HOUSE OF LORDS

The Law Lords’ response to the Government’s consultation paper on Constitutional reform: a Supreme Court for the United Kingdom

(CP 11/03 July 2003)

1. This paper has been drafted to convey the majority view of the current Lords of Appeal in Ordinary. There are important questions of principle and detail on which opinions differ and on which individual Law Lords may wish to respond separately. The response should be read subject to six important provisos.

2. First, it should not be thought that the Law Lords as a body support the proposal to establish a new Supreme Court of the United Kingdom. A number of serving Law Lords 1 believe that, on pragmatic grounds, the proposed change is unnecessary and will be harmful. The present arrangements work well. They believe that the Law Lords’ presence in the House is of benefit to the Law Lords, to the House, and to others including the litigants. Appeals are heard in a unique, suitably prestigious, setting for this country’s court of final appeal. The ‘House of Lords’ as a judicial body is recognised by that name throughout the common law world. Overall, it is believed, it has a fine record and reputation. The Law Lords who do not support the proposed change consider these real advantages need not be, and should not be, put in jeopardy. They consider that the cost of the change would be wholly out of proportion to any benefit. Other serving Law Lords 2 regard the functional separation of the judiciary at all levels from the legislature and the executive as a cardinal feature of a modern, liberal, democratic state governed by the rule of law. They consider it important, as a matter of constitutional principle, that this functional separation should be reflected in the major institutions of the state, of which the final court of appeal is certainly one.

3. Secondly, we are at one in regarding it as essential that a new Supreme Court of the United Kingdom, if established, should be properly accommodated and resourced, and equipped with the facilities it will need to discharge its

1 Lords Nicholls of Birkenhead, Hoffmann, Hope of Craighead, Hutton, Millett, Rodger of Earlsferry 2 Lords Bingham of Cornhill, Steyn, Saville of Newdigate, Walker of Gestingthorpe

1 public duties to the best possible effect. The Consultation Paper eschews any detailed consideration of this fundamental aspect. While some preliminary thought has, we appreciate, been given to the accommodation which a Supreme Court will require, no business plan has to our knowledge been prepared and no estimate of cost made. The building in which the Court is housed must reflect the importance of the rule of law in a modern democracy; and it must afford the judges (plus their librarians, secretaries, judicial assistants, law reporters, press officer, IT staff, doorkeepers and security staff) the resources and facilities they need.

4. Thirdly, we are at one in regarding it as essential that a new Supreme Court should enjoy corporate independence in the sense used by Professor Ian Scott in his response to the Consultation Paper. The new court will be a United Kingdom court and cannot be appropriately administered by the Court Service of England and Wales. It must have its own budget, settled in a manner which protects the court from political pressure. It must have its own Registrar, answerable to the court, its own staff and its own IT facilities. The independence of the judges requires not only that they be free of extraneous pressure but also that the court be institutionally free of administrative pressure. In Australia, a one-line budget is agreed annually between the High Court’s chief executive officer and the attorney-general, and a similar arrangement would be appropriate here.

5. Fourthly, we do not in this response comment on the proposal to abolish the office of Lord Chancellor. We are, however, very greatly concerned that the important constitutional values which the office of Lord Chancellor protected should continue to be effectively protected. In the past the Lord Chancellor’s role was to uphold constitutional propriety and champion judicial independence. The constitution would be gravely weakened if that safeguard were removed and not replaced.

6. Fifthly, we question the statement in paragraph 28 of the Consultation Paper:

“The administrative and support arrangements for the Judicial Committee [of the Privy Council] would therefore remain unchanged.”

We accept, of course, that the institutional independence of the Judicial Committee of the Privy Council must be preserved. We advocate no change in judicial eligibility to sit, nor in the role of the Registrar. We cannot, however, see any reason why hearings should take place in a different place from those of the Supreme Court, provided the judges sit as members of the Privy Council and in a courtroom clearly designated as a Privy Council hearing room. Provided its institutional independence was preserved, we feel that there would

2 be obvious gains in operational efficiency if the Privy Council were to sit under the same roof as the Supreme Court.

7. Sixthly, and subject to what we say in answer to Question 1, we do not propose any change in the jurisdiction of the Appellate Committee on its becoming the Supreme Court. The Appellate Committee has never had jurisdiction to hear criminal appeals from Scotland. It is not a jurisdiction which the Supreme Court (save for its Scottish members) would be well-fitted to discharge. If there is any desire for change in this regard, we would not support it.

8. We turn to the specific questions raised in the Consultation Paper. In answering them we shall use the expression “Court” to mean the new Supreme Court of the United Kingdom.

Question 1: Do you agree that the jurisdiction of the new Court should include devolution cases presently heard by the Judicial Committee?

9. It would in our opinion be consistent with the role of a Supreme Court of the United Kingdom that it should be the final arbiter of devolution issues arising in the devolved jurisdictions. The Scotland Act 1998 and the Northern Ireland Act 1998, however, in giving jurisdiction to resolve devolution issues to the Judicial Committee of the Privy Council, permit such issues to be decided by judges drawn from the devolved jurisdictions who are eligible to sit in the Judicial Committee but are not eligible to sit in the House of Lords and, if our answer to Question 2 is accepted, will not be eligible to sit in the Supreme Court. We would not wish, and we very much doubt if the devolved administrations would wish, to see this feature of the devolution settlement abrogated. If it is to be preserved, the choice lies between leaving matters as they are and making special rules to govern eligibility to sit in the Supreme Court when it is dealing with devolution matters. We do not regard this last possibility as satisfactory and accordingly, although with a measure of reluctance, favour preserving the status quo.

Question 2: Do you agree that the number of full-time members of the Court should remain at 12 but that the Court should have access to a panel of additional members?

10. It is important to the quality of the Court’s work and the consistency of its decision-making that the number of members should be relatively small. In present circumstances we consider 12 to be the right number. While the power to increase that number by Order may be retained, it should be provided that there be no increase or reduction without the concurrence of the senior judge of

3 the court for the time being and his or her deputy. Any increase or reduction should in addition be subject to an affirmative resolution of each House.

11. It is desirable, for the foreseeable future, that the Court should be free, when and as the requirements of business demand, to invite eligible additional members to fill places on panels which the serving members of the Court cannot conveniently fill from their own number. Those eligible to sit should include former Lords of Appeal in Ordinary under the age of 75. Eligibility could perhaps be extended to (a) those who have served as the British Judge or Advocate-General of the Court of the Justice of the European Communities or (b) have sat in the Appellate Committee of the House of Lords as Lord Chancellor or (c) currently hold office as Lord Chief Justice of England and Wales, Lord President of the Court of Session, Lord Chief Justice of Northern Ireland, Master of the Rolls or Lord Justice-Clerk. We would strongly resist extending eligibility beyond the categories so defined, unless (see our answer to Question 1) the Court is to rule on devolution issues.

Question 3: If there were such a panel, under what circumstances could the Court call on it?

12. The ordinary presumption should be, both in the Court and (subject to the welcome attendance of overseas judges in Commonwealth appeals) in the Privy Council, that panels should so far as practicable be made up of serving members of the Court. Where for any reason (such as absence, sickness, pressure of business or the need for particular expertise) additional members are needed, this should be arranged on the direction of the senior judge of the court or his deputy.

Question 4: Should the composition of the Court continue to be regulated by statute, or should it be more flexible?

13. We consider that the composition of the Court should continue to be regulated by statute. We do not consider that the composition should be flexible.

Question 5: Should there be a Deputy President?

14. We are of the clear opinion that there should (adopting the terminology of the Consultation Paper) be a Deputy President who will (as now) almost invariably preside over the panel of which he is a member, participate in decisions on the composition of panels and discharge the duties of the President if he is for any reason unable to do so. The importance of these functions in our opinion requires that the office be underpinned by statute.

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15. The suggestion has been made that the senior judge of the Court should be called “the Chancellor”. We do not support this: such a title would in our opinion be unhistorical, undescriptive, old-fashioned and (through associations with the Lord Chancellor) misleading.

Question 6: Should the posts of President and Deputy President be filled by the same process as membership generally, or should these appointments always be made on the advice of the Prime Minister after consultation, without involving any Judicial Appointments Commission?

16. We find it convenient to approach this difficult question by reminding ourselves of certain principles which we regard as fundamental:

(1) Appointments of this seniority must be made by The Queen.

(2) The Queen must act on the advice of ministers.

(3) The minister exercising relevant authority in relation to all the UK jurisdictions must be the Prime Minister.

(4) Since the appointments are to a United Kingdom court, full account should be taken of the views of the devolved administrations.

(5) The process of appointment should be wholly apolitical and should not in any way infringe the independence of the judges.

(6) The process of appointment should be such as will command public confidence.

17. The last of these principles would point towards a small appointments commission including members from all the UK jurisdictions with some non- legal membership. On the other hand, the number of candidates for either office deserving of serious consideration will in all probability be very few; and the judicial and personal qualities of those few will be very well known to the members of the Court and the holders of the leading judicial offices in England and Wales, Scotland and Northern Ireland.

18. While we consider that the informal process of consultation adopted in the past, suitably adapted, would lead to the identification and recommendation of those best fitted to serve in the new Court, we recognise the understandable desire for a more transparent process and it would perhaps be anomalous that procedures implemented when making appointments at lower levels of the

5 judiciary had no counterpart when appointments were to be made at the highest level. On balance, we consider that the appointment of the President and the Deputy President should be made in the manner outlined in our response to Question 12 below. The procedure should be that outlined in our answer to Question 11.

Question 7: Should the link with the House of Lords be kept by appointing retired members of the Supreme Court to the House?

19. Since the size and composition of the House of Lords may not yet have been finally settled, we find this a difficult question to answer. As matters stand, we feel it might be appropriate to appoint former members of the Supreme Court to be members of the House of Lords provided they had either reached the age of retirement or announced that they would not in future sit judicially and provided they wished to be appointed.

Question 8: Should the bar on sitting and voting in the House of Lords be extended to all holders of high judicial office?

20. There is no doubt that, in the past, the House of Lords has valued and profited from contributions made, particularly on matters relating to the administration of justice, by holders of high judicial office. On the other hand, the creation of the Court and the ending of the Lord Chancellor’s judicial role provide the opportunity to reflect the complete independence of the judiciary from the executive and the legislature, and with some 80 lawyers among its members the House of Lords does not lack legal expertise.

21. The serving Law Lords are not agreed on the answer to this question. Some 3 consider that the President of the Supreme Court, the Lord Chief Justice of England and Wales, the Lord President of the Court of Session and the Lord Chief Justice of Northern Ireland should be appointed members of the House in order to give it the benefit of their experience on matters relating to the administration of justice in their respective jurisdictions. Others4 consider that complete effect should be given to the separation of judicial and legislative activity: if the most senior judges wish to make their views publicly known, they do not lack opportunities to do so.

3 Lords Nicholls of Birkenhead, Hope of Craighead, Hutton, Hobhouse of Woodborough, Millett, Scott of Foscote, Rodger of Earlsferry, Walker of Gestingthorpe 4 Lords Bingham of Cornhill, Steyn, Hoffmann, Saville of Newdigate

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Question 9: Should there be an end to the presumption that holders of high judicial office receive peerages?

22. There is again a difference of opinion on the answer to this question. Some serving Law Lords 5 would wish, consistently with their answer to the last question, to see peerages conferred on future holders of the four offices mentioned. Others6 would not. The issue is whether the principle underlying the proposals (that in future members of the Supreme Court should not be members of the Upper House) should be given effect subject to exceptions or without exceptions.

Question 10: Should appointments to the new Supreme Court continue to be made on the direct advice of the Prime Minister, after consultation with the First Minister of Scotland and First and Deputy First Ministers in Northern Ireland and with the profession?

23. No. We refer to and repeat our answer to Questions 6, 11 and 13. The procedure we there outline would in our opinion be appropriate for all appointments to the Court.

Question 11: If not, should an Appointments Commission recommend a short-list of names to the Prime Minister on which to advise The Queen following consultation with the First Minister of Scotland and the First and Deputy First Ministers in Northern Ireland? Or should it be statutorily empowered to advise The Queen directly?

24. An Appointments Commission, if established, should recommend one appointee to the Secretary of State for Constitutional Affairs. The Secretary of State should be authorised to invite the Commission to reconsider its recommendation, giving reasons. If so invited, the Appointments Commission should reconsider its recommendation and then recommend an appointee (whether the same appointee or another) to the Secretary of State. The Secretary of State would then advise the Prime Minister of that recommendation, and the Prime Minister would advise The Queen accordingly. The Secretary of State would be bound to accept the Commission’s recommendation (either initially or after reconsideration) and the Prime

5 Lords Nicholls of Birkenhead, Hope of Craighead, Hutton, Hobhouse of Woodborough, Millett, Scott of Foscote, Rodger of Earlsferry, Walker of Gestingthorpe 6 Lords Bingham of Cornhill, Steyn, Hoffmann, Saville of Newdigate

7 Minister would be bound to advise The Queen in accordance with the Secretary of State’s advice.

Question 12: If there is to be an Appointments Commission for Supreme Court appointments, how should it be constituted? Should it comprise members drawn from the existing Appointments bodies in each jurisdiction?

25. In answering Question 6 we suggest that the serious candidates for appointment as President and Deputy President of the Court will be few and that their judicial and personal qualities will very well known. These points apply with equal force to candidates for appointment to the Court more generally. The serving members of the Court devote the bulk of their time to hearing appeals against decisions of the Court of Appeal of England and Wales and in doing so acquire a detailed knowledge of the strengths and weaknesses of different members of that court. Further, the serving members of the Court, and in particular the President and the Deputy President, will know better than anyone the fields of law in which additional strength will be most valuable at the time of the appointment in question.

26. These considerations point towards a small and largely expert body, convened ad hoc as occasion demands, which we suggest should comprise:

(1) The President.

(2) The Deputy President.

(3) The senior member of the Court appointed from the bench or legal profession of Scotland (if not President or Deputy President).

(4) The senior member of the Court appointed from the bench or legal profession of Northern Ireland (if not President or Deputy President).

(5) The two senior members of the Court appointed from the bench or legal profession of England and Wales (this number to be reduced to one if either the President or Deputy President was so appointed and reduced to nil if both of them were).

(6) Two lay members, one or both of whom might be legal academics, appointed (by an independent body) for substantial periods of time.

(If this model were to be used on appointing a President and Deputy President, there would have to be scope for adjusting the membership since some of those in (1) to (5) might be candidates.)

8 The strengths of such a body would in our opinion be these:

(1) It would be small (never numbering more than 6).

(2) It would avoid the embarrassment which would arise if the senior judges in the 3 jurisdictions were members and were also candidates for appointment.

(3) The judicial members would be well placed to consult judicial, professional and (so far as practicable) non-legal opinion in their respective home jurisdictions, including the opinion of the Secretary of State for Constitutional Affairs, the First Minister of Scotland and the First and Deputy First Ministers in Northern Ireland, to report the outcome of their consultations and to ascertain whether a favoured candidate, if recommended, would be willing to serve.

(4) The participation of the lay members would afford a public guarantee that the process of appointment had been carried out in a fair, open- minded and thorough way and with due regard to the interests of the public at large.

The recommendation made should be decided by majority vote. If there were no majority (for example, 2 members supported candidate A, 2 supported candidate B and 2 candidate C, or all 6 members supported different candidates) the President should exercise a second, casting, vote.

Question 13: Should the process of identifying candidates for the new Court include open applications?

27. Open applications ensure that any qualified applicant can invite consideration of him or herself as a candidate for appointment and ensure that no eligible candidate is inadvertently overlooked. These are valuable safeguards at the High Court level and below, where they have the additional advantage of enabling the stronger candidates to signal their willingness to accept appointment if invited. These safeguards are not in our opinion of value when appointments at the highest level are under consideration. The outstanding candidates, as we have already pointed out, are likely to be few and well-known; the problem is not to identify a candidate worthy of appointment but to choose between candidates all of whom have strong claims to be appointed. Thus there is no risk of inadvertent oversight. Nor, in England and Wales, is there any recorded history of unwillingness to serve if appointed. For serving judges in Scotland and Northern Ireland, appointment to the Court (as in the past to the Appellate Committee) will involve a degree of domestic and professional upheaval which might doubtless deter some from accepting appointment, but there is no reason to think that this would be a problem,

9 whatever appointments machinery were adopted, if the views of favoured candidates were ascertained before a recommendation was made.

Question 14: Should there be any change in the qualifications for appointment, for example to make it easier to appoint distinguished academics? Or should this be a change limited to appointment to lower levels of the Judiciary, if it is appropriate at all?

28. Since we are of the firm opinion that merit should be the overriding criterion of appointment at all levels of the judiciary, we could not support any rule which precluded consideration of any candidate who was or might be worthy of appointment on grounds of merit. Our collective experience in the 3 UK jurisdictions does not, however, yield any example of a candidate who was considered deserving, or possibly deserving, of appointment on grounds of merit and who was debarred from consideration for want of the requisite qualification. In practice, a number of legal practitioners have held academic appointments before turning to practice or accepting judicial appointment; and a number of academic lawyers with judicial ambitions recognise the value of familiarising themselves with the practice of the law and the conduct of trials to supplement their store of academic learning. We would ourselves regard a measure of experience (whether in practice or on the bench or both) as an all but essential qualification of trial judges, and while, on occasion, appeals may raise fairly abstract questions of law, this is not in our experience the norm, and we see special dangers in decisions made on appeal by judges who have never experienced the exacting reality of conducting a difficult case or presiding at a difficult trial.

29. We do not consider that the existing rule works adversely to the public interest.

Question 15: Should the guidelines which apply to the selection of the Court be set out administratively, or through a Code of Practice subject to Parliamentary approval, or in legislation?

30. The personal and professional attributes to be looked for in a member of the Court are integrity, incorruptibility, independence and impartiality; intellect, analytical ability, legal knowledge, relevant experience and the ability to assimilate large quantities of material at short notice; the capacity to formulate legal policy at a high level; open-mindedness, fair-mindedness and single-mindedness; the ability to compose clearly reasoned judgments without prolixity within a reasonable time; a general knowledge of social conditions and trends; courtesy; common sense; energy and assiduity; decisiveness; and

10 good health. These attributes are, in our opinion, so obviously desirable that we question the need to list them in a public document. We can, however, recognise that the disappearance of the office of Lord Chancellor may render it necessary to make explicit what was formerly largely implicit. Since we foresee no likelihood that the attributes required of a Supreme Court justice will change over time (although the relative importance of each may doubtless do so) we consider it important that they be expressed in legislation and not in any less formal manner.

Question 16: What should be the arrangements for ensuring the representation of the different jurisdictions?

31. Of the first two Lords of Appeal in Ordinary appointed under the Appellate Jurisdiction Act 1876, one was an English judge and one a Scottish. In 1882 a judge was appointed from Ireland. In recent times the Appellate Committee has always included two Scottish Law Lords. The representation of Northern Ireland since 1922 has been much less continuous. But the Appellate Committee has included a Northern Irish member for most of the period since 1988, and for shorter periods in earlier years, again to its great benefit. None of us would contemplate any reduction in this level of representation so long as there are (as in the past) candidates of outstanding quality in these jurisdictions who are willing to serve.

32. The volume of appeals reaching the Court from Scotland and Northern Ireland respectively would not on current figures justify an increase in this level of representation, but we would not wish to rule out the possibility of an increase if, for a particular vacancy, the most meritorious candidate were to be found in Scotland or Northern Ireland. On the other hand, we should think it undesirable that an unmeritorious candidate should be appointed (in the unlikely event that no meritorious candidate were willing to serve) in order to fill a quota. It would moreover be wrong to assume that the Welsh legal system will forever be indissolubly linked to the English; the devolution settlement is already leading to a revival of the indigenous legal culture which once existed in Wales.

33. These considerations prompt us to conclude that representation of the different jurisdictions is best left, as at present, to convention. The only purpose of a statutory rule would be to protect the smaller jurisdictions against the dominant English majority. To suppose that there is a need for such protection is to misunderstand the extent to which the continuing contribution of Scottish and Northern Irish members is valued and the pride which all members of the Court would take in its being a Supreme Court of the United Kingdom. We would add that if an Appointments Commission were to be constituted as we have suggested in answer to Question 12, the judges appointed from the bench or practising profession of England and Wales would always be in a minority.

11 Question 17: What should be the statutory retirement age? 70 or 75?

34. We regret the decision to lower the statutory retirement age for judges to 70, since although few Lords of Appeal in Ordinary in recent years have continued in office until the age of 75 a majority have continued to sit full-time, and have done very valuable work, when over the age of 70.

35. Our preference is that the retirement age for members of the Court should again be fixed at 75. If it is to remain at 70, those who retire from the Court at that age and who wish to continue to sit part-time should be eligible to do so, if invited, until they reach the age of 75.

36. We support the existing rule which precludes a judge from sitting after the age of 75 save to complete a hearing commenced before the judge’s 75th birthday.

Question 18: Should retired members of the Court up to five years over the statutory retirement age be used as a reserve panel?

37. We refer to our answer to the last Question.

Question 19: Should the Court continue to sit in panels, rather than every member sitting on every case?

38. The composition of panels to hear particular cases must continue, as now, to be a matter for the President and the Deputy President, save that statute should provide for a quorum of 3 to rule on any petition for leave to appeal or any appeal.

39. We envisage that, as at present, panels of 3 should ordinarily conduct oral hearings of petitions for leave to appeal, and panels of 5 the great majority of full appeals. In cases of particular difficulty or importance or where differing opinions have been expressed in the past, however, it will continue to be appropriate to establish panels of 7 or 9, and this should perhaps be done more readily than in the past.

40. While the possibility that all members of the Court might sit on a particular case need not be ruled out, and we are mindful of the advantages which would flow from a sitting of all members of the Court in banc, this should not be the norm since, bearing in mind the demands of the Privy Council, the inevitable result would be either a dramatic fall in the number of cases decided or a delegation to assistants of work now done by judges. Neither

12 outcome is desirable. We would add that effective forensic argument before a participatory bench of 12 judges would tend to be protracted and difficult to manage.

Question 20: Should the Court decide for itself all cases which it hears, rather than allowing some lower courts to give leave to appeal or allowing some appeals as of right?

41. The lower courts in England and Wales and Northern Ireland are very sparing in granting leave, recognising that the Appellate Committee is almost always better placed to decide whether leave should be given or not. But there are cases of obvious urgency when the lower court judges that an Appeal Committee is likely to grant leave, and in such a case leave may be given to avoid a needless waste of time. There are other cases where the lower court may have good reason to think that the final court should consider (or reconsider) a question. This is a valuable discretion. In our collective experience leave is very rarely given by the lower court in cases where the Appellate Committee feels it should not have been given. Appeals as of right are infrequent.

42. The present system works well. We see no reason to alter it.

Question 21: Should the present position in relation to Scottish appeals remain unchanged?

43. There are two views. Some serving Law Lords 7 regard the absence of a leave requirement in relation to Scottish appeals as anomalous and capable, however rarely, of leading to unmeritorious appeals. They would take this opportunity to end this anomaly. Others8, while recognising the anomaly, regard the requirement of certification by counsel as an adequate safeguard in all but a very few cases, and would not wish to disturb a long-standing procedure which gives rise to minimal difficulty in practice.

Question 22: What should the existing Supreme Court be renamed?

44. The existing Supreme Court is not a court but a cluster of courts, the Court of Appeal, the High Court and the Crown Court. Save in statute and subordinate legislation, and for some purposes of formal nomenclature, the expression is rarely used, and for well-known historical reasons it has been a misnomer from the beginning. It will cause no confusion, and remove a source

7 Lords Nicholls of Birkenhead, Steyn, Millett, Walker of Gestingthorpe 8 Lords Bingham of Cornhill, Hope of Craighead, Saville of Newdigate, Rodger of Earlsferry

13 of misunderstanding, if references to each of the 3 courts, when to a single court, are to its name and if references to 2 or more of the courts are (subject to any inclusive definition which may be convenient) to the names of the courts referred to.

Question 23: What should members of the new Court be called?

45. There are, we suggest, two options:

(1) The first option is to adopt the Scottish model. Since the modern Court of Session was instituted in 1532 its members have been called Lords of Session. “Lord” in this context marked the dignity of the office but the holder did not (and does not) become a peer. The holder is known as “The Hon Lord X” (unless a Privy Counsellor, when the prefix is “Rt Hon”. If a peerage is conferred, the Scottish judge is in the same position as his English, Welsh or Northern Irish equivalent). By a Royal Warrant of King Edward VII dated 5 February 1905 the holders of the title “Lord” are permitted to retain it on their retirement and their wives are entitled to assume the title of “Lady” and to continue to use it during the life of the husband and after his death so long as they do not remarry. By a Royal Warrant of The Queen dated 25 June 1996 every female Senator of the College of Justice is entitled to adopt the style of “The Hon Lady” and to retain that title on her retirement. As in the case of Dames, the husband’s title is unaffected.

(2) The second option is formally to call the members of the new Court “Justices of the Supreme Court” but in ordinary speech (as in the United States) “Justices”.

46. The main arguments in favour of the first option are these. During the transitional period when some members of the Court will be peers and some will not this usage will effectively mask the difference in formal status of the members. It will provide an element of continuity with a very longstanding tradition that members of the highest court are known as “Lord”. It will distinguish the members of the new Court from judges at lower levels (except in Scotland). The main arguments against this option are that it would be retrograde, in seeking to establish a new and modern court, to use an old and perhaps anachronistic title, however venerable. The antiquity of the model is reflected in its unequal treatment of men and women (although this could be cured by providing that the title of a spouse should remain unchanged whether the office holder is a man or a woman). The title does not describe the function performed.

47. The main argument in favour of the second option is that the title “Justice of the Supreme Court”, or “Justice” for short, is simple, descriptive,

14 intelligible to the public and the legal profession, consistent with widespread international practice and gender-neutral. The main arguments against this usage are that it would involve a break with longstanding tradition, that it would appear to downgrade the status of members of the Court and that it would be liable to cause confusion between members of the Court and justices of the High Court who currently style themselves “Mr Justice” or “Mrs Justice” but who may no doubt prefer, at some time in the foreseeable future, to be called “Justice”.

48. Two serving Law Lords9 favours the first option. Others10 favour the second.

49. We do not consider that the mode of address in court gives rise to any problem specific to the new Court. So long as justices of the High Court and members of the Court of Appeal, and also a significant number of circuit judges, are addressed as “My Lord” and “My Lady”, it would be anomalous if the members of the Supreme Court were addressed in any other way.

50. We think it essential that there should, in the future, be equality of treatment as between members of the Court appointed from the 3 jurisdictions. At present judges of the Court of Session, although styled Lord and Lady as noted above, are not knighted or appointed DBE as the case may be. Scottish judges appointed to the Supreme Court should receive any honour ordinarily conferred on their English, Welsh or Northern Irish colleagues.

LORDS OF APPEAL IN ORDINARY 27 October 2003

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9 Lords Hope of Craighead, Millett 10 Lords Bingham of Cornhill, Nicholls of Birkenhead, Steyn, Hoffmann, Saville of Newdigate, Walker of Gestingthorpe

15 Supplementary response of Lord Hobhouse of Woodborough

A. This response is written to supplement the Response of the Lords of Appeal in Ordinary of which I am one. I support that Response and, insofar as I do not add any separate view of my own or do not refer to a specific Question, it may be taken that my response to any Question is the same.

B. For clarity and economy of presentation, I will cover the main points relevant to the proposal and to the answers to be given by reference back to these opening paragraphs.

C. I am in principle in favour of setting up a United Kingdom Supreme Court and therefore would support a properly structured and implemented proposal. However the Consultation Paper does not contain such a proposal. In particular, it contains no ‘cost/benefit’ analysis nor does it contain any clear valid statement of the constitutional principles to be applied. This absence makes it difficult to assess whether there will be in fact a net benefit and leaves open the question whether the implementation will include the essential constitutional safeguards, specifically, maintaining the independence of the Judiciary and the Rule of Law.

D. The Independence of the Judiciary D.1 The fundamental constitutional principle of the Rule of Law in the United Kingdom is, and has been, explicitly, since the Bill of Rights 1688, the independence of the Judiciary. Parliament has the exclusive power to legislate. The Judiciary have the exclusive power to rule upon what is legal and illegal and what a person’s legal rights and obligations are. This exclusive power includes determining guilt and innocence and what legal remedies a person is entitled to or liable to. It also includes making determinations in favour of or against the Executive; the Executive is not above the Rule of Law. This creates a tension between the Executive and the Judiciary, such as existed in an extreme form prior to 1688 and still manifests itself today. There is no such tension between the Legislature and the Judiciary: the Judiciary and the Judicial Oath sworn by all judges (renewed at each promotion) are part of the protection the Judiciary gives to supremacy of Parliament. The essence of judicial independence is independence from any direct or indirect interference or influence by the Executive. It is also relevant that independent is the criterion used in the European Convention on Human Rights.

16 D.2 It is important not to confuse the United Kingdom’s constitutional principle of the independence of the Judiciary with the United States of America’s principle of the separation of powers. The latter is a doctrine based on a mistaken analysis of the British constitution developed by French thinkers in the 18th Century. It involves the complete and balanced separation of all three branches of government – the Executive, the Legislature and the Judiciary – from each other. Thus in the United States, the President and other members of the Executive are debarred from being members of the Legislature whereas in the United Kingdom the position is the reverse. It is a serious flaw in the Consultation Paper that, insofar as it adopts any constitutional principle, it appears to choose the doctrine of the separation of powers not the independence of the Judiciary.

D.3 It is convenient, at this stage, to mention two other matters which have been used to justify the proposal and have shaped some of the Questions asked. The first is the level of public understanding of the existing structure. The general public are often ignorant of the structure of the court system and, in particular, by the terminology used. Some still believe that an appeal to the House of Lords is determined by the political peers. If this is the cause of the Department’s concerns, the correct solution is clear and long overdue. There should be a better education, and dissemination of information, concerning the British constitution. This lack of knowledge and the solution lie in the hands of the Executive and are not a reason for introducing potentially damaging constitutional changes.

D.4 The second is the question of judicial bias. The potential for bias exists at all levels of the judicial hierarchy. It is addressed in the Judicial Oath; it should be minimised by selecting judges who understand the need to be unbiased and who have experience of acting without bias and the proven ability to do so. Insofar as the position of Lords of Appeal might be thought to give rise to a risk of bias, it has been answered by the public statement made by Lord Bingham of Cornhill, the Senior Law Lord. Mere membership of the House of Lords creates no risk of bias whatsoever.

E. The Cost/Benefit Assessment E.1.1 Judicial Independence: The present structure does provide such independence. The corner-stone of that protection is (paradoxically) the role of the Lord Chancellor as the head of the Judiciary. He takes the Judicial Oath even though he does not now-a-days actually sit. He sits in the House of Lords not the Commons. He has legal qualifications which would qualify him for high judicial office. He is or should be non party political. He heads a Department which does not suffer from the primarily political outlook of other Departments. The Reform Proposals

17 would remove all this and not replace it with anything of equivalent constitutional value and, indeed, which will facilitate political interfer- ence with the Judiciary.

E.1.2 The Lord Chancellor further has provided an independent element in the appointment of Judges. The criteria he uses are clearly set out in paragraphs 7-9 of the paper on Appointments. He makes or recommends the appointment of “those who appear to him to be the best qualified regardless of gender, ethnic origin, marital status, sexual orientation, political affiliation, religion or disability”. Legal knowledge and relevant experience are treated as primary criteria coupled with other more personal characteristics. It would be perfectly possible for an independent appointments commission to replicate the Lord Chancellor’s role but not if different criteria were introduced or there was a political input by a politically selected membership or giving the Executive a power of veto or making a Commons minister accountable to the Commons for the appointments. So far as the composition of the proposed Supreme Court is concerned it is essential that, at the least, the safeguards set out in the Law Lords’ Response be statutorily incorporated in any new scheme.

E.1.3 Financial and administrative independence from the Executive is, so far as Law Lords are concerned, at present provided by the place of the Judiciary within the structure of the House of Lords. The building is managed and manned by House of Lords staff. The finances of the House are in effect insulated from political interference by the Executive. Thus the existing structure does support the independence from the Executive. It is not at all clear that the proposal includes similar features, rather the reverse.

E.1.4 Under this head, therefore, there are clear benefits conferred by the existing structure. There is no assurance that these benefits will be provided by the proposed scheme. The assessment therefore under this the most important head is that the proposal does not show any cost- benefit gain.

E.2.1 Cost implications: The cost to the taxpayer of housing the Law Lords and their support in the House of Lords is at present minimal. The Consultation Paper is silent upon the cost of setting-up the new court and the annual cost of running it. Both the initial expenditure and the continuing annual expenditure will be disproportionate to the savings, if any. It will require an altogether different level of expenditure and there is no assurance that the Executive are willing to provide it. The civil justice system in England and Wales is already suffering from significant under-funding arising from budgetary constraints imposed upon the Lord Chancellor’s Department.

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E.2.2 There is no measurable benefit to set against this cost. There is no public benefit; the proposal will make no difference to the public. The only benefit would be to give the Law Lords more space within which to operate (and a marginal increase in available space within the Palace for the House of Lords). The assessment of ‘cost/benefit’ is strongly adverse to the proposal.

E.3.1 The pragmatic ground: Paragraph 4 of the Consultation Paper sets this out. It is a valid ground and is the reason why I personally have in the past supported finding a new home for the Law Lords as a Supreme Court. In the Palace there simply is not enough space to provide the Law Lords personally with adequate working conditions and support staff and materials of the right kind. The working conditions of members of the Court of Appeal are markedly better than those they encounter if they are promoted to the House of Lords. The work load of Law Lords is very considerable and inadequate working conditions only increase that work load.

E.3.2 So, here there is a benefit but it will only be achieved by the incurring of the considerable extra costs both initially and on an annual basis. Unless this requisite level of expenditure is assured, the benefit will be lost and the proposal becomes unsupportable on this ground.

E.4.1 Conclusion: No basis for a favourable ‘cost/benefit’ analysis has yet been shown. There are signs that any such analysis, when it is done, will be unfavourable. As regards the Constitutional position and the independence of the Judiciary, the assessment has to be even more adverse: the preservation of that independence is a non-negotiable imperative.

F. Membership of the Supreme Court: Membership of the House of Lords F.1 A number of the Questions asked are about membership of the House of Lords. This is in principle a completely separate topic from that involved in the main proposal. It appears to have been included as a result of not following the constitutional principle of judicial independence but introducing instead a doctrine of separation of powers and risk of bias: see D.2 and D.4 above. There is no inconsistency between an individual being a member of both bodies and no constitutional requirement that membership of one should preclude membership of the other. A substantial part of the business of the Upper House is deliberative, not legislating.

F.2 What should be the composition of the membership of the House of Lords is still to be decided and may make this topic academic. If the membership of the House is to be by nomination and is to include cross-

19 benchers, there is no constitutional reason why Supreme Court judges should not receive life peerages as at present. Given that the proposals include the abolition of the office of Lord Chancellor, it is important that the most senior Judges (not necessarily all the judges of the Supreme Court) continue to receive peerages and be able to speak in the House of Lords. They will thus be able to speak on behalf of the Judiciary, on the record and in public, in an appropriate forum. The giving of press conferences which is not, and should not be regarded as, a proper judicial function or delivering lectures are not means of communication which should become the sole opportunity, apart from the delivery of judgments, for the views of the Judiciary to become known.

F.3 If the risk of bias be the concern, it has already been addressed publicly by the ‘Bingham Statement’. It would be wrong to try and separate out one risk of perceived bias and make special provision for it and leave all the others, as they must be, for decision on an individual basis. Judicial decisions over the last 5 years or so have greatly clarified the law on bias and apparent bias. The ability of the President to select the panel to hear an appeal and the vigilance of colleagues should be allowed to continue to avoid any problem in practice.

Question 6: I agree with and strongly support the answer given to this question read in conjunction with the answers given to questions 11, 12, 13, 14, 15 and 16. My reasons are as explained in D.1 and E.1.2 above. I would only add one thing: if a new scheme was being introduced, I see no reason why it must be a minister who conveys the advice to The Queen as assumed in the answer to question 6.

Questions 7 to 9: See F1-3 above.

Question 21: I support the second alternative but for the reason that it should be decided by those representing Scotland since it was part of the constitutional settlement with Scotland at the start of the 18th Century.

Question 23: I support the second alternative for the reason that the relevant denomination is that of an individual as a member of the UK Supreme Court. If he or she is also a Life Peer or a Knight or Dame or a Privy Councillor is for that purpose irrelevant. His or her ordinary non-judicial denomination will only appear if he or she is sitting as a co-opted supernumerary. HOBHOUSE OF WOODBOROUGH 7 November 2003

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