Last week, we completed five days of debate on the Queen’s Speech. Each day was devoted to a number of topics. On Tuesday, we debated home affairs, legal affairs and constitutional issues. By the nature of the topics, speeches in such debates can vary greatly in terms of focus. This was certainly true of Tuesday’s debate. Some peers focused, for example, on constitutional issues – I spoke on the government’s approach to constitutional change – and others on policing, prisons, the Damian Green affair, and the new supreme court.
Despite the range of issues of covered, Tuesday’s debate was extremely interesting and there were some very good speeches. Anyone interested in the Damian Green affair should find of considerable interest the speeches of Lord Lloyd of Berwick, a former law lord (col.286), and Lord Lyell of Markyate, a former Attorney General (Col. 311). However, I was particularly struck by the comments of a distinguished former Lord Chancellor, Lord Mackay of Clashfern, on the implications of the costs associated with the supreme court coming into existence next October (at cols. 291-2):
“There has been, and will continue to be, a considerable increase in the cost of the administration of justice in this country. I venture to suggest that the additional cost will not affect the quality of the justice that we have been accustomed to receive from the Law Lords and which has given the House of Lords a name and reputation of the highest standing the world over. The same quality will now be delivered by the Supreme Court of the United Kingdom as one among many supreme courts all over the world.
This increased cost, without any likelihood of a change in the quality of the justice and judgments produced, has been allocated to be borne by the courts of the United Kingdom as a whole. In effect, it has led to substantial increases of cost in the lower courts; for example, the cost of presenting a claim on behalf of a local authority to take a child into its care. Some commentators appear to take the view that this has led to a substantial reduction in such claims on behalf of local authorities, which preceded the publication of the details of the woeful case of Baby P in Haringey. Increasing costs in this way for no particular increase in the standard of justice can have detrimental effects on parts of the justice system.
In a time of financial stringency, such increase in costs, without any significant increase in the quality of the justice administered, may be difficult to justify. The reason given for this is the desire to promote the separation of powers, which was a part of our constitution that hitherto has not been put into effect with the kind of rigour we have had in the past year or two. I have to point out, however, that the rigour extends only to the judges in the House of Lords. There may be quite a case for considering the application of this principle to the House of Commons and the Executive, and for considering whether it is right that Parliament, with the job of monitoring the work of the Executive, should have such a high proportion of members of the Executive in its membership.”
The point about cost is a good one, and I think that a case has to be made here not just that “separation of powers” is a good thing in principle but also in practice. If someone could suggest an example of where the Law Lords being replaced with a Supreme Court would do a better job, one not merely duplicated by the ECHR, I would be much more open to the idea.
That said, if the idea is a good one on its merits then costs should be addressed via other means. If there are knock on effects from a necessary and beneficial change in the constitution then these should be addressed with policy. We should not use these as an excuse to merely sit on our hands and do nothing.
As far as separation of the executive goes, while in our media saturated world I am sure many people would love a British Obama to stir our souls to new flutterings of vicarious greatness, but in the cold light of day I would be very suspicious of attempts to modify government that were not intended to fix what was actually wrong with it, rather than the ways in which it differed from some theoretical norm that may or may not be applicable in a country with a history of mostly-functional parliamentary democracy.
I always said the principle of the separation of powers is something fundamentally alien to the Parliamentary system of government; why does the government continue to try to important American style institutions into the UK when they simply aren’t designed for it? Have they not taken a politics lesson?
What’s the likelihood of repeal? I hope you can persuade the next Tory government to see sense, Lord Norton.
I’m no expert, but it seems the Supreme Court will be the same people, appointed in the same way, doing the same job, but just with different titles and in a different building.
Surely all that was needed was a law or parliamentary convention preventing Law Lords from speaking or voting the the Lords for the time they served as judges? That would have saved all the extra costs of the Supreme Court.
I once read that the reason for housing the Supreme Court in a separate building, rather than sharing the House of Lords, was that the new Justices of the Supreme Court would not be peers, so therefore would they be permitted to use the Lords’ restaurants, bars or even toilets? Far easier to banish them to a different building where there won’t be such conflict!
Incidentally, do we yet know what titles the new Supreme Court judges will use and how they will be addressed, once the new ones who aren’t peers become appointed? We have Judge, Mr Justice, Lord Justice… so what could come above that?
Supreme Lord Justice?
Lord Supreme Justice?
Lord Justice Supreme? (sounds like a Dalek)
I was incensed when I first heard about this. I am sure there are far worse things that the Socialists have done but there is something about the small minded wanton vandalism that it represents that is both distressing and so very characteristic of Labour. It is pointless in that it achieves nothing tangible. It is a waste of money. It shows complete disregard and disrespect for our constitutional heritage in the willingness to tinker unnecessarily with established institutions and by the casual assumption that a “Supreme Court” that other nations have is superior to our own heritage and system. This is so evident in so many things they do; they truly believe that Britain is inferior because of our backward ways and it represents “progress” and “modernization” to slash and burn. Quite why anyone would wish to vote for a party that thinks so lowly of Britain is beyond me. Then there is the idiocy about the separation of powers – a good idea in theory no doubt but isnt it some that existed already in practice. Where is the evidence that there was a problem that needed to be solved? There is something, well, rather French about the logic – it works in practice but does it work in theory? Indeed as ever it is the spirit of the French revolution not of Burke that motivates Socialism. In addition there is the sheer arrogance that what Labour thinks up on the back of a bit of paper is better than the accumulated wisdom of British history. There is the sheer cravenness of the belief that to meanly copy what they have in America is the best to which Britain can aspire and that such meanness represents an improvement rather than the transformation of a once great country into the tin pot country that Labour thinks is the best we can manage.
Sorry for such length.
I know its a late contribution, but my two sense is this.
The Bill was actually introduced during the height of the reform agenda. Now that the election draws nearer, there is a credit crunch and a decent chance of a competative election the chances of Constitutional reform are falling.
The idea was to seperate out the Law Lords prior to getting the wholly or partly elected chamber, but yes, the same Law Lords, but with a new room etc.
From my understanding the Law Lords sit in an old Committee room to do the hearings, not exactly the image of Justice we’re after. Why room cannot be found in the Royal Courts of Justice I don’t know. It seems a bit bizarre to build a new Justice Hall when we have the RCJ which is the image of Justice is all major cases and is frequently on the news (its also only about 5 minutes or so from Whitehall and Parliament).
The head of the Supreme Court, filling the judicial elements of the old role of Lord Chancellor is the President of the Supreme Court, so I think ‘Lord Justice of the Supreme Court’ is likely, as it also meets the modernisation agenda. Although personally i’d like it if the current titles remained. Our Court system is very historic, the bits that don’t influence justice, i think should remain.
One final point, Law Lords have frequently made valuable contributions on debates and important constitutional, legal and moral issues, I for one, would be sad to see that level of specialist knowledge on the application of law lost from our system (and for those crying out for reform, notibly members of the Commons with itchy reformist fingers, fix your own roof!)
Thanks for your responses. I agree with the point that it is just a case of moving the law lords across the road, at considerable cost. In reponse to McDuff, I would argue that the move is not justified on its merits: I do not see what substantive benefit it brings. The main claim for it is that it makes clear that the House of Lords in its judicial capaity is not the same as the House of Lords in its legislative capacity. One could have achieved that by simply re-naming the Appellate Committee of the House of Lords – if necessary, calling it the Supreme Court! Noodles: I think most law lords are content with the hearing rooms in the Palace of Westminster and the facilities available to them. When the Constitutional Reform Bill was going through, six of the law lords opposed the move. I share the view that the loss of the law lords will be detrimental to the House. We have benefited in all sorts of ways, including in the scrutiny of EU legislation. Having a law lord chair Sub-Committee E, as well as serve on the main committee, has enhanced the work of scrutiny considerably.
Jonathan: As it is the current law lords who will transfer to the new court, the 2005 Act provides that they are not members for the period that they serve on the court. When they cease to be members, they will revert to being members of the House. When new members of the court are appointed, they will not be lords. It remains to be seen whether it becomes the practice to elevate retired members of the court to the House of Lords.
The more we move closer to October 2009, the more annoyed I am at the thought of losing the law lords from the House. In response to Adrian Kidney, I don’t know if there is much likelihood of repeal, given that the new court is likely to be up and running by the time of the next election. It would be good if we could prevent it from taking place at all – Lord Lloyd of Berwick and I did argue the case – but it is now difficult to see how it can be prevented.
On the nomenclature of the members of the court, this is determined by statute. Under section 23(6) of the Constitutional Reform Act 2005, the judges of the court – other than the President and Deputy President – will be known as Justices of the Supreme Court.
I know this is a trivial matter in the scheme of things, but I meant what will the new judges’ titles be? They won’t be referred to as “Justice of the Supreme Court Smith”, surely? They won’t be Lords (at least until they retire), although aren’t some Scottish judges addressed as Lord Smith, even though they aren’t peers?
Another issue I don’t think anyone’s touched upon this time is that there is presently a pool of other Lords who can hear cases, in addition to the 12 Lords of Appeal in Ordinary. How will this work in future? Will they have to appoint some spare Justices in case they need someone else to hear a case?
To try to address Jonathan’s ‘trivial’ point: section 23(6) of the Constitutional Reform Act 2005 states that judges other than the President and Deputy President are to be styled “Justices of the Supreme Court” in the same way that section 2(3) of the (now peculiarly named) Supreme Court Act 1981 states that Court of Appeal judges shall be styled “Lord Justice of Appeal” or “Lady Justice of Appeal” and that section 4(2) states that High Court judges shall be styled “Justices of the High Court”. As the title that comes before the name in both cases is cropped, it is reasonable to assume that the same will be the case for the Supreme Court. However, there doesn’t appear to have been any statement yet as to how the new appointees will be addressed (the older ones probably keeping their title). Speculation has been that it could be just Justice as in the US but being collectively known as ‘the Supremes’!
On the other issue, section 38 of the CRA 2005 provides for ‘acting judges’ i.e. Court of Appeal/Court of Session judges acting up and members of the supplementary panel (generally-speaking former holders of high judicial office as at present but without the HL membership; see s.39 of the Act for fuller details).
Jonathan: Following handj, I presume it will be Lord Justice (if a law lord) or Mr Justice (though, as handj says, it could be simply ‘Justice’). On the Appellate Committee being able to draw on other lords who have held high judicial office, I have not noticed that peers falling in this category have been utilised to any great extent (if at all) in recent years, despite the law lords being effectively one short (Lord Saville) for some years.