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Published online by Cambridge University Press: 02 January 2018
Of the four Consultation Papers produced by the Department for Constitutional Affairs over the summer of 2003, in many ways the most interesting was Constitutional Reform: A Supreme Court for the United Kingdom, not just for what it did say, but also for what it did not. For example, respondents were not asked whether the Government should replace the House of Lords with a Supreme Court or not. That was taken as a given. Yet the omission was all the more curious in the light of the fact, as subsequently became clear, that at least half of the current Law Lords do not favour the introduction of a Supreme Court.
1. Department for Constitutional Affairs, CP11/03 (July 2003) (hereinafter Supreme Court). For an important review of the arguments from a Scottish perspective, see J Chalmers ‘Scottish Appeals and the Proposed Supreme Court’ (2004) 8 Edin LR 4.
2. See the Law Lords' response to CP 11/03 of 27 October 2003.
3. These Law Lords were heavily criticised in the press for their conservatism. See especially P Riddell The Times, 13 November 2003 and M Kettle Guardian, 11 November 2003. Conservatism does weigh heavily in the corridors of the House of Lords. It was only in 2000, 80 years after an independent Ireland struck out on its own, that the Law Reports dropped the reference in the introduction to the annual Appeal Cases to ‘Irish’ as well as English and Scottish appeals.
4. This paper does not address the claim for distinctive treatment made on behalf of Northern Ireland and Wales, where the claims are based not on systemic differences but divergence between rules, especially in the light of devolution, language and ‘social arguments’ deriving from the need to treat the different parts of the United Kingdom equally. In this last respect, perhaps the different regions of England could also stake separate claims, at least to representation on the bench. For articulation of the claims of Northern Ireland and Wales, see the evidence given to the inquiry undertaken by the House of Commons Select Committee for Constitutional Affairs (hereafter Constitutional Affairs Committee) on 2 December 2003. References in this paper to the oral evidence given to that Committee are to the uncorrected transcript on the Committee's website.
5. Constitutional reform: reforming the office Of Lord Chancellor CP 13/03 (2003).
6. Alternatively, see Lord Hope of Craighead ‘Taking the Case to London - Is it all over?’ 1998 JR 135. See also Lord Hope's evidence to the Constitutional Affairs Committee on 2 Dec 2003 at QQ 299–300 where he speaks of the need for a ‘Sewel motion’ in the Scottish Parliament if the reform is to be implemented at Westminster.
7. See the proposal of 11 September 2003 of Adam Ingram MSP for a Civil Appeals (Scotland) Bill. See also the motion in the Scottish Parliament by Margo MacDonald MSP on ‘The Future of the Scottish Legal System’ - S2M–179.
8. MacCormick v Lord Advocate 1953 SC 396.
9. See eg Pringle, Petitioner 1991 SLT 330; and Murray v Rodgers 1992 SLT 221. See also N Walker and C M G Himsworth ‘The Poll Tax and Fundamental Law’ 1991 JR 45.
10. See the introduction to the Faculty's formal response to the Supreme Court consultation.
11. See also the robust submission by the Senators of the College of Justice on the requirements of the Treaty in their response to CP 11/03. However, for an alternative assessment of the intentions of those who negotiated the Treaty see A J MacLean ‘The House of Lords and Appeals from the High Court of Justiciary 1707–1887’ 1985 JR 192; and Stair Memorial Encyclopaedia vol 6 ‘Courts and Competency’ paras 810–13. Separately, Lord Hope has expressed fears that English influence over the Court might increase in an undesirable way if it moves out of Parliament to Somerset House in the Strand and thus nearer to the English courts. At the social level, English judges might take to lunching with their English colleagues across the road rather than with Supreme Court judges. See evidence to the Constitutional Affairs Committee of 2 December 2003 at QQ 279–282 and 290. An answer might be to locate the Court in the Lake District?
12. This section draws to an extent on C Himsworth ‘A Supreme Court for the United Kingdom’ (2003) SCOLAG 178.
13. Supreme Court, n 1 above, para 27 (on civil appeals). See also the Executive's response to CP 11/03 of 14 November 2003.
14. For discussion of this history and, in particular, the leading case of Mackintosh v Lord Advocate (1876) 3R(HL) 34, see the response of the Senators of the College of Justice to the consultation in relation to para 18. But see also MacLean, n 11 above; and Stair Memorial Encyclopaedia vol 6 ‘Courts and Competency’ paras 810–813.
15. Supreme Court, n I above, para 26.
16. [2001] 1 AC 300.
17. [2001] 1 AC 300 at 304.
18. See eg very recently and very prominently, A-G’ s Reference (No 2 of 2001) [2003] UKHL 68.
19. The story is best told in A Dewar Gibb Law from over the Border (Edinburgh: W Green, 1950).
20. Lord Hope of Craighead ‘Taking the case to London - Is it all over?’ 1998 JR 135 at 146.
21. 2000 SC (HL) 1.
22. 2000 SC (HL) 1 at 4.
23. Recent examples include Morris v KLM Royal Dutch Airlines, King v Bristow Helicopters Ltd [2002] 2 AC 628.
24. [2000] 1 AC 119.
25. [2002] 2 AC 357.
26. [2002] 3 All ER 97 at 114–117.
27. [2002] AC 1.
28. [2002] AC 1 at 23–36.
29. A Le Sueur and R Cornes ‘What do the Top Courts do?’ (2000) 53 CLP 53.
30. For a powerful defence of this position, see the response of the Senators of the College of Justice to CP 11/03 in relation to para 18, and especially on the issue of confining the binding authority of decisions of the Appellate Committee to the jurisdiction generating the appeal. One effect of the proposed transfer of JCPC business to the Supreme Court would be to dissolve the existing difference between the authority in Scotland of decisions of the JCPC and the Appellate Committee explored by Lord Hope in A-G's Reference (No 2 of 2001) [2003] UKHL 68 at [102]–[108].
31. As Lord Hope has said: ‘I have always looked on the House of Lords as a court which serves Scotland in its own jurisdiction. The idea of a UK supreme court is a slightly misleading one from the Scottish point of view.’ (Evidence to the Constitutional Affairs Committee, 2 December 2003 at Q 279).
32. As Lord Hope has also asked, ‘What's in it for us?’: 1998 JR 135 at 145. See also H L MacQueen ‘Scotland and a Supreme Court for the UK?’ 2003 SLT (News) 279.
33. For an articulation of that distinction, see Dame Brenda Hale in evidence to the Constitutional Affairs Committee on 18 November 2003 at Q 167.
34. P W Hogg Constitutional Law of Canada (Toronto: Carswell, 4th edn, 1997) p 215.
35. One canvassed by Stephen Tierney, an Edinburgh University Law School colleague, at a seminar on the Supreme Court held at the University on 29 September 2003.
36. See eg H MacQueen and D Brodie ‘Private Rights, Private Law, and the Private Domain’ in A Boyle et al (eds) Human Rights and Scots Law (Oxford: Hart Publishing, 2002).
37. From a quite different perspective it may be questioned whether there is indeed any strong argument in favour of maintaining uniformity across human rights adjudication. See C Himsworth ‘The Hamebringing: Devolving Rights Seriously’ in Boyle et al (eds), n 36 above. There should at least be room for human rights adjudication which is sensitive to the different rules and procedures of different legal systems. For discussion of the differing impact of delay in criminal cases, see Lord Hope in evidence to the Constitutional Affairs Committee on 2 December 2003 at Q 304. And see now A-G s Reference (No 2 of 2001) [2003] UKHL 68.
38. ‘Devolved matters’ is not a term used in the Act.
39. Hector MacQueen distinguishes ‘single market law’ from the rest for this purpose. See 2003 SLT (News) 279.
40. See A Le Sueur [2003] PL 368.
41. Scotland Act 1998, s 28(7).
42. For exceptions, see Stair Memorial Encyclopaedia vol 6, para 829.
43. Normally, but not necessarily, counsel in the case.
44. Supreme Court, n 1 above, para 56.
45. The Faculty of Advocates did subsequently argue in their submission that, without further consideration, no change should be made.
46. See Chalmers, n 1 above.
47. See D Carr ‘Scotland and the Supreme Court’ 2003 SCOLAG 206; and H L MacQueen ‘Scotland and a Supreme Court for the UK?’ 2003 SLT (News) 279.
48. From the Senators of the College of Justice (p 7). the Faculty of Advocates (Qn 3), the Law Society (p 5) and the Scottish Executive (p 3). The last, however, would accept a statutory entitlement to two Scottish-trained judges provided the door was left open for more Scottish members or reserves.
49. Where the law is closer to English law than is the position in Scotland.
50. Department for Constitutional Affairs Constitutional Reform: A New Way of Appointing Judges CP10/03 (July 2003) para 58, p 30 (hereinafter Appointing Judges). The Senators of the College of Justice in Scotland also make the point that appointments to the Supreme Court will need to bear in mind ‘the balance of membership required by the Court’ in their response to the Supreme Court Consultation Paper at p 8.
51. See eg Dame Brenda Hale ‘Equality and the Judiciary’ [2001] PL 489; Dame Brenda Hale ‘Equality in the Judiciary’, 10th Pilgrim Fathers' Lecture, October 2003; the Rt Hon Beverley McLachlin CJ ‘Promoting Gender Equality in the Judiciary’, seminar to the Association of Women Barristers, House of Commons, 2 July 2003; and Kate Malleson The New Judiciary (Aldershot: Dartmouth Plg, 1999).
52. ‘Most serious outside observers know that this will not happen’: quoted in Frances Gibb ‘Choice of judges fails democratic legitimacy’The Times, 4 April 2001. The Commission for Racial Equality in its evidence before the Constitutional Affairs Committee on 18 November 2003 opposed waiting for the ‘trickle up effect’.
53. Judges' Council response to the Consultation papers on Constitutional Reform (November 2003) para 72, p 16. In November 2003 only six of 106 High Court judges were women and two out of 38 Lord Justices of Appeal.
54. The Rt Hon Beverley McLachlin, Chief Justice of Canada ‘Promoting Gender Equality in the Judiciary’, seminar to the Association of Women Barristers, House of Commons, 2 July 2003.
55. The up-to-date figure for female judges in England and Wales in 2003 was 14.9%.
56. ‘The Judge as Law Maker’ (1972) (XII) Journal of the Society of Public Teachers of Law 22. Cited with approval by Justice Michael Kirby of the Australian High Court in his Hamlyn Lectures on Judicial Activism (delivered on 19 and 20 November 2003 at Exeter University Law School); by Lord Hoffmann in ‘The Role of the Appellate Judge in England’, address to the Franco-British Lawyers' Society, Glasgow, 20 September 2003; and by Lord Browne-Wilkinson in Kleinwort Benson Ltd v Lincoln CC [1998] 3 WLR 1095 at 1100, adding ‘In truth judges make and change the law.’ Interestingly, the Law Lords in their response to the Supreme Court Consultation Paper, n 2 above, observe (para 30, p 11) that the qualities required of a Law Lord include ‘the capacity to formulate legal policy at a high level’.
57. The entry to Europe and primacy of EU law has led to the judges de facto being in a position to comment on the constitutionality of British statutes. Again, the devolution settlement gives the judiciary the power to challenge legislation of the Scottish Parliament on the grounds that it contravenes the terms of the Scotland Act 1998.
58. See R Stevens ‘A Loss of Innocence?: Judicial Independence and the Separation of Powers’ (1999) 19 OJLS 365 at 399; and R Stevens The English Judges (Oxford: Hart Publishing, 2002) Curiously, the Judges' Council in responding to the Lord Chancellor's four Consultation Papers, identify exactly these areas of law as having changed the judges' role with a consequent need for judicial independence (n 53 above, para 31, p 7), although there is no reference to the changes having any implications for accountability.
59. See also his speech to the Police Federation in Blackpool in May 2003: ‘I just like judges that live in the same real world as the rest of us. I just want judges that help us and help you to do the job.’
60. See the remarks of Lord Woolf and Lord Justice Judge at a press conference held by the judges to express disquiet at the proposed reforms. The latter underlined his concerns at possible threats to judicial independence from extremists by referring to the rise of Hitler under the Weimar republic and to the strength of the National Front in the recent French presidential election. Whilst tactically risky, it is unclear that this approach significantly hampered the judges' subsequent discussions with the Government. ‘Top judge fears legal reform will raise ghost of Nazis’The Times, 7 November 2003, p 4.
61. See Stevens (1999), n 58 above, at 398.
62. During the three hearings of the Pinochet case in the House of Lords the Daily Telegraph on the 18 January 1999 ranked the Law Lords on a conservative-liberal continuum of judicial attitudes. On judicial activism generally, see Malleson, n 51 above, ch2.
63. See eg Stevens (1999), n 58 above, at 399. As Stevens shows, Sir Thomas Legg -former Permanent Secretary to the LCD - and leading Conservative MPs have called for confirmation hearings for senior judicial appointments in England and Wales: at 400. In practice, public challenges to potential federal judges in the US Senate are much rarer that the popular memory suggests. Only four of 168 Bush nominees for federal judicial appointments have been rejected in the Senate: New York Times, 10 November 2003. Moreover, the public hearings in South Africa eschew ideological interrogations.
64. The Consultation Paper, having raised the possibility of confirmation hearings, immediately rejects them since it would bring politics into the appointments process and undermine the independence of the judiciary: Appointing Judges, n 50 above, para 45, p 33. As the Law Lords observe in their response to the Paper (n 2 above, para 16, p 6): ‘The process of appointment [to the Supreme Court] should be wholly apolitical and should not in any way infringe the independence of the judges.’ Interestingly, the Bar Council seems also to have rejected confirmation hearings for the reason that they would encourage unimaginative appointments from the minister. See their evidence to the Constitutional Affairs Committee, 18 November 2003 at QQ 137–138.
65. Part of the problem also turns on whether the Supreme Court is going to sit en banc or in panels. Robert Stevens has been particularly scathing as to the damage caused to the public perception of the authority of the House of Lords in the Pinochet hearings by the differing compositions of the panels in each hearing. See Stevens (1999), n 58 above. The Supreme Court Consultation Paper whilst acknowledging the problem that the composition of the panel may affect the outcome of the case is unwilling to accept that there is any particular problem with respect to the Supreme Court on this issue: n 1 above, paras 50–52, pp 36–37. Few of the responses favoured the new Court sitting en banc since they regarded this as either impractical in resource terms or opening the door to politicisation of the Court.
66. See A Paterson, T St J N Bates and M Poustie The Legal System of Scotland (Edinburgh: W Green, 4th edn, 1999) ch 8.
67. Their view was that an Appointments Commission would lack the necessary expertise to assess the comparative merits of senior judges or the balance of membership required by the Court (p 8). The tenor of the submission suggests that for these posts the status quo is, in their view, rightly dominated by the senior judiciary.
68. Eg the response of the Law Society of Scotland on p 4.
69. A position favoured by the existing Law Lords (p 9), the Judges'Council (p 29) and some in the Faculty of Advocates (Qn 11). Here the power in the process has shifted largely into the hands of the judiciary.
70. Appointing Judges, n 50 above.
71. This may not be simple to achieve. Under the current system, in theory the Lord Chancellor could have been held to account in the Upper Chamber for his judicial appointments. However, as Lord Mackay of Clashfern honestly admitted, this form of theoretical accountability was never exercised in practice (see Malleson, n 51 above, p 88). If there is to be a Judicial Appointments Commission it must issue an Annual Report and be prepared to defend it before a parliamentary select committee each year. The current Lord Chancellor, Lord Falconer of Thoroton, indicated in his evidence to the House of Commons Committee on the Lord Chancellor's Department on Monday 30 June 2003 at QQ 66–67 that in order to prevent totally unacceptable individuals being appointed: ‘One of the issues we need to accommodate in the Appointments Commission is accountability to Parliament for the judges … [whom they nominate].’
72. The Prime Minister after consultation with the First Minister in Scotland and the First and Deputy First Minister in Northern Ireland. The Scottish Judicial Appointments Board has operated along similar lines in its first year. None of its 44 nominations was queried by the Executive. However, the experience of the Ontario Judicial Appointments Advisory Committee, which offers a wider degree of discretion to ministers, may not have not been entirely satisfactory in this regard - since it is thought by some to have encouraged party politics to come into judicial appointments. Significantly, the majority of the existing Law Lords favour the Commission recommending only one name to the Secretary of Sate for Constitutional Affairs in order that the process be ‘wholly apolitical’ (see para 24 of the Law Lords' response, n 64 above). The Bar Council prefers one name to be offered to the Prime Minister, with the possibility, in extreme cases of rejection on cause shown (see para 35, p 10).
73. Because in the former court, whatever its jurisdiction, the judiciary will inevitably (for the reasons discussed above) be more engaged in policymaking and lawmaking than their counterparts in the lower courts.
74. As the Bar Council pertinently notes in its response to the Supreme Court Paper, para 27, p 8: ‘it is important to recognise that the executive does have a legitimate interest in the composition of the Court… it is important to avoid a situation where the judiciary can be portrayed by a hostile executive as an un-elected body responsible to no-one should there ever be genuine constitutional conflict.’ For a similar argument see comments of Ross Cranston MP, former Solicitor General, during the proceedings of the Constitutional Affairs Committee on the 18 November 2003 at Q 143.
75. Supreme Court, n 1 above, para 38, p 28.
76. Supreme Court, n 1 above, para 43, p 31. This approach was acceptable to many respondents including the Commissioners for Judicial Appointments, the English and Scottish Law Societies and (in part) the Bar Council. However, the Faculty of Advocates (for slightly convoluted reasons relating to the Act of Union) is opposed to the Commission's members being drawn from the English, Scottish and Northern Irish Appointments Commissions. The Law Lords and the Judges' Council by implication also rejected the composite model (n 2 above, para 26, p 9 and n 53 above, para 164, p 29 respectively).
77. Appointing Judges, n 50 above, para 120, p 56. The Government's preferred balance for the JAC, as set out in the Consultation Paper, is five judges, five lawyers and five laypersons. (para 121, p 57).
78. Appointing Judges, n 50 above, para 26, p 9 and para 164, p 29 respectively. The Faculty of Advocates has some sympathy with the similar option of the Court appointing its own members but accept that if there is to be a Commission it should have a significant lay membership.
79. In fairness, it should be noted that Lord Mackay of Clashfern has indicated that while he was Lord Chancellor he ‘always convened a meeting of all the Law Lords as well as the Lord Chief Justice and the Master of the Rolls in deciding who to nominate to the Prime Minister for appointments in the House of Lords’. See his evidence to the Constitutional Affairs Committee on 16 September 2003 at QQ 18–19.
80. Eve was Framed: Women and British Justice (London: Chatto and Windus, 1992)p 267.
81. Dame Brenda Hale ‘Equality in the Judiciary’, 10th Pilgrim Fathers' Lecture, October 2003, p 17. She repeated these sentiments in her response to the Consultation Papers.
82. He was referring to a Commission for the lower courts, but his argument would apply equally to a Supreme Court Commission.
83. ‘Judges for the New Century’ [2001] PL 62 at 73. Similarly, Sir Geoffrey Palmer (formerly Attorney-General, Justice Minister and Prime Minister of New Zealand) has remarked: ‘If judges are on the Commission they will exert great weight on the opinion of the lay members. The tendency to turn the judiciary into a self-perpetuating oligarchy ought to be restricted.’ See ‘Judicial Selection and Accountability’ in B D Gray and R B McClintock (eds) Courts and Policy Checking fihe Balance (Wellington: Brookers, 1995) pp 81–82. See also Professor Robert Stevens' evidence to the Constitutional Affairs Committee on 11 November 2003 at Q 87: ‘It is government by the judiciary and most societies think that is not necessarily a good thing, so you need some checks and balances
84. Above n 2, para 27, p 10 and n 53 above, para 165, p 30 respectively.
85. Above n 2, para 27, p 10.
86. Interestingly, the Law Lords are of the opinion that one or both of the two lay members which they recommend for the Commission might be legal academics, n 2 above, para 26, p 9.
87. This is the approach currently favoured by the Scottish Judicial Appointments Board.
88. Much of the success of the Scottish Board in establishing its independence and legitimacy can be attributed to having a strong lay chair, Sir Neil McIntosh, who commands the respect of the Board, the Scottish Executive and the wider legal community.
89. A possibility considered in the Consultation Paper (at para 46) and supported by a number of respondents, including the Society of Legal Scholars, the Bar Council and the Law Societies of England and Wales and of Scotland. Perhaps because the proposal was seen as watering down the requirement of expertise as a court practitioner, it was rejected by the Faculty of Advocates, the Law Lords, the Judges' Council and the Senators of the College of Justice.
90. On 14 July 2003, the First Minister's Official Spokeswoman reported that the First Minister and the Lord Advocate had been involved in the consultation since the announcement that a Supreme Court would be set up, and clearly felt that they had influenced the Consultation Paper in a way that ensured that Scottish interests would be met. The First Minister issued a news release on behalf of himself and the Lord Advocate on the same day.
91. As Lord Hope has explained, he first learned about the Supreme Court proposal when watching the news at Heathrow. See evidence to the Constitutional Affairs Committee on 2 Dec 2003 at Q 288.
