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A Report on Six Seminars About the UK Supreme Court

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A Report on Six Seminars About the UK Supreme Court Queen Mary University of London, School of Law Legal Studies Research Paper No. 1/2008 A Report on Six Seminars About the UK Supreme Court Le Sueur Andrew Electronic copy available at: http://ssrn.com/abstract=1324749 A report on six seminars about the UK Supreme Court at the School of Law Queen Mary, University of London Andrew Le Sueur November 2008 Electronic copy available at: http://ssrn.com/abstract=1324749 QMUL Supreme Court Seminars 2 Contents Part 1: Introduction 3 Part 2: The legislative framework for the UK Supreme Court 6 Part 3: Case selection 13 Part 4: Relations with lower courts and tribunals 17 Part 5: Procedures and costs 22 Part 6: Communication methods 29 Part 7: The UK Supreme Court and Scotland 39 Part 8: Constitutional relationships 47 Part 9: Participants 58 Part 10: Acknowledgments 60 Comments welcome to: Andrew Le Sueur Professor of Public Law School of Law Queen Mary, University of London 339 Mile End Road London E1 4NT Email [email protected] Electronic copy available at: http://ssrn.com/abstract=1324749 QMUL Supreme Court Seminars 3 1. Introduction Scope of the seminars: what is there still to discuss? Six seminars on the UK Supreme Court took place between January and June 2008 in the School of Law at Queen Mary, University of London. The participants were members of the judiciary, academics, legal practitioners and others (see Part 9). The topics for discussion were identified by a small working group during late 2007. By then, many aspects of the new court were already in place. Part 3 of the Constitutional Reform Act, setting the basic legislative framework for the new court’s work, had been on the statute book since March 2005. Building work at Middlesex Guildhall, the premises that will accommodate the new court, was underway. The Draft Supreme Court Rules had been published in January 2007 by the Judicial Office of the House of Lords and the consultation period had come to an end in April 2007. BOX 1 TIMELINE June 2003 Government announce their intention to create a UK Supreme Court February 2004 Constitutional Reform Bill introduced to Parliament December 2004 Government announce selection of Middlesex Guildhall to house the court March 2005 Constitutional Reform Bill receives Royal Assent January 2007 Draft Rules of the UK Supreme Court Rules published for consultation April 2009 Rules of the Supreme Court to be submitted to the Lord Chancellor October 2009 UK Supreme Court opens for business During 2003-05, there was a great deal of political and academic debate about the merits or otherwise of creating a new court in the form envisaged by the Government. There was also was a considerable amount of official consultation. The Department for Constitutional Affairs, the House of Lords Committee on the Constitutional Reform Bill, the House of Commons Constitutional Affairs Committee, and the Justice 2 Committee of the Scottish Parliament all took written and oral evidence on the reasons for establishing a new court, its proposed structure and its likely impacts on the constitution. But as a Law Lord speaking at the first seminar said, these political exercises were inevitably ‘a rather blunt instrument’ and there remains a need for more detailed consultation and discussion on a range of issues relating to the work of the new court. The invitations to participants of the Queen Mary seminars explained the purpose of the discussions in this way: ‘The overarching aim of the seminar series is to stimulate debate about the operation of the new Supreme Court, due to commence work in October 2009, by considering what aspects of current features and arrangements in the House of Lords work well and ought to be preserved when the jurisdiction is transferred to the new Court; and what changes and innovations ought to be considered. Given the blend of participants—academics, judges, practitioners, officials—the ideas that emerge are likely to range from the exploratory to the practical. It is hoped, however, that some of the views expressed may be taken into account in preparing for the opening of the Court.’ QMUL Supreme Court Seminars 4 The Chatham House rule The seminars were conducted under the Chatham House Rule. The discussion at the seminars was extraordinary frank and lively, no doubt in part at least because of the confidence inspired by the Chatham House Rule. This report keeps to the spirit of the Rule. Purpose of this report This report cannot hope to capture the full richness of the exchanges of views that took place during 12 hours of discussion. Each seminar began with three or four short presentations on the topics in hand followed by fairly free-flowing conversation. Nonetheless, given the importance and general public interest in the topics discussed, it was decided that a record should be made of the seminars. Readers with limited time who want to see the gist of the points that emerged during the seminars will find these summarised under the heading Key issues near the start of each part of the report. A list of questions, which call for discussion and debate, were identified during the seminars and are set out below. Some parts of the report end with suggested further reading for people who wish to delve deeper into the topics. For readers with more time, each part of the report goes on to set out more fully the threads of discussion during each seminar. The 50 or so people who attended some or all of the seminars were not invited according to any rigorous scientific selection process, so the views expressed do not purport to be representative in any proper sense of that term; the points to emerge from the discussions do however reflect a range of opinions on most questions. General themes Many points were considered during the conversations that took place at Queen Mary. From all of these it is possible to detect two broad themes. The first is the importance of effective communication. In years gone past, the higher courts spoke only through the words of their judgments. In more recent times, we recognise that courts are significant public institutions which ought to explain their constitutional role to the public. The importance of the UK Supreme Court’s website was referred to in several seminars—as a source of information for legal practitioners as well as interested citizens. We also debated questions about the format and style of judgment-writing in the new court. These are not new issues but they have been given a particular relevance (some participants argued) because the creation of a new court marks a moment in which change might take place. Other participants made a principled and pragmatic defence of current judgment- writing practices. The second broad theme is the importance of the relationships between the UK Supreme Court and other courts and tribunals. No court is an island, entire of itself. We spoke at some length about the roles of the Court of Appeal in England and Wales and also that of the Inner House of the Court of Session in Scotland. There was considerable interest (though no consensus) in the ideas put forward—perhaps not new but certainly timely—that these intermediate courts of appeal might sit in panels of five or seven to determine appeals on some types of points of law of general public importance rather than expecting the UK Supreme Court to deal with them. The European dimension was also discussed, with interesting suggestions as to how the UK Supreme Court’s relationships with the European Court of Human Rights and the European Court of Justice might develop in the years to come. Specific questions for discussion and debate In addition to these two broad themes, a series of more specific questions emerged during the course of the seminars. 1. The current Practice Directions and Standing Orders of the House of Lords provide that ‘Leave to appeal is granted to petitions that, in the opinion of the Appeal Committee, raise an arguable point of law of general public importance which ought to be considered by the House at QMUL Supreme Court Seminars 5 this time, bearing in mind that the matter will already have been the subject of judicial decision and may have already been reviewed on appeal. A petition which in the opinion of the Appeal Committee does not raise such a point of law is refused on that ground.’ Is this formulation sufficient or should the criteria for permission be set out more fully? 2. Should reasons be given (a) for the refusal and (b) for the grant of permission? 3. Should the practice of permission in each case being determined by three Law Lords continue in the UK Supreme Court or would there be benefits in involving a larger number of Justices in the process? 4. Should the UK Supreme Court receive submissions from third party interveners at the permission stage? 5. Should the UK Supreme Court receive fuller submissions from respondents at the permission stage? 6. Should appeals from the Inner House of the Court of Session be made subject to a general requirement of permission? 7. What information about pending petitions for permission, and appeals awaiting hearing, should be contained on the UK Supreme Court website? 8. Would there be benefits in the intermediate courts of appeal sitting more routinely in panels of five, seven, or even nine to determine questions of law? 9. In relation to the Court of Appeal (Criminal Division) in England and Wales, the Administration of Justice Act 1960 provides that a pre-condition to granting permission is that the Court certifies that ‘a point of law of general public importance is involved in the decision and it appears to that court ..., that the point is one which ought to be considered by the Supreme Court’.
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