The Supreme Court of the United Kingdom and the Judicial Committee of the Privy Council – written evidence (CIC0024)

House of Lords Constitution Committee

Inquiry into the Constitutional Implications of COVID-19

Introduction

1. The Supreme Court of the United Kingdom (“UKSC”) was established by the Constitutional Reform Act 2005. Since 1 October 2009, it has served as the final court of appeal for arguable points of law of general public importance arising from civil cases throughout the UK and from criminal cases in England, Wales, and Northern Ireland. The UKSC also hears cases on devolution and compatibility issues under the Scotland Acts 1998 and 2012, the Northern Ireland Act 1998 and the Government of Wales Act 2006.

2. The Judicial Committee of the Privy Council (“JCPC”) is a separate court from the UKSC but its permanent judges are the justices of the UKSC. The JCPC is the court of final appeal for many Commonwealth countries, as well as the UK’s overseas territories, crown dependencies, and military sovereign base areas.

3. The UKSC and JCPC building in Parliament Square is currently closed. We are making plans for the re-opening of the building, but, in the meantime, the justices and staff of the UKSC and JCPC are making every effort to continue to operate as normally as possible while working remotely. Our priority is to maintain an environment which enables the justices of the UKSC and JCPC to carry out their duties in an effective, visible and accessible way, so as to promote the rule of law and facilitate the administration of justice, both in the UK and in those countries which use the JCPC.

4. The President of the UKSC, the Right Honourable Lord Reed of Allermuir, recorded a video message on 20 June 2020 which reports on how the UKSC and JCPC have continued to conduct their day-to-day business during the COVID-19 pandemic.[1] This paper contains further detail on how the UKSC and JCPC have been operating during this period. It is provided in response to the Constitution Committee’s call for evidence on the workings of courts and tribunals to support its inquiry into the constitutional implications of COVID-19.

Appeal hearings

5. The Prime Minister announced ‘lockdown’ on 23 March 2020. The following day, we held our first online hearing, with all participants, justices and counsel, in separate locations communicating via the Cisco Webex videoconferencing platform. The UKSC and JCPC have continued to operate in this way for all hearings since then. The total number of appeals heard remotely via Webex since lockdown are as follows:

6. To ensure open justice, the UKSC and JCPC have livestreamed all remote hearings on their respective websites (as was the case prior to COVID-19 for hearings that took place in the court building). This has enabled members of the public to observe hearings as they take place. Members of the public can also view recordings of past hearings in current and decided cases on the UKSC and JCPC websites.[2]

7. The UKSC and JCPC have been able to hear almost all planned appeals remotely: no case has been adjourned because the UKSC or JCPC was unable to provide a hearing. Seven cases had to be adjourned at the parties’ request, early in the lockdown period, because their counsel was ill or because they were unable to make use of the video conferencing facilities which were offered to them. In those cases, the parties were offered the option of having the appeal decided on the basis of written submissions.[3] Otherwise, the only change we have made has been to alter the dates of some hearings, as it is not possible for us to hold and livestream two video hearings at the same time.

8. We were able to adapt quickly, in part, because, before the pandemic, we already offered hearings by video link as an alternative to a hearing in court in some appeals to the JCPC, where the time zones were suitable and the technology was available locally. In addition, as noted above, the UKSC and JCPC already recorded and streamed hearings live from the court building and made recordings of past proceedings available on the UKSC and JCPC websites. It is also worth noting that, as appellate courts, the UKSC and the JCPC are concerned with questions of law. It has not, therefore, been necessary for the UKSC or JCPC to make arrangements for witness evidence to be heard remotely or for the attendance of jurors. Moreover, it is very rare that a party is unrepresented by counsel at a hearing before the UKSC or JCPC (and no party has been unrepresented in the virtual hearings held to date). If a litigant in person is granted permission to appeal, the UKSC or JCPC Registry (as applicable) takes steps to ensure they receive pro bono representation.

9. The use of videoconferencing software has proved successful in allowing the UKSC and the JCPC to continue to hear cases during the COVID-19 pandemic. However, it has required a significant commitment from our IT team and other support staff. Guidance on arrangements for the virtual hearing is sent to the parties in advance of the hearing, and our IT team conducts pre-hearing test sessions with counsel. Both the test sessions and the hearings require a member of the IT team to be on hand to deal with any technical issues and to provide support or handle queries. A further member of the team is required to prepare footage from previous days for publication online. This second member of staff also ensures that the live feed is stable and runs without issue.

10. Overall, the feedback we have received from users involved in remote hearings before the UKSC and the JCPC has been very positive. However, some minor technical problems were encountered in the initial remote hearings. In particular, we identified: (i) the need to ensure that microphones are muted unless the person is intending to speak; (ii) the need to avoid Webex and Windows installing updates on the laptops being used by participants during a hearing; and (iii) the desirability of an ethernet connection in situations where WiFi may be inadequate. All of these points have now been addressed. We have also adapted the system in response to user feedback so that it is possible for those watching the livestream of each hearing to see all of the justices at the bottom of their screen, as well as the person who is speaking.

11. We are conscious that participating in a virtual hearing is a different experience. Counsel have reported that virtual hearings are more tiring, and that it can be more difficult to involve junior counsel and to take instructions during the hearing. There is not the same spontaneous interaction between the participants in a virtual hearing as there is in a courtroom, and the experience for litigants and members of the public is also very different. Accordingly, we look forward to returning to in-person hearings in the court building when it is possible to do so.

Judgments

12. The justices of the UKSC and JCPC have continued to deliver judgments as usual. The following table shows that the total number of UKSC and JCPC judgments delivered since lockdown has been broadly comparable to the number of judgments delivered during the same time period in previous years:

13. The judgments are all published online on the UKSC and JCPC websites (as applicable),[4] as was the case before the COVID-19 pandemic. All UKSC judgments and some JCPC judgments are accompanied by a short video summary, in which one of the justices gives an overview of the reasons for the court’s decision.[5] Since 24 March 2020, these summaries have been pre-recorded and then published online when the judgment is released, rather than being streamed live from one of the courtrooms. We continue to publish short written press summaries of all UKSC and some JCPC judgments to enhance public understanding of the courts’ decisions.[6]

Court procedures

14. The UKSC and JCPC have introduced a number of changes to accommodate remote working and to facilitate the hearing of appeals during the COVID-19 pandemic. These changes are detailed in the Practice Note issued by Lord Reed on 21 May 2020, which is available on the UKSC website.[7] The Practice Note provides guidance on a range of matters including, amongst other things, the filing of papers for hearings and applications for permission to appeal, time limits, urgent applications, orders, hearings, post-hearing submissions, judgments and costs. It also provides contact email addresses so that litigants can contact the UKSC and JCPC Registry staff for further guidance, if needed. 

15. The Practice Note explains that a new online filing system, based on SharePoint, has been set up to allow parties to submit their applications for permission to appeal, case bundles and any other papers to the UKSC and JCPC electronically. Previously, most applications for permission to appeal were filed in hard copy, while case bundles were provided in both hard copy and electronic formats. The SharePoint filing system has made it possible for the justices and their judicial assistants to access documents remotely. This has been crucial in allowing the justices to prepare for and conduct appeal hearings and to determine applications for permission to appeal during the pandemic. 

16. Litigants in person have been able to file applications for permission to appeal using the new SharePoint system during the COVID-19 pandemic. The UKSC and JCPC Registries report that the number of applications for permission to appeal from unrepresented litigants has remained broadly similar to the number of applications from litigants in person filed in previous years.  Some litigants in person have advised that they prefer the new electronic filing system, as it saves them from incurring the printing, copying and posting charges associated with filing hard copy documents. Where litigants in person do face challenges in obtaining electronic copies of judgments and other papers, the UKSC and JCPC Registries take steps to assist them where possible, for example, by requesting the relevant material from the court below.

Swearing-in of Lord Leggatt and Lord Burrows as justices of the UKSC

17. During the lockdown period, the UKSC has welcomed two new justices, Lord Leggatt, who was sworn in on 21 April 2020 and Lord Burrows, who was sworn in on 2 June 2020.
18. As a result of the COVID-19 pandemic, the format of their swearing-in ceremonies was significantly modified to ensure that the government guidance on social distancing was observed. The Constitutional Reform Act 2005, which established the UKSC, requires that a person who is appointed as a justice must take the required oaths in the presence of the President of the UKSC. Both Lord Leggatt and Lord Burrows were due to sit as justices, so their swearing-in could not be postponed until later in the year. Accordingly, closed ceremonies took place in the UKSC Library. Those attending in person were kept to an absolute minimum. All justices, except for the UKSC President, Lord Reed, attended virtually and took part by video conference. Both ceremonies were recorded and are available to view online.[8]
19. Swearing-in ceremonies usually take place in Courtroom One and are attended by all justices, as well as by the family and friends of the person being sworn in. A ceremony of the usual kind will be held for Lord Leggatt and Lord Burrows when circumstances allow, at which time they can renew the oaths that they took on 21 April and 2 June respectively.

Education and outreach

20. Public education is an important aspect of our role. We have therefore developed an enhanced range of online learning resources and virtual, interactive activities and tours, so as to continue to engage students and other members of the public with the work and role of the UKSC and JCPC during the pandemic.[9] Our online learning resources range from a downloadable UKSC-themed colouring book for younger children to lesson plans for sixth form students. During June and July 2020, we have hosted four virtual student debate days using Microsoft Teams. Our Information Officers have also delivered five interactive virtual tours of the court building to student groups. Further virtual debate days and tours are planned.

International comparisons

21. The impact of the pandemic on courts around the world has been studied by academic scholars. A recent article by Professor Richard Susskind, published by Harvard Law School, examined the response of the UKSC in particular, and concluded:

22. ‘It is to the great credit of the UKSC that it so quickly moved its entire caseload from physical to video hearings, and did so as effectively as any other Supreme Court that is noted on Remote Courts Worldwide.[10] Indeed, I would say that the UK Supreme Court has responded more emphatically and successfully than any of its equivalents internationally. Thanks to technology, perseverance, and judicial adaptability, access to the highest court in the United Kingdom has been maintained during the crisis.’[11]

Next steps

23. We are currently considering the steps that will need to be taken to prepare the court building for the return of justices and staff, and for the re-opening of the building to the public and the resumption of hearings there when it is safe to do so. At the time of writing, we are planning to open the building to the public from 24 August 2020, with a view to resuming hearings in the building from October 2020, subject to the situation with the virus.

24. We will also be considering which elements of our new way of working we may wish to retain. There are environmental and other advantages, for example, in the electronic filing of papers. As described above, prior to the pandemic, we offered hearings by video link as an alternative to a hearing in court in some appeals to the JCPC, in order to provide access to justice for those unable to travel to the UK. This offering is likely to continue. However, we do not otherwise expect to continue holding virtual hearings after the end of social distancing.

UKSC and JCPC

20 August 2020