Supreme Court overleaps Lords with avowals of better value, transparency
23 February 2009
From October this year the Supreme Court will replace the House of Lords as the highest court in England and Wales.
The ;12 ;Law ;Lords, headed by Lord Phillips of Worth Matravers, will become the first justices of the Supreme Court ;when ;the ;new institution is inaugurated.
It is due to open at the former Middlesex Guildhall Crown Court building in Parliament Square, which is currently being refurbished for the purpose.
At its crudest level the shift may appear to offer nothing more than a symbolic change. Yet behind the scenes there are high-level discussions about whether the current Law Lords framework could be improved.
This includes examining how many supreme justices will sit on each case, reducing costs and increasing transparency so that justice is seen to be done.
Spiralling litigation costs have become a central theme and the Supreme Court has been urged to address the issue.
One source says: “The level of costs is frightening and without a radical change accessibility would not be achieved.”
This is being looked at on a wider level as part of the litigation ;costs ;review currently being undertaken by Lord Justice Jackson, who is also involved with discussions about the Supreme Court.
Another ;judge ;has proposed that the Supreme Court should launch a pilot scheme to look at the merit of allowing judges to pinpoint which parts of cases need to be debated.
The success of such a scheme would depend on the nature of each individual case and the judicial panel appointed to it.
The current system for appointing a judicial panel is at the discretion of the Senior Law Lord and the Deputy Senior Law Lord. There is no exact procedure and those in favour of this system argue that it allows the appellate committee to dispatch cases appropriately and manage caseloads.
But an alternative view is that, under the Supreme Court rules, a plenary court could be established as opposed to a panel. This would require all 12 supreme justices, as they will be known, to sit in on each case. The primary aim would be to ensure transparency around the judicial selection process.
However, as Allen & Overy partner Andrew Denny points out, this would cause “practical problems”, as it would result in a radical overhaul of current working methods and reduce the number of cases that could be heard by the senior judiciary.
Selecting a panel on a random basis has also been suggested, but one Law Lord argued that this would cause problems if a complex case arose and there was no expert on the panel.
As well as possibly transferring to a plenary court system, there is a drive to broaden the experience of the panel by recruiting people from more diverse backgrounds.
“The current bench is perhaps slightly too narrow,” says Denny. “Other countries ;draw ;the appellate judiciary from a much wider pool.”
The ;qualification requirements to become a Supreme Court justice are low enough that the pool should potentially be wider, with applicants expected to have held either high judicial office for at least two years or to have been a qualifying practitioner for at least 15 years.
Senior barristers and academics are entitled to apply, as are practitioners. Jonathan Sumption QC, the Government’s preferred barrister, is already seen as a contender.
An independent ad hoc committee has been set up to run the appointments process, with the aim of increasing transparency and helping the public connect more easily with the senior court.
Malcolm Davis White, vice-chairman ;of ;the Chancery Bar Association, says: “It’s clear they want an increased profile. One function of the Supreme Court will be to educate the British public as to what they do.”
One part of the transparency drive will be to make the court’s website accessible to the public, with some practitioners suggesting that the court should use the website to provide information about the panel selection process and to post courts lists. It has also been suggested that the website should detail upcoming cases with a statement of facts and issues.
“There’s absolutely no reason why these documents should ;not ;be ;widely available to anyone who wishes to understand these cases,” states a source.
The biggest change in the judiciary system, though, would be if (in a first for the UK) cameras were allowed into the courtroom.
“There’s no longer justification, if ever there was, for refusing people access to watch an appeal on matters of public interest,” the source says. “All cases going to the Supreme Court are a matter of public interest.”
The new regime will not differ vastly from the current system, but changes are being made with the aim of improving the transparency of the judicial process.
Opening the system to scrutiny should be relatively simple. Tackling the issue of rising costs is where the Supreme Court will really have its work cut out.