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It raises questions about whether there is sufficient independence from the executive and the legislative when the highest court of appeal is situated within one of the chamber of Parliament. The Government believes that the creation of a separate Supreme Court will be an important part of the reforms which will rearrange the relationship between the Judiciary, the Government and Parliament to preserve and increase independence of English judges.

The idea of the reform of the highest court in the land is about abolishing the jurisdiction of the House of Lords within the UK’s judicial system and vesting the functions currently performed by the Appellate Committee of the House of Lords in a new Supreme Court which will by no means be connected to Parliament. It should be understood that this will not be a Supreme Court based on the US model with the power to strike down and annul legislation and assert the primacy of the constitution. Nor will it be a constitutional court based on the German model of a court which would give definite rulings on difficult points of law the way the European Court of Justice does. A Supreme Court along one of such models would be a departure from the UK’s constitutional traditions where Parliament is supreme. Regardless of the membership in the European Union and the Human Rights Act this principle remains intact.

As regards the Judicial Committee of the Privy Council it also acts as the final court of appeal for a number of Commonwealth and overseas territory jurisdictions, as well as for the Crown Dependencies. In that capacity, it is acting as a court of appeal for independent jurisdictions and it seems that it is going to continue to provide this important function. Instead of the Lords of Appeal in Ordinary being appointed to the Judicial Committee, the members of the Supreme Court will be so appointed.

The initial members of the new Supreme Court will be the existing Lords of Appeal in Ordinary. The Government proposes that members of the Supreme Court should lose the right to sit and vote in the House while they are members of the Supreme Court. Anyone who is a member of the House before joining the Court will retain the peerage and title, and will be free to return to the House when he or she ceases to sit on the Court. It is proposed that the members of the Court will be appointed on the same basis as senior judges now are. That is, they will be appointed during good behavior, but may be removed by Her Majesty on the address of both Houses of Parliament. The statutory retirement age is likely to be fixed at 75, so that each member can be assured of comparatively long tenure and the Court enjoys some stability.

The new Supreme Court will be the highest court in all three jurisdictions in the realm, i.e. it will be the supreme court of the United Kingdom. There is, however, already the Supreme Court of England and Wales, which consist of the Court of Appeal, the High Court and the Crown Court by virtue of the Supreme Court Act 1981. In Scotland the term ‘Supreme Court’ has also been used to refer to the Court of Session and the High Court of Justiciary collectively. There is also a Supreme Court of Northern Ireland. However, to avoid confusion, in the future the title of Supreme Court will be reserved for the Court to be created as a result of this constitutional reform. The new Court cannot become part of any existing Supreme Courts because its authority will extend to all three jurisdictions.

The Lord Chancellor Sinking into Oblivion

The abolition of the office of Lord Chancellor is another element of the constitutional reform. As for the Lord Chancellor’s ministerial responsibilities the Secretary of State for Constitutional Affairs should take over as a Departmental Minister. The newly created Department for Constitutional Affairs incorporates most of the responsibilities of the former Lord Chancellor’s Department. However, the Secretary of State for Constitutional Affairs as a Minister is not involved in running the judicial selection process, is not supposed to sit as a Judge or Speaker in the House of Lords thus putting the relationship between the Executive, the Legislature and the Judiciary on another basis. Such an approach would enhance the separation of powers although it has never been part of British tradition. The post of the Lord Chancellor will be finally abolished after the Judicial Appointments Commission and the new Supreme Court are in place.

The Government’s objective is to clarify the ministerial responsibilities which will be transferred to the Secretary of State for Constitutional Affairs, and to remove those duties and functions which are inappropriate to a Government Minister. Lord Falconer has been appointed as Secretary of State for Constitutional Affairs and Lord Chancellor until such as time the destination of all the Lord Chancellor’s functions has been settled and that office has been abolished. Until that time Lord Falconer will continue to carry out the Lord Chancellor’s functions. Part of the purpose of reforming the office of Lord Chancellor is to address the confusion of roles his office has produced.

The Lord Chancellor is a senior Judge and Head of Judiciary in England and Wales and Northern Ireland. The newly appointed Secretary of State will not sit in any judicial capacity in any part of the UK. Nevertheless, by law the Lord Chancellor is President of the Supreme Court of Judicature of England and Wales (which consists of the Court of Appeal, the High Court of Justice and the Crown Court, as defined by the Supreme Court Act 1981, and which should not be confused with the new Supreme Court described above as an element of the constitutional reform). The Lord Chancellor is also President of the Chancery Division and a Judge of the Court of Appeal. He is also the presiding Chairman of the Appellate Committee of the House of Lords (i.e. the House of Lords sitting in its judicial capacity) and a member of the Judicial Committee of the Privy Council where he usually presides.

The Lord Chancellor is currently responsible for the appointment, or making recommendations for the appointment, of a large number of full-time and part-time judges. The Lord Chancellor also currently appoints lay magistrates in England and Wales and Justices of Peace in Northern Ireland.

As part of the constitutional reform it is proposed that functions exercised by the Lord Chancellor in a judicial capacity should be transferred to the Lord Chief Justice or some other judicial office-holder. In other words the Lord Chief Justice will assume the role of the Lord Chancellor as Head of the Judiciary. The Secretary of State for Constitutional Affairs will not be a judge and shall not sit in a judicial capacity. His role will be primarily political. The Secretary of State will retain responsibility over the policy for appointment of judges, although the selection process will be carried out independently. The Secretary of State will also retain the Lord Chancellor’s role of protection judicial independence. Another function still vested in the Secretary of State will be to provide and allocate resources for the administration of justice whereas the Lord Chief Justice is intended to deal with the well-being, training, guidance, deployment and role of individual judges.