Sewel Memorandum
Constitutional Reform Bill - Supreme Court
Motion
That the Parliament endorses the principle of having a clear and transparent separation between the judiciary and the legislature and agrees that provisions in the Constitutional Reform Bill establishing a Supreme Court (and provisions consequential thereto), so far as they relate to matters within the legislative competence of the Parliament, should be considered by the UK Parliament.
Introduction
1. The provisions of the Constitutional Reform Bill relating to the proposed establishment of a UK Supreme Court flow from the consultation document Constitutional Reform - A Supreme Court for the United Kingdom, issued by the Department for Constitutional Affairs ( DCA) in July 2003. The consultation period ended on 7 November 2003. The provisions as they affect Scotland were debated before the Scottish Parliament on a Motion of the Executive on 29 January 2004. The Bill had its First Reading in the House of Lords on 24 February 2004 and at Second Reading was referred to a Special Select Committee of the House of Lords for detailed consideration. That Committee completed its consideration of the Bill in June. The Bill was then subject to consideration by the House of Lords sitting as a Committee of the whole House, which is not as yet complete. This note sets out the background to and content of the Bill, as it stands at present.
Background
2. Part 2 of the Bill makes provision for the setting up of a Supreme Court for the United Kingdom exercising the same appellate jurisdictions as currently exercised by the Appellate Committee of the House of Lords and the Judicial Committee of the Privy Council. It also makes provision for the appointment of judges to the Court including the number of judges and their terms and conditions of employment and in relation to the funding and administration of the court. It disqualifies judges holding office in the proposed new Supreme Court and other judges in full time employment from sitting and voting in the House of Lords.
3. At present the exercise of the highest level of jurisdiction in the United Kingdom is shared between the Appellate Committee of the House of Lords and the Judicial Committee of the Privy Council. The Appellate Committee of the House of Lords receives appeals in civil and criminal cases from the courts in England and Wales and Northern Ireland, and in civil cases, from Scotland. The Judicial Committee of the Privy Council, in addition to its overseas and ecclesiastical jurisdiction, considers questions as to whether the Scottish Parliament, the National Assembly for Wales and the Northern Ireland Assembly are acting within their legal powers. That jurisdiction, in relation to Scotland, was established by virtue of the Scotland Act 1998.
Detailed content of the Bill
4. Parts 1 and 3 of the Bill, which are not the subject of this Memorandum, make provision to abolish the office of the Lord Chancellor and redistribute the responsibilities of that office (including in relation to the organisation of the Courts in England and Wales) (clauses 1 to 13); to create a Judicial Appointments Commission (clauses 49 to 86); and to create a complaints procedure and a procedure for disciplining judges in England and Wales (clauses 87 to 95).
5. Part 2 of the Bill at clause 14 establishes a Supreme Court for the United Kingdom which will consist of a maximum of 12 judges, including a President and Deputy President. The judges are to be known as "Justices of the Supreme Court". The number of judges may be increased by Her Majesty by Order in Council, laid before each House of the UK Parliament. The Bill provides that those judges holding office as Lords of Appeal in Ordinary at the commencement date of the Act will become the first judges of the Supreme Court (clause 15). Qualification for appointment in future as a judge will remain unchanged (clause 16).
6. This Part of the Bill goes on to set out a system of Judicial appointments for the Court (clauses 17-22 and Schedule 10). The system involves the Secretary of State for Constitutional Affairs establishing an ad hoc selection commission, when a vacancy is imminent or has occurred, comprising the President and Deputy President of the Court and one member of the Judicial Appointments Commission/Boards for each of Scotland; England and Wales; and Northern Ireland. The member of the selection commission from each of the Judicial Appointments Commission/Boards is to be appointed on the recommendation of that particular Commission/Board.
7. The selection commission will be chaired by the President of the Court. It must ensure that selection is made on merit and, in doing so, must ensure that the Judges appointed appropriately reflect knowledge and experience of the different legal jurisdictions within the UK (clause 18(5)). The selection commission must consult the senior judiciary in each jurisdiction including the Lord President of the Court of Session and the First Minister as part of the selection process (whether or not the vacancy arises in respect of a Judge who met the criterion at clause 18(5) in relation to Scotland).
8. The selection commission will make a recommendation to the Secretary of State for consideration. He or she may accept or reject the recommendation or may require the commission to reconsider the selection. Again, an obligation is imposed to consult with the Lord President and First Minister, on receipt of the recommendation.
9. The Bill further specifies the tenure of judicial office and re-enacts the current requirement to take the oath of allegiance and the judicial oath. It specifies the entitlement of judges to salaries and makes provision for their removal, resignation, pension and retirement at the age of 75, as is currently the case (clauses 23-28).
10. The Bill makes provision for the Court to be able to call upon additional judges as necessary and appropriate, either from among senior serving judges or from a supplementary panel of judges (clauses 29 and 30). A person who holds office as a senior territorial judge may act as a judge at the request of the President of the Supreme Court. "Senior territorial judge" includes a judge of the Inner House of the Court of Session. A person becomes a member of the supplementary panel on ceasing to hold office as a judge of the Supreme Court, or as a senior territorial judge, provided that his or her membership of the panel is approved in writing by the President of the Supreme Court and provided that the President of the Court gives the Secretary of State notice in writing of such approval. There is also provision for the membership of the supplementary panel on commencement: in effect, those (other than the Lords of Appeal in Ordinary) who are at present eligible to sit in judicial proceedings in the House of Lords and do not at present also hold office as senior territorial judges.
11. Clause 31 deals with the jurisdiction of the Court. It states at subsection (3) that "An appeal lies to the Court from any order or judgment of a court in Scotland if an appeal lay from that court to the House of Lords at or immediately before the commencement of this section." Subsection (4) (as read with Schedule 8) makes provision for transferring other jurisdiction (including in appeals from Northern Ireland, and in devolution issues) from the House of Lords to the Supreme Court. Taken together, these provisions have the effect of transferring to the Supreme Court jurisdiction to hear those Scottish Appeals formerly heard by the Appellate Committee of the House of Lords and the Judicial Committee of the Privy Council. Only the former falls within devolved competence.
12. In order to reflect and respond to concerns as to the jurisdiction in relation to Scotland, the Executive is exploring the possibility of making an express provision ensuring that a decision in a case emanating from one part of the UK is binding only in the jurisdiction from which it came, reflecting present House of Lords jurisprudence. The Executive is in consultation with the Lord President of the Court of Session in relation to the detail of such a provision.
13. The Bill provides that the Court will be duly constituted where there are a minimum of three judges, consists of uneven numbers and has at least one permanent judge. The Bill also makes provision for the appointment of specialist advisers to assist the Court, for the making of procedural rules of court by the President of the Court, and to permit photography subject to the control of the Court, mirroring the position of the higher courts in Scotland (clauses 32-37).
14. There is placed on the Secretary of State for Constitutional Affairs a duty to ensure that there is an efficient and effective system to support the carrying on of the business of the Supreme Court and that appropriate services are provided. This includes power to appoint such officers and staff as is considered appropriate, the provision of accommodation and the preparation of an annual report (clauses 38-43).
Devolved matters
15. Regulation of the civil court system in Scotland is a devolved matter. This Part of the Bill, insofar as it amends the rights of parties to appeal from the Inner House of the Court of Session by providing for an appeal to the Supreme Court instead of to the Appellate Committee of the House of Lords seeks to legislate in a devolved area. The Bill modifies those rights in that way by the provisions of clause 31(3) (jurisdiction). At present, section 40 of the Court of Session Act 1988 governs appeal rights to the House of Lords. That Act would require to be amended, in consequence of clause 31(3). Provision to make such amendment is contained in paragraph 49 of Schedule 8 of the Bill.
16. For these reasons, the consent of the Parliament under the Sewel Convention is necessary.
17. In addition to that need to make amendment to the Court of Session Act 1988 consequential to clause 31, there will be a need to make changes to other legislation which also are consequential to the Bill in the establishment of the Supreme Court. Most are simply changes to nomenclature to change references to the House of Lords to references to the Supreme Court. Particular attention is drawn to the need for amendments in the devolved matter of legal aid. Amendments are needed to the Legal Aid (Scotland) Act 1986 and the Solicitors (Scotland) Act 1980. These amendments relate to the provision of legal aid for parties appearing before the new court and the rights of Scottish Solicitors to appear before it.
18. The Legal Aid (Scotland) 1986 contains provisions which allow legal aid to be made available in relation to civil proceedings in the Judicial Committee of the Privy Council, in references, appeals and applications for special leave to appeal under paragraphs 10, 12 and 13(b) of Schedule 6 to the Scotland Act 1998 and in relation to civil proceedings in the House of Lords, in appeals from the Court of Session. It also allows criminal legal aid to be made available in connection with any reference, appeal or application for special leave to appeal to the Judicial Committee of the Privy Council under paragraph 11 or 13(a) of Schedule 6 to the Scotland Act 1998.
19. Section 25A of the Solicitors (Scotland) Act 1980 enables Scottish solicitors to acquire rights of audience in the Court of Session, the High Court of Justiciary, the House of Lords and the Judicial Committee of the Privy Council. Any solicitor who wishes to acquire such extended rights of audience must satisfy the Council of the Law Society of Scotland as to their professional conduct and reputation, their competency in the practice and procedure of these Courts and pass an examination. As those solicitors who satisfy the existing criteria to become solicitor advocates are to have extended rights of audience in relation to the Supreme Court, references in section 25A of the 1980 Act to the House of Lords and the Judicial Committee of the Privy Council are to be replaced by references to the Supreme Court.
20. For the reasons set out at paragraphs 25 to 28 below, it will be necessary to make provision in the Bill empowering the Executive to make a contribution towards the ongoing operating costs of the court. Such an amendment has been agreed in principle between the Executive and DCA and will be tabled at a later Parliamentary stage. So far as relating to a contribution in connection with non-devolution issues, the consent of the Parliament under the Sewel convention is necessary. See paragraph 15 above.
Discussion
21. As set out by the Executive during the debate on 29 January, it supports the underlying reasoning for the creation of a new Supreme Court for the UK that there should be a transparent separation between the House of Lords sitting as a court and the House of Lords sitting as a legislature. The Executive recognise the importance of maintaining the integrity of Scots Law. The amendments on jurisdictional balance and in relation to the binding nature of decisions were respectively made and agreed by the UK Government to meet the concerns of the Executive in these respects. There are no provisions in the Bill which prejudice the independence of Scots Law in either of those ways. The Bill therefore does not contravene the Act of Union.
22. It is not possible to create a new Supreme Court having jurisdiction throughout the UK by the means of an Act of the Scottish Parliament. The Scottish Parliament does not enjoy legislative competence in relation to appeals from England, Wales or Northern Ireland.
23. It would be possible, within Parliamentary competence, to create a new court in Scotland which would hear appeals from the Inner House of the Court of Session, but that is not what is proposed. The DCA have a legislative opportunity to carry out their proposals to legislate in relation to Constitutional Reform and, although it would be possible to introduce a Scottish Bill which did no more than amend the relevant parts of the Court of Session Act 1988, doing so would not present a coherent package of reform. There is no immediate space in the legislative programme of the Executive for such a Bill which would complement the DCA proposals.
24. It should also be noted that, under the Scotland Act, it is necessary that Scottish cases regarding devolution issues require to be determined by appeal to the Judicial Committee of the Privy Council ( JCPC). As such matters raise matters of UK wide constitutional importance, it is necessary that a right of appeal to a UK wide court exists. Devolution issues (as defined in the Scotland Act) are issues where a question arises as to whether the Scottish Parliament has legislative competence or the Scottish Executive has devolved competence to legislate or act. These concern, for example, legislation or acts which contravene the European Convention on Human Rights, fail to comply with Community law or deal with matters which are reserved to the UK Parliament. The proposal is that the new Supreme Court takes on the JCPC's jurisdiction (which was established at and in consequence of Devolution) in those respects. That jurisdiction is transferred by clause 31(4)(b) and Schedule 8. The Bill contains consequential amendments to the Scotland Act at paragraphs 93 to 107 of Schedule 8.
Financial Consequences
25. It is the policy of the Executive and UK Government that the costs of operating the civil courts should be recovered in full through a system of charging fees to those who use the courts. There is no reason in principle why the costs of the United Kingdom Supreme Court attributable to civil business should not be treated in the same way.
26. The number of individual users of the House of Lords however is at present too low to justify the proposition that users of the new Supreme Court should alone bear the full costs of the new system, through court fees. The Executive do not consider that it is appropriate that the operating costs of the new court (over and above those costs which can fairly and reasonably be recovered from litigants in the Supreme Court), should fall on other users of the lower courts. Rather, the Executive are of the view that such costs should be borne from the Justice Department budget in general. This will require the empowering provision referred to in paragraph 20 above.
27. The proposition is that the Scottish budget should bear a share of the running costs of the new court in proportion to the current usage of the House of Lords for hearing Scottish cases. The best estimate is that the overall annual impact for Scotland should be in the range £500,000-£700,000. Scotland will not be expected to meet any share of the costs of acquiring a building and making it fit for purposes of hosting the Supreme Court. All of these costs will be met by the Department for Constitutional Affairs.
28. There are no other estimated financial implications for Scotland of the proposals.