Tomorrow, the UK Supreme Court celebrates its first anniversary. Might it also be the court’s last? According to proposals leaked from the Cabinet Office and published by the BBC last week, the future of Britain’s highest court was still shrouded in uncertainly as recently as 26 August.
That was when the Ministry of Justice listed a handful of public bodies it wanted to abolish and a further 27 that would be retained for reasons abbreviated to ‘technical’, ‘impartiality’ or ‘transparency’. Surprisingly, the Supreme Court was not among them: it was marked ‘still to be decided – options being considered’.
Those options should have been considered in 2003, when Tony Blair suddenly announced that our most senior judges would keep their jurisdiction but lose their home. The law lords were not convinced that we needed a Supreme Court at that time and neither was I. But I am sure that reinstating the justices as a committee of parliament is not something that ministers now intend to do. So what options might their officials have been considering?
They can’t be just staffing cuts: those are likely anyway since the court is not immune from general spending reductions. It has shown it can cope with as few as 10 justices instead of the statutory 12 and there seems to be no rush to replace Lord Saville, who formally retires today.
Perhaps officials are considering whether litigants really need three bites of the cherry – a trial, a hearing by an appeal court and then another appeal to the Supreme Court. Not all cases follow this pattern, of course, but most cases heard by the Supreme Court have been through one appeal already.
In reality, very few cases ever get that far – the Supreme Court heard just over 40 in its first six months. Around 45% of those appeals were allowed – a high proportion, although the court naturally chooses to hear the cases that stand a good chance of success. That does not prove, of course, that the lower court reached the wrong decision. As supreme court justices are fond of saying, their judgments are not final because they are right; they are right because they are final.
The Scottish criminal courts get by without a right of appeal to the Supreme Court. But, accepting that there are a handful of cases where an appeal court goes astray, is there any way of accommodating these without having a Supreme Court?
Perhaps Ministry of Justice officials were considering whether exceptional cases could instead be reheard in the Court of Appeal or its equivalents in Scotland and Northern Ireland. Initial appeals would continue to be decided by two or three judges but permission could subsequently be granted for a second appeal to a ‘grand chamber’ of five or more judges, with power to overrule their colleagues.
This might have some advantages – it would stop the Supreme Court meddling in criminal law, in which it has limited expertise – but we would have lost the unifying aspect of the Supreme Court, setting precedents in civil cases that are binding throughout the UK.
What other public bodies are for the chop? Nineteen court boards and half the advisory committees on JPs. Some rules committees. The Administrative Justice and Tribunals Council, HM Inspectorate of Court Administration and the Public Guardian Board. The Legal Services Commission, of course, but we have known for some time that the Ministry of Justice was bringing legal aid in-house as an executive agency.
More interesting, perhaps, are the other bodies whose future is still to be decided. These include the post of chief coroner – just about the only worthwhile improvement to be salvaged from the reforms recommended by two recent reviews of coroners’ law. One of them was chaired by Dame Janet Smith, who noted at a conference held by Gresham College this month that the legislation setting up the chief coroner had not been brought into force.
‘I regret to say that I am not confident that the act will be implemented at all,’ she added, more in sorrow than in anger.
The Criminal Injuries Compensation Authority is listed as ‘still to be decided – retain, but options being considered’. This sounds ominous; the only option for a body that pays out public money must be to pay it out more slowly.
And the government’s verdict on its own law reform advisers? The Law Commission is categorised as ‘still to be decided – retain, but refocus programme’. This seems a little harsh. Its previous chairman, Sir Terence Etherton, went to great lengths to ensure that the commission focused its work on areas of the law that the government wanted to reform. That approach has been continued by his successor, Sir James Munby.
The Tribunals Service – still less than two years old in its present form – is listed as being retained. This is curious, because the Labour government announced in March that the Tribunals Service would be merged with HM Courts Service into a single organisation and the coalition has confirmed that the new body will be established by next April.
Indeed, the justice secretary announced plans this month for a unified judiciary encompassing both courts and tribunals. Details are still to be worked out, but the general idea must presumably be for cases to be heard lower down the system by a court that costs less to run.
So now it all becomes clear. The Supreme Court will move into a shabby office block somewhere and its cases will be decided by two lay people chaired by a part-time solicitor.
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