Memorandum by Sir Robert Carnwath CVO
(Lord Justice of Appeal, former Chairman of the Law Commission)
SUMMARY AND
CONCLUSION
We already have a "supreme court"
for England and Wales, consisting of the High Court and the Court
of Appeal, suitably based in a prominent building in the Strand.
The other jurisdictions within the United Kingdom have their own
appellate courts. The case for a further tier of appeal is not
self-evident. It represents a substantial additional expense to
the parties and the public. The justification must lie in its
distinctive character, and the added value which it can provide
to the judicial process. There may be a case for a more selective
approach, concentrating on "system-wide" improvement
of the law, and issues of constitutional importance.
The Government's consultation paper ignored
such issues, and engaged in a "shadow debate". Physical
separation from Parliament is not a precondition of judicial independence.
For the existing role of the final court, the present location
is suitable and economical. If more support space is needed, it
can surely be found in the vicinity without the need for a constitutional
revolution. Rather than seeking separation, we should perhaps
consider strengthening the contribution of its members to those
aspects of the parliamentary business which (like the work of
the Appellate Committee) are aimed at improving and clarifying
the structure of the law, rather than political change.
The case for the creation of a new "supreme
court" in a separate building has not yet been made out,
and its symbolic implications have been largely ignored. Before
any major change is undertaken, there should be 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.
A CHANGING ROLE
Although the basic arrangements under which
the Law Lords work were established at the end of the 19th century,
their role has changed greatly. In the early days, they combined
domestic appellate functions, with an international role as members
of the Judicial Committee of the Privy Council, hearing appeals
from courts throughout the former British Empire. In combination
these two roles meant that for a time, they were probably the
most powerful and influential court in the world.
Since the Second World War the international
importance of the Law Lords has naturally dwindled. The number
of countries within the Commonwealth still retaining a right of
appeal to the Judicial Committee has steadily reduced.[33]
The influence of the Law Lords within the common law world is
now rivalled by supreme courts in, for example, Australia, Canada,
India and South Africa. Meanwhile, European law and the influence
of the European Courts are increasingly pervasive. The Court of
Justice in Luxembourg is the ultimate authority for the interpretation
of the law of the European Union, including the regulations and
directives which govern so many areas of daily life. Under the
Human Rights Act, which in 2000 brought the European Convention
of Human Rights into our law, the courts of this country have
to pay regard to the decisions of the Court of Human Rights in
Strasbourg.
Meanwhile, in ordinary civil cases between companies
and individuals, the need for such an elaborate superstructure
of domestic appellate courts has become less obvious. The framework
of civil dispute resolution in this country has changed. Strong
encouragement is given by the courts at all levels to mediated
settlements. More decisions at first instance are delegated to
lower courts or specialist tribunals. Under the recent Woolf reforms,
the High Court is now the first avenue of appeal in many categories
of case. Appeal to the Court of Appeal usually requires permission
of that court or the lower court. If it is a second appeal, permission
will only be given if there is a point of general importance.
For ordinary civil cases, the retention of a further right of
appeal goes against the trend.
Even in criminal cases, the Court of Appeal
carries the main responsibility for shaping the law. Few of the
Law Lords are likely to have recent experience of criminal law.
Their relatively rare incursions into this field have not always
been found helpful by the lower courts. The Scottish criminal
courts operate successfully without any right of appeal to the
House of Lords.
Generally, the Law Lords enjoy a relatively
low public profile. Their decisions come to public attention on
the occasions of important judgments, but attention is rarely
on the members individually. In many ways the Court of Appeal
in England and Wales is the more prominent institution. It is
more directly in the public eye. It hears many more cases, and
it is led by the two leading judicial figures in the country,
the Lord Chief Justice and the Master of the Rolls.[34]
The Senior Law Lord, though having a high standing in legal circles,
is a less prominent public figure. The role of the Lord Chief
Justice will be further heightened when, under the Government's
current proposals, he becomes "President of the Courts of
England and Wales", and as such takes over many of the functions
of the Lord Chancellor.
POLITICAL CONTROVERSY
In other respects, the pressures on the highest
court have increased. The work of the Law Lords has taken on a
more political and constitutional emphasis. One example is the
new constitutional role given to them, wearing their Privy Council
hats, to determine "devolution questions" relating to
the functions of the new devolved parliaments. More generally,
the rapid development of "judicial review" in the last
30 years has meant that government decisions are regularly under
attack in the courts. Since 2000, the Human Rights Act has confronted
the courts with issues of even more direct controversy, political
or moral.
Sometimes, the courts find themselves in the
difficult role of human rights monitors of government action in
sensitive areas. For example, politicians and commentators have
recently made much of the apparent conflict between the courts
and government over policies to restrict rights of asylum-seekers.
They may forget that it was Parliament not the courts which passed
the Human Rights Act, and thus established the legal framework
within which immigration law has to be applied. The court's role
is to give effect to the will of Parliament, as expressed in its
legislation, even when it has effects which Ministers may not
appreciate. In such areas of political controversy, the low profile
of the Law Lords, combined with its established reputation for
objectivity, intellectual rigour and total impartiality, may be
a valuable asset.
THE GOVERNMENT'S
CASE
Against this evolving background, it would not
have been surprising, if as part of its proposals for the reform
of the House of Lords, the Government had taken the opportunity
to rethink the role of the Law Lords in the modern constitution.
However, the consultation paper (issued in Autumn 2003) made no
attempt at such a review. Indeed, the paper went out of its way
to emphasise that the proposals had nothing to do with any criticisms
of the work of the Law Lords. The underlying assumption was that,
apart from a change of location and name, things would go on much
as before.
Two reasons were given for the proposals. First,
it was said, the Human Rights Act required a stricter view to
be taken of anything which might undermine the independence, actual
or perceived, of a judicial tribunal. Secondly, space and resources
available within the House were limited, and the working conditions
for judges were cramped; a separate Supreme Court "suitably
accommodated", it was said, "could ensure that these
issues were properly addressed."
A SHADOW DEBATE
A Canadian commentator, Professor Jeremy Webber[35]
has complained that this discussion of independence has been "conducted
overwhelmingly in the abstract". He describes it as:
"a shadow debate . . . purporting to be
about independence of the judiciary, but vitiated by its reliance
on a superficial and formalistic conception of judicial independence
. . ."
The case for functional separation, as a constitutional
principle, was powerfully attacked in the response of one Law
Lord, the late Lord Hobhouse. He criticised the consultation paper
for confusing the principle of judicial independence, which "has
been an accepted and fundamental part of our constitution since
at least the 1688 settlement", with the American doctrine
of separation of powers. He described the latter "as a doctrine
based on a mistaken analysis of the British constitution developed
by French thinkers in the 18th Century", which involves:
". . . the complete and balanced separation
of all three branches of government—the Executive, the Legislature
and the Judiciary—from each other. Thus in the United States,
the President and the other members of the Executive are debarred
from being members of the Legislature, whereas in the United Kingdom
the position is the reverse . . ."
Under the British constitution Parliament, under
the Crown, is supreme. In different ways, both the executive and
the judiciary are the servants of Parliament's will.
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 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 any one else.
WHAT SHOULD
A SUPREME
COURT DO?
Remarkably little attention has been paid to
what the Appellate Committee does, and why it does it. The subject
was not discussed in the Government's consultation paper. Since
a large proportion of cases before the House of Lords are funded
directly or indirectly from public sources, one would expect this
to be a major concern of government. For example, figures of the
order of £70,000 have been quoted as the cost to Government
of an unsuccessful appeal to the House of Lords in a typical case.
That is in addition to the costs incurred in the lower courts.
The Appellate Committee currently receives some
300 petitions a year, of which about 80 are given leave to go
to a full hearing. (By comparison in 2001 the US Supreme Court
received about 8,000 petitions but heard argument in only 88 cases.)
The great majority of cases (86 per cent over the period 1967-96)
come from England and Wales. Although leave to appeal may be granted
by the Court of Appeal, it rarely does so, and the Appellate Committee
is generally able to select its own workload. Little information
is available as to how and why particular cases are selected for
the luxury of a second appeal.
In an article on the proposed reforms (written
before her elevation to the House), Lady Hale quoted the President
of the Israeli Supreme Court:
"The primary concern of the supreme court
in a democracy is not to correct individual mistakes in lower
court judgments. That is the job of courts of appeal. The supreme
court's concern is broader, system-wide corrective action. This
corrective action should focus on two main issues: bridging the
gap between law and society, and protecting democracy."[36]
Taking that as her text, she suggested that
the final court should be more selective. Ordinary criminal and
civil cases, no matter how much money is stake, would normally
be left to the Courts of Appeal in each jurisdiction, unless for
example there was a serious inconsistency between different jurisdictions
in the United Kingdom. Generally, she proposed:
"Only cases of real constitutional importance
would go to the Supreme Court. These would include the ground-breaking
human rights cases, cases about our relationship with Europe or
the rest of the world, including important cases interpreting
international treaties or concepts such as sovereign immunity,
and devolution cases . . ."
She proposed also that a change in the emphasis
of the courts work could be accompanied by a change its composition,
including a wider range of expertise, and by a change in its methods
of working. Professor John Bell's study of supreme courts in continental
Europe offers many alternative models.
A LEGISLATIVE FUNCTION?
A more selective approach to hearing cases might
enable the Law Lords, or their successors, to spend more of their
time in improving the law by other means. No-one expects them
to be involved in legislation designed to implement the Government's
political programme. But much law-making is not of that kind.
An equally important function of the legislature is law reform,
in the broader sense of sorting out the existing law, by removing
anomalies and injustices, and also ensuring that new law is technically
effective. It is a task which too often is ignored by Parliament
because of other demands on Parliamentary time.
As John Bell shows, in other countries the judges
of the final court may have a valuable role as "think tanks"
for law reform, or pre-legislative scrutiny. The Swedish Supreme
Court and the French Conseil d'Etat are examples. As he says—
"A Supreme Court has both a breadth of experience
and exposure to some of the more difficult issues of law within
the legal system. It sees concrete situations which pose legal
difficulties, and this can be a valuable perspective from which
to review what needs to be reformed in the law."
The need for such pre- and post-legislative
scrutiny has become more pressing over recent years, because of
the complexity of much modern legislation, and the influx of new
proposals from Europe.[37]
The normal assumption is that the time of serving members of the
Appellate Committee should be devoted to hearing cases. Yet, if
their 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
the 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.
A POLITICAL SYMBOL?
To many of its advocates, the idea of a "Supreme
Court" is a powerful symbol of the judiciary as a counterweight
to elected power, with power to strike down legislation. When
the announcement was first made, parallels were drawn with the
United States Supreme Court, and the assumption was that the Government
was intending to create a similar body with similar powers.
In the present climate of apparent conflict
between courts and government, the creation of such a court in
this country would have been an unexpected development. However,
as the consultation paper made clear, that was clearly not the
Government's intention. Indeed, few would advocate it. The United
States Supreme Court is a much more powerful court than anything
in this country. As the guardian of the American Constitution,
it has the power to set aside legislation as "unconstitutional".
The Law Lords have no such power. In this country the supremacy
of Parliament is fundamental, subject only to the legislative
power which Parliament has voluntarily yielded to the Europe.
Yet, if that was not the intention, the proposed
reform seems to be sending out a contradictory message. If the
idea is "business as usual", it is odd to find a proposal
for what appears to be completely new constitutional arrangement.
Creation of a new supreme court cannot be other than a symbolic
act. It is important to be clear what it is intended to symbolise.
Rightly or not, the new court is likely to be perceived as a new
constitutional force, separate from and sometimes opposed to Parliament
and the Executive. Far from strengthening its present role, the
change may simply heighten the inevitable tensions under which
it operates.
22 April 2004
33 There are still cases of wide-ranging importance.
For example, a nine member Committee has recently had to consider
the constitutional legality of the death penalty in the West Indies. Back
34
Thus, Lord Denning, perhaps the most famous judge of recent years,
made his mark as Master of the Rolls presiding in the Court of
Appeal, not for his occasional appearances in the Appellate Committee. Back
35
Except where otherwise stated, the quotations in this paper come
from articles in a recent collection of essays on the proposed
changes and their wider implications: Constitutional innovation:
the creation of a Supreme Court for the UK; domestic, comparative
and international reflections" ed Derek Morgan, Legal
Studies Vol 24 March 2004. Another valuable source is Building
the UK's New Supreme Court: National and Comparative Perspectives
ed Andrew Le Sueur, OUP March 2004. I gratefully acknowledge the
assistance of both. Back
36
Harvard Law Review Vol 116 No 1 p 27-8. Back
37
The European Union Select Committee, which scrutinises legislative
proposals emanating from Europe, has always included one of the
Law Lords. It is widely regarded as a job which this country does
more effectively than other member states. Back
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