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 factas Lord Bingham of Cornhill
reminded usthe 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 appropriatefor 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 biasboth
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 supportersand 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 Head | Estimated 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
optionsMiddlesex Guildhall and Somerset Houseand
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 lawbut 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 perceptiona "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 citizenthe Government's perception of perceptionis
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 courtssome of whom we have already
citeddo, 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 viewwhich
the Government accepted from the outsetis 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 Courtanybody 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 casesin 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 panelsusually 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 resultI
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 Justicethe collective body of senior
Scottish judgesurged 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
Lordsincluding Lords Reid and Macmillanhad 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 scholarsthey 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 ministerthough
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
Ministeras the sovereign's principal advisermakes
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
judgesa 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 peeragesor who are contemplating accepting
a peeragewill 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 forumthe
classic 'quis custodiet ipsos custodes?' problemso
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 jurisdictionthe
UK Parliamentwas 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 decided11 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 Whitekirkwho 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 footingthrough the requirement of permissionto
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 Executiveone
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 theoreticalthere
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 workcriminal appeals
and devolution caseswill 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 increasebut not decreasethe
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 Courtwhether as serving
judge in a court or a retired judge under the age of 75to
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 timeparticularly,
but not exclusively, the question of judicial appointmentsthe
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 billthere are over 400 of themhave
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 billthe abolition of the office of Lord Chancellor
and the establishment of a Supreme Courtthe 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. Thisor something like
itis a choice which will have to be made, when Parliament
has determined the final shape of the bill. (Until thenand
throughout this reportwe 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 Thorotonwhose 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 Chancellorbeing
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 poolthose
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 judgebecause
everybody agrees he should not sit as a judgeonce 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 appointmentswhether 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
Affairswhich are set out in the table belowto 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 matter | Date 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
| 2001 | Home Office
|
House of Lords reform policy | 2001
| Cabinet Office |
Electoral Commission, policy on electoral law, referendums and political party funding
| 2002 | Department 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 Lordsbut 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 aidwhich has risen to £2 billion in the
past yearshould 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 outincluding appointing
judges on the recommendation of the Judicial Appointments Commissionthere
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 judgeas I see it nowis 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 Judiciarythe 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 poolthose 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
Scotlandwhere, of the two Ministers for Justice since devolution,
one was a lawyer and one was notis 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 supplythe
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 issuesI will not go into the
detailand 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 functionsnotably
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 Chancellorthat 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 functionsto 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
appreciatenaturally enough, because they are not lawyersthere
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 lawundoubtedly another duty that currently
exists as a matter of conventionshould 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 judiciaryon
issues such as trial by jury and criminal procedurewere
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 policyhe 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 factas Lord Bingham of Cornhill
reminded usthe 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 appropriatefor 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 biasboth
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 supportersand 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 Head | Estimated 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
optionsMiddlesex Guildhall and Somerset Houseand
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 lawbut 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 perceptiona "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 citizenthe Government's perception of perceptionis
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 courtssome of whom we have already
citeddo, 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 viewwhich
the Government accepted from the outsetis 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 Courtanybody 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 casesin 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 panelsusually 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 resultI
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 Justicethe collective body of senior
Scottish judgesurged 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
Lordsincluding Lords Reid and Macmillanhad 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 scholarsthey 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 ministerthough
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
Ministeras the sovereign's principal advisermakes
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
judgesa 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 peeragesor who are contemplating accepting
a peeragewill 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 forumthe
classic 'quis custodiet ipsos custodes?' problemso
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 jurisdictionthe
UK Parliamentwas 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 decided11 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 Whitekirkwho 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 footingthrough the requirement of permissionto
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 Executiveone
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 theoreticalthere
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 workcriminal appeals
and devolution caseswill 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 increasebut not decreasethe
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 Courtwhether as serving
judge in a court or a retired judge under the age of 75to
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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