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Home / New Zealand

<i>Ian Caplin:</i> British judges have wigs in a twist

24 May, 2004 06:07 AM5 mins to read

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COMMENT

When Chief Justice Dame Sian Elias gives evidence in London today to the House of Lords select committee on constitutional reform, she will undoubtedly have some sound advice for their lordships on how to create and run a Supreme Court.

The consultation follows the Blair Government's ignition of one of
the most ambitious reform programmes in recent British constitutional history.

One of the proposals is to create a new Supreme Court. Dame Sian is sure to be helpful here, as she will head the New Zealand Supreme Court when it opens its doors in Wellington in July.

The select committee in London has been given the herculean task of trying to unpack and resolve some of the most important questions about how a democracy should work, after the British Government's Constitutional Reform Bill was voted down in March in the House of Lords.

The Lords voted to refer the matter to the select committee, which is expected to report to Parliament next month.

The heady debate that got matters to the committee in the first place came after the Government's rushed attempts to create a Supreme Court, remove the 1400-year-old office of Lord Chancellor and create a judicial appointments commission.

These proposals were released last June, and the public consultation period that followed was comparatively short. It was disproportionate to the centuries of constitutional evolution that the proposals were seeking to reform.

It also alienated the judges, not least the Lord Chief Justice, Lord Woolf, who would not back the proposals.

There has been much debate about whether an English Supreme Court is needed - at a pricetag of £50 million in building and installation costs.

But it is not only the question of cash that should concern the taxpayer. The relationship between the country's top court and its Government informs how the rule of law is run up and down the land. It flavours anything in which the state is involved.

The Government's argument is that the House of Lords, a committee of judges from the identically named Upper House of Parliament, should not be judges and parliamentarians at the same time. They might be seen to be too cosy with and insufficiently independent of the Government when giving judgments.

There is also a perceived risk that this conflict might give rise to a legal challenge under European human rights law to their ability to decide cases.

But the powers of the Supreme Court will not materially differ from the Law Lords' existing powers. The court will not, for example, be able to strike down parliamentary legislation like its American counterpart.

The Law Lords are, indeed, MPs, but no one has yet accused any of their judgments as being any more flawed for that. There has also been division among the Law Lords themselves over the need to have a Supreme Court on this basis.

The judges got up to speed quickly with these proposals and a framework deal was agreed between Lord Woolf and the Lord Chancellor, Lord Falconer. But if the Government had not rushed the proposals, opposition to the bill in the Lords might well have been thinner.

That has now all gone by the wayside as the select committee has been busy taking evidence from stars in the British and, today, New Zealand legal firmament on how best to go forward. This is exactly the sort of analysis and debate that should have been conducted before consultation closed last year.

It remains to be seen how the select committee, whose cross-party members include Lord Falconer and Lord Howe, a Foreign Secretary from the Thatcher years, as well as other senior lawyers, will advise.

The other two items on the reform menu are removing the office of Lord Chancellor and creating a judicial appointments commission. For years, the Lord Chancellor had been a Cabinet minister and sat (the incumbent chooses not to) as the presiding judge in the Law Lords. But the balance, if ever there really could be one, between the Lord Chancellor's political and judicial roles grew ever unsustainable.

It can now only be likened to Margaret Wilson sitting both as Attorney-General and Chief Justice simultaneously.

That fusion is not tenable in the 21st century. The Lord Chief Justice will almost certainly be made the official head of the English Judiciary.

Perhaps closer to the hearts of those in the know in both Westminster and Wellington is how the top judges are appointed.

At present, the Lord Chancellor, directly or indirectly, has the primary power to recommend the appointment of judges. It is hard to see whether populating a commission of independent appointers will dilute or enhance the perceived risk of politicising the Judiciary.

At the very least, we should get some proper analysis from the select committee. Some basically salutary reforms could have been done and dusted in March (there was, after all, a done deal on the reforms then in the Falconer-Woolf concordat before the bill was ultimately voted down in the Lords).

The committee reports soon, but if the proposals behind the bill had not been so rushed by the British Government, it might never have had to exist in the first place.

The New Zealand Supreme Court was born of legislation passed with the slenderest parliamentary majority and, to some, a sense that the prior consultation could have been longer.

Both London and Wellington could share the same pinch of the proposition that a credible menu of constitutional reform, however rich its merits, turns in no small part on how long interested parties are given to digest it first.

* Ian Caplin is an English solicitor-advocate (non-practising) and producer at the Law Channel in London.

Herald Feature: Supreme Court

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