Supreme Court

Question 1

Constitutional case for the creation of a Supreme Court

Answer 1

judges must be independent from other powers in the State, according to the doctrine of separation of powers and to be in line with modern democracy.

This is so judges can carry out core tasks of resolving disputes, protecting fundamental rights and ensuring that everybody can live securely under the rule of law.

Question 2

ECHR Article 6.1?

Answer 2

Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

Question 3

Select Committee on the Constitutional Reform Bill
Argument For (4)

Answer 3

• Law Lords are judges and not legislators, separation between roles should be made explicit
• Help public understanding of the legal system
• Change required in order to comply fully with [ECHR Article 6.1]
• Accommodation for the Law Lords in the Palace of Westminster is inadequate

Question 4

Select Committee on the Constitutional Reform Bill
Argument against (5)

Answer 4

• No theoretical constitutional principle in the UK requiring separation of judicial and legislative functions: There was never a strict separation of powers
• Little evidence to support assertion that public understanding would be improved by creating a new court, or that there was any confusion to begin with
• [EACHR Article 6.1] Does not specifically state a need for distinct division of functions between judges and legislature, but concerned with specific connections in individual cases
• Palace of Westminster accommodation problems were exaggerated
• New court would not constitute value for money

Question 5

Constitutional changes from the Constitutional Reform Act 2005 (5)

Answer 5

[Constitutional Reform Act 2005, s. 3] Guarantee of continual judicial independence

s. 3(1): Lord Chancellor and other Ministers must uphold the continued independence of the judiciary
s. 3(5): Lord Chancellor and other Ministers must not seek to influence particular judicial decisions
s. 3(6)(a): Lord Chancellor has the duties to ‘defend’ judicial independence
s. 3(6)(b): Lord Chancellor must ensure that the judiciary has the ‘support necessary to enable them to exercise their functions’

Question 6

Changes after 2009 (5)

Answer 6

• Sits in Middlesex Guildhall
• Comprises a President, Deputy President and 10 Justices of the Supreme Court
• Acting judges may be brought in to hear particular cases
• Most cases heard by panels of 5, but can be 7, 9 or 11
• All proceedings are webcast

Question 7

Relationship with constitutional principles (2)

Answer 7

Master of the Rolls (Lord Neuberger)

• The reform creates a real risk of the judges “arrogating to themselves greater power than they have at the moment”.
• To change the Law Lords into the Supreme Court seems to be a “last-minute decision over a glass of whiskey”

Lord Phillips of Worth Maltravers
• Judiciary is sill dependent on the executive in the form of the Ministry of Justice for its funding

Question 8

Constitutional significance of creation of a Supreme Court? (3)

Answer 8

Lord Woolf CJ (2004)
•	“Among the Supreme Courts of the world, our Supreme Court will, because of its more limited role, be a poor relation. We will be exchanging a first class Final Court of Appeal for a second class Supreme Court.”

Malleson (2011)
• “Argument that the Supreme Court is essentially the same body renamed and re-housed, while technically accurate, misses the potential effect of form on substance.”
• Cultural connotations of the title, being in the shadow of the US Supreme Court, will impact psychologically a way which affects both internal and external expectations of the role of the court

Master of the Rolls (Lord Neuberger)
• s. 40(5) of the CRA 2005 may imply a power to review the constitutionality of statutes

Question 9

Pre-CRA 2005 appointments process (4)

Answer 9

• Executive appoints judges
• Lord Chancellor accounts to Parliament
• Lord Chancellor notifies Prime Minister when appointing judges for high court and lower
• Lord Chancellor notifies Prime Minister when appointing judges above high court

Question 10

Case for change appointments process(2)

Answer 10

The Governance of Britain: Judicial Appointments Green Paper (2007)

• Linked to independence is the principle that judges should be appointed on merit:
• No one should be appointed to a position unless they are competent to do it
• If two or more people meet the criteria, choose the best

•Equality: Judges need an effective understanding of the communities they serve, achieved by ensuring judges are drawn from diverse communities that make up modern Britain

Question 11

Post-CRA 2005 appointment changes & key provisions (2)

Answer 11

[CRA 2005, Part 4 & Schedule 12]
Judicial Appointments Commissions for England and Wales (JAC)

[CRA 2005, Part 3]
Justice of the Supreme Court Selection Commission

Question 12

Judicial Appointments Commissions for England and Wales (JAC)

Answer 12

• Independent body consisting of 15 members: 1 Chairman (layperson), 5 Judges, 2 Lawyers, 5 Laypersons, 1 Legal tribunal member, 1 Lay magistrate

Appointments procedure:
• Lord Chancellor receives name of candidate: accept, reject, ask commission to reconsider
• If rejected or asked to reconsider, JAC must select another or same candidate
• Lord Chancellor receives name of candidate again, has 3 options again
• Lord Chancellor must accept 3rd JAC selection

Question 13

Justice of the Supreme Court Selection Commission

Answer 13

• Consists of 5 members: President of Supreme Court as Chair, Vice-president of Supreme Court, 1 x 3 Territorial commissions (1 must be Layperson)

Requirements:
• Held high judicial office for at least 2 years, or
• Has been a qualifying practitioner for at least 15 years

Appointments procedure:
• Commission conducts consultation on possible appointees
• Commission reports name to Lord chancellor
• Second round of consultation
• Lord Chancellor has power to accept, reject or ask to reconsider
• Selection complete: Notifies Prime Minister, who passes to Queen for formal appointment

Question 14

Merit & Diversity

Statutory duty to select candidate for judge by merit and diversity

Answer 14

• s. 63(2): Selection must be solely on merit
• s. 63(3): Person must not be selected unless satisfied that they are of good character
• s. 63(1): Must have regard to need to encourage diversity in range of persons available

JAC Statement of qualities and abilities necessary for judicial office:
• Intellectual capacity, Personal qualities, Ability to understand and deal fairly, Authority and communication skills, Efficiency

Question 15

Strengths & Weaknesses of post-CRA 2005 appointments

Answer 15

Equality & Diversity
Executive role in appointments
Parliament role in appointments

Question 16

Strengths & Weaknesses of post-CRA 2005 appointments

Equality & Diversity (3)

Answer 16

Le Sueur, Sunkin & Murkens (2010)
Need for inward and outward equality:
• Inward: Diverse range of judges
• Outward: Judiciary better equipped to make decisions affecting certain types of case if it contained judges from diverse backgrounds. There is a democratic need to reflect society.

Malleson (2006)
•	In practice the senior judiciary has traditionally been recruited from an extremely narrow group of white, male barristers of high class backgrounds

Advisory Panel on Judicial Diversity (2010)
- Recommendations to achieve progress to a judiciary that is more representative of society
• Ensure lawyers recognize early possibility of career as judge
• Promote diversity at all levels
• Better information on career paths
• Open and transparent selection processes that promote diversity and recognize potential

Question 17

Strengths & Weaknesses of post-CRA 2005 appointments

Executive role in appointments

Answer 17

Need for appointments process to reflect judicial independence from executive and legislature. Doesn’t mean no role for executive in appointments?

The Governance of Britain: Judicial Appointments Green Paper (2007)
• Role for executive essential to maintaining the executive’s confidence in the senior judiciary
• No role for executive means less inclined to defend judiciary from criticism
• No role for executive also means removing JAC’s individual recommendations being scrutinized
• Ministers should be held accountable to Queen for their recommendations of judges

Question 18

Strengths & Weaknesses of post-CRA 2005 appointments

Parliament role in appointments

Answer 18

Parliament plays no direct role in the appointment of judiciary.

The Governance of Britain: Judicial Appointments Green Paper (2007)
• Pre-appointment hearings could give Parliament a meaningful role in appointments

Argued against:
•	Decision to appoint could be based on facts other than ability to do job effectively
•	Delay appointments process
•	Discourage potential candidates
•	Take up valuable parliamentary time

Instead, can use a post-appointment hearing, where select committees would conduct hearings with judges once appointed, allowing oversight

Question 19

Proposals for Reform

post-CRA 2005 appointments

Answer 19

[Crime and Courts Bill 2012-2013]
• Caps on number of judges in each type of court to be expressed as ‘full time equivalents’ rather than a headcount, enables appointment of part-time judges.

• CRA 2005 s.63 amended to permit use of the [Equality Act 2010] ‘tie-break’ method:
• Where two persons are judged of equal merit, one is preferred over the other for purposes of increasing diversity.
• Amend JAC composition from CRA 2005: Broad discretion for Lord Chancellor with agreement of Lord Chief Justice, composed of Chair + 14 other members.
• ‘Veto’ power on JAC selections transferred from Lord Chancellor to Lord Chief Justice.
• Supreme Court select commission doesn’t need President and Vice, must include one serving judge of Supreme Court and Lord Chancellor can be a member.

Question 20

How did judicial appointments take place prior to the reforms introduced by the CRA 2005?

Answer 20

• Appointment of judges was exclusively in the hands of the executive
• High court and Circuit court Judges were appointed formally by the Queen, acting on the advice of the executive or the Lord Chancellor

• Law Lords and senior judges
o Appointed by the Queen on the advice of the PM

• There were no open competitions for appointments to the high court or senior positions
• Lord Chancellor would consult with the judiciary or senior members of the professions in making a decision

Question 21

judicial appointments prior to the reforms introduced by the CRA 2005: Criticisms

Answer 21

o Public concern that judges were being appointed through cronyism and secret soundings
o The judiciary was a self-perpetuating institution
• White, male barristers
• Drawn from small number of commercial chambers

Question 22

under the system introduced by the Constitutional Reform Act 2005 judges were appointed to:
a. The courts of England and Wales

Answer 22

Judicial Appointments Commission for England and Wales (JAC)
o Independent body
o 15 members
o Selected by the Judges Council

Procedure:
o Vacancy opens, Lord Chancellor asks JAC to start selection process
o JAC decides most appropriate process
o Advertise the vacancy (Press and Website)

o Selection methods
• Interviews
• Written tests
• Role play

o Posts in the High Court and lower courts
• Decisions are made by JAC

o Court of Appeal and leadership roles
• Decision is made by 4 person panel appointed by the JAC

o Consult with:
• Judges
• Lord Chief Justice
• Person who has held the office, or relevant experience

Once JAC makes decision:
o Reports it to the Lord Chancellor
o Lord Chancellor accepts, rejects, or requests that it be reconsidered
o In practice, almost always accepted

Question 23

under the system introduced by the Constitutional Reform Act 2005 judges were appointed to:
b. The UK Supreme Court

Answer 23

Appointed by the Queen on recommendation of the PM
oProcess set out in s.25-31 CRA 2005
oMinimum qualifications:
• Held judicial office for 2 years, or
• Qualifying practitioner for at least 15 years
• S.25(1)

oPM recommends person told by Lord Chancellor

oSupreme Court Selection Committee
• Not a permanent body
• Compiles short list of candidates who have applied
• Conducts confidential consultation exercise (s.27)
• Gather views about possible appointees
• Selection is based solely on merit (s.27(5))
• Diversity is subordinate to merit

•Once selection is made:
• Reports name to Lord Chancellor (s.28)
• Second round of consultation begins
o Lord Chancellor seeks further views
• Lord Chancellor accepts, rejects, or requests reconsideration
• If yes, Lord Chancellor informs PM, who informs the Queen

Question 24

what extent did the changes introduced by the CRA 2005 respond to the core concerns advanced with respect to the pre-CRA 2005 appointments system?

Answer 24

Responded to criticism that judiciary appoints those in its own image
o Increased role of non-lawyers in key appointments
o Added higher degree of political accountability
o Only 1 Supreme Court Judge sits on the selection committee for Supreme Court Judges
o Vacancies are now always advertised

CRA 2005 established the Judicial Appointments and Conduct Ombudsman (JACO)
o Provide redress for those dissatisfied with the way they were treated during the selection process
o Provides an element of independent oversight over the process

Question 25

• Arguments for diversity

Answer 25

o Diverse courts are better equipped to adjudicate
• Bring different perspectives
o Public will have greater trust and confidence in a more diverse judiciary
o Justice, fairness, and equality are central values in law and should be reflected by the composition of the judiciary itself

o More representative of society
o Better equipped to deal with a variety of cases

Question 26

Should there be greater involvement of the UK Parliament in the judicial appointments process?

Answer 26

• UK Parliament plays no direct role in the appointment process
•Although,
o MPS and peers may require the Lord Chancellor to account for judicial appointments
o Parliamentary select committees can question members of the JAC and explore matters arising from report by the JACO

No,
there should not be greater involvement

o House of Lords Select Committee on the Constitution “judicial appointments” (2010)
• Cannot have any meaningful impact
• Undermine the independence of those appointed
• Judges must be independent of both the executive and Parliament. It is imperative that they remain one step removed from the political process
• Judge’s legitimacy depends on their independent status and merit, not on any democratic debate

Question 27

What were the arguments for and against creating the new court and abolishing the role of the law lords?
FOR

Answer 27

•For:
oJudicial Independence (separate from parliament)

oArt. 6(1) ECHR: requires a stricter view being taken:
• Anything that might or appear to undermine the independence and impartiality of a judicial tribunal
• Important for the courts to be able to determine whether Acts of Parliament conform to EU law and Convention rights

oPhysical separation of powers

oGreater access to the public

Question 28

What were the arguments for and against creating the new court and abolishing the role of the law lords?
AGAINST

Answer 28

oLimits ability of Law Lords to contribute to the work of the HoL

oMay act to increase the politicization of judges
• Will be seen as political actors
• Increased media exposure of judges’ opinions
• Likely to be more scrutinized
• Subject to increased use and lobbying by interests groups
• More likely to achieve their ends through the courts
• Jurisprudence cannot be considered isolated from politics
• Limits Parliamentary sovereignty
• Ability to strike down legislation
• Likely to exhibit features shared by other supreme courts
• Develop the power of constitutional review
o S.40(5) Constitutional Reform Act 2005

Question 29

To what extent, if at all, do the powers of the UK Supreme Court differ from those previously exercised by the Law Lords sitting as the Appellate Committee of the House of Lords?

Answer 29

• Powers to ensure that Acts of Parliament are in conformity with EU law and Conventions.
• Took on Devolution cases from the JCPC

•Shift form Private To public
o	Human rights cases
o	European Law
o	Devolution cases
o	Can choose its own cases
o	All of these existed before the creation of the Supreme Court
•	Would have become this way anyway

Question 30

Do you agree with Professor Malleson (p. 764) that ‘the argument that the Supreme Court is essentially the same body renamed and re-housed, while technically accurate, misses the potential effect of form on substance’?

Answer 30

• Yes

oSubstantively similar
oAccelerated process of change towards a more powerful judicial body
• External influence (Other Supreme Courts)
oMay develop the general power of constitutional review??
oName and Body:
• Accelerated the process

Question 31

• Compare and contrast the judicial appointment system in England and Wales prior to and after the CRA 2005, and in doing so, consider whether Parliament should have been accorded a more central role in the judicial process.

Answer 31

Judicial Appointments: 
•Before 
•	Process (LC, consult)
•	Problems
o	Executive dominance 
o	Non-transparent
o	Self replication 
•After
•	Process (statute, different kinds, different selection bodies)
•	SOP
•	Transparent 
•	Role of Lord Chancellor changed 
•	Executive dominance?
•	Diversity?

Parliamentary Role: 
•Before 
•	little
•After
•	Reform

Reform 
•For increased Parliamentary 
•	More democratic
•	Growing power of judiciary 
•	Judiciary assess Acts of Parliament 

Conclusion
• Assess the change