The government is proposing to create a supreme court and to reform the judicial appointments process. Will these reforms enable judges to perform their functions more effectively?

Student Number: 2333850

By Richard Onwuka

Introduction:

On the 12th June 2003 Lord Falconer was appointed as the first Secretary of State for Constitutional Affairs, a position created to head the Department of Constitutional Affairs. Both the position and department were created to replace the Lord Chancellor post and his department, yet this was only the beginning of the reforms government intended to achieve. In fact, on that same day the government announced its intention to explore the creation of a Supreme Court as well as the implementation of changes to the judicial appointment process.

The question in the title asks whether the changes the government wished to make would cause the Judiciary to function anymore effectively, yet before this question can be answered one must first know why such changes wish to be made. It is believed that there exist two main reasons as to why the government took this stance on reforming the Judiciary in such a way. The first reason was believed to have developed from the pronouncement that the Judicial Committee of the Privy Council would be known as the final court of appeal over “devolution issues”, in other words it would be court which ensures that devolved administrations do not exceed the power provided to them by statute. The second reason is considered to have arisen out of the United Kingdom’s international obligation to abide by the European Convention of Human Rights, as incorporated by the Human Rights Act 1998. Article 6, the convention of jurisprudence encouraged countries to take a sever view on anything which could affect, or appear to affect, the independence of a judicial hearing. An example of this is in the case of Findlay v United Kingdom in which a soldier, who pleaded guilty at his court martial, successfully challenged the court martial on the grounds that the same senior officer who convened the court martial appointed the defense and prosecution council, plus the panel members. From this a view asserting that Judges should have no part in the legislature grew, “Judges should have no part of the legislature …….it is very difficult to understand why our Supreme Court (the Law Lords) should be a committee of the second house of parliament”.

Aims of the Supreme Court:

The major aim in the establishment of the Supreme Court would be to remove the increasing public skepticism surrounding judicial bias, and also the lack of judicial independence preventing political influence. In regards to judicial bias the skeptics are not without their reasons, when judges make a statement which comprises of an impartial stance, such as is recognized in the case of Locabail Ltd v Bayfield properties Ltd. Thus theoretical belief is that the creation of the Supreme Court will place the affiliation between the Executive, Legislature and Judiciary on a “modern footing” bringing the principle of separation of powers in the United Kingdom into the 21st century. This would be done through the removal of Judges’ from the legislature, thus establishing the required level of independence and transparency in the judicial system, so to assure the public that the Judiciary is not politically influence.

Past and Present Status of the House of Lords:

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Past and Present Status of the House of Lords:

The Appellate Jurisdiction Act 1876 confirmed the power, by which the peers should be appointed. At present there exist 2 bodies within the House of Lords, the first of which to mention is the Appellate Committee, known as the “ultimate legal guardian of the constitution”. This body carries out the judicial functions of the House, hearing only those appeals of general public importance from the Court of Appeal in the United Kingdom. Those who sit in this part of the House are known as Law lords, or Lords of Appeal in Ordinary, of which the act of 1876 asserted there may only be 12. It is known that the judicial role of the House of Lords originated from the time period of the medieval monarchs of England, at this time House acted in the capacity of a Royal council advising monarchs on matters of state. It was not until the 16th century when the House took a permanent grasp over the appellate jurisdiction, and then in the 19th century the Crown felt the House was in disarray so in an attempt to introduce stability created life peers. The second body of the House is known as the Judicial Committee of the Privy Council, established under the Judicial Committee Act 1833, with its foundation being rooted from the medieval right to appeal to the sovereignty. This Committee has 3 main functions; it works as the final court of appeal for some of the commonwealth jurisdictions. It has also been empowered to hear devolution cases referred from those devolved administrations, such as Scotland or Wales. The last function is to deal with technical jurisdictions, such as “appeals against pastoral schemes in the Church of England”.

Advantages of the Supreme Court:

The superior role which the Judicial Committee of the Privy Council now plays has caused a question to arise out of the debate, “would it not make sense in effect to amalgamate the Appellate Committee ……… Judicial Committee of the Privy Council into a single Supreme Court of the United Kingdom”. According to Lord Steyn the creation of a Supreme Court autonomous of other branches of Government, enhances the removal anomalous privilege of sitting in the appellate committee. Yet at the same time still acknowledging the rule of Parliamentary Sovereignty set about by Dicey, that no court could declare a statute illegal. The creation of a Supreme Court can also be said to be abiding with the theory of the Rule of Law, as the procured independence provided by this new court would prevent “a democracy descending into an elected dictatorship”. The increased independence would also increase compliancy with the principles of the Separation of Powers, establishing “sufficient transparency of independence” to increase public assurance in the distance between the Judiciary and other bodies. The creation of this new court would not only move the judiciary out of the shadow of the legislature, but also into a new building creating more space for the Law Lords, for which 1 at the moment does not even have an office. In regards to the devolution issues at present England has come under fire for having a conflict of interests, but since the new court would be made up of Judges from all over the UK, instead of from just England, thus the problem is erased. Finally the new court can hear more cases than the older House of Lords.

Disadvantages of the Supreme Court:

A major concern of certain Judges at present is that implementation of the new measures has been too rushed, affecting long standing traditions without proper consideration. For example the doctrine of precedent would not work in the same way being that a Supreme Court relies on cases to be considered in abstract. It is felt by many that the House of Lords has benefited from having Judges sitting as peers, as it gives them full insight into the government’s intention for creating a statute. Therefore better aiding in the interpretation of acts in relevant cases. Lord Woolf is 1 of the many to disagree with the creation of the new court feeling it would be too costly, with an overrule bill of ₤50 million needed to create the court. Others have voiced the view that in comparison to other Supreme Courts of the world the UK version would a “poor relation”. Though the new court maybe able to hear more cases due to its increase in size, this size increase though a benefit can hinder the court for the reason that it may cause problems as to which Judge is selected to hear a case. It must be considered as to whether this new court would be in breach of the 1707 Act of Union, but at the same time must be asked why change something that already works “a change to new Supreme Court is unnecessary and harmful, since the present arrangements works well”, plus it is felt we would be “exchanging a first class final court of appeal for a second class Supreme Court”

Present Judicial Appointment scheme:

It is known that many of the high judicial positions are appointed by the Prime Minister or Queen, on advice given by the Lord Chancellor, whilst any position from High Court Judge and lower are elected by the Lord Chancellor. Yet each candidate must fulfill the necessary statutory requirements. First a candidate must if applying for any position above Senior Circuit Judge make an application in writing; from here there is a consultation, or assessment done on applicant. Once a sift is conducted those who are short-listed are interviewed and then a decision is made.

Previous problems and reforms:

It is felt that many of the basic features of selection are rooted in the past, such as the Lord Chancellor virtually having sole control over those elected. Some have highlighted the confusion of the Lord Chancellor’s role, with his time mainly consumed with judicial selection rather than the administering of justice. Lord Irvine the previous Chancellor had the process of selection scrutinized by Sir Peach, who suggested the implementation of an independent commission for election, so to remove pressure off the Chancellor and also to take away some of the selection power which he had a monopoly over.

New Reforms and Advantages:

There exists only one major reform which the government wishes to implement and that is the creation of this long since needed commission. Though there are models of the commission that the government could adopt, the most likely is that which would recommend to Prime Minister or Queen who would be appointed. This new commission would make the selection process less secretive, thus more open and transparent. Also the problem of racial and gender diversity can be slowly overcome, yet this would not necessarily infringe on keeping the statutory requirements. Again this reform is said to free the Chancellery department to focus on administrational role. The model of commission stated to be preferred, would retain the older traditions of selection, yet would also remove the excess control said to be held by the Chancellor.

Disadvantages of the Reforms to the Judicial Appointment Process:

Very few seem to have a problem with the new commission which the government wishes to implement, except that it still has sum ministerial influence, and once again there are those who are hesitant, merely because they are reluctant to change the older system that is said to work.

Conclusion:

So will these reforms help the Judges perform better? Aside from the associated views of certain Lords with respect to Parliamentary Sovereignty and the Rule of Law, and how the new Supreme Court would further the judiciary’s role in regards to both. Yet the new court would also provided a needed independence to assure the public that the judiciary is not just a puppet of the government, while at the same time giving the Law Lords much needed physical space. Though these are bonuses the new court is not without its downfalls in regards to expense and lack of support, which in turn may cause descent within the judiciary. On the other hand the reforms or the reform to the judicial appointment system, seems to have no drawbacks, in fact many believe they are essential if the judiciary is to progress to a more socially acceptable system.

Word count: 1866

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