UK Supreme Court Blog

EDITORS: Dan Tench, Emma Cross, Zainab Hodgson, Francesca Knight, James Warshaw and Natalie Haefner (CMS)
Hugh Tomlinson KC, Matthew Ryder KC, Nandini Bulchandani and Daniel Rudd (Matrix)

While it is the inclusion of proposed Leveson reforms in the Crime and Courts Bill which has recently attracted the most press attention, amongst the Bill’s couple of hundred pages are several provisions that will affect the workings of the UK’s highest court. Ahead of a further ‘Ping Pong’ of the Bill in the House of Lords, which is scheduled for next Tuesday 23 April 2013, this post provides a brief overview of the some UKSC-relevant changes that are proposed.

Judicial diversity

The Bill puts measures in place to address the MoJ’s recommendations to encourage diversity in the judicial profession. S 18 of and Sch 13 to the Bill contains the provisions on judicial diversity, which will amend the Constitutional Reform Act 2005 to:

• allow for flexible working by changing the requirement for there to be 12 full-time justices in the UKSC to 12 “full-time equivalent” justices;
• require a judicial selection commission to be convened which is itself made up of a diverse group of people encompassing both law and non-law backgrounds; and
• allow for positive discrimination where two persons are of equal merit in order to increase diversity within the group of persons who are the judges of the relevant court.

Appointment of the UKSC Chief Executive

In accordance with ex-Supreme Court president Lord Phillips’ determination to underline the complete separation of powers, the Bill as it stands will update s 48 of the 2005 Act to state that it is “for the President of the Court to appoint the chief executive” rather than the appointment being by the Lord Chancellor after consultation with the Supreme Court President. This amendment reiterates the autonomy of the Supreme Court and, as Lady Jay, chair of the House of Lords constitution committee, wrote to Lord McNally in December 2012, “The [Supreme] court’s independence, and the perception of its independence, requires that the chief executive owes her primary loyalty to the president of the court, rather than a minister”.

Making and use of recordings of Supreme Court proceedings

The 2005 Act had amended the Criminal Justice Act 1925 to allow for recordings to be made of Supreme Court proceedings, which have been broadcast live on Sky News since the Court was established. The Bill now amends the Contempt of Court Act 1981 to allow the recording and broadcasting of Supreme Court proceedings where it does not unduly prejudice a person or case and to grant the Supreme Court the power to impose conditions as it sees fit for the publication and disposal of any recording.

Confirming the role of Supreme Court security officers

Finally, the Bill seeks to make legislative provisions concerning the roles and responsibilities of Supreme Court security officers by adding s 51A to the 2005 Act (as it stands, the 2005 Act provides at s 51 only that ” . . . appropriate services must be provided for the Court“). The Bill provides that these security officers will be appointed / designated by the Supreme Court President or provided under contract. The Bill states the role of such officers as to enable the business of the Supreme Court and the Privy Council to be carried out without delay and to maintain order and to secure the safety of all those in the court building.

The Bill will provide such officers with the power to search persons entering the court building and to exclude or remove any such persons if they refuse to be searched or to surrender an article in their possession. These officers will be permitted to use ‘reasonable force where necessary’ but if they are not identifiable as such through a uniform, badge or otherwise they are not to be regarded as acting in the execution of the officer’s duty, and therefore do not have the authority to carry out the permitted actions.

The clarification of the role of Supreme Court security officers is welcome given the high-profile security breaches that have occurred in other buildings where court proceedings / Parliamentary enquiries have been in session: for example, David Lawley-Wakelin’s interruption in the Royal Courts of Justice during the Leveson Inquiry and the infamous Rupert Murdoch custard-pie incident at the Houses of Parliament during a Commons Select Committee hearing.