Memorandum by Edward Nugee QC
1. I assume that there is no useful purpose to
be served in questioning the main purposes of the Bill, and that
comments can only usefully be made with regard to matters of detail.
I have to say, however, that I find it regrettable that changes
should be contemplated which will entail a doubling of the staff
of the final court of appeal (Explanatory Notes para 259), and
an increase in its direct cost from the modest figures given in
para 246 (£168,300 cash budget for 2001-02, total expenditure
£623,548, though admittedly these do not include common services
shared with the remainder of the House of Lords or the Law Lords
salaries) to annual running costs of between £5.9 million
and £10.8 million, together with an estimated £6 million
to £32 million for the costs of establishing the Court (paras
247-8). I regret too that the accusation that the Justices live
in an ivory tower will be easier to justify than it is under the
present arrangements, under which the Law Lords benefit from daily
contact with other members of the House of Lords, and in turn
give the House of Lords the benefit of their experience in non-political
matters. Lord Lloyd of Berwick has written illuminatingly about
the former in his recent article in the Spectator, and Lord Cooke
of Thorndon has expanded on the latter in his lecture to the Chancery
Bar Association in June 2002; and I can only say that I wholeheartedly
agree with their views. We have never had a Montesquieu-like separation
of powers in this country: our trust in the integrity of those
who have held the office of Lord Chancellor or who have been Lords
of Appeal in Ordinary has been fully justified for centuries;
and if it is said (as I have heard the present Lord Chancellor
say) that our European colleagues do not understand this, the
right course is to educate them in English ways rather than to
change our constitution to fit in with their views.
2. As to the details, Parliamentary Counsel have,
as was to be expected, done a very thorough job in tracing hundreds
of references in other legislation which need to be amended. There
appears, however, to be no general provision to the effect that
references to the Lord Chancellor in non-statutory matters are
to be taken henceforth as references to the Secretary of State
for Constitutional Affairs (or anyone else). Clauses 14 and 15,
which are in wide terms, apply only to functions transferred by
any provision of the Act. Clause 8 contains nothing such one finds
in other statutes transferring functions; for example (taken at
random), Transport Act 1962 Sch.6 para.2: "(1) Any agreement
to which the Commission was a party shall have effect as if ...
(b) for any reference to the Commission there were substituted
a reference to the successor Board" and "(2) The foregoing
sub-paragraph shall apply to any provision of any agreement to
which the Commission were not a party, and any other document
not being an agreement, as it applies in relation to an agreement
to which the Commission were a party". There are likely to
be many legal documents, private as well as public, which contain
references to the Lord Chancellor, and it is unrealistic to suppose
that Parliamentary Counsel can pick them all up, or that they
will all be capable of being covered by an order under clause
98, unless the order itself were to take a form similar to para.6(2)
above. A provision of this kind seems to me desirable; and as
it would be of a rather different character from the orders that
clause 98 appears mainly to contemplate, the examples given being
mainly examples of amendments to statutes and statutory instruments,
it would in my view merit a specific provision in the Bill (albeit
in a Schedule), on the lines of para.6(2). If a provision of this
kind could be included in an order under clause 98, there would
seem to be no obstacle to its being included in the Bill, as in
other cases where there is a statutory general transfer of functions
from one body to another. Unless such a provision is made, there
are likely, after the Bill becomes an Act, to be a number of legal
documents which contain a reference to an office which has been
abolished and nothing to indicate what is to take its place. It
is true that Explanatory Note 238 refers to "charters and
other governing instruments of institutions in relation to which
the Lord Chancellor has a role" as documents that could be
amended by order under clause 98; but the Minister is going to
be little more aware of the details of such charters and governing
instruments after the Bill has become law than he is now; and
it is in my view more usual and more appropriate for a general
provision substituting references to the Minister (or anyone else)
for references to the Lord Chancellor in cases of this kind to
be included in the Bill.
3. As was pointed out in the Consultation Paper
CP13/03, there are many other miscellaneous matters in which the
Lord Chancellor has a role to play, among the more important of
them being his functions in relation to Ecclesiastical Patronage
and his Visitatorial functions (see, inter alia, the response
of the Chancery Bar Association to CP13/03). There is nothing
in Part I of the Act or the relevant Schedules which affects the
Lord Chancellor's role in these matters, except the fact that
the office of Lord Chancellor is itself abolished by clause 12.
It may be that the intention is to deal with them by order under
clause 98. If so, it might be helpful to include something in
clause 98(2) which made it clear that functions of this kind are
also intended to be dealt with by order under that clause; and
the Select Committee may wish to inquire into what is in fact
proposed in this regard, as it is notoriously difficult to do
anything in Parliament which affects the terms of a proposed statutory
instrument once it has been made. Ecclesiastical Patronage in
particular is a subject on which strong views are held; and it
seems to me that which of the various possible destinations for
the transfer of the Lord Chancellor's functions in this sphere
is intended to be chosen is a matter on which debate in the House
of Lords may be desirable.
4. It may be too late to do anything about the
confusion which is likely to arise from the fact that we are to
have a Supreme Court of the United Kingdom, a Supreme Court of
England and Wales (governed largely by a statute called the Supreme
Court Act 1981) and a Supreme Court of Judicature of Northern
Ireland, all of which are or will be commonly known simply as
the Supreme Court, though it would have been better if more thought
had been given to this before the instructions for the drafting
of the Bill were given. The name "The Supreme Court of the
United Kingdom" is in any event something of a misnomer,
as it is not a supreme court in the sense that would be understood
in any country with a written constitution (except to a limited
extent under the jurisdiction over questions of devolution which
are to be transferred from the Judicial Committee of the Privy
Council—and even there Parliament remains supreme), and
it is subject to control by Parliament and bound to apply laws
enacted by Parliament, however contrary they may be to our (largely
unwritten) constitution. "Final Court of Appeal" would
be a more appropriate name, and would get away from the idea that
the Court is in any way comparable to the Supreme Court of the
United States, an idea that may well lead to further confusion
in the minds of the general public, and to criticism of the decisions
of the Supreme Court (of the UK) when the Court accepts, as it
must, that it is Parliament which is in fact supreme.
5. The confusion arising as a result of the new
court's being called "The Supreme Court" can be seen
in the Bill itself. S.151(4) of the Supreme Court Act 1981, for
example, defines "judge of the Supreme Court" as a judge
of the Court of Appeal or of the High Court. I have not found
anything which amends this—the only amendment of s.151 appears
to be in the definition of "senior judge" (Sch.1 Pt
1 marginal note 157). Although clause 17(7) provides that the
judges of the Supreme Court (of the UK) are to be styled "Justices
of the Supreme Court", most of the references in the Bill
are to "judges of the Supreme Court", although plainly
these are not intended as references to the same people as are
judges of the Supreme Court for the purposes of the Supreme Court
Act 1981 (see, for example, the immediately following clauses
18 and 19, and indeed s.17 itself, marginal note and subs.(2),
and the heading to Part 2 of the Bill). In fact there appears
to be only one other reference to "Justices of the Supreme
Court" in the Bill—Sch.8 Pt1 marginal note 33—and
one to "Justice of the Supreme Court"—Sch.8 Pt
1 marginal note 41, both concerned with amendments to Scottish
statutes. This is in my view a most unsatisfactory state of affairs,
and lends force to the proposition that the Final Court of Appeal
should be so called; or alternatively (and by a long way second
best) that the Supreme Court of England and Wales should be renamed—which
would involve further far-reaching amendment of the Supreme Court
Act 1981, and no doubt other Acts. The present proposal appears
to have received no more thought than the original (and swiftly
aborted) announcement of the instantaneous abolition of the office
of Lord Chancellor.
6. There appears to be no reference in the Bill
to the Law of Property (Amendment) Act 1926, as to which the Chancery
Bar Association's response to CP13/03 said:
"The functions of the Lord Chancellor under
s.3(1) of the Law of Property (Amendment) Act 1926 fall into two
classes. The first, the prescribing of an official position as
entitling the holder to be a trust corporation, should, we think,
be transferred to the Secretary of State for Constitutional Affairs.
The second, under which a corporation which seeks to be accepted
as a trust corporation must satisfy the Lord Chancellor that it
undertakes the administration of trusts without remuneration,
or is required by its constitution to apply the whole of its net
income for charitable, ecclesiastical or public purposes, etc,
would seem to be more appropriately exercised by the Charity Commission."
7. Of course this too could be dealt with by
order under clause 98, as indeed could many of the transfers made
by the Bill; but as the intention appears to have been to refer
in the Bill itself to every statute which confers powers on the
Lord Chancellor, this might well be included for the sake of completeness
(or a little nearer to completeness).
8. There is no express provision in the body
of the Bill for the Head of the Chancery Division to be called
"the Chancellor of the High Court" or for the appointment
of a President of the Queen's Bench Division. These changes are,
of course, effected by amendments of the Supreme Court Act 1981
in Schedule 1, and are assumed by other provisions in Part 1 to
have been made; but they are of sufficient significance, one would
have thought, to merit a specific provision in the body of the
Bill, corresponding to clauses 4 and 5 (Head and Deputy Head of
Criminal Justice and of Family Justice respectively). The title
"Chancellor" may be thought to be rather exalted for
the head of the Chancery Division, who for the past 30 years has
been known as merely the Vice-Chancellor, and give a misleading
impression of his powers (though I have to confess that, unless
he were to remain as Vice-Chancellor when there was no Lord Chancellor
to whom he was vice, which, though not entirely logical, I understand
was originally the preference of the Vice-Chancellor, the Chancery
judges and the Chancery Bar, I cannot think of a better title).
9. The comments made above may be regarded to
some extent as nit-picking, but this is inevitable given the policy
decisions that are presumably not open to review (see paragraph
1 above). There are no doubt other similar criticisms that could
be made of the detailed drafting of the Bill, but shortage of
time does not permit the use of a fine tooth comb, and I have
only mentioned a few matters which have occurred to me on looking
through the Bill and the Explanatory Notes, and which seem to
me worth drawing to the attention of the Select Committee.
10. This Memorandum is submitted by me in a personal
capacity. I was involved in the preparation of the Chancery Bar
Association's response to Consultation Paper 13/03, but I have
not discussed this Memorandum with other members of the Chancery
Bar Association, which has not, I believe, made an Association
response to the Select Committee's request for evidence. My status
in other respects, for which I am asked, will be known to several
members of the Select Committee—I am not sure what is sought
here.
19 April 2004
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