4 CONCLUSION
187. Opinions differ about the need for the changes
proposed. Every informed commentator agrees, however, that they
are extensive. Our concern is that all the proposed changes consequent
on the abolition of the office of Lord Chancellor are being bundled
together and dealt with over a very short timescale as a single
reform. This makes the process unwieldy and, in the case of some
of the proposals, precipitate. The Consultation Paper on the abolition
of the office of Lord Chancellor admitted that the consultation
period was less than the usual period of twelve weeks which has
been seen as appropriate for far less sweeping changes.[208]
In evidence to the Committee the Lord Chancellor said that the
period of consultation and debate would stretch over eighteen
months, from the first announcement to final agreement of the
legislation.[209] He
emphasised two reasons for the need for speed in legislating to
bring the proposals into law: a technical one that authority for
spending money on a new building or extensive refurbishment of
an old building needs prior agreement at Second Reading for giving
authority; and a more general "leadership" one, namely
that the proposals would run out of steam if they were delayed
at all.
188. These objections to delaying the process, especially
to having draft legislation, do not explain why the proposed changes
could not be brought in incrementally. For example, many of the
objections to having members of the final court of appeal in the
House of Lords might be dealt with by changes to the Standing
Orders of the House of Lords (as pointed out by Lord Hope[210])
that Lords of Appeal in Ordinary who are serving do not speak
or vote in matters relating to legislation. The early introduction
of a Judicial Appointments Commission in England and Wales means
that the experience of the similar bodies in Northern Ireland
and Scotland—which are very new and have little operational
experience—would prevent the England and Wales Commission
from benefiting from the lessons to be learnt as a result of the
establishment of those bodies. In any event, loss of momentum
could be used to justify never having any draft bills at all on
important subjects. Draft bills are appropriate whenever there
is any significant proposal which is complex, introduces fundamental
change and is controversial. The use of draft bills should not
be confined to matters of technical complexity. The Constitutional
Reform Bill is a clear candidate for examination in draft.
189. We are concerned that an over-hasty introduction
of fundamental reform may jeopardise the success of the new arrangements
for the final court of appeal and appointment of judges—not
least because of a lack of confidence in them among members of
the judiciary. We note and agree with the comments of Lord Woolf,
the Lord Chief Justice, on 26 January 2004 in responding to the
Government's latest announcement about the proposed changes:
"A settlement responding to the proposed
new situation would have to ensure: first, that the judges retain
the confidence of the public; secondly, that the independence
of the judiciary is maintained; thirdly, that the quality of the
judiciary continues to be outstanding; fourthly, that there is
an appropriate and harmonious relationship between the judiciary,
Parliament and the Government; fifthly, that the resources essential
to an effective and efficient court system are provided."[211]
190. Whatever changes Parliament agrees to, it is
of central importance that there should be strong safeguards to
preserve judicial independence if the reforms are not to have
the reverse effect of the one intended. Although the judiciary
should not have a veto over reform, in the final analysis if the
judges are not confident that the reforms provide such protection,
it is highly doubtful that the proposals should be allowed to
proceed. If the reforms fail to reassure public opinion of the
extent of judges' freedom to carry out their duties without interference
then they will not achieve the Government's stated aims of "taking
account of people's expectations about the independence and transparency
of the judicial system"[212]
or of the judiciary being "seen and trusted as independent
of the government of the day".[213]
191. The abolition of the office of Lord Chancellor
should be delayed until the reforms are established.
192. 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.
193. The consultation process has been too short
and the legislative timetable is too restrictive to deal with
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 court of final
appeal. If this course of action is followed, it is likely that
many of the arrangements could be agreed on a consensual basis.
If the plan is to create a court to last for centuries, then this
must be an objective worth spending some time on.
208 DCA Consultation Paper CP 13/03, Constitutional
reform: reforming the office of the Lord Chancellor Back
209
Q 505 Back
210
Q 282 Back
211
HL Deb, 26 January 2004, col 22 Back
212
DCA Consultation Paper CP 11/03, para 1 Back
213
DCA Consultation Paper CP 10/03, para 22 Back
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