The Government's response to the report of the Constitutional Affairs Committee

Judicial Appointments and a Supreme Court (court of final appeal)

April 2004

Introduction

On 12 June 2003, the Government announced the next stage in a radical programme of Constitutional Reform. Included in this announcement was the intention to abolish the office of Lord Chancellor, to create a new independent Supreme Court, and to create a new Judicial Appointments Commission which would take from Ministers the responsibility for the process of selecting candidates for appointment as judges.

The aim of these proposals is to bring more transparency to our constitution: to create a system to ensure the judiciary remain unequivocally independent from political influence - where they are visibly separate from Parliament and Government - but where there is, at the same time, a robust and sustainable working relationship between the judiciary and the executive.

The Government carried out an extensive formal consultation exercise on these proposals. On 14 July 2003, consultation papers were published on the creation of a Supreme Court, and a Judicial Appointments Commission. On 18 September 2003, a consultation paper was published on the abolition of the Lord Chancellor. On 26 January 2004 the Secretary of State for Constitutional Affairs and Lord Chancellor made a detailed statement to Parliament about the Government's proposals for the future handling of those functions of the office of Lord Chancellor which relate to the judiciary. 26 January also saw the publication of summaries of the consultation papers.

The Government introduced the Constitutional Reform Bill to the House of Lords on 24 February 2004. Second Reading of the Bill took place on 8 March 2004. The Bill contains legislative proposals for the abolition of the office of Lord Chancellor, the creation of a Supreme Court, and the reform of the judicial appointments process.

The Select Committee's report follows an extensive information-gathering exercise, which included oral evidence from nearly 40 witnesses - from academia, the judiciary, and other prominent experts in this field. The Government has taken into account the Committee's conclusions and recommendations in formulating legislation, and welcomes the Report as a valuable contribution to consideration of the Constitutional Reform proposals before detailed consideration of the Bill in Parliament.

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General

1

Whoever carries out the functions of the office of Lord Chancellor will be in charge of the Court Service and will play a central role in the administration of justice. Part of that role is the protection of the judiciary from political pressure in Cabinet and, when necessary, in public. There is a radical difference between on the one hand a Lord Chancellor, who as a judge is bound by a judicial oath, who has a special constitutional importance enjoyed by no other member of the cabinet and who is usually at the end of his career (and thus without the temptations offered by possible advancement) and on the other hand a minister who is a full-time politician, who is not bound by any judicial oath and who may be a middle-ranking or junior member of the Cabinet with hopes of future promotion.

  1. The provisions of the Constitutional Reform Bill will ensure the continued independence of the judiciary. In particular:

    • Clause 1 provides a guarantee of continued independence of the judiciary, with a duty on all Ministers of the Crown and those with responsibility for matters relating to the judiciary or the administration of justice to uphold such independence.

    • Clause 1(4) imposes specific duties of the Secretary of State for Constitutional Affairs, including the need to defend the continued independence of the judiciary.

    • All functions conferred on a Minister in the Bill are conferred specifically on the Secretary of State for Constitutional Affairs, rather than the Secretary of State 'at large' (clause 97).

    • In addition, by virtue of clause 96, any functions conferred on the Secretary of State for Constitutional Affairs may only be transferred to another Minister of the Crown by way of primary legislation.

  2. Together, the Department believes that these provisions ensure that the Secretary of State for Constitutional Affairs will have particular regard to the need to see that the independence of the judiciary is safeguarded. These provisions give legislative effect to the agreement between the Secretary of State for Constitutional Affairs and the Lord Chief Justice, as set out in the Oral Statement made by the Secretary of State on 26th January 2004.

  3. The careful delineation of responsibilities between the Secretary of State for Constitutional Affairs and the Lord Chief Justice - including the latter's particular responsibilities as 'President of the Courts of England and Wales', as set out in clause 2(2) - will ensure transparency and openness in the nature of the relationship between the Executive and judiciary. In addition, the statutory recognition of the Lord Chief Justice's role as leader of the judges of England and Wales will bolster such arrangements.

  4. It is also important to recognise that the transparency of process in the appointment of the judiciary, which will be brought in by the Judicial Appointments Commission, will provide further protection in relation to the independence of the judiciary.

  5. We would also note that the Secretary of State for Constitutional Affairs will, by virtue of clause 9 of the Bill, have custody of the Great Seal. The specific Ministerial responsibilities in relation to the Great Seal, and the precedence in the realm which goes with that, make the Secretary of State for Constitutional Affairs a senior Secretary of State.

2

The way in which these fundamental proposals were announced, as part of a Cabinet reshuffle and without consultation and advice, has created anxieties amongst the most senior members of the judiciary and was felt by some supporters of the changes to have been unhelpful in presenting the case in favour of them.

  1. The Government's proposed reforms of the justice system, including the establishment of a separate Supreme Court standing outside Parliament and of an independent Judicial Appointments Commission, are central to its continuing programme of modernisation, reform and improvement of the constitution in order to make Britain's key institutions fully fit for purpose in the 21st century. We believe it is important to clarify the roles of the executive, the legislature and the judiciary, and we believe too in the vital importance of the independence of the judiciary. We believe that our proposals will both guarantee that independence and lead to the better working of government, Parliament and the courts.

  2. Careful and longstanding consideration of these issues had been given, both inside and outside government. Debate on these proposed changes had been under way for many years. In taking forward such proposals, the Government always faces decisions on the best way to begin consulting on change. We accept that, in retrospect, the way this particular process was begun, intermingled with the Prime Minister's announcement of ministerial changes, might have been improved. However, since then the Government has put forward a range of detailed proposals for consultation, and though there will rightly be considerable discussion of the proposed reforms, there is also considerable agreement to them from key stakeholders. The Government believes that the proposed reforms are the best way forward.

3

These are not simple matters on which to legislate. We set out to examine the proposals and their consequences in more detail, in order to establish whether difficulties could be resolved, and to establish how much time would be needed to resolve them. We became increasingly aware of the complexity of the issues.

  1. The Government agrees that these are complex and important issues. That is why the Government conducted an extensive consultation exercise on its detailed proposals in 2003, and why the report of the Select Committee in advance of Parliamentary scrutiny of legislation is particularly welcome.

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A Supreme Court

4

Both those in favour of the change and those against were united in emphasising that the present system was one which worked. The arguments for change were about principle and perception.

  1. The Committee correctly identifies important motives for change. The Government has continually stated that the decision to create an independent United Kingdom Supreme Court is based on the principle that the United Kingdom's highest appellate court should be independent of the legislature. While at no time has there been any questioning of the high standards and reputation of the Law Lords, there is an overriding need for transparency and clarity in our institutional arrangements. The House of Lords Appellate Committee is in effect a separate court and it should be openly acknowledged as such.

  2. Furthermore, there are reasons of practicality. There will not be any possibility of Justices of the Supreme Court having to recuse themselves after taking part in debate or committee work, of which there are examples from the Appellate Committee. Having an independent Supreme Court will also increase public confidence in and understanding of the judicial system, as it will be demonstrably separate from the legislature.

  3. The Government does not consider it appropriate in a 21st Century democracy for the highest appellate court to be part of the legislature. If the United Kingdom's judicial system is to meet the requirements of independence expected in mature democracies, this blurring between the judicial and legislative responsibilities should be brought to an end.

5

The legislation establishing the new court will need to make clear the jurisdiction of the court. It will need to establish the extent to which it is a United Kingdom court as opposed to a final court of appeal serving each of the United Kingdom's three jurisdictions.

  1. The Committee is correct in stating that the Supreme Court will have to have its jurisdiction carefully set out in legislation. The Constitutional Reform Bill will make clear that the Supreme Court is a United Kingdom court and that it is to have the same jurisdiction at the Appellate Committee of the House of Lords and the devolution jurisdiction currently exercised by the Judicial Committee of the Privy Council.

  2. A separate and free-standing United Kingdom Supreme Court does not in any way imply the creation of a new body of United Kingdom law. Being the final court of appeal in the UK does not mean that the Court will hear 'UK appeals'. As is presently the case with hearings in the Appellate Committee, decisions made in an appeal from a court in one of the three jurisdictions within the United Kingdom will be of binding effect only within that jurisdiction, and of persuasive effect in the others. If it proves to be necessary to state this on the face of the statute, then the Government will amend the Bill accordingly. Only in devolution issues, as at present, will the decisions of the court be binding in all legal proceedings.

  3. Routes of appeal from the Scottish Courts will remain the same for the Supreme Court as they are for the Appellate Committee of the House of Lords. Scottish civil appeals will be heard by the Supreme Court, but the final court of appeal for criminal cases in Scotland will continue to be the High Court of Justiciary.

6

The jurisdiction of the Supreme Court over Scottish appeals and any changes will require legislation or a resolution of the Scottish Parliament. These issues are significant to the maintenance of Scottish law as a distinct entity. They were not addressed when the Government first announced its proposals and the timetable for decisions on the Supreme Court needs to allow for proper resolution and discussion of them in the Scottish Parliament.

  1. The Committee is right to state that the jurisdiction of the court over Scottish appeals will require legislation and may additionally require a resolution of the Scottish Parliament. Civil Justice in Scotland is a devolved matter and is within the authority of the Scottish Executive. The Government has been working closely with the Scottish Executive, at both ministerial and official level, since the announcement of the proposals to create a UK Supreme Court.

  2. The Government in no way wishes to put forward proposals which adversely effect the maintenance of Scottish Law as a distinct entity. The Government continues to work closely with the devolved administrations in developing the proposals contained in the Constitutional Reform Bill. Scottish parliamentarians considered the creation of a UK Supreme Court in separate debate in the Scottish Parliament on 29 January. In that debate the Scottish Executive made clear its support for the creation of the Supreme Court.

7

There are two aspects which need to be kept in mind when discussing the membership of the new court. The first is the need for special expertise in the laws and understanding of the society in all parts of the United Kingdom - this is particularly true of the distinction between Scottish law and the law in the rest of the United Kingdom. The second is the need for there to be an equal sense of ownership of the new court in all parts of the United Kingdom. The Constitutional Reform Bill will need to make clear provision for the arrangements relating to representation of the various parts of the United Kingdom. It will need to set out clearly the principles under which members of the new court are appointed.

  1. The Government accepts the Committee's recommendation that the Supreme Court has to be representative of the whole of the United Kingdom and contain members with specialist expertise in the law of all the jurisdictions the court covers.

  2. The Government agrees with the Committee that it is important for there to be an equal sense of ownership of the Supreme Court in all parts of the United Kingdom. However, the Government does not believe that there should be a formalised quota system to ensure Scottish and Northern Irish presence in the Court. The overriding principle by which judges will be appointed to the court is by merit, but with regard being given to the need to ensure the court has available to it experience and expertise from each jurisdiction. At present the House of Lords Appellate Committee operates on the convention that it shall contain two Scottish Judges and normally one Northern Irish Judge - the Government intends to replicate this in the Supreme Court.

8

The reality of the situation affecting the new court is that the range of possible candidates is always going to be small. Increasing diversity depends on increasing the available talent from which to choose. It is possible to envisage candidates being selected straight from practice or academic life, but we expect that the more productive route towards increasing the diversity of the membership of the new court will be by way of more broadly based appointments to the courts below. Once a person has sat frequently as a judge they will be in the same position as any other candidate.

  1. The Government agree with the Committee's conclusions and believes that diversity in the Supreme Court will be improved over time as the lower courts benefit from changes to appointments procedures.

  2. It is vital to maintain the same calibre of judges in the Supreme Court as presently serve in the Appellate Committee. For this reason the Government is proposing that the criteria for eligibility for appointment to the Supreme Court remain the same as those for the House of Lords Appellate Committee. The Government does not believe that it is appropriate to make direct appointments of non-practising lawyers to the Supreme Court. Whilst it could be argued that this would improve diversity on the bench, the Government recognises that it may be of considerable importance that the members of the Supreme Court should have active experience of presiding in the lower courts.

9

Vacancies in the new Court should be publicised and open to application in line with most other public service appointments. It will be necessary for some active searching for candidates to take place.

  1. The Government agrees with the Committee's conclusion that active searching for candidates will have to take place, but does not think that vacancies in the Supreme Court should be publicised and be open to application in line with most other public service appointments. The pool of candidates from which appointments can be made will rarely be greater than 50, and will usually comprise distinguished judges whose expertise is well known. The Government believes that the Supreme Court Appointments Commission will be best placed to survey the field of candidates for appointment.

10

From the point of view of preserving the reality and appearance of judicial independence, there are dangers in introducing a system which involves exercising patronage in favour of specific individual judges. On balance we would prefer all judges in the Supreme Court to be made peers upon retirement, subject to the question of further reform of the House of Lords. However, if that option is not followed, then none of them should be made peers.

  1. The Government agrees with the Committee's recommendations that all Justices of the Supreme Court should be appointed to the House of Lords upon retirement.

11

As a minimum we would expect the new court to provide an Annual Report to Parliament of the use of the money in its budget and a description of its work over the course of the year. If necessary, Parliament should be ready to hold hearings relating to the financial support required by the new court. The general work of the Judicial Appointments Commission responsible for recommending appointments to the new court will also fall to be examined by this committee (though not normally its conduct in relation to specific appointments).

  1. The Government agrees with the Committee that the Supreme Court Administration should lay an Annual Report before Parliament and that the same report should be made available to the Scottish Parliament, the National Assembly for Wales and the Northern Ireland Assembly (when devolution is in operation). The Annual Report should contain the information as set out by the Committee.

  2. The Government agrees with the Committee that Parliament should not scrutinise individual appointments made by the Supreme Court Appointments Commission. The Government will carefully consider the recommendation that the general work of that commission should be scrutinised by the Constitutional Affairs Select Committee.

12

While we heard no convincing evidence to indicate that confirmation hearings will improve the process of appointing senior judges, we recognise the potential benefits to public understanding of the role of the Supreme Court if a practice were to be adopted of inviting Judges, including recently appointed ones, to appear before an appropriate Committee from time to time (including this committee).

  1. The Government sees no reason why the practice, recommended by the Select Committee, should not be adopted and shall carefully consider the recommendation. It is, of course, for committees themselves to decide whom to invite to their hearings to give evidence.

13

The Department of Constitutional Affairs is not the appropriate organisation to run the new court because it is too associated with the England & Wales court system and because giving the Government control over the administration of the new court could offend against the principle of judicial independence.

  1. The Government does not consider that the DCA is inextricably linked with the England and Wales Court Service. The Department has wider responsibilities regarding tribunals across the United Kingdom, as well as responsibility for the overall management of relations between the UK Government and the devolved administrations in Scotland, Wales and Northern Ireland.

  2. The Supreme Court will not be part of the Court Service of England and Wales, it will be administered as a distinct constitutional entity. Special arrangements will apply to its budgetary and financial arrangements in order to reflect its unique status, and it will present Annual Reports which will be made available not only to the Westminster Parliament, but to the Scottish Parliament, the Northern Ireland Assembly and the National Assembly for Wales.

  3. The Chief Executive, who will be appointed through fair and open competition, will be accountable to the Secretary of State for the financial management of the court, but will report on a day to day basis directly to the President and Justices of the Court. The Court will have a staff of its own, working to the Chief Executive.

14

Delay in finding and making available such accommodation has raised the possibility that the new Court might continue to sit in the House of Lords. Given that the principle argument is that the highest court should be seen to be separate from the legislature, it seems perverse to implement the change in a way which leaves many of the same judges sitting in the House of Lords doing the same job in the same place, possibly with the same staff seconded by the House of Lords. If more time is needed to establish the Court as a distinct body, the timing of its introduction should be adjusted accordingly. Such an important change should not be rushed. (Para 111)

28

If the reform is inaugurated in the form of a Supreme Court which is still temporarily sitting in the House of Lords, looking much like its predecessor, it will not meet the desire of the Government and the supporters of reform to make the Court appear clearly separate from the legislature.

  1. The Government shares the Committee's concern and does not believe it is suitable for the permanent base of the Supreme Court to be located in the Palace of Westminster. This would fail to meet the important principle of drawing a clear distinction between the judiciary and the legislature.

  2. It is inevitable that it will take time both to identify the best location for the Supreme Court, and then to equip the building. However, it is for the Government to decide how best to manage any transitional period and it would be inappropriate for the legislation to impose limitations or restriction in this respect. There is no possibility that legislation on a Supreme Court will be enacted and not followed by the provision of suitable accommodation; however, the Government agree that it is crucial to maintain the momentum of change.

15

In the nineteenth century the great reform of the courts system involved the removal of the courts from Westminster Hall, their historic home for centuries, to the Royal Courts of Justice in the Strand. The new court of final appeal for the United Kingdom requires a building which is functionally effective, but which also reflects its authority and significance.

  1. The Government agrees with the balance that the Committee is advocating. We must house the Supreme Court in a building that reflects the status of the court and is operationally efficient, yet does not draw criticism from the public for appearing not to offer value for money. The building options under consideration have a balance between presenting good value for money to the public, with the dignity and character necessary to reflect the position of the court.

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Judicial Appointments

Reasons for Change

16

The Government must make it a clear objective of the new Judicial Appointments Commission to ensure that active efforts of the kind made by Lord Irvine to promote diversity will be continued in the future.

  1. The Government agrees this recommendation, and has made clear its continuing commitment to a more diverse judiciary. Indeed, the proposals for the creation of an independent Judicial Appointments Commission will make the appointments system more open and transparent. The Commission will have full responsibility for the appointments process, and will be tasked with encouraging a more diverse pool of potential appointees. The Commission will also be tasked with providing advice for the Government on other reforms, outside the appointment process itself, that might help to attract a more diverse range of qualified applicants.

  2. In the light of the Select Committee's recommendation, the Government will introduce an amendment to ensure this commitment to diversity is set out on the face of the Bill.

17

The balance of democratic accountability and judicial independence is hard to strike. Witnesses who generally agreed on the need for reform disagreed on the extent to which the Government should have a final say in appointments. The question of the number of names to be proposed is of central importance - and the Government now proposes that only one name be put forward as a recommendation but that the names of other appointable candidates are given to the Secretary of State.

  1. The Government has considered carefully the case for a Commission appointing judges itself, or making recommendations directly to The Queen. Such a proposal does not provide for proper democratic accountability, however. The appointment of the judiciary is a key function of the State, for which a minister accountable to Parliament must ultimately take responsibility. This is true not just for the most senior appointments, but for appointments at all levels of the judicial hierarchy. In the same way, The Queen, in making senior judicial appointments, as in Her other official actions, is entitled to rely on advice of a minister, who is accountable to Parliament. This is a fundamental principle of our constitution.

  2. The Government therefore proposes that the Commission will recommend to the Secretary of State only one candidate. This means the Secretary of State for Constitutional Affairs will not be able to select a candidate from a list for political or personal reasons. In order to ensure that the Secretary of State for Constitutional Affairs is making an informed decision about the recommended candidate, the Commission will submit their reasons for recommending that candidate, any supporting papers on that candidate, and the names (and supporting papers) of other applicants whom the Commission considered met the criteria for the post.

  3. However, although the Secretary of State should have strictly limited discretion, the Government's responsibility for appointments must be real. If it is not, accountability will be meaningless. Therefore, on receiving the Commission's recommendation(s), the Secretary of State for Constitutional Affairs will have four options:

    • to accept the Commission's recommendation; or

    • to ask the Commission to reconsider, if he considers that the evidence submitted to him does not demonstrate that the recommended candidate meets the criteria, or if the evidence suggests that the recommended candidate is not the strongest candidate; or

    • to reject the Commission's recommended candidate, if he considers that there is some evidence that the candidate cannot be considered for a judicial appointment; or

    • if he considers that the competition has not been conducted in a proper fashion, he may, after consultation with the Lord Chief Justice, require that the competition be re-run.

  4. In order that the process is transparent at every stage, the Secretary of State will have to give written reasons if he asks the Commission to reconsider or if he rejects their recommendation. Also, to ensure transparency, the Commission will be required to include in its annual report those occasions where the Secretary of State for Constitutional Affairs exercised these powers. In addition, to avoid there being any possibility of the Government manipulating the system to appoint a candidate it wants, the Secretary of State will be able to exercise his powers to reject a candidate and to ask for reconsideration only once in relation to each vacancy.

  5. These proposals provide for a very restricted discretionary role for the Secretary of State, but nonetheless enable him to make informed decisions and to be genuinely accountable for appointments. The Secretary of State will not be able to use his powers to reject or require reconsideration lightly, and through the Commission's annual report the number of occasions when he does so will be public knowledge. Ultimately, no candidate can be appointed under any circumstances without having been recommended by the Commission.

18

Any system of appointment must be transparent and any discretion exercised by the Secretary of State will need to be open to challenge in the first instance by way of appeal to the Judicial Appointment and Conduct Referee. Under the current proposals, the Secretary of State will be required to give reasons for any choice made. Although it is likely that these reasons will in the first instance, be given in confidence to the Committee, they may well become public knowledge as a result of an appeal to the Referee. Although we do not regard this as a fatal objection to giving the Secretary of State a choice of names to appoint, it raises practical difficulties, mentioned by witnesses, relating to attracting good candidates who may be put off from applying by the prospect of too public a refusal.

  1. As is explained above, the judicial appointments process will be open and transparent. As the Select Committee has highlighted, the Secretary of State will be required to give written reasons whenever he rejects or asks for further consideration. The Judicial Appointments Commission will report on those occasions where the Secretary of State has exercised these powers, but will be required to do so in a form that does not allow candidates to be identified. Indeed, the Commission will be under a duty to respect the confidentiality of applicants, as will the Ombudsman. The Government does not therefore believe there is a greater risk than under the present arrangements of the names of applicants becoming public knowledge.

  2. It is important to clarify the role of the Ombudsman in this context. The Commission will be required to set up its own internal complaints procedures, to deal with those instances where a candidate claims he or she has suffered injustice because of maladministration. The Bill proposes an Ombudsman, who will deal with those instances where a candidate remains dissatisfied after such an internal review of his or her complaint. The Ombudsman will be able to consider the handling of the application. Where there is evidence that the application was mishandled, he will be able to require that compensation be paid, or some other suitable step taken. The Ombudsman will not be able to rule on the merit of particular applications, and will not be able to recommend candidates for appointment.

19

We accept that the judiciary as a whole will be improved by the recruitment of judges from a wider section of society. The problem relates to individual appointments, rather than how the judiciary as a whole should be composed. A committed approach to increasing diversity will involve very much more than a new method of scrutinising appointments.

  1. The Government agrees that to achieve this much more is needed than simply amending the assessment process. The Commission will be tasked with examining what other steps could be taken to encourage a wider range of applicants. There is no difficulty in relation to individual appointments: for each competition, the sole criterion for appointment will remain merit.

Diversity

20

The rule of law is fundamental in maintaining basic freedoms; considerable emphasis is placed on judicial independence in the constitutional system. Judges (especially in the junior ranks) who wish to be promoted but who may be dealing with cases in which the Government is a party must not be put in a position where their future professional prospects are - or may seem to be - open to influence as a result of decisions in particular cases. This might be the case if a continental system of career judges were adopted. We agree that such a system would not fit with the legal system in England and Wales.

  1. The Government welcomes the Select Committee's agreement that it would not be appropriate to move to a continental system of career judges.

21

Flexibility in the system of selecting candidates and encouraging people to apply must not threaten - or seem to threaten - judicial independence. A career structure that involves an expectation of promotion makes it even more vital that the current freedom from partisan interference in appointing and promoting judges is maintained.

  1. The Government agrees. This is one of the reasons for ensuring that the Commission has as much freedom as possible to select candidates for appointment. The Secretary of State's discretion will be very restricted. A candidate can only be appointed if recommended by the Commission, and the Secretary of State may only reject or seek reconsideration if he gives his reasons for doing so in writing. This restricted role for the Secretary of State in the appointments process rules out any prospect of partisan interference.

22

A successful approach to ensuring that there is greater diversity in judicial appointments requires leadership. In the past, the Lord Chancellor has provided this, as we acknowledge Lord Irvine did during his tenure of office…. The new Judicial Appointments Commission must provide this leadership by implementing strategies to widen the field of applicants for judicial office. Merit will remain the key criterion for appointment. The new Commission should define "merit".

  1. The Government agrees that the Commission must take a proactive role in this area, and must develop strategies. There will also be a role for Ministers, in reaffirming the Government's ongoing commitment to increasing the diversity of the bench, and a similar role for senior judges and leaders of the legal profession.

  2. As drafted, the Constitutional Reform Bill currently places the responsibility for defining merit with the Secretary of State for Constitutional Affairs, subject to affirmative resolution. However, the Government has given this issue further thought in the light of the agreement with the Lord Chief Justice, and the Select Committee's recommendation, and will amend this reference to provide that the Commission will be responsible for defining merit.

Duties of the Appointments Commission

23

We regard it as self-evident that any powers to discipline judges or decision to promote them should be within a system that the judiciary and public believe preserves judicial independence. The Lord Chancellor has always played a central role in reaching a compromise between the conflicting imperatives of maintenance of discipline and judicial independence. There is - and always has been - a clear tension between the right of judges to hold office during periods of good behaviour, and the need to ensure proper standards are maintained. It is a reflection of the success of the system that up to now so few cases have caused serious controversy. Any new system of discipline will need to be firmly within the control of the judiciary in individual cases, and we believe that the Lord Chief Justice should be the person primarily responsible for it. The relevant provisions of the Bill will need to be very carefully examined.

  1. The complaints and discipline system proposed in the Constitutional Reform Bill provides for a central role for the Lord Chief Justice, working in partnership with the Secretary of State for Constitutional Affairs. Judicial office holders can only be removed from office or suspended from sitting with the agreement of the Secretary of State and the Lord Chief Justice (High Court Judges and Lord Justices can only be removed from office by The Queen, on an Address from both Houses of Parliament).The Lord Chief Justice will be responsible for reprimanding, warning or advising judges as to their behaviour, with the agreement of the Secretary of State.

  2. This partnership reflects the importance of respecting the independence of the judiciary, of providing assurance to the public that complaints about judges are subject to proper scrutiny, and of providing accountability to parliament for the complaints system.

Composition of Commission

24

We recognise that members of the Commission should not regard themselves as representing a narrow sectional interest. However, it would be strange if leading members of the two branches of the legal profession were not included among the Commission's members.

  1. The Government agrees that it would be helpful for the Commission to be able to benefit from the expertise of members of the legal profession, from which candidates for judicial office are selected. The Constitutional Reform Bill therefore provides that one member of the Commission must be a practising barrister, and one a practising solicitor. These appointments will be made following full and open competition and in line with the Code of Practice of the Commissioner for Public Appointments. The Secretary of State will be under a duty to consult with the Bar Council (for the barrister) and Law Society (for the solicitor) before making these appointments. The panel charged with carrying out appointments will not be obliged to recommend for appointment any candidate(s) put forward by these bodies, however.

Chair of Commission

25

Notwithstanding the arguments in favour of a lay Chair, we believe that the Commission should be chaired by a judge.

  1. As was explained in the Government's consultation paper on judicial appointments, there are good arguments for either a judicial chair or a lay chair. However, chairing the Commission will be a sizeable commitment - if not full-time, then certainly close to it. This would not allow a senior judge to devote to the Commission the attention it needs, and continue to sit as a Judge. This tips the argument in favour of a lay chair, and the judiciary agree this approach. As the Lord Chief Justice explained when addressing the House of Lords, "A lay chair will be able to devote the time to this role that such a post deserves" (HL Deb, 26 Jan 2004, Col 23).

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Conclusion

26

The Constitutional Reform Bill is a clear candidate for examination in draft.

29

The consultation process has been too short and the legislative timetable is too restrictive to deal with these changes which are so far reaching in their effects. The reason for haste seems to be primarily political. In the light of the complex issues raised and the ambition on the part of the Government to create a new settlement for a final court of appeal for the United Kingdom we recommend that the Government proceed with the Constitutional Reform Bill on the basis of its being draft legislation - in particular in respect of the proposals for a new final court of appeal. If this course of action is followed, it is likely that many of the arrangements could be agreed on a consensual basis. If we plan to create a court to last for centuries, then this must be an objective worth spending some time on.

  1. The Government announced its intention to legislate in these areas in June 2003, and set out its proposals for a new Supreme Court and a Judicial Appointments Commission in July as part of a major formal consultation exercise. Further details on the Commission were announced in Parliament in January 2004, and were further debated in the House of Lords in February in advance of introduction of the Bill. The Government has held extensive discussions with senior members of the judiciary, and has made available to Parliament a document detailing the outcome of those discussions. Before being passed to the House of Commons, the Bill will also receive additional scrutiny by way of a Select Committee of the House of Lords. This will allow the elected House to consider a Bill which the Lords has scrutinised in considerable detail. By the end of the legislative process, the Government will have provided for close to two years of debate - both within Parliament and beyond - on the proposals.

  2. In addition, the need to allow time for debate must be weighed against the need to avoid unnecessarily prolonging the process, and creating a blight over existing systems and structures. Once the decision is made to make the changes, it would be damaging and detrimental if it were to have taken more time to introduce legislation.

27

The abolition of the office of Lord Chancellor should be delayed until the reforms are established.

  1. The Government is taking forward the abolition of the Office of Lord Chancellor as part of a wider programme of constitutional reform. It is important that these changes fit together in a comprehensive fashion. The current Office of Lord Chancellor does not fit with these improvements and must go.

  2. The office of Lord Chancellor will be not be abolished until all the relevant provisions of the Constitutional Reform Bill have been brought into effect and cannot be abolished until alternative arrangements for carrying out his functions are in place.

 

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