Memorandum by Richard Cornes, Essex University
ABSTRACT
This submission concerns Part II of the Constitutional
Reform Bill 2003 (the Bill). Establishing a Supreme Court for
the United Kingdom is a necessary and desirable reform. However,
the model of Court proposed in the Constitutional Reform Bill
(the Bill) is flawed. In the circumstances of contemporary UK
democracy, a smaller court of, say, nine judges who sit as a full
panel on all cases is necessary. The discretion of the Prime Minister
as to who is appointed to the Court should be further limited,
and representatives of the UK legislatures (preferably the presiding
officers of the devolved assemblies and the Speaker of the House
of Commons) should sit on the appointments commission. The Court
itself should elect its President and Deputy, and the President
alone should represent the Court on the appointments commission.
A purpose clause (see paragraph 19 below) should be included in
Part II of the Bill, recording the UK's continuing commitment
to certain constitutional fundamentals. Finally, the Court should
have administrative autonomy. These amendments would lead to the
creation of an authoritative and independent Court.
INTRODUCTION
1. I am a Lecturer in Public Law and Deputy
Head of Department in the School of Law at Essex University. I
am also a Barrister and Solicitor of the High Court of New Zealand.
For the past five years I have been engaged in research into the
structure and operation of the United Kingdom's Highest Courts.
That research has involved research visits to the US and Canadian
Supreme Courts, the Constitutional Court in Spain (with Professor
Andrew Le Sueur) and the High Court of Australia and the German
Constitutional Court in Karlsruhe (both visited alone). These
visits involved interviews with the Chief Justices of Australia
and the US, and the Presidents of the Constitutional Courts in
Spain and Germany. I have also been engaged in the process of
establishing a Supreme Court in New Zealand.
2. I support (though with significant reservations
concerning the model chosen) the creation of a Supreme Court for
the United Kingdom. As the Senior Law Lord and those Law Lords
in favour of reform have argued, "the functional separation
of the judiciary at all levels form the legislature and the executive
. . . [is] a cardinal feature of a modern, democratic state governed
by the rule of law."[59]
Establishing a Supreme Court separate from the House of Lords
will achieve this.
3. Almost all the arguments for and against
reform are now well known; the need for brevity requires that
I not revisit them in this submission.[60]
4. While I support reform, the model of
Court set out in the Bill is far from ideal. The following seven
alterations should be made:
(1)
the number of judges should be limited to nine, all
of whom should sit on all cases (ie, en banc);
(2)
only one name should be submitted to the Prime Minister
by the appointments commission;
(3)
only the President of the Court should sit on the
appointments commission;
(4)
the President and Deputy of the Court should be selected
by the Court itself;
(5)
the Commission should include representatives of
the UK legislatures (ideally the presiding officers and Speaker);
(6)
a purpose clause should be included in Part II of
the Bill; and
(7)
the Court should be administratively autonomous.
5. I base my suggestions on the following
assumption. The courts in the United Kingdom, and most importantly
the top-level courts, now play a central role in the operation
of the democratic system. Even without giving the new Supreme
Court the formal power to strike down Acts of Westminster for
breach of eg, European Convention Rights, it will still have very
significant power because of: its interpretive powers under s3
of the Human Rights Act, and its declaratory power under s4 of
the same Act; the developments in judicial review over the last
few decades; the power to disapply (in effect strike down) Westminster
Acts for breach of a valid European Community norm; the power
to strike down legislative measures passed by the elected devolved
assemblies; and the role of updating the common law and interpretation
of statutes to bring them into line with its understanding of
contemporary social circumstances (eg, recognising that same sex
couples are "family members" in relation to statutory
wording dating from the 1920s in Fitzpatrick v Sterling).[61]
6. Merely replicating the Appellate and
Judicial Committees in a new Supreme Court will not automatically
give the new Supreme Court the aura of authority enjoyed by the
current top-level UK courts. Previously, tradition and various
unwritten understandings have underpinned the legitimacy and authority
of the UK's highest courts. The very act of reform (including
the events of the last year) have destabilised those understandings.
The new Court will need to be designed more in keeping with the
underlying design principles of top courts generally, outlined
by Andrew Le Sueur in chapter 3 of our report, The Future of
the United Kingdom's Highest Courts.[62]
COMPOSITION OF
COURT AND
MODE OF
OPERATION
7. The Court should have a fixed membership
of, say, nine judges and should handle all substantive hearings
en banc. Temporary or ad hoc judges should no longer
be used. Sitting en banc will help to enhance the Court's
authority and legitimacy over time. Everyone knows that the composition
of the Court has an impact on the outcome of cases. When a top
court sits in panels of less than the full court, or panels including
ad hoc judges there is the potential for the public to
be constantly reminded of this—would my case have gone differently
if only judge x had been involved. Further, however unjustified,
speculation will arise that the person, or persons, with the power
to select panels may use that power to attempt to influence the
outcome of cases.
8. The Court should be given complete control
of which cases come to it (including introducing a leave requirement
for all Scottish cases) to ensure that, along with changes to
the manner in which it hears cases (the length of oral argument
may need to be more strictly regulated), it can still decide the
number of cases one might expect a second level appellate court
to deal with—roughly between 60-120 cases per year (based
on assessment of the current UK courts as well as the US and Canadian
Supreme Courts and the High Court of Australia).
9. It would also assist if Supreme Court
judges were no longer used for Privy Council cases (that court
can be staffed with retired judges and judges of the first level
appellate courts), and if the dubious practice of using Supreme
Court level judges to chair public inquiries were ended.
NUMBER OF
NAMES SUBMITTED
TO THE
PRIME MINISTER
BY THE
APPOINTMENT COMMISSION
10. Assuming that there is no appetite for
considering an executive nomination/Parliamentary confirmation
appointment model (which I prefer), there are a number of ways
the appointment process set out in the Bill needs to be revisited.
11. First, the number of names to be put
to the Prime Minister. Three to five names leaves the Prime Minister
with too much discretion (especially when the appointment commission
proposed will be chaired by the President of the Court—a
post which in the Bill remains in the sole gift of the Prime Minister).
The number of possible appointees at this level will be small.
A choice from three to five candidates leaves the Executive with
too much discretion; indeed, three to five names may be more choice
than the PM currently has. Thinking sceptically, an astute PM
would now be able to mould the Court along his or her lines, with
the advantage that he or she can point to the judicial appointments
commission as cover for partisan choices.
12. Only one name should be put forward
by the appointments commission, and the PM should be able to reject
the name and ask for another, though with a requirement for a
statement to the House of why the name was declined. My suggestion
below that representatives of the UK legislatures be included
in the appointments commission would ensure that the views of
the elected branches were heard in the judicial selection process.
ONLY THE
PRESIDENT OF
THE COURT
ON THE
APPOINTMENT COMMISSION
13. The next problem with the appointment
commission is the presence on it of two of the Court's judges.
There is a strong argument that none of the Supreme Court judge
should sit, since their views may carry undue weight. However,
if there is a desire to have the Court's views represented in
the commission directly (rather simply requiring that the Court
be consulted as part of the selection process) just one judge
would be sufficient, and that should be the President.
APPOINTMENT OF
THE PRESIDENT
14. Which leads me to how the President
is appointed. The leadership position of senior judge can be one
of significant power. The importance of the role suggests it would
be inappropriate for the position to be filled at the sole discretion
of the Prime Minister; yet this is the choice the Government has
made in clause 17(6) of the Bill. The only constraints on the
Prime Minister's discretion will be that a candidate will already
have to be a member of the Court. Given, as I noted in paragraph
11 above, the degree of executive discretion currently envisaged
in relation to appointment to the Court generally, this may, over
time not be a particularly significant fetter.
15. Also of concern is the fact that the
President, in addition to leading the Court will likely chair
the appointments commission for the Court. It would enhance the
Court's independence and authority if the UK followed the example
of the Spanish Constitutional Court and allowed the Court itself
to select its lead judges. Providing that the Court continues
to have judges on it from the three UK jurisdictions a President
so selected should also have the credibility to become a spokesperson
for all the UK judiciaries at the UK level.
THE APPOINTMENTS
COMMISSION SHOULD
INCLUDE REPRESENTATIVES
OF THE
UK LEGISLATURES
16. Absent considering some sort of Parliamentary
confirmation procedure, the lack of democratic legitimacy of the
proposed appointments commission (which is in essence a parasitic
body twice removed from any electorate) could be improved by including
in the commission the presiding officers of the devolved assemblies,
and the Speaker of the House of Commons. Alternately, the UK legislatures
could each elect, by super-majorities, a representative each to
the commission.
17. The advantage of using the presiding
officers and Speaker is that it emphasises that their role is
to represent not a particular party, but the interests of the
elected branches in the appointment of the Supreme Court judges.
Allowing the National Assembly for Wales a distinct voice would
also go some way to addressing the need to ensure that the new
Court is considered legitimate in Wales, especially important
given its role in supervising the legality of acts of the Welsh
devolved administration.
A PURPOSE CLAUSE
SHOULD BE
INCLUDED IN
PART II OF
THE BILL
18. The reform process—exacerbated
by the manner in which it was initially handled—has already
disturbed a range of unwritten understandings about the role and
standing of the judicial branch in general, and the court of final
appeal in particular. We see in clause 1 of the Constitutional
Reform Bill and the concordat stuck between the English and Welsh
judiciary and the Lord Chancellor the beginnings of a realisation
that what has occurred so far has undermined basic concepts, and
that remedial action is required.
19. We need to go further than clause 1
of the Constitutional Reform Bill, and the concordat between the
judges and the Lord Chancellor. The UK should follow the example
of section three (the purpose clause) of the New Zealand Supreme
Court Act 2003 and insert a purpose clause into Part II of the
Constitutional Reform Bill setting out: 1, the purpose of the
reform; and 2, recording certain constitutional fundamentals which
the reform is not intended to affect detrimentally. Using the
New Zealand clause a model, a UK version may look like this (I
make no claim that this is the only model—I set it out for
discussion).
Purpose
(1) The purpose of this Part is:
(a)
to establish the Supreme Court of the United Kingdom:
(i) to recognise the importance of the functional separation
of the judicial branch from the legislative and executive branches;
and (ii)
enable important legal matters, including matters
arising from the devolution settlement to be dealt with by a single
final court of appeal; and
(b)
to provide for the court's jurisdiction and related
matters; and
(c)
to end the judicial functions of the Appellate Committee
of the House of Lords and the Judicial Committee of the Privy
Council in relation to the United Kingdom;
(2) Nothing in this Act affects the United
Kingdom's continuing commitment to:
(a)
the independence of the judicial branch,
(b)
the rule of law and respect for fundamental human
rights,
(c)
the sovereignty of Parliament,
(d)
the distinct existence of separate legal systems
within England and Wales, Scotland, and Northern Ireland, or
(e)
the enforcement of obligations arising from its membership
in the European Union.
20. Such a clause, and the debate around
it, would serve a number of useful purposes. It would refocus
the debate about reform of the judicial branch, requiring us to
think explicitly about what, in the midst of all this constitutional
reform, we regard as important; what we want the reform to achieve;
and what we do not want it to change. It would remind all concerned
of the fundamental constitutional issues at stake. It would also
provide the Court with some guidance as to what is expected of
it. Finally, and most importantly, it would provide the Supreme
Court with the democratic warrant to better secure the independence
of the judicial branch for the future.
THE COURT
SHOULD HAVE
ADMINISTRATIVE AUTONOMY
21. The new Supreme Court will have less
administrative independence from the Executive than the current
Appellate Committee. The Court should set its own budget, for
inclusion as a single line within the budget of the Department
of Constitutional Affairs, and the Court itself appoint its senior
administrative officer, who should be responsible for all other
staffing and resource matters. Appropriate accountability, and
an important link allowing dialogue between the branches of government
would be achieved by having the senior administrative officer
and one judge appear before the appropriate committee of Parliament
annually to discuss the Court's operation, as occurs in the US,
Australia and Canada.
28 April 2003
59 The Law Lords' response to the Government's consultation
paper on Constitutional Reform: A Supreme Court for the United
Kingdom (2003) paragraph 2, p 1. Back
60
See A Le Sueur and R Cornes The Future of the United Kingdom's
Highest Courts (London: Constitution Unit, 2001) 53-57; Lord Bingham
of Cornhill "A New Supreme Court for the United Kingdom"
1 May 2001, University College London; and Lord Steyn "The
case for a Supreme Court" (2002) 118 Law Quarterly Review
382. For an argument against reform see, Lord Cooke of Thorndon
"The Law Lords: an endangered heritage" (2003) 119 Law
Quarterly Review 49; and the evidence of a number of former Lords
of Appeal in Ordinary to the Royal Commission on Reform of the
House of Lords. Back
61
Fitzpatrick v Sterling [2001] AC 27 (HL). Back
62
See above, n2. Back
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