Constitutional Reform Bill
(i) The Objective
The proposals in the Constitutional Reform Bill abolish the office of the Lord Chancellor; create a new Judicial Appointments Commission for England and Wales; and create a new Supreme Court for the United Kingdom. No burdens are created by these measures beyond a small increase in fees for civil cases. This assessment therefore, focuses on the proposals for the Supreme Court.
The United Kingdom Supreme Court will be an amalgamation of the jurisdictions of the House of Lords Appellate Committee and the devolution jurisdiction of the Privy Council. The Supreme Court will be the highest appeal court in the United Kingdom. It will be housed in a separate building and will have distinct administrative and funding arrangements.
The UK Supreme Court will continue the work of the House of Lords Appellate Committee and the devolution jurisdiction of the Privy Council. It is not anticipated that there will be any alteration in case load or in the nature of the cases coming before the court.
The first judges of the Supreme Court will be those Lords of Appeal in Ordinary who comprise the Law Lords when the Act is brought into force. It is anticipated that their salaries and future pensions will continue to be drawn from the current arrangements.
Devolution: The provisions relating to the Supreme Court apply fully to England & Wales and Northern Ireland. They apply to Scotland only in relation to civil law.
(ii) Background
Currently the House of Lords provides the highest appeal court in the United Kingdom. Its current statutory framework is contained in the Appellate Jurisdiction Act 1876.
The Privy Council hears cases concerning devolution matters under the Scotland Act 1998, the Northern Ireland Act 1998 and the Government of Wales Act 1998.
The Government does not consider it appropriate any more that the highest appeal court in the United Kingdom is contained within the legislature. The Government considers that the creation of a United Kingdom Supreme Court will put the relationship between the executive, the legislature and the judiciary on a modern footing, which takes account of people's expectations about the independence and transparency of judicial system.
The Human Rights Act, specifically in relation to Article 6 of the European Convention on Human Rights, now requires a stricter view to be taken not only of anything which might undermine the independence or impartiality of a judicial tribunal, but even of anything which might appear to do so. The fact that the Law Lords are a Committee of the House of Lords can raise issues about the appearance of independence from the legislature.
(iii) Risk Assessment
The measures in the Bill do not address any risk as such. Rather they are intended to improve the transparency of our constitution. Specifically, the creation of the United Kingdom Supreme Court helps improve the perception of the independence of the judiciary, as the members of the court will no longer be potentially able to act as both legislators and judges.
Before recommending the proposals for the new Supreme Court which will increase, albeit only slightly, fees for civil cases, the Government explored other options. The three options, including the proposals in the Constitutional Reform Bill, are set out below.
Option 1: Do nothing.
Option 2: Partial approach to removing the Law Lords from the House of Lords through House of Lords Standing Orders.
Option 3: Legislate to create a new United Kingdom Supreme Court.
Option 1: This is not a viable option. The Government does not consider it appropriate that the highest appeal court in the United Kingdom sits within its legislative framework. There are no benefits to this option.
Option 2: This is not a viable option. A partial approach to removing the Law Lords will not provide a full solution. Standing Orders will not be able to transfer the devolution jurisdiction of the Privy Council to a Supreme Court, nor will they provide the appropriate authority to authorise expenditure to provide suitable accommodation for the Court.
Option 3: Legislation to create a new Supreme Court will create a single apex to the United Kingdom's judicial system; it will create a clear and transparent appointments process for the members of the Supreme Court; it will create a Supreme Court distinct from the legislature, enhancing the independence and perception of independence of the judicial system.
Directly affected business sectors are minimal.
There are no compliance costs on small businesses, the voluntary sector or on charities. There will be minimal costs.
The costs of the UK Supreme Court attributable to civil business will be recovered through fee recovery. The Supreme Court will have a UK Wide jurisdiction and will be the final court of appeal for all civil matters in the United Kingdom. The precedents set by the Supreme Court will be of value to all litigants in the England & Wales civil jurisdiction (in relation to cases heard under the law of England & Wales), Northern Ireland civil jurisdiction and the Scottish civil jurisdiction (in relation to cases heard under the law of Scotland).
The fee structure for the Supreme Court will be based upon that applicable to the Appellate Committee, but will be restructured in order to bring it into line with fee structures in the lower courts. The total revenue to be for the court is projected to amount to £4.5M-£5M per annum. This is based upon assumptions made at present regarding accommodation costs, administrative overheads (including non-judicial staff salaries), building refurbishment capital charge and judicial salaries. At present no location has yet been chosen for the Supreme Court and so these figures are only approximate.
The costs of the court attributed to criminal appeals and devolution cases are likely to amount to approximately £1.7M and will be met by direct taxation via the DCA vote.
The Small Business Service agree that the impact on small businesses will be minimal.
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The Consultation Paper Constitutional Reform: A Supreme Court for the United Kingdom had broad support.
The Government has recently published a summary of responses to the consultation paper which can be found at http://www.dca.gov.uk/judicial/judges/pubs.htm#reform
To note the proposal and the minor burden in the form of a small increase in fees.
I have read the Regulatory Impact Assessment and I am satisfied that the benefits justify the costs.
Signed by :-
Lord Falconer of Thoroton
Secretary of State for Constitutional Affairs and Lord Chancellor
Department for Constitutional Affairs
Richard Hutchinson
Department for Constitutional Affairs
Selborne House
54-60 Victoria Street
SW1E 6QW
Tel:- 020 7210 8243
Email:- Richard Hutchinson