Memorandum by Mark Ryan
1. The submission detailed below represents my
own personal submission and does not represent the views of my
employer, Coventry University.
2. My submission supports the main elements of
the Constitutional Reform Bill (the abolition of the Lord Chancellor,
the establishment of a Supreme Court and a statutory Judicial
Appointments Commission) as further modernising the United Kingdom's
uncodified constitutional arrangements as well as linking with
earlier reforms, viz, the Human Rights Act 1998 (Article 6 the
requirement for an independent and impartial tribunal)
and devolution (resolving devolution issues). The Bill is to be
welcomed as a seminal constitutional measure which would realign
the institutional balance of our constitution so as to further
accord with the separation of powers. It is, however, worth noting
that in spite of its constitutional and historic importance, the
Bill was not specifically foreshadowed in either the 1997 or 2001
Labour Party general election manifestos. Although it has been
suggested that Part 3 of the Bill (dealing specifically with a
statutory Judicial Appointments Commission) could be severed and
legislated on separately, it is submitted that the Bill should
be viewed, and voted on, as one inter-connected composite package
of constitutional reforms. My short submission will be confined
to consideration of the creation of the Supreme Court.
3. It is submitted that the establishment of
a separate Supreme Court is a desirable and long overdue constitutional
reform. This measure would necessarily enhance the independence
of the highest court by virtue of the fact that its serving judges
would be separate and independent from the Legislature and therefore
no longer directly involved in the passage of legislation.
4. Although the Bill detaches the senior judiciary
from Parliament, it does nevertheless detail in Clause 21 that
the Executive (in the form of the Minister, viz, the Secretary
of State for Constitutional Affairs) would determine the Justices
to sit in the Supreme Court after an ad hoc Commission
had prepared a list of between two and five possible candidates.
Although the Bill is prefaced on the assumption that the Executive
should have a significant input in relation to the appointments
to the Supreme Court (an assumption which in itself is constitutionally
arguable), it is submitted that the discretion conferred on the
Minister under Clause 21 is unacceptably wide and, therefore,
perhaps consideration should be given to confining the choice
to a fewer number of candidates. Indeed, the Consultation Paper
published in July 2003 in relation to the creation of a Supreme
Court, initially envisaged such a Commission putting forward the
names of only one or two candidates (Constitutional reform:
a Supreme Court for the United Kingdom, paragraph 41). In
any event, one possible way of fettering the discretion of the
Minister in relation to, for example, a list of five candidates
under Clause 21, would be for the Commission to list all five
candidates in order of suitability and specifically require the
Minister to openly justify and explain the selection of his/her
particular appointment.
5. During the Second Reading of the Bill in the
House of Lords, legitimate concern was expressed that it may well
be that a future Minister, in relation to this Bill, could well
be an individual who would not be a lawyer (therefore lacking
appropriate legal knowledge or experience), but who would nonetheless
select Justices to sit in the Supreme Court. Moreover, this Minister,
under Clause 36, would also be able to allow, or disallow, Supreme
Court Rules (made by the President of the Court) which would regulate
the procedure and practice of the Supreme Court. Accordingly,
therefore, one possibility could be to specify in the Bill that
the office of the Minister referred to in Clause 1(4) should only
be performed by an individual with a minimum of specific legal
knowledge/experience. Alternatively, arguably a constitutional
convention might be developed to achieve the same objective.
6. The removal of the judicially active Law Lords
from Parliament will necessarily have an impact on the House of
Lords in its legislative capacity. Although it is conceded that
the Chamber would lose the valuable advice and expertise provided
by these senior judges, the point has to be made that, in any
event, the contributions of the Law Lords have always been circumscribed
by convention and more recently by the self-denying ordinance
statement issued by Lord Bingham in June 2000. In any event, the
departure of the Law Lords would not leave the House of Lords
devoid of any legal knowledge, as the Chamber contains members
with legal expertise (both practical and academic).
7. Although under the Bill the Justices of the
Supreme Court would be separated from the Legislature, nevertheless
it is suggested that they should not operate in a constitutional
vacuum and become isolated from Parliament. Accordingly, serious
consideration should be given to the suggestion of the creation
of a Joint Committee of both Houses of Parliament to facilitate
communication between the Judiciary and Parliament. Moreover,
it is also submitted that upon appointment, but before they assume
office, putative Justices of the Supreme Court could be introduced
to, and reviewed by, Parliament (this could arguably be performed
by the Joint Committee indicated above).
8. The titles of the Supreme Court and Justices
of the Supreme Court are to be welcomed as they convey the constitutional
importance (and unifying factor) of the Court at the head of the
United Kingdom court structure. Indeed, these terms may help to
some extent to demystify the hierarchy of the courts system, as
the present title of the Appellate Committee of the House of Lords,
together with the term Lords of Appeal in Ordinary, are apt to
mislead the non-lawyer. One consequence of the adoption of these
terms may be that other existing court titles (viz, Lord Justice
of Appeal) may also have to be reviewed.
9. Finally, the establishment of the Court must
be fully and accurately costed and the accommodation selected
for its physical separation from Parliament must be architecturally
appropriate to the constitutional standing of the Court. Accordingly,
although the severance of the Bill is opposed (as indicated in
paragraph 2), it is contended that it would be appropriate to
support Lord Goodhart's suggestion (Hansard, 8 March 2004,
col 1099) that a sunrise clause could be inserted into
the Bill with the result that Part 2 of it (ie, the establishment
of the Supreme Court), would only come into operation subject
to the provision of appropriate accommodation being satisfied.
21 April 2004
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