House of Commons - Constitutional Affairs

Select Committee on Constitutional Affairs First Report

3 JUDICIAL APPOINTMENTS

113. The abolition of the office of Lord Chancellor will have very significant consequences for the system of appointing judges to all courts in England and Wales below the final court of appeal. Up to now, the office, combining that of senior judge, cabinet minister and Speaker of the House of Lords, has occupied a unique position in the constitution. Its status has meant that the complex interplay of conflicting demands of independence of the judiciary and Government control have been resolved within a system which, whatever its theoretical defects, has had the confidence of the judiciary and has produced judges who are highly regarded internationally.

114. The appointment of judges of the highest quality is of central importance to the constitution, since they provide the front-line protection of the rule of law, on which liberties of the citizen depend. Direct evidence of the respect in which our judges are held can be found in the fact that the courts in London are a major source of overseas earnings for the United Kingdom. Many foreign companies use the England and Wales courts to arbitrate disputes. The Commercial Bar Association in its response to the Consultation Paper emphasised this point:

"The financial sector is by far the largest single positive contributor to the UK balance of payments with net exports of over £16.7 billion in 2002. Exports of law firms totalled £1.35 billion in 2002, three times more than in 1990. As the Government has rightly accepted, there is a link between the strength of the English legal system and the strength of the UK financial and legal services sector".[

133

In particular it singles out:

134

Professor Stevens, who practises as an American Lawyer, and who advocates a new system of appointing judges involving a Judicial Appointments Commission, emphasised the need to ensure that the present quality of judges had to be maintained.[135] We agree. This is of primary importance.

115. A major function of the Lord Chancellors has been to nominate to judicial posts, as well as to act as an adviser and to consult the senior judges in the case of the most important judicial appointments in England and Wales. With the abolition of the office, the Government's proposals to set up a Judicial Appointments Commission have raised complex issues. We set out below some of the main points. The broad nature of the Government's proposals have left many areas of detail unclear. This is of crucial importance as the devil is in the detail in respect of many of the planned changes relating to the appointment of judges.

116. At present, the Queen, on the recommendation of the Prime Minister, appoints Lords of Appeal in Ordinary, the Heads of Division of the Supreme Court of England and Wales and Lord Justices of Appeal. The Prime Minister makes his or her recommendations on the basis of advice from the Lord Chancellor. The Queen, on the recommendation of the Lord Chancellor, appoints High Court Judges, Circuit Judges, Recorders, District Judges (Magistrates' Courts), Social Security Commissioners, the Judge Advocate General and the Judge Advocate of Her Majesty's Fleet. The Lord Chancellor appoints a wide range of full-time and part-time members of the judiciary, including District Judges (Civil) and Deputy District Judges, and members of a wide range of tribunals.

117. The Legal and Judicial Services Group in the Department for Constitutional Affairs administers the judicial appointments system on the Lord Chancellor's behalf. The Group supplies the information and advice which the Lord Chancellor needs to fulfil his responsibilities in this field and provides him with the material on which to make a judgement about every appointment. This includes consulting judges and members of the profession and others as required. This involves 140 staff. In 2001/2002 the Department received 4225 applications for judicial posts and made 915 appointments—(not including appointments to the lay magistracy, which totalled 1783.) The annual cost of this aspect of the Government's work is £9m.[136]

118. An important change was made to the appointments system in 2001 when a Commission for Judicial Appointments was established for England and Wales with a remit limited to considering complaints about the appointments system and to carrying out audits of its operations, but not to appoint judges. Sir Colin Campbell was appointed the First Commissioner for Judicial Appointments in March 2001 and, by open competition, a further seven commissioners were appointed. These are four men and four women drawn from different sectors, none of whom is a lawyer or judge. The members of the Commission have access to all the relevant departmental and interview papers. They are able to have confidential discussions with those responsible for administering the system. They have also investigated complaints. In their first two annual reports the Commissioners "identified serious and chronic problems" in the old system such that they recommended that it should be abandoned and that there should be a Judicial Appointments Commission to appoint judges.[137]

119. There is a difficult balance between ensuring the independence of the judiciary and ensuring that the system for appointing the judiciary is properly democratically accountable. The Commission for Judicial Appointments acknowledged in its Annual Report for 2002 that the system's record of ensuring appointments of well qualified people of impeccable probity was very good. It has further stated that in looking at the criticisms of the procedures for appointing holders of judicial office it was important not to lose sight of the fact that the judiciary in the United Kingdom:

'is the envy of many jurisdictions [and that] unlike many other jurisdictions, there have been virtually no scandals and there is no record of corruption'.

It went on to add that:

'The [previous] Lord Chancellor has made considerable improvements to the judicial system in recent years and has devoted significant efforts to addressing key issues including those relating to equal opportunities and diversity'.

120. The Government has cited three main reasons for changing the system of judicial appointments in England and Wales:

at present, the entire process for the appointment of judges is effectively in the hands of the Lord Chancellor.

In the Government's view:

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in order for the judiciary to continue to command public confidence, it is vital that the process by which judges are selected and appointed must also command confidence.

The Government said:

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there is a need to increase diversity in the judiciary.

The Government quoted the existing Commission for Judicial Appointments as pointing out that the judiciary is overwhelmingly white, male and from a narrow social and educational background.[140]

121. The two other jurisdictions in the United Kingdom (Scotland and Northern Ireland) already have Judicial Appointments Commissions. The creation of a Commission in England and Wales would bring the last and largest jurisdiction into line with practice in the rest of the country.

122. Even if the office of Lord Chancellor were to be preserved, there would still be a reason to create a new Judicial Appointments Commission. As Sir Colin Campbell said in oral evidence, the existing Commission for Judicial Appointments:

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123. Not all the witnesses welcomed the proposed change to a commission instead of the Lord Chancellor. In its response to the Government consultation paper, the Society of Black Lawyers said:

"There has been some, but not substantial, improvement to the appointments' system for the ethnic minority. This has largely come about as a result of the personal attention to appointments… paid by the Lord Chancellor, Lord Irvine of Lairg. He took a pro-active approach to the appointment of judges. In particular… he was happy, if a case warranted it, not to act on the recommendation given by his officials or by any advisory panel but instead to make appointments based on his personal assessment of an applicant… He actively encouraged ethnic minority applications, agreeing to look personally into the grievances of any applicant [and] the Society is aware of a number of occasions where Lord Irvine reversed a decision not to give an interview or to appoint".

Mr Peter Herbert, of the Society of Black Lawyers added in oral evidence:

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He emphasised that the membership of the Commission had to be diverse. In addition, he thought that there should be a special appeal process, possibly to the Minister who could intervene and either:

143

Clearly, such an appeal process would be difficult to arrange without undermining the independence of the Commission or opening up the process to charges of political interference. What was possible in practice for a Lord Chancellor is unlikely to be possible for a Secretary of State.

124. Professor Stevens thought that a Judicial Appointments Commission would be cautious in its selection of candidates:

144

He has also illustrated the difficulties of entrusting the promotion of judges to higher courts to a Committee, referring to Lord Woolf's comments of 'Buggins turn next'[145] and indicating that it would:

'Surely be more difficult for a Commission, no matter how distinguished its membership, to pass over less distinguished judges to make a promotion to the Court of Appeal, than it was for a wise Lord Chancellor'.

He warns that an executive Appointments Commission runs the danger of leading to a 'bland, antiseptic bench, technically competent, but 'safe''.[146]

125. 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. It should be noted that Lord Falconer also talked about diversity in the course of giving evidence. We refer below (paragraph 133) in greater detail to the issue of diversity.

Model of commission

126. The Government sought views on three possible alternative types of Commission:

one which makes recommendations directly to the Queen, without intervention by any minister, and which makes those appointments itself which the Lord Chancellor makes at present;

a Commission which makes recommendations to the minister as to whom to appoint (or recommend to the Queen for appointment);

a hybrid Commission which would appoint directly more junior office holders such as part-time judicial and tribunal posts and act as a recommending Commission for more senior posts.[147]

127. In respect of appointments other than the most senior, namely the Court of Appeal and Heads of Division, the Government's initial view was that, on balance, the best combination of independence, accountability and constitutional propriety would be achieved by a Recommending Commission which would generally put forward only one name for appointments to the Secretary of State, who could however reject that name and require another to be put forward. As far as the most senior positions are concerned, the Government preferred that the Commission should continue to play a role but that the Commission should either consult the Secretary of State before making recommendations to the Queen or, if the recommending or hybrid model is used, that the Secretary of State should be required to consult the senior judiciary personally before making a decision and take the advice of the Commission as well.[148]

128. The Law Society indicated that it favoured a hybrid commission, taking the view that all appointments up to and including the Circuit Bench should be made by the Commission. It stated that there needed to be:

149

It concludes, however, that the Commission should recommend only one person to the Secretary of State, or the Prime Minister, and goes on to state that:

"The…Commission should also have a duty to audit and to publicise information about the number of recommendations turned down by the Secretary of State or the Prime Minister and the stated reason for doing so. Care should be taken to protect the identity of candidates, which should remain confidential".

129. The Bar Council indicated that it preferred an appointing Commission, with appointments currently made by the Lord Chancellor being made directly by the Commission and more senior appointments (excluding appointments to the Supreme Court, which would be dealt with by a separate appointment body) made by the Queen, upon recommendation of the Commission.

130. On 26 January 2004 the Lord Chancellor announced the Government's latest plans for the arrangements for a Judicial Appointments Commission.

For magistrates and General Commissioners of Income Tax the Lord Chief Justice will receive advice from local Advisory Committees and make recommendations to the Secretary of State. When it is able to do so, the Judicial Appointments Commission will take over the responsibility for making recommendations to the Secretary of State. There is no indication of when this might be.
For judicial appointments above this level, the Judicial Appointments Commission or a special panel will make recommendation of one name per vacancy to the Secretary of State who will be able to accept the recommendation, ask the Commission to reconsider, reject the recommended candidate, or ask the Commission to re-run the application procedure.[150]
A significant number of senior judicial appointments will not be dealt with directly by the whole Commission, but by special panels of 4 members, two judicial and two lay. In respect of appointments to the Court of Appeal a panel will be appointed chaired by the Lord Chief Justice (who will have a casting vote). The other members will be a Head of Division or Court of Appeal judge, the (lay) Chairman of the Judicial Appointments Commission and a further lay member of the Commission. In respect of appointments to Heads of Division (and the post of Lord Chief Justice), the panel will be chaired by the senior Supreme Court judge from England and Wales (who will have a casting vote). The other members will be the Lord Chief Justice (unless that is the post to be appointed to, when it will be a Head of Division), the Chairman of the Judicial Appointments Commission and a further lay member of the Commission.

131. 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 the final say in appointments.[151] 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.

132. 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 Appointments 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.

DIVERSITY

133. One of the main aims of the Government is to promote diversity in the appointments to the Bench.

The problem

134. The judiciary does not reflect the composition of society as a whole:

Statistics on Judicial Appointments:

Of the 12 Lords of Appeal in ordinary only one is a woman.

Of the five Heads of Division, only one is a woman.

Women make up only 7.9% of Lord Justices of Appeal and 5.7% of High Court Judges.

There are no ethnic minority judges sitting in the High Court, Court of Appeal or the House of Lords. [152]

135. In its 2002 Annual Report, the Commission for Judicial Appointments, however, noted that:

153

136. Gender imbalance is not a phenomenon which is confined to the British legal structure. For instance, in the European Court of Human Rights women only make up a quarter of the Court's composition.[154] Nonetheless, both there are concerns about the representation of women and ethnic minorities in the judiciary. The Law Society has commented that the statistics reveal that the judiciary:

155

The Law Society argues that the under representation of solicitors in the judiciary means that one of the difficulties in ensuring that the judiciary reflects the steadily improving diversity of the legal profession is that the pool from which potential candidates could be chosen remains small.[156]

Trickle up approach

137. It has been suggested that the lack of diversity in the legal system could eventually be

addressed by the 'trickle up effect'.[157] That is due to the fact that the pool of potential applicants under the present system is not the legal profession as a whole, but rather those who entered the profession about 20 years ago. The proportion of women and ethnic minority lawyers entering the profession is now much higher than it was then, which is reflected in a greater proportion of appointments at lower levels of the judiciary.[158]

138. In the Foreword to the Annual Report of the Judicial Appointments Commission for 2002-2003, Lord Falconer indicated that:

159

139. Although coping with low entry rates is a prerequisite for ensuring a wide range of candidates, an additional problem is the retention of able minority candidates in the legal profession. One reason frequently put forward for an under representation of women, in particular, is that the legal career structure is not particularly compatible with family life. In his paper 'Reform in haste and repent at leisure' Professor Robert Stevens contends that some diversity could undoubtedly be produced by building on a wider recruitment base, including not only barristers and solicitors, but also employed lawyers. This idea could encourage well qualified lawyers, who had already been selected and trained by the Government Legal Service, to apply for positions in the judiciary.

140. The Commission for Judicial Appointments identified a "wider systemic bias" in the way in which the legal professions and the judiciary conduct business which does not arise from discrimination by individuals:

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To a great extent, the remedy to problems for women arising from working practices (such as unsocial hours) lies in the hands of the legal profession.[161]

141. The evidence of the Bar Council and the Law Society was that matters had improved a great deal in recent years. Ms Elizabeth Gloster QC said:

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Mr Peter Williamson, President of the Law Society, said the women made up 60 per cent of admissions as solicitors.[163]

142. Even with the best practices in place to encourage retention of able minority and women (especially women) potential applicants for judicial posts, we note what Sir Colin Campbell said in oral evidence:

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Merit versus positive action

143. The Government has indicated that primary legislation will provide that the sole criterion for making judicial appointments will be merit.[165] There is a potential conflict between the commitment to appoint on merit alone and the need to encourage and promote diversity. Clearly, any suggestion of appointing candidates solely or primarily because they are members of a minority or female would undermine any successful appointees.[166] This is very different from the extra targeted effort to assist minority and women applicants for judicial posts referred to in above (paragraph 125).

144. There is an argument that promoting diversity improves the quality of judges. In a lecture Dame Brenda Hale has said:

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In evidence to the Committee, she said:

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145. JUSTICE[169] has rejected the notion that there is a potential conflict. between the objectives of sustaining merit and improving diversity. It stated in its consultation response that:

'There should be no conflict between appointment criteria that include a requirement of merit with an objective of diversity, though this is sometimes erroneously argued. There must be no diminution of the quality of our Bench and, in particular, its independence of government. An independent and courageous spirit must remain a major criterion for senior judicial appointments'.

146. 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. Any committed approach to increasing diversity will involve very much more than a new method of scrutinising appointments. As Mr Oba Nsugbe QC said:

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Current system - "secret soundings"

147. A major feature of the present system of appointments to the judiciary is the system of consultation, often called "secret soundings".[171] These consist of exhaustive confidential references about candidates collected from judges and senior members of the profession. Sir Thomas Legg, who ran the system when he was Permanent Secretary at the Lord Chancellor's Department, is "an unrepentant believer" in confidential consultations about candidates for judicial appointment. In a paper for the Committee he commented:

172

148. The system of confidential consultation has many critics inside and outside the profession. Lord Lester of Herne Hill, who had taken part in the appointments for Assistant Recorders for five years, when Lord Mackay had been Lord Chancellor said:

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149. Sir Thomas Legg described in detail the criteria for selection for judicial appointment:

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150. In its response the consultation exercise, the Association of Women Judges stated that:

"The current system of appointing to the High Court by invitation is discriminatory to women, who are likely to be less visible than men. Further, it is an approach which places undue emphasis on advocacy and on seniority of barristers. That approach is unlikely to identify others, e.g. members of the junior bar, academics and solicitors, who might be suitable to hold office. All those who aspire to judicial office should be prepared to make an application and submit to assessment and interview".

151. The Commission for Judicial Appointments has also drawn attention to concerns in relation to appointment procedures in its 2003 Annual report, noting that there is a risk that:

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The Commission for Judicial Appointments considered that there was "a strong case for discontinuing the use of automatic consultation, at least in its present form, in the judicial appointments procedures in England and Wales".[176] Sir Colin Campbell said that the present system of informal consultation should be replaced.[177]

152. There have been criticisms that appointment to the senior judiciary depends upon being 'known' by members of the professional community. Karon Monaghan, a Barrister at Matrix Chambers, specialising in discrimination and employment law, has claimed that there is strong evidence that such a requirement disadvantages ethnic minority lawyers and women who may be outside the traditional networks.[178] Such a requirement is also perceived to discourage otherwise qualified candidates.[179]

153. Since 1998, it has been possible to apply for appointment to the High Court. However, the Lord Chancellor also reserved the right to invite persons who had not applied to accept appointment. The majority of appointments, 23 out of 36 between 1999 and 2003, were by invitation. Because of concerns with the transparency and fairness of the process the Bar Council's working party on judicial appointments and silk, chaired by Sir Iain Glidewell, recommended (by a majority) that all candidates should apply. A minority, however, expressed the view that that would lead to the risk of missing some outstanding candidates who might be reluctant to put themselves forward.

Career structure for the Judiciary

154. A change in the criteria for selection of judges from choosing well-known advocates to opening the field to a wider group of candidates inevitably leads to the question of age of first appointment and, therefore, the question of promotion for judges. In its response to the consultation, JUSTICE envisaged:

'A major policy initiative aimed at women in their 30's who currently leave the profession… designed to encourage them to take lower judicial posts, particularly those of tribunal chairs, in the knowledge that internal appointment will allow for promotion within the profession on merit'.

It also suggests that:

The suggestion for part time arrangements has already been attacked, however, by a leading woman barrister, who suggests that it is a way in which the government can manipulate the judiciary.[180]

155. The Consultation Paper indicated that the Government did not believe that a fully career judiciary on the Continental model would be appropriate for the common law system of England and Wales, but that:

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156. The Bar Council agreed with this approach, but emphasised that :

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157. 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.

158. 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.

159. A successful approach to ensuring that there is a 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 (see paragraph 125 above). 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".

DUTIES OF THE APPOINTMENTS COMMISSION

160. Sir Colin Campbell has a view of the work of the proposed new Judicial Appointments Commission as involving a series of boards to design systems and to delegate the task of implementing newly designed systems. He sees this as including the development as work progresses of other reforms to increase diversity in the legal profession and the judiciary.[183] His approach makes possible a Commission with an open role to promote diversity which will mean a set of changing tasks. It is not clear how far this will be possible within a statutorily defined structure, but it raises the question of the extent to which the Commission should merely nominate and how far it should design appointment systems. The wider the remit of the Commission is made, the greater the need for democratic accountability will be.

161. The Government has sought views on whether the new Commission should be given a 'follow through' role in personnel/human-resources management of the judiciary, as exists in conventional employer-employee relationships. The status of a judge after appointment is that of an office-holder not of an employee and the Commission would not be an employer. This is to ensure judicial independence. Permanent judges hold office during good behaviour, as a protection of their independence, and cannot normally be removed from office. Judges of the High Court and above can only be removed from office by the Queen, acting on the basis of an Address from both Houses of Parliament. Notwithstanding this, the Government has suggested that there may nevertheless be merit in the Commission having a role in some aspects of the working life of judges once they are appointed. At present, the Lord Chancellor has the statutory power to remove Circuit Judges and below from office on the grounds of incapacity or misbehaviour. Consequently, he receives and considers complaints about the personal conduct of members of the judiciary in England and Wales. The Lord Chancellor does not consider complaints about judicial decisions, which are a matter for the appeal courts.

162. In addition to discipline, the Lord Chancellor has duties covering judicial training, responsibility for policy related matters on judicial appointments and administrative matters such as assigning judges to circuits.

163. Sir Colin Campbell said that:

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He further explained that if judges were to be appointed at a younger age and progress up the judicial ladder, then:

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The same would be true of disciplinary matters.

164. There is clearly going to be a vacuum created by abolition of the role of the Lord Chancellor in connection with discipline of the judiciary. It is unlikely that a Judicial Appointments Commission will be able to take over this role satisfactorily. Apart from the demands of its own core tasks, such a body might find it harder to carry out the delicate function of guiding and warning judges as well as a single office holder. The arguments are strongest in favour of leaving this matter to a senior judge—presumably the Lord Chief Justice of England and Wales. We note the Government's proposals in respect of judicial discipline. We took no evidence specifically on the role of the Lord Chancellor in relation to these and other matters such as training and assigning judges to circuits. There are serious issues related to these functions which go to the heart of judicial independence. It is a matter of regret that the timescale of the inquiry prevented close examination of this aspect of the abolition of the office of Lord Chancellor.

165. 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 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.

STATUS, ORGANIZATION AND FUNDING OF COMMISSION

166. The status of the Commission is a most important question, from the point of view of independence of the judiciary. It will be established on a statutory basis, with a legal personality of its own. The Government put forward three options as models for the structure of the Commission: a Non-departmental public body;[186] a Non-departmental public body supported by an agency;[187]; and a Non-ministerial Department.[188] These options vary in the degree of independence from Government and in their financial arrangements and accountability:

A Non-Departmental Public Body—the Commission would be responsible for recruiting and employing its own staff, possibly including civil servants on loan. The Commission would be independent of Government but would be sponsored by the Department for Constitutional Affairs which would fund it. It would be subject to scrutiny by this Committee and would be required to submit to Parliament an Annual Report.
A Non-Departmental Public Body supported by an Agency—the Commission would be staffed by civil servants of the Department for Constitutional Affairs, working in an executive agency under a chief executive who would also be the Secretary of the Board. The Commission's accountability to Parliament would be as in the first option above, but there might be concerns that the Commission's independence was in reality or in appearance affected by it not being able to hire any of its own staff, who would all be civil servants.
A non-ministerial department—the Commission would be financially accountable to Parliament, and not dependent on the Department for Constitutional Affairs for its resources, but it would remain a Government department rather than being independent.

167. The Government's initial view was (and remains) that the Commission should be fully independent and should constitute a Non-Departmental Public Body, with its own staff. Arrangements would have to be made in establishing the Commission for a transitional period in which it could benefit from the existing expertise in the Department for Constitutional Affairs.

168. We note Professor Stevens's comments that to some extent a commission will be just a more expensive way of doing what is done now: Because of this he emphasised that the Commission had to represent an improvement in the system of appointments,

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We agree.

Membership of the Commission

169. The various possible permutations of the size, membership and method of appointment of the Commission are crucial details. They will determine whether the Judicial Appointments Commission manages to combine an appropriate degree of Government control with sufficient independence to create confidence in the system.

SIZE OF COMMISSION

170. The Government proposes that the new Commission have 15 members: 5 judicial, 2 representative of the legal profession, 1 lay magistrate, 1 tribunal member and 6 lay persons. This would make it large compared to the senior boards of other similar bodies, but it states that that figure is proposed:

"…due to the sheer scale of the appointments process in England and Wales. Approximately 900 judges and tribunal members are appointed each year, considerably more than any comparable jurisdiction. Even if the majority of the appointing work is handled by panels and support staff, there will still be a considerable role for the Commission members, in directing and overseeing that work and making appointments or recommendations as appropriate."[

190

171. The Government Consultation paper indicates that Commissions in other jurisdictions are mostly a combination of judges, practising lawyers, and lay people (often including those with experience of personnel management and appointments). The Judicial Appointments Board in Scotland, for example, is comprised of ten members (including the Chairman), with an equal balance of lay members from varying backgrounds, and legal members, drawn both from the judiciary and legal professions. Sir Colin Campbell said that the proposed size of the Commission would make it a large group to organize, but that the workload of the Commission would be "immense".[191] This would be particularly true if, as Sir Colin suggested, the work of the Commission were to include designing the system for all judicial appointments.[192]

COMPOSITION OF COMMISSION

Nomination by members of the legal profession

172. The Government intends that members of the new Commission will be appointed using open and transparent methods in accordance with the Nolan principles. Nevertheless, it has indicated that there will be one barrister and one solicitor member of the board.[193]

173. The two parts of the legal profession disagree about the extent to which both parts of the legal profession ought to have an automatic right to be represented on the Commission. The Bar Council states that members of the Commission who are lawyers should be nominated by the Chairman of the Bar Council and the President of the Law Society respectively.[194]

174. The Law Society does not concur with this view, stating that all Commission members should be appointed following open competition. It has indicated that it does not:

"…. favour bodies being given a statutory right to have a member on the Commission. We are influenced in this view by our perception that some existing non-departmental government bodies, and some judicial appointments commissions in other parts of the world, feel they work less effectively and cohesively because individual members are there by virtue of nomination from a particular body. This arises from a view by nominated members that part of their role is to represent the view of a particular constituency, or perhaps a group of candidates".

The Law Society thinks that various bodies should be consulted and encouraged to identify candidates to apply to the Commission, but considers that as well as the professional bodies, bodies such as the Civil Justice Council, JUSTICE, The Constitution Unit and various networks for women and ethnic minority solicitors and barristers should be considered.[195] JUSTICE also thought that all non-judicial members should be appointed after open competition, claiming that there should be 'no nomination rights, e.g. for the professional bodies'.[196]

175. 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.

Balance of membership between judges and lay people

176. The question of the balance of membership is also important: should the Commission be predominantly made up of judges or mainly of lay people? What should the proportions be? The Government's preferred option is for the judges, legally qualified or lay judicial members and lay members to be nearly equally represented. The Government proposed to include any academic lawyers in the five places reserved for the legal profession, rather than in the five lay places—it now proposes to include academic lawyers in the lay membership.[197] Sir Colin Campbell expressed the point of view of the (current) Commission for Judicial Appointments:

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177. The Law Society has concluded that the Commission should be chaired by a lay person and that half of its members should be lay. It has indicated that an appropriate balance could be three judges, three members of the legal profession (selected by open competition), one legal academic and eight lay members, including the chair. It is influenced in its desire to see a strong lay element by the achievements of the Commission for Judicial Appointments, noting that:

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178. The Bar Council contend that the majority of the membership should be judicial members, with two legally qualified members appointed by the two legal professional bodies and the rest of the Commission being made up of lay members. Ms Elizabeth Gloster said:

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179. This view is also backed by the Council of Europe's voluntary 'European charter on the statute of judges' which sets out a set of principles for an independent judiciary, and suggests that "at least one half of those who sit [on the appointing body] are judges elected by their peers.[201]" The Bar considers that the Chair should be a lay member, but that he should be legally qualified, and thus not lay in the strict sense.

180. In its response, JUSTICE has indicated that it would prefer a Commission where there would be four judges and four lawyers, academic and practising, while the other seven would be lay members, including one who would always be the chair. In particular, it has argued that:

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181. In a response the Consultation exercise, Lord Justice Keene has commented that:

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He goes on to note that the existing Court of Appeal and House of Lords judges are undoubtedly in the best position to assess the merits of candidates for the Court of Appeal, since they see the civil judgments and criminal summings-up of High Court judges every working day.

182. As Sir Colin Campbell pointed out:

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Nonetheless, the balance of who serves on the Judicial Appointments Commission is important. There is no identifiable strand of generally agreed opinion on the precise balance between lay and judicial or legal members, although the choice of approach between a predominantly lay Commission and one dominated by judges depends on the degree to which the judiciary are seen as potentially appointing members of the profession in their own likeness. The Appointments Commission in Scotland has worked successfully without a majority of judges or even of lawyers.

CHAIR OF COMMISSION

183. The Government put forward two options for who could chair the Commission. The Chair would be drawn from one of the membership groups discussed above and could be either: (a) an eminent non-legal person, which would help to ensure that the lay voice in the Commission was heard, and could enhance public confidence in the independence of the Commission; or (b) a senior judge, such as the Lord Chief Justice, in order to strengthen the judicial representation on the Commission, bring prestige to the Commission and ensure that it commanded the respect of the judiciary and the legal profession.

184. When we spoke to Sir Colin Campbell about whether there should be a lay or a legal chair, he was firmly of the view that "in terms of the current mood about transparency and accountability"[205] there should be a lay chair. This would, in Sir Colin's view, ensure that no vested interests were being served by the occupant of the chair. Thus, the occupant of the chair should be—if not a judge—then a person who had exercised a significant role in life outside the legal world.[206]

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

METHOD OF APPOINTING COMMISSIONERS

186. The Government proposes that members of the Judicial Appointments Commission for England and Wales should be appointed using open and transparent methods, in accordance with the Nolan principles.[207] The Government does not believe that appointments should simply be made by the Secretary of State for Constitutional Affairs, as this would leave the decision about who sits on the Commission solely in the hands of the Executive. The preferred option would be to have the appointments made by The Queen. There would be a separate recommending body, whose recommendations would be passed to the Prime Minister who would make the formal recommendation for appointment to The Queen. The Government originally thought that this body should be chaired by the Permanent Secretary of the Department for Constitutional Affairs, but now has said that it should be chaired by the Commissioner for Public Appointments. Other members of that recommending body would be the Lord Chief Justice, ex officio, a member chosen by the Commissioner for Public Appointments and the Chair of the Commission, once appointed. Further details have still to be worked out.

133 The Commercial Bar Association's response to CP 10/03, Building on Strength Back

134 ibid Back

135 Q 72 Back

136 A small proportion of the work included in these figures related to casework post appointment, and not strictly to the appointments process itself; see Department for Constitutional Affairs (DCA) Consultation Paper CP 10/03, Constitutional reform: a new way of appointing judges, para 6 Back

137 Q 1 Back

138 DCA Consultation Paper CP 10/03, para 22 Back

139 DCA Consultation Paper CP 10/03, para 24 Back

140 DCA Consultation Paper CP 10/03, para 27 Back

141 Q 3 Back

142 Q 411 Back

143 Q 411 Back

144 Reform in haste and repent in leisure, paper by Professor Robert Stevens received by the Committee as a response to the consultation exercise Back