of the Scotland Act 1997 "A member of the Scottish Executive has no power to make any subordinate legislation or to do any other act, so far as the legislation or Act is incompatible with any of the Convention rights or with Community law". Back

18   House of Lords Library Note LLN 2003/007, The Appellate Jurisdiction of the House of Lords. Back

19   http://www.dca.gov.uk/risk/constrefria.htm#part5 Back

20   Department for Constitutional Affairs, Summary of Responses to Consultation CP (R) 13/03,11/03,10/03. Back

21   Judicial Appointments and a Supreme Court (court of final appeal), Session 2003-04, HC 48-I and II. Back

22   The Hare Coursing bill, a Government bill, was referred by the Lords to a Select Committee against the then government's wishes in 1975. The Select Committee reported that the bill should not proceed. Back

23   Throughout this report, we refer to the present holder of the office of Lord Chancellor and Secretary of State for Constitutional Affairs in the two shorthand words by which he has been known throughout our proceedings, "Lord Chancellor". Back

24   On 12 June 2003 the Government announced its plans to abolish the office of Lord Chancellor, to establish a Judicial Appointments Commission for England and Wales, and to create a Supreme Court of the United Kingdom in place of the Appellate Committee of the House of Lords.  Back

25   Constitutional Reform: reforming the office of the Lord Chancellor (CP 13/03); Constitutional Reform: a new way of appointing judges (CP 10/03); Constitutional Reform: a Supreme Court for the United Kingdom (CP 11/03). Back

26   See, especially: 26 January 2004, cols 12-30 (judiciary-related functions of the Lord Chancellor); 9 Feb 2004, cols 926-941 (Supreme Court); 12 February 2004, cols 1211-1324 (Supreme Court Judicial Reforms); 8 March 2004, cols 979ff (Second Reading of the Constitutional Reform Bill [HL]). Back

27   Constitutional Reform: reforming the office of the Lord Chancellor (CP 13/03); Constitutional Reform: a new way of appointing judges (CP 10/03); Constitutional Reform: a Supreme Court for the United Kingdom (CP 11/03). Back

28   See, especially: 26 January 2004, cols 12-30 (judiciary-related functions of the office of Lord Chancellor); 9 Feb 2004, cols 926-941 (Supreme Court); 12 February 2004, cols 1211-1324 (Supreme Court Judicial Reforms); 8 March 2004, cols 979ff (Second Reading of the Constitutional Reform Bill [HL]). Back

29   Lords Bingham of Cornhill, Steyn, Saville of Newdigate and Walker of Gestingthorpe (i.e. four of the 12 Law Lords). The late Lord Hobhouse of Woodborough argued in favour of the principle but not the current proposals (see his supplementary response, para.124-6). Back

30   Lords Nicholls of Birkenhead, Hoffmann, Hope of Craighead, Hutton, Millett and Roger of Earslferry
(i.e. six). 
Back

31   Lord Scott of Foscote. Bingham, Q 450. Back

32   Upon appointment as Lord Chancellor in June 2003, Lord Falconer of Thoroton announced that he would not exercise his right to sit judicially. Back

33   The first members of the supplementary panel might therefore include: Lord Browne-Wilkinson (30 March 2005), Lord Clyde (29 January 2007), Lord Hutton (29 June 2007), Lord Irvine of Lairg (23 June 2015), Lord Millett (23 June 2007), Lord Mustill (10 May 2006) and Lord Slynn of Hadley (17 February 2005). The dates indicate the day up to which they are entitled to sit by reason of age. Back

34   This provides for "Such Peers of Parliament as are for the time being holding or have held any of the offices in this Act described as high judicial offices" to be eligible to sit, up to the age of 75 years. Back

35   Clause 31(3) provides that "An appeal lies to the [Supreme] Court from any order or judgment of a court in Scotland if an appeal lay from that court to the House of Lords at or immediately before the commencement of this section". Back

36   The Lord Advocate is a Minister in, and member of, the Scottish Executive and by section 57(2) of the Scotland Act 1997 "A member of the Scottish Executive has no power to make any subordinate legislation or to do any other act, so far as the legislation or Act is incompatible with any of the Convention rights or with Community law". Back

37   House of Lords Library Note LLN 2003/007, The Appellate Jurisdiction of the House of Lords. Back

38   http://www.dca.gov.uk/risk/constrefria.htm#part5 Back


 
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