The System of Courts in the UK - Essay Example

?The System of Courts Introduction Every court is said to be the final arbiter between a citizen and a and thus becomes a very fundamental aspect of the legal system of a state as well as the constitution that runs the state. The main aim to establish the Supreme Court was to place a demarcation between the senior judges of the House of Lords or Upper House of Parliament of United Kingdom so that the level of transparency between the Parliament and the Courts could be increased in order to emphasize the independence of the law in the state. The Court assumed the jurisdiction of the Appellate Committee of the House of Lords and the devolution jurisdiction of the Judicial Committee of the Privy Council, which is an independent institution that is presided over by twelve independently appointed judges called the Justices of the Supreme Court. However, there are several controversies about the Supreme Court, ranging from the lack of teeth to the exorbitant costs involved in setting up this institution. In the next few pages, I would like to discuss why ‘The creation of a Supreme Court was an unnecessary and overly-expensive reform. The Appellate Committee of the House of Lords was independent, effective and was regarded as one of the finest courts in the world.’ Background The House of Lords took pride in understanding its judicial role over 600 years ago and its main inspiration and influence was the ‘Curia Regis’ or the work of the royal court. This piece of work helped in advising the sovereign as well as passing laws at the highest level within the state. Till the year 1399, it was the function of both Houses of Parliament to listen to petitions however, the end of this year marked the House of Commons to have no more involvement in such cases, thus leaving the House of Lords as the highest court of appeal. Nonetheless, according to old customs, the entire House of Lords still had the right to sit in a few cases for example those that involved one of their own members. The Appellate Jurisdiction Act which was passed in the year 1876 not only aimed at regulating the way an appeal would be heard but also assisted in appointing the Lords of Appeal in Ordinary. They were highly qualified professional judges working full time on the judicial business of the House and their powers and functions included voting on legislation as full members of the House of Lords however they rarely exercised these rights. The chamber of the House of Lords was the meeting place for listening to appeals however sadly after the bombing of the Second World War, the Law Lords decided to form a personal Appellate Committee of their own because the building repairs and noises were distracting them from carrying out their work ordeals. And thus this new committee room of theirs grew from a temporary arrangement to a permanent one forming a separate Appellate Committee to overlook certain cases and problems. All the Law Lords became the first Justices when the Supreme Court commenced in October 2009. According to the Ministry of Justice, the Supreme Court was to provide greater clarity in the constitutional arrangements of the country by implementing a further separation of the judiciary from the legislature. It was stated that the Supreme Court was to assume the jurisdiction of the Appellate Committee of the House of Lords as well as the devolution jurisdiction of the Privy Council. Independent Law Lords were to be appointed in order to preside over the court which would be situated in Middlesex Guildhall on London's Parliament Square - opposite the Houses of Parliament and alongside Westminster Abbey and the Treasury. The Guildhall will thus begin to function from October 2009 onwards for the purpose of serving as an apex body of justice.1 As per the UK Department for Constitutional Affairs, the jurisdiction of the Supreme Court was clarified as an aspect that would take over the judicial functions of both the House of Lords as well as the Privy Council to an extent. All matters under English law, Welsh law and Northern Irish law that fall under England would finally be passed under the Supreme Court which would have the highest power or authority and also would be binding in nature. Furthermore, appeals from the Court of Sessions would be heard by the Supreme Court, a function that continues even in the present day in the House of Lords. However, the Supreme Court will refrain from abiding over criminal cases taking place in Scotland because the High Court of the Justiciary would remain to be the Supreme Court in this area.2 One of the main functions that it has taken over form the Judicial Committee of the Privy Council is that it has the right to hear disputes between the Northern Ireland Executive, the Scottish Government and the Welsh Assembly Government. Therefore, the Supreme Court listens and responds to appeals which hold general public importance, is the final court of appeal and listens to case laws related to civil matters in England, Wales and Northern Ireland, (criminal only barring Scotland as mentioned above) and finally has assumed the devolution jurisdiction of the Judicial Committee of the Privy Council. Current functions: The Appellate Committee of the House of Lords and the Judicial Committee of the Privy Council share the functions of the highest court at present; the Appellate Committee, as mentioned above, listens to civil and criminal matters in England, Wales, Northern Ireland and Scotland (except criminal in Scotland) and from the Court of Session in Scotland on civil matters. The Judicial Committee of the Privy Council has the ability to act as the final court of appeal for a number of Commonwealth jurisdictions and for the Crown Dependencies of Jersey, Guernsey and the Isle of Man. Devolution cases and admiralty appeals also fall under the purview of this Committee; furthermore other appeals like disciplinary and ecclesiastical appeals related to science and religion may also be heard and understood by this Committee. Thus it has various functions and a lot of power resting upon it to have it called an authority. Advantages of the reform: The Doctrine of Separation of Powers which splits a state into several parts in order to distribute powers and functions for the purpose of smooth functioning and thus under this, the reform in England has several advantages. The State is split into three branches, namely: 1. The legislature, which consists of Parliament 2. The executive, which consists of the government, and 3. The judiciary, which consists of the judges. In order to avoid possible abuses deriving from a concentration of power, no person or body should occupy a role in more than one branch of the State. The problem was that the Lords of Appeal in Ordinary were members of the judiciary and, by virtue of their membership of the Upper Chamber of Parliament (the House of Lords), were also members of the legislature. The European Convention on Human Rights, Art 63 provides for the right to fair trial. It could be argued saying that having members of the judiciary who are also part of the legislature could jeopardize the right contained in Art 6, especially if a Lord of Appeal in Ordinary were to comment on a proposed piece of legislation that he might be subsequently required to adjudicate on once passed. Having an independent Supreme Court with Justices who are not part of any other branch of the State would assist in strengthening an adherence to the doctrine of separation of powers. The second advantage concerns facilities. The Lords of Appeal in Ordinary were housed in the Palace of Westminster, in other words, they shares offices with Members of Parliament and did not have their own dedicated building (one Lord of Appeal in Ordinary did not even have his own room). The Supreme Court is housed in its own building (Middlesex Guildhall) which provides the Justices with the facilities that they need. The third advantage relates to the first. Over the years, the Lords of Appeal in Ordinary played an ever decreasing role in legislative debates, but they did still occasionally participate. This visibly creates the appearance of a lack of independence. For instance, in 2001, only one Lord of Appeal in Ordinary spoke in a legislative debate. It was Lord Scott and the debate was on the issue of hunting. However, he is a master of foxhounds. Clearly, even if no actual conflict of interest exists, the appearance of a conflict exists. The fourth advantage relates to the increased jurisdiction of the Supreme Court. Prior to the 1st October 2009, the Appellate Committee of the House of Lords was the final appeal court in all cases, except cases relating to devolution for such cases, the final court was the Judicial Committee of the Privy Council. This created the appearance of having two top courts. Now that the Supreme Court has assumed the devolution function of the Privy Council, it is clear which is the highest court in the land with respect to domestic cases. Disadvantages of the Reform: There are several reasons why it could be argued that the Appellate Committee of the House of Lords should have been retained, and that the creation of the Supreme Court has resulted in several disadvantages. The first disadvantage relates to the similarities between the Appellate Committee and the Supreme Court. When the structure and operation of the Supreme Court were being discussed, numerous innovative suggestions were proposed, virtually all of which were rejected. The result is that the Supreme Court is virtually identical to the Appellate Committee. Ten of the twelve Lords of Appeal in Ordinary became Justices of the Supreme Court. Although, as noted above, devolution will fall within the jurisdiction of the Supreme Court, in all other respects the jurisdiction and operation of the Supreme Court is exactly the same as the Appellate Committee. Given this, the majority of the Lords of Appeal in Ordinary argued that the cost for the entire process of change would be carried out without proportion to the benefits of the same. Lord Falconer had estimated the cost of the new system at 7 million per year. However, as of today, the cost runs at 10.8 million per year. Excluding salaries, running the Appellate Committee cost just 600,000 per year. The initial cost of setting up the new system has been estimated by the Secretary of State at 32 million. However, it has risen to an overall 50 million.4 The second reason concerns the independence of the Lords of Appeal in Ordinary. Proponents of the Supreme Court argue that the Appellate Committee was not independent as the Lords of Appeal in Ordinary were members of the legislature and the judiciary. However, the Lords of Appeal in Ordinary were fully aware of this criticism and had put in place mechanisms to ensure their independence. The Lords of Appeal in Ordinary indicated that they would not interfere in areas of strong party political controversy.5 If a Lord of Appeal in Ordinary contributed to a legislative debate, he would not be able to sit on any cases concerning that legislation once it was passed (e.g. Lord Scott who, as noted above contributed to the debates leading to the Hunting Act 2004, was barred from sitting on any cases involving the Act). If the judge contributes to a debate, which is of no partisan significance, it could be argued that this does not create any greater lack of independence than if a judge contributed to a law reform commission. The third disadvantage concerns the speed with which the decision to abolish the Appellate Committee was made. Some argue that a course of action of this significance should have received much more due consideration. The consultation document that led to the Constitutional Reform Act 2005 indicated that the government had long believed that the Appellate Committee should be replaced with a Supreme Court, but as recent as 2001, in a White Paper on House of Lords reform, the government stated that maintaining a judicial membership within the House of Lords was within the purview of its commitment to carrying out the entire reform, and that the expertise of the Lords of Appeal in Ordinary can be used outside their judicial functions.6 A change of mind in so short a space of time indicates that the issue may not have received the debate and discussion that it deserved. Certainly the manner of the announcement of the Appellate Committee was abolition was evidence of this. The decision to abolish the Appellate Committee was made without any consultation with the Lords of Appeal in Ordinary. Indeed, a consultation document was only published after the decision to abolish the Appellate Committee was made. Criticism 1. Creation was an unnecessary and overly expensive reform: While most jurists have argued that the formulation of the Supreme Court was necessary in light of the Doctrine of Separation of Powers, I firmly believe that it was unnecessary because the system has worked well for years and the lack of clear separation of powers was never a problem before. Moreover, the legislative arm of the HL had no influence on the Appellate Committee. Given this, the majority of the Lords of Appeal in Ordinary argued that the ‘cost of the change would be wholly out of proportion to any benefit’. Lord Falconer had estimated the cost of the new system at 7 million per year. However, as of today, the cost runs at 10.8 million per year. Excluding salaries, running the Appellate Committee cost just 600,000 per year. The initial cost of setting up the new system has been estimated by the Secretary of State at 32 million. However, it has risen to an overall 50 million. 2. Independence: There is a mere physical independence. Theoretically, it is still not separate from the legislative arm of the House of Lords. Moreover, with the Supreme Court heavily depending on the finances routed in through the Ministry of Justice, the independence is merely an illusion.7 To conclude, the Appellate Committee of the House of Lords was regarded as one of the finest courts in the world. No significant difference has been observed so far with the results produced by the Supreme Court. Considering the lack of jurisdiction to examine constitutionality of legislations, it is clear that the Appellate Committee of the House of Lords was the better alternative with little or no expenditure. The devil is evidently in smaller details, for instance, the Address of the Supreme Court still connotes that it is situated at the Parliament Square and the web address is ‘supremecourt.gov.uk’ and not ‘supremecourt.uk’. To a common man, the confusion that the Constitutional Reform Act, 2005 aimed at clearing is a bolder one. Therefore, the creation of a Supreme Court has been unnecessary, involving explicit costs because the functions and powers of the Appellate Committee have sufficed well. Read More