Copies of the individual responses to this consultation are also available.
This document is the post-consultation report for the consultation paper, Constitutional Reform: a Supreme Court for the United Kingdom.
It will cover:
Further copies of this report and the consultation paper can be obtained by contacting Matt Dean at the address below:
Supreme Court Policy Team
Department for Constitutional Affairs
2nd Floor Selborne House
54-60 Victoria Street
London SW1E 6QW
Telephone: 020 7210 8241
Email: Matthew Dean
This paper forms part of a series of summaries on the responses to the constitutional reform consultations. The others cover:
The Prime Minister announced on 12 June 2003 the Government's intention to create a new Supreme Court for the United Kingdom. In July Lord Falconer, Secretary of State for Constitutional Affairs and Lord Chancellor, published a consultation paper, Constitutional Reform: a Supreme Court for the United Kingdom, seeking views on the form and responsibilities of the proposed new Supreme Court. The consultation paper sought views on:
The Consultation period closed on 7 November 2003 and this report summarises the responses. A list of respondents is detailed in Annex A.
A total of 174 responses to the consultation paper were received. Of these 39 were from the judges or bodies representing the judiciary, 59 from other members of the legal professions. There were also 43 responses from members of the public, academics and 13 responses from representative groups. Two Members of the House of Commons responded as did nine non-departmental public bodies, local and/or regional organisations.
While some respondents offered views on all the issues in the consultation paper, many focussed on particular questions or issues.
All the responses have been analysed and a summary for each question forms the main body of this report.
We are grateful to everyone who responded.
Of the 87 responses to this question 75 (86%) were in favour of the new Supreme Court taking on the devolution jurisdiction of the Judicial Committee of the Privy Council, 12 (14%) of respondents were against the proposal.
Whilst the 12 Law Lords are not in agreement on all questions posed in the consultation paper, it is clear that they are in agreement on this issue.
They state that: "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". However, they are concerned that sufficient judicial members from the devolved jurisdictions would not be able to be drawn on unless separate rules are drawn up governing the membership of the Supreme Court when it hears devolution cases. The Law Lords are not in favour of this and so conclude that they: "...with a measure of reluctance, favour preserving the status quo".
The response from a barristers chambers states that: "...the present system of having two top courts is confusing and gives rise to some tension. In fact the Privy Council and the House of Lords have made decisions in almost identical cases."
This appeared as a recurring theme throughout the positive responses.
JUSTICE argue that it is crucial that the Supreme Court take on this jurisdiction to prevent the same point being decided differently by the Judicial Committee of the Privy Council and the Supreme Court.
Other respondents in favour of transferring the jurisdiction include:
Lady Justice Hale is also in favour of the proposal and argues that: "...these are precisely the matters the Supreme Court of the United Kingdom should be considering".
There is some concern that enough Scottish Judges are able to hear such cases if the proposals are accepted, and the Rt Hon Lord Jauncey of Tullichettle states that there: "...must be mechanisms in place to allow Scottish judges who are not members of the Supreme Court to sit in devolution matters".
The Scottish Executive are content with the proposal as long as there are appropriate arrangements to ensure that Scottish judges sit on devolution cases.
A number of respondents however are not in favour of the proposals.
The Rt Hon Lord MacKay of Clashfern and The Bar Council of Northern Ireland do not agree with the proposal.
The Rt Hon Lord Cullen of Whitekirk and the Senators of the College of Justice are concerned that the transferral of the jurisdiction in devolution cases in criminal matters would lead to the growing Anglicisation of Scottish criminal law. They would prefer it if these particular cases stayed with the Judicial Committee of the Privy Council, as it would be easier to ensure that the judges hearing the case are suitably trained and experienced in Scottish law.
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?
There were 89 respondents to this question, 66 (74%) agreed to the proposal and 23 (26%) offered an alternative number of members.
The Law Lords agree that the permanent membership of the Supreme Court should be fixed at 12. They further consider that the number of full-time judges on the Supreme Court should not be increased without the agreement of the senior judge and the deputy of the Supreme Court. They are also generally in favour of access to a panel of additional members.
The Rt Hon Lord Nolan argues that a full-time membership of more than 12 judges increases the risk of diverging views. He further states that the reserve panel should only comprise retired members of the Supreme Court. The Rt Hon Lord Steyn agrees that any reserve panel should comprise retired members of the Supreme Court.
A number of respondents are concerned that there should be built-in flexibility. They agree with the general proposal that there should be 12 full-time members and argue that there should be a way of keeping this under review. These include:
Respondents in favour of 12 full-time members of the Supreme Court include:
JUSTICE take the view that the full-time complement should be increased to 15 members, and that there should be no recourse to an additional panel of members. They are concerned that any additional members used on a part-time basis would lead to a two tier judiciary within the Supreme Court.
Amongst those advocating an increase in the full-time membership of the Supreme Court are:
If there were such a panel, under what circumstances should the Court call on it?
There were 77 responses to this question. The respondents gave a range of views that were not possible to quantify.
Generally, most of the respondents argue that any reserve panel should be called upon when either the court needs specialist assistance, or when the workload is too high and leads to a delay in cases being heard.
A number of respondents believe that the reserve panel should be used to assist in devolution matters.
JUSTICE believe that the reserve panel should only be used to help the court on devolution matters when a senior judge from Northern Ireland or Scotland should be co-opted on to the Supreme Court;
The Scottish Executive feel that a reserve panel would be useful to assist in devolution cases;
The Faculty of Advocates and the Law Society of Scotland feel it is important that the reserve panel for the Supreme Court is used to provide specialist expertise in devolution matters; and
The Law Society for England & Wales take a similar view.
The Rt Hon Lord Donaldson of Lymington argues that there should be no fixed rules governing the use of a reserve panel, and it should generally be used when there is a need for greater judicial resources. He feels that the reserve panel should not be used to supplement the expertise of the Supreme Court as judges at this level should be able to grasp any arguments put to them.
The Rt Hon Lord Cullen of Whitekirk and the Senators of the College of Justice feel that any reserve panel should be used sparingly if the collegiate nature of the Supreme Court is to be maintained. Lord Cullen considers that the consistency of decision making could be affected by the use of a reserve panel.
Should the composition of the Court continue to be regulated by statute or should it be more flexible?
Of the 87 who responded to this question, a majority of 79 (91%) feel that the composition of the Court should continue to be regulated by statute and a small number, 8 (9%), feel that it should be more flexible.
The Law Lords are united on this point and write that: "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".
The Rt Hon Lord MacKay of Clashfern says: "I do not think that the composition of the Court can be regulated otherwise than by statute".
Other respondents in favour of the Supreme Court being regulated by statute are:
the Society of Legal Scholars;
the Law Society of England & Wales;
the Law Society of Scotland;
the Constitutional & Administrative Law Bar Association;
the Judges' Council; and
the Bar Council of Northern Ireland.
A number of respondents argue that the composition of the Court should be governed by statute, but there should be provisions built in to allow flexibility.
The Rt Hon Lord Donaldson of Lymington states: "...this statutory regulation, which should take great account of the President's view of the needs of the Court, should permit a degree of flexibility either pursuant to the wording of the statute or by allowing the statute to be easily amended by subordinate legislation".
The Rt Hon Lord Cullen of Whitekirk and the Senators of the College of Justice agree that there should be a built in degree of flexibility to ensure adequate representation of Scotland.
The Faculty of Advocates are of the opinion that as little as possible regarding the Supreme Court should be contained in statute as this would limit the potential for executive interference. However, as the Supreme Court will have to be created by statute they do: "...not see any reason why the composition of the Court, both in relation to full and additional members, should both be the subject of legislation".
JUSTICE are of the view that the composition of the Supreme Court should be entirely regulated by the President of the Supreme Court.
Should there be a Deputy President?
Of the 77 respondents answering this question, 69 (90%) agreed, while only 8 (10%) disagreed with this proposal.
The Law Lords agreed with the proposition that there should be a Deputy President. They said: "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".
The majority of the respondents agree with the sentiments expressed by the Law Lords. They argue that a Deputy President is essential to ensure continuity if the President becomes incapacitated or unable to discharge his duties for any reason.
The Rt Hon Lord Donaldson of Lymington states in his response: 'If the President is incapacitated for any reason, it is important that everyone should know who is to perform his functions in his absence".
Other respondents in favour of a Deputy President are:
A small number of respondents do not think that a Deputy President is needed. They argue that the Supreme Court will be a small institution and that it should be more focused on a collegiate system.
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?
Eighty five respondents answered this question; 51 (60%) consider that the posts of President and Deputy President should be filled by the same process as membership generally; 12 (14%) consider that these appointments should be made on the advice of the Prime Minister after consultation; 22 (26%) consider that appointments of the President and Deputy President should be made by an alternative method.
The Law Lords, the Bar Council, JUSTICE and the current Judicial Appointments Commission argue that the posts of the President and Deputy President should be filled by the same process used to select judges for the Supreme Court.
The Law Lords have developed a method for appointing judges to the Supreme Court which is dealt with in Question 12.
A number of respondents feel that the President and Deputy President should be selected on the advice of the Prime Minister after consultation. These include:
The Rt Hon Lord Donaldson of Lymington considers that: "...if the Prime Minister of the day could not be relied upon to act non-politically in this context, he would both be, and soon be seen to be, unfit for office".
Lord Alexander of Weedon QC however states that it would be '...retrograde for appointments to the new Supreme Court to be made on the direct advice of the Prime Minister'.
The remainder of respondents consider a range of methods to appoint the President and Deputy President of the Supreme Court.
Lady Justice Hale considers that the Supreme Court should be able to elect their own President and Deputy President. The Constitutional and Administrative Law Bar Association hold the same view.
The Rt Hon Lord MacKay of Clashfern considers two methods could be used. Either the two most senior members of the Court should fill the posts, or it would be appropriate for the Supreme Court to elect its own President and Deputy President. The Faculty of Advocates also consider these two methods to be valid.
A number of respondents consider that these appointments should be made by a Judicial Appointments Commission, independent of the executive. These include:
Should the link with the House of Lords and the Law Lords be kept by appointing retired members of the Supreme Court to the House?
There were 88 responses to Question 7. The general view, 60 (68%) is that the link between the House of Lords and the Law Lords should be kept by appointing retired members of the Supreme Court to the House of Lords. The balance of the respondents 28 (32%) say there should be complete severence.
The Law Lords comment that it is difficult to answer Question 7 because the size and composition of the House of Lords has not yet been finally settled. The Law Lords suggest, '...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.'
Respondents who favour retired members of the Supreme Court having a link with the House of Lords include:
The Law Society for Scotland comments that '...there could be benefit to the House in having available the experience of retired judges.'
An alternative view is provided by Judge Harris who states, 'A retired law Lord should have no greater right to sit there than any other member of the public.'
The Constitutional & Administrative Law Bar Association says that if judges are to be appointed to the House of Lords after retirement, then it should be by virtue of their service as member of the Supreme Court.
While there is a theme in the responses to Question 7, that retired members of the Supreme Court can offer valuable experience to the House of Lords, a number of respondents do not agree on appointment of retired judges to the House. For example, the Rt Hon Lord Brightman says, '...retired law Lords should not automatically become members of the House.' Moreover, membership should be conditional on their intention to become full working members of the House.
A range of respondents indicate they do not agree with the automatic appointment of retired Supreme Court judges to the House of Lords. They include:
The Bar Council of Northern Ireland argues that severance would be a '...further illustration of the Government's determination to persuade the public of the existence of an independent and impartial judicial system.'
Should the bar on sitting and voting in the House of Lords be extended to all holders of high judicial office?
Out of 85 responses, 66 (78%) are in favour of a bar on sitting and voting in the House of Lords being extended to all holders of high judicial office. Nineteen (22%) respondents do not want to see a complete bar.
The Law Lords have said, with the abolition of the Lord Chancellor's judicial role, the opportunity should be taken to reflect the complete independence of the judiciary from the executive and the legislative. However, on this particular question, the Law Lords views varied.
Respondents who argue for a bar on sitting and voting in the House of Lords are split between a complete bar on one hand, and on the other allowing members to retain a practical link with the House.
The Judges' Council does not advocate a complete bar but argues that '...the bar should not extend to the Lord Chief Justice of England and Wales, the President of the Supreme Court, the Lord President of the Court of Session or the Lord Chief Justice of Northern Ireland.'
This is the same position taken by the Rt Hon Lords Nicholls, Hope, Hutton, Hobhouse, Millett, Scott, Rodger and Walker.
A further group of Law Lords (the Rt Hon Lords Bingham, Steyn, Hoffman and Saville) believe that there should be complete separation of judicial and legislative work. The most senior judges, they argue, have ample opportunities to make their views known.
The Judges' Council argue that the House of Lords will have mainly appointed members. If the House was made up of elected members, then there would be no place for unelected judges. The judges will be in a position to contribute to debates in the House on matters affecting the justice system or the judiciary.
JUSTICE favours, in principle, the idea of a bar being extended to all holders of judicial office, but, 'a practical exemption should be made for holders of part-time appointments at the recorder level and below.'
Respondents in favour of a complete bar extending to all holders of high judicial office include:
The Rt Hon Lord Cullen of Whitekirk and the Senators of the College of Justice do not agree to the bar extending to holders of high judicial office. It is argued that the views of the senior judiciary should be heard in Parliament. They concede, however, that a convention that peers who hold high judicial office would not vote might be appropriate.
The Rt Hon Lord Nolan believes that serving and retired Law Lords should remain members of the House. He warns that there is a danger of Supreme Court members becoming '...inward-looking, and out of touch with the wider world' if they no longer sit in the House.
Should there be an end to the presumption that holders of high judicial office receive peerages?
Of the 81 respondents to this question, a majority of 50 (62%) agree that there should be an end to the presumption that holders of high judicial office should receive peerages. Thirty one (38%) of the respondents say that this should remain unchanged.
The Law Lords' views diverge in their response to this question. Eight Law Lords believe that peerages should be conferred on the holders of the offices of 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. The Rt Hon Lords Bingham, Steyn, Hoffmann and Saville do not agree that future holders of these offices should receive peerages.
The Judges' Council takes the same view as the majority of Law Lords.
The Rt Hon Lord Mackay of Clashfern, the Chancery Bar Association and the Law Society of England and Wales are amongst respondents not in favour of ending the presumption. The Law Society says that retired members should automatically be appointed to the House of Lords and receive peerages. They stress there should be no discretion. The appointments should either be automatic or not at all. They argue that this is necessary '...to avoid any public perception that a judge of the Supreme Court might be influenced by the fact that he or she have to rely on political patronage for appointment...'.
A common response from respondents arguing against the presumption that holders of high judicial office should receive peerages is best described by JUSTICE. They argue that '...it would be somewhat anomalous if other senior judicial posts, such as the office of Lord Chief Justice, also attracted automatic peerages'.
The Faculty of Advocates also point out that if members of the new Court are to be barred from sitting and voting in the House of Lords, together with senior members of the lower courts, then there is no reason why they should be made members of the House of Lords. Other respondents in favour of the bar are:
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 Deputy First Ministers in Northern Ireland and with the profession?
Of the 90 responses to Question 10, a significant majority 62 (69%) say the appointments system to the Supreme Court should not continue to be made on the direct advice of the Prime Minister. The remaining 28 (31%) respondents disagree.
The Law Lords identify a number of key principles, notably that appointments must be made by The Queen acting of the advice of her ministers, in this case the Prime Minister. This view is reiterated by a number of respondents.
The Law Lords comment that the Secretary of State should be bound to accept the Commission's recommendation, either initially or after reconsideration, and that the Prime Minister should be bound to advise The Queen in accordance with the Secretary of State's advice.
The following key stakeholders support the involvement of the Prime Minister:
The 69% of respondents who disagree with the involvement of the Prime Minister in the appointment of members of the Supreme Court express a range of views about what might be a better system. A number propose that the Appointments Commission should be able to advise The Queen directly, arguing that the Executive, in this case the Prime Minster, should not be involved in appointments to an independent Supreme Court.
Lord Alexander of Weedon QC states that while he broadly supports the proposal for a new Supreme Court, he considers it would be a retrograde step for appointments to the Court to be made on the direct advice of the Prime Minister.
The Equal Opportunities Commission considers that appointments to the Supreme Court should not be made solely on the direct advice of the Prime Minister, saying, "...such a procedure gives rise to question[s] about the degree of political influence in respect of appointment to the most powerful court. The independence, and the appearance of independence, of the judiciary from the Executive is paramount and therefore this practice cannot continue."
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 Deputy First Ministers in Northern Ireland? Or should it be statutorily empowered to advise The Queen directly?
Question 11 follows a question (Question 10) about the continued involvement of the Prime Minister in the appointment of judges to the Supreme Court.
There were 88 responses to Question 11. Of these:
Key stakeholders in the 28% who favour an Appointments Commission to recommend a short-list to the Prime Minister are:
In general, the stakeholders in this category indicate strong support for the principle of The Queen acting on the advice of her ministers.
The Law Lords propose a small appointments commission to include members from all jurisdictions in the United Kingdom and some lay (non-judicial) members. The commission would recommend one name to the Secretary of State for Constitutional Affairs who would be authorised to invite the commission to reconsider its recommendations. The Secretary of State would then advise the Prime Minister of his recommendation, and the Prime Minister would advise The Queen accordingly.
The Law Lords comment that the appointments process needs to be apolitical and command public confidence.
Evident in the 46% of respondents favouring an Appointments Commission being statutorily empowered to advise The Queen directly is a theme that the executive should not be involved in appointments to the Judiciary because it would introduce political considerations into the process.
The Chancery Bar Association comments, "...it is not easy to see what input the Prime Minister would have other than to exercise a political judgement about which name on the list to select".
Lord Alexander of Weedon QC says: "I do not believe it is right that either the Prime Minister acting directly, or with a choice of candidates, should appoint members of our highest and most important Court".He suggests that the desired outcomes could be achieved by the simple substitution of a non-political Lord Chancellor as the final appointer.
Lord Justice Schiemann suggests that no normal Government minister should have a role in the appointments process.
Included in the 26% of respondents who suggest variations to the appointments process is a suggestion by the Faculty of Advocates that the Supreme Court could choose its own members. However, Lady Justice Hale suggests that the members of the Supreme Court should not be included in the appointment system to avoid the danger of choosing candidates most like themselves.
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?
There were 81 responses to Question 12. With few exceptions, respondents identify the need for an Appointments Commission for the Supreme Court to be representative of the three jurisdictions within the United Kingdom, and in particular for its membership to be drawn from the appointments commission in each jurisdiction. A number of respondents, for example Rights of Women, suggest that appointments made by means of an independent judicial appointments commission will provide a means to introduce greater equality into the Court.
The Law Lords' comments are quite specific. They propose that the Appointments Commission be a small independent body, convened on an ad hoc basis as required. They suggest the Commission comprise:
The Law Lords believe this structure has a number of strengths, which include the fact it would be small and its members would be well placed to consult judicial, professional and non-judicial opinion in their respective home jurisdictions. Also, "...lay members would afford a public guarantee that the process of appointment had been carried out in a fair, open-minded and thorough way with due regard to the interests of the public at large".
The Law Society suggests an alternative structure, which it believes would be suitable to the fact that the Supreme Court Appointments Commission would not have a heavy workload. The Society propose a Commission of eight persons comprising, four members of the judicial Appointments Commission of England and Wales, two members from the Judicial Appointments Commission of Scotland and two members from the Judicial Appointments Commission of Northern Ireland. The composition of the Supreme Court Appointments Commission should comprise half lay and half legal members' and have a lay chair.
JUSTICE proposes an Appointments Commission of five members, which comprises the chairs of appointing commissions of the three judicial appointments commissions in each jurisdiction, the President of the Supreme Court and the First Civil Service Commissioner, who would chair the Commission.
Some stakeholders comment on the need to consider particular interests. For example, the Society of Legal Scholars says that although Wales is not a separate jurisdiction, consideration should also be given to Welsh input.
The Law Society of Scotland proposes the Appointments Commission comprise the heads of judicial appointments bodies in each of the three jurisdictions and three Supreme Court judges. All appointments should be transparent and subject to the appointments principles issues by the Commission on Standards in Public Life.
Should the process of identifying candidates for the new Court include open applications?
There were 83 responses to Question 13. A majority of 53 (64%) respondents are in favour of open applications, that is, advertising vacancies on the Supreme Court so that anyone may apply. The remaining 30 (36%) respondents favour approaches such as senior members of the judiciary carrying out consultation among themselves and then making a recommendation.
A diverse range of stakeholders support open applications. They include:
Lady Justice Hale suggests that there may be many very good candidates who could bring a great deal to the Supreme Court and who are excluded by the current arrangements.
Several respondents, for example JUSTICE, suggest that open competition is important in the interests of the appointments process being transparent. A contrasting view is presented by the Lawyers' Christian Fellowship, who say: "We consider that judicial experience is necessary to be a judge in the highest court in the land. This is the only option that is consistent with the principle of the efficient administration of justice".
In addition to the Lawyers' Christian Fellowship a range of stakeholders were not in favour of open selection. They included:
The Law Lords recognise that open applications ensure no eligible candidate is inadvertently overlooked and stated: "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." The Law Lords then argue that such safeguards are not of value when appointments at the highest level are under consideration. They say the outstanding candidates "... 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."
The views of the Law Lords are echoed in the comments of The Rt Hon Lord Cullen of Whitekirk, who says, "The field from which candidates for appointment to the Supreme Court would be selected would be a few senior judges whose qualities would be well known to those who are consulted. There will be a relatively limited number of appointments. Open application would not be appropriate".
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?
There are 89 responses to this two-part question. Responses may be broken down as follows:
The Law Lords argue that experience in practice or on the bench or both is "...an all but essential qualification for trial judges". This view is shared by, amongst others:
The Rt Hon Lord Steyn believes that legislation should not preclude academics from being appointed to the new Court, a position also advanced by, amongst others:
Notwithstanding their view about the crucial importance of trial experience, the Law Lords believe that merit is the overriding criterion. They "...do not consider that the existing rule works adversely to the public interest."
The Judges' Council points out that a number of academics are qualified under the present rules and indeed some have already become judges. They also make the point that a number of practising lawyers can be described as distinguished academics, making it unnecessary to change the current rules for qualification.
Should the guidelines which apply to the selection of members of the new Court be set out administratively, or through a Code of practice subject to parliamentary approval, or in legislation?
Of the 77 responses received, 32 respondents (41.5%) favour these criteria being set out in legislation, while 19 (24.5%) are in favour of using a Code of Practice and 16 (21%) believe that administrative guidelines are preferable. The ten remaining responses do not select any one of the options proposed or else suggest an entirely different method, there being no discernible pattern in the answers.
The majority view that selection criteria are sufficiently important to warrant statutory enshrining is shared by, amongst others:
Respondents favouring the flexibility of administrative guidelines include the Chancery Bar Association which argues for all appointments to be made according to an appointing commission's guidelines. Lady Justice Hale believes that it will be untenable to draft, obtain parliamentary approval for and implement legislated criteria. The Rt Hon Lord Jauncey of Tullichettle believes that if there are to be guidelines these should be set out administratively. His first preference, however, is for the views of the senior judiciary to be determinative in appointments, rendering guidelines, in his view, unnecessary. This view illustrates what is true in many of the responses received to this question, namely that the favoured method of setting out criteria is linked with respondents' views of who should select judges.
What should be the arrangements for ensuring the representation of the different jurisdictions?
There were a total of 81 responses to this question. Due to the range of views it is impossible to provide any meaningful statistical analysis.
By convention, the Appellate Committee of the House of Lords consists of no fewer than two Scottish Law Lords and, usually, a Law Lord from Northern Ireland.
The Law Lords are against a formalised quota system and argue that it is "...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". The Law Lords consider that merit should be the deciding factor in making appointments to the Supreme Court, and that the current convention should be broadly followed and "...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".
The Law Society of England and Wales argue that there should be guidance for the representation of the jurisdictions, but not formal statutory quotas.
The Lord Chief Justice of Northern Ireland supports one member of the Supreme Court being from Northern Ireland.
The Law Society of Scotland believes that a minimum representation from Scotland and Northern Ireland should be provided for in legislation. They say that there should be at least three Scottish Law Lords and one from Northern Ireland. The Bar Council of Northern Ireland also favour a formal quota for representation of the different jurisdictions. They say this will lead to further public confidence in Scotland and Northern Ireland in the judicial system.
Other respondents who support this view include:
JUSTICE argues that each of the jurisdictions should have a minimum membership - two from Scotland and one from Northern Ireland. However, they temper this approach by saying that there should be flexibility to ensure that appointments are made on the basis of merit, regardless of nationality. JUSTICE also consider that the nominating commission should "...pay regard to the desirability of the membership of the court reflecting judicial experience within Wales".
What should be the statutory retirement age? 70 or 75?
There are 82 responses to this question, of which 44 (53.5%) favour a retirement age of 70 years and 30 (36.5%) favour 75 years. Eight respondents (10%) proposed a third alternative. For example, the Rt Hon Lord Jauncey of Tullichettle believes that the retirement age should be 72.
Those in favour of retirement at 70 include:
Those in favour of retirement at 75 include:
Should retired members of the Court up to five years over the statutory retirement age be used as a reserve panel?
Of the 83 responses to this question, 57 respondents (69%) favour the idea of retired members being used as reservists up to five years over statutory retirement age. Twenty six respondents (31%) answered the question in the negative, for various reasons, the most common reason being that there should be a common retirement age for all judges, whether part-time or full-time.
A respondent's view of the number of years which a retired judge should serve as a reserve panellist tends to depend on the view taken about the age of statutory retirement posed in the previous question. Generally speaking, the later the age of retirement from full-time judicial service, the shorter the period proposed for use on the reserve panel. So, for example, The Rt Hon Lord Justice Mummery states that the retirement age should be 75 years with retired members being used on the reserve panel "...for as long as members of the Court consider that they are fit to sit and for a maximum of years after the compulsory retirement age."
The Law Lords respond that if retirement age is to be fixed at 70 years, part-time appointees should be eligible to sit until the age of 75 years. The Law Lords support the rule precluding a judge from sitting after the age of 75, except to complete a hearing commenced before the judge's 75th birthday.
The Judges' Council states in its response that the "...retirement age of some members of the senior judiciary, depending on the date of their appointment, is 70 not 75. But, for sake of consistency, we would retain 75 years of age as the age up to which retired judges...would be eligible to be co-opted to sit in the new Supreme Court."
A significant number of the 26 respondents who do not support the proposal argue that the retirement age should be set at 70 and that no judge should sit after this age.
Proponents of this view include:
The Law Society for England and Wales expresses the view that instead of retired members, the reserve panel should be recruited through open applications to the Supreme Court Appointments Commission.
Should the Court continue to sit in panels, rather than every member sitting on every case?
A total of 83 respondents replied with 57 (69%) saying that the Court should sit in panels and 26 (31%) saying that they should sit en banc.
Many respondents favouring the option of panels do so because it is, they argue, the method most likely to allow the Court to maintain its work load. In addition, the Bar Council expresses the view that "...individual appointments to the Court are less sensitive precisely because the impact of the appointment on the composition of individual panels hearing cases is less immediate."
The Law Society, like the Bar Council and other supporters of the panel option, expresses concern that speculation about how the Court 'divides' on cases (as happens in the US Supreme Court) is a danger when a court sits en banc. The following quote from Lord Bingham's lecture to the Constitution Unit in May 2002 is cited:
"If all the members of a Court decide all the cases, the opportunity arises for the appointing authority to seek quite deliberately to influence the course of the court's decision making in one direction or another when filling vacancies in the court."
Lady Justice Hale believes that there is always a possibility that the composition of the court will affect the outcome, whether or not the subjet matter is political, but the important thing is that neither the parties nor the government should be able to "pick or pack the court". She feels if the Court sits en banc there would in theory be a greater temptation to try and 'pack' it than if the Government has no influence on who hears which case. Lady Hale does note, however, that such an outcome is unthinkable in present times.
The Judges' Council view is that panels should be subject to a statutory quorum of three, but that the number of members in each case should be for the President and Deputy President to decide. The Law Lords are substantially in agreement with this view save that they argue for a quorum of three for petitions for leave to appeal or appeals. They envisage that (as happens now) panels of three should conduct oral hearings of petitions for leave to appeal, and panels of five the great majority of full appeals.
Whilst not wishing to rule out the possibility of all members sitting on a particular case, the Law Lords stress that this should by no means be the norm. This view accords substantially with that of JUSTICE which states that the President should have the power to require the new Court to sit en banc.
Should the Court decide for itself on all cases which it hears, rather than allowing some lower courts to give leave to appeal or allowing some appeals as of right?
A majority, 50 (64%), of the 78 respondents to this question propose that the system should remain unchanged. Twenty eight (36%) are in opposition to this and would favour the Supreme Court deciding what cases it should hear.
The Law Lords are of the view that the present system works well and should not be changed. They argue that the lower courts rarely give leave in cases where it should not have been given.
JUSTICE is amongst those advocating no change and argues that a lower court should be able to indicate where it feels bound by precedent which should be reviewed. However, this power to refer "...should be very sparingly used and the Supreme Court should have a large measure of control over its cases."
LIBERTY opposes the idea of removing the route of leave to appeal from lower courts: "By limiting the avenues of appeal it will make the exhausting of domestic remedies more likely at an earlier stage. This will force applicants to petition the European Court of Human Rights in a situation where leave may otherwise have been granted. As the resolution of a case in Europe is likely to take several years we do not believe this will be in the interests of justice."
The Scottish Executive sees no need to change the current leave arrangements: "There is no evidence from numbers or types of cases that the current arrangements lead to inappropriate or frivolous cases going to the House of Lords".
The Northern Ireland Human Rights Commission, the Rt Hon Lord Clyde, The Chancery Bar Association, the Constitutional & Administrative Law Bar Association, and the Judges' Council are amongst the minority of respondents in favour of change.
The Judges' Council believe that as a general rule the Court should select the cases it hears while the Constitutional & Administrative Law Bar Association argues that in all cases the Supreme Court should itself decide whether or not to grant permission to appeal.
Should the present position in relation to Scottish appeals remain unchanged?
There are 67 responses to this question of which 35 (52%) favour retaining the present position regarding Scottish appeals. Thirty two respondents (48%) argue that it should be altered.
The Law Lords are divided on this question. The Rt Hon Lord Nicholls says that this is a good opportunity to end the anomaly that different citizens in the UK have different rights of access to the highest court. Lady Justice Hale supports this: "There is no justification for continuing to discriminate between the Scots and the rest. Everyone should be subject to a leave filter."
JUSTICE agrees arguing that "...it is illogical for different jurisdictions to have different appeal rights to the same court."
On the other hand the Rt Hon Lords Bingham, Hope, Saville and Rodger are reluctant "...to disturb a long-standing procedure which gives rise to minimal difficulty in practice."
Amongst those who support maintaining the status quo are:
The Scottish Executive argue that there is no need "...to change the position in relation to rights in respect of Scottish Appeals.'
The Law Society of England & Wales suggest that: "...if the number (of appeals) were to grow substantially for any reason, to the point where the ability of the court to deal effectively with the volume of business was impaired, then consideration should be given to requiring civil appeals from Scotland to petition the Appeal Committee of the Supreme Court."
One respondent believes that the present right of appeal in civil cases is undesirable. He argues that "...leave should not be granted unless the case raises UK-wide issues."
What should the existing Supreme Court be renamed?
Here, views are too varied to provide any meaningful statistical breakdown. A number of respondents chose to address the question of naming the new Court as part of their response to this question. Suggestions in this regard include:
Some respondents (such as Lord Justice Mummery) who provide views about names for the new Court regard it unnecessary to rename the existing Supreme Court. They argue that the three courts do not need a collective title.
Many suggestions emerge for a new name for the existing Supreme Court, including:
No clear body of opinion emerges from the responses and there is no discernible preference for either the renaming of the existing Supreme Court or the name to be given to the new Court.
What should members of the new Court be called?
There were 78 responses to Question 23 and they provide a range of suggestions as to what the members of the new Supreme Court should be called. Suggestions include:
The consultation paper proposed the title 'Justice of the Supreme Court' and this met with the approval of a range of respondents, including:
The Law Lords suggest two options. This first is to adopt the Scottish model where the term 'Lord' is used in the Court of Session. In this context it marks the dignity of the office but the holder does not become a peer.
The second option is to formally call the members of the Supreme Court 'Justices of the Supreme Court' but in ordinary speech (as in the United States) 'Justices'.
The Rt Hon Lord Hope and the Rt Hon Lord Millett support retaining the style (not as a Peer, but as a member of the Supreme Court) of 'Lord', while the Rt Hon Lords Bingham, Nicholls, Steyn, Hoffmann, Saville and Walker, favour the title 'Justice of the Supreme Court'.
The Law Society is of the view that the judicial nomenclature in general would benefit from being simplified in a dignified way and propose that members of the Court be known as 'Lord/Lady Justice (Family Name), Judge of the Supreme Court'. The same mode could be applied at all levels of Superior Courts.
The responses summarised here concern proposals for the creation of the Supreme Court and were offered in response to the consultation paper, Constitutional Reform: a Supreme Court for the United Kingdom. The Supreme Court is part of the Government's programme to modernise the constitution and these responses have informed the development of this important and wide ranging reform. In due course the Government will announce its finalised proposals, and intends to introduce to Parliament a Bill to enable the proposed changes to be made.
Judiciary, Tribunal Members & Associated Bodies
His Honour Judge D L Mackay
His Honour Judge Dr Peter Jackson
The Right Honourable Lord Justice Buxton
Sir Iain Glidewell
The Honourable Judge Nicholas Forwood
The Right Honourable The Lord Donaldson of Lymington
The Right Honourable The Lord Brightman
Tim Lamb QC
His Honour Judge Michael Harris
The Honourable Mr Justice Buckley
The Right Honourable Lord Bingham of Cornhill (The Law Lords' Response to
Consultation)
His Honour Judge Richard Holman
The Right Honourable Lord Justice Schiemann
The Right Honourable The Lord Steyn
The Right Honourable The Lord Lloyd of Berwick
The Right Honourable The Lord Jauncey of Tullichettle
His Honour Judge Keith Hollis
The Honourable Mr Justice Burton
The Honourable Mr Justice McCombe
The Right Honourable The Lord Clyde
The Honourable Mr Justice Ouseley
The Judges' Council
The Right Honourable Lady Justice Hale
Ewan Hawthorn JP
The Right Honourable Lord Justice Carnwath
The Honourable Mr Justice Aikens
The Right Honourable Lord Hobhouse of Woodborough
The Right Honourable Lord Justice Mummery
The Right Honourable Lord Nolan
The Right Honourable The Lord Cullen of Whitekirk & Senators of the College
of Justice in Scotland
His Honour Judge David Radford
The Right Honourable The Lord Ackner
The Right Honourable Lady Justice Arden
United Kingdom Association of Women Judges
The Honourable Mr Justice Lloyd
The Commonwealth Magistrates & Judges' Association
The Right Honourable Lord Mackay of Clashfern
The Right Honourable Sir Robert Carswell - (Judges of the High Court and
Court of Appeal in Northern Ireland)
The Sheriff's Association
Legal Professionals and Associated Bodies
Alec Samuels
Allen & Overy
Peter Careless
Chris Purnell
Charles Macdonald
Leicestershire Law Society
Newcastle Upon Tyne Law Society
The Tunbridge Wells, Tonbridge & District Law Society Contentious Business
Committee
The London Solicitors Litigation Association
The Kirkaldy Law Society
Sir Thomas Legg QC (Cambridge University Conference Papers)
Leolin Price QC
The Scottish Legal Aid Board
The Scottish Law Agents Society
Lord Alexander of Weedon QC
Martin Wilson QC
W J H Corlett
The Bar Council of Northern Ireland
Nicholas Somerset Haggan QC
The Society of Labour Lawyers
Legal Wales
The Hertfordshire Local Group of the Sole Practitioners Group of the Law
Society
Birmingham Law Society
The Faculty of Advocates
The Lawyers' Christian Fellowship
Gary Flather QC
Beryl Cooper QC
Society of Conservative Lawyers
Edwin Coe's
Chancery Bar Association
Lovells Solicitors
Barbara Hewson
Institute of Legal Executives
Constitutional & Administrative Law Bar Association
David Hoffman and John Rowe QC
Rupert Barnes
Personal Injuries Bar Association
Wragge & Co LLP Legal Firm
Ecclesiastical Law Society
Kent Law Society
Matrix Law
The Law Society of England & Wales
Discrimination Law Association
Roger Trencher
The Law Society of Scotland
City of London Law Society
London Common Law & Commercial Bar Association
The Commercial Bar Association
Clifford Chance LLP
Robert Gay
The Liberal Democrat Lawyers Association
George Eddon
CMS Cameron McKenna
Association of Personal Injury Lawyers
The Bar Council of England & Wales
The Young Solicitors Group
The Association of Women Barristers
Young Barristers' Committee (YBC)
Motor Accident Fraud Solicitors Society
Herbert Smith Law Firm
Main Representative Groups
Local Government Association
Policy Exchange
Church Commissioners' Pastoral & Redundant Churches Committee
JUSTICE
Committee on Standards in Public Life
Rights of Women
Miscarriages of Justice Organisation
The Odysseus Trust
Equal Opportunities Commission
Liberty
The Society of Legal Scholars
Charter 88
The Northern Ireland Human Rights Commission
Scottish Police Federation
Association of Chief Police Officers in Scotland
Association of Scottish Superintendents
Training for Women Network Ltd
Members of the Public and Academics
Dr Noel Cox
Peter Windle
Mark Stratton
Andrew Hill
Graeme Fairbrother
I G N Nimmo
Kyriakos Spachis
Dr Paul Robertshaw
Alan Reid
Professor J A Jolowicz
Jeff Shute
John M Merrett Bloom
Brian Schneider
Professor Judith Resnik
Sir Nicholas Goodison
Professor I R Scott
Professor Ryan Patrick Kieran Doyle
Stephen Linstead
Daveukok (via email)
Jack Benedetto
S P Bowers
Matthew Collinson
John M Pollock
Roy Fox
John Hardman
Austin Spreadbury
Ross Gilbert Andersen
Moria McGregor
James Chalmers
Professor Hector MacQueen
David Robins
Robert Miles QC
Ranil M Jayawardena
D Fox
Professor George Gretton
Professor Andrew Burrows QC
Graeme J Allen
John Gasson
Dr Cheryl Thomas
Professor Richard Cornes
Professor James Williams
MPs and Political Parties
Scottish National Party
Chris Bryant MP
Mark Lazarowicz MP
Devolved Administrations
The Scottish Executive
NDPB'S/Local/Regional Organisations
International Underwriting Association of London (IUA)
Her Majesty's Commission for Judicial Appointments
Bailiff of Jersey
Association of Directors of Social Work (Scotland)
Scottish Human Rights Centre
Scottish Criminal Cases Review Commission
Legal Services Division of Northumberland County Council