Stephen Vasciannie LATE LAST week, the British Government announced a series of proposed changes to the constitutional structure in Britain. These changes are of interest to us not only because history has caused us to incorporate aspects of the British constitutional order in our local legal system, but also because, in the midst of our debate concerning the Caribbean Court of Justice, the British changes could possibly have some bearing on how we plan for the future.
The main changes contemplated by the Labour Government in Britain include the following:
The abolition of the post of Lord Chancellor, and the establishment of an Office of Constitutional Affairs to cover the executive functions previously administered by the Lord Chancellor's Office. A new ministerial position, Secretary of State for Constitutional Affairs, is to be created to replace the Lord Chancellor for executive matters.
The establishment of an independent Judicial Appointments Commission by statute; this Commission will be mandated to recommend candidates for appointments to the judiciary. A consultation paper is soon to be issued by the Government on the establishment of the Commission, but it is contemplated that the Commission will assume the role previously held by the Lord Chancellor as far as judicial appointments are concerned.
SUPREME COURT
The establishment of a new Supreme Court.
This court will replace the arrangements currently in place concerning appeals to Britain's highest court. Under the current arrangements, the House of Lords, which is the second legislative chamber in Britain's bicameral system, also has judicial functions. As a legislative chamber, the House of Lords has almost 700 members, but within this body, there are 12 Law Lords who are full-time members of the Appellate Committee of the House of Lords. The members of the Appellate Committee of the House of Lords are called Lords of Appeal in Ordinary, and they usually sit in panels of three or five judges to hear final appeals in the British legal system. These arrangements will be superseded by the establishment of the Supreme Court.
Details concerning the new Supreme Court are yet to be agreed, but the British Government has promised that a consultation paper with relevant proposals will be issued before Parliament's summer recess. An official spokesman for the Prime Minister has indicated that the membership of the Supreme Court is one of the issues to be considered during the consultations. Already, though, it is clear that the new Secretary of State for Constitutional Affairs will not be a member of the Supreme Court. This is in contrast to the practice under which the Lord Chancellor could choose to sit as a judge in the Appellate Committee of the House of Lords (even though the Lord Chancellor had several executive functions and was a member of the Cabinet).
Reform of the speakership of the House of Lords.
Currently, the Lord Chancellor sits on the Woolsack, as the Speaker of the House of Lords. The Standing Orders for the House of Lords are to be changed to ensure that a new speaker will be appointed. This new speaker will not be a member of the Cabinet, and will not hold a ministerial post.
There will be consultations on the current system of appointments to the rank of Queen's Counsel, now conferred by the Government.
SEPARATION OF POWERS
Most of the proposed changes, therefore, are apparently designed to reinforce the separation of powers in view of changing circumstances. So, for example, the post of Lord Chancellor - in existence for over 1,300 years - is to be abolished because it anachronistically combined in one person the executive, legislative and judicial functions of government.
Similarly, although the details are yet to be announced, it is likely that in the scheme for the new Supreme Court, judges will not be allowed the type of legislative function that they now have in the House of Lords. This will ensure that litigants cannot reasonably claim, before European Human Rights tribunals, to have been deprived of a fair trial by an impartial judicial body in Britain.
There has been some debate on this issue, and though the sharp separation of the judicial and legislative functions is to be recommended, one counter-argument is that when Law Lords consider legislation in the House of Lords, they become more sensitive to the broader political context in which legislation is enacted, and they may actually contribute to the drafting of legislation that works well in practice.
IMPLICATION FOR THE CARIBBEAN
And what are the implications for the Caribbean? In rather definitive terms, the Weekend Observer declared in last Friday's front page headline: "Privy Council under threat: Blair announces overhaul of court system in Cabinet reshuffle"; and, in the body of the story, it was suggested that these reforms "will likely be seen as a vindication for Caribbean leaders ... who pushed to establish a Caribbean Court of Justice ahead of withdrawing from the Privy Council as the region's final court of appeal".
It may well be that the changes in Britain will inspire the Caribbean authorities to move ahead with plans for the Caribbean Court of Justice, as Attorney-General Nicholson and Anthony Gifford pointed out in the story. That is beyond question. On the other hand, the Weekend Observer is living in the realm of exaggeration if its headline is meant to imply that the British Government has placed the Privy Council under threat.
The British Government has made no statement on proposed changes to Privy Council, and in light of this silence, it is misleading to suggest that the British Government has placed the Privy Council under threat. The mere fact that changes are being made to some arrangements in Britain does not, in itself, indicate that changes are contemplated to the Privy Council.
Of course, it could be that changes are also contemplated by the British Government for the Privy Council. And, if this is so, one hopes that good reporters will approach the relevant British authorities, who are but a phone call away. But we should avoid sensationalism in this very important debate about the future of the Caribbean court system.
Stephen Vasciannie is Professor of International Law at the University of the West Indies and consultant in the Attorney-General's Chambers.
