| General
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| 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 temptations associated with 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. (Paragraph 13)
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| 2. | The way in which these fundamental proposals were announced, as a part of a Cabinet reshuffle and without consultation or 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. (Paragraph 14)
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| 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. (Paragraph 15)
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| A Supreme Court |
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| 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. (Paragraph 23)
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| Jurisdiction |
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| 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. (Paragraph 27)
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| Scottish Appeals |
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| 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. (Paragraph 39)
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| Membership of the Court
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| 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. (Paragraph 47)
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| Selection and appointment process
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| 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 pool of 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. (Paragraph 63)
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| 9. | Vacancies in the new Court should be publicised and open to application in line with most other public service appointments. It will still be necessary for some element of active searching for candidates to take place. (Paragraph 64)
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| Relationship between Supreme Court and Parliament
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| 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. (Paragraph 80)
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| 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). (Paragraph 81)
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| 12. | While we heard no convincing evidence to indicate that confirmation hearings would improve the process of appointing senior judges, we recognise the potential benefits to public understanding of the role of the new 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). (Paragraph 87)
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| Operational matters
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| 13. | The Department of Constitutional Affairs is not the appropriate organization to run the new court because it is too associated with the England and Wales court system and because giving the Government control over the administration of the new court could offend against the principle of judicial independence. (Paragraph 100)
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| Accommodation |
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| 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. (Paragraph 111)
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| 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. (Paragraph 112)
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| Judicial Appointments
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| 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. (Paragraph 125)
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| 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 the 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 (Paragraph 131)
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| 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 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. (Paragraph 132)
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| 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. Any committed approach to increasing diversity will involve very much more than a new method of scrutinising appointments. (Paragraph 146)
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| Diversity |
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| 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. (Paragraph 157)
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| 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. (Paragraph 158)
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| 22. | 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". (Paragraph 159)
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| Duties of the Appointments Commission
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| 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 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. (Paragraph 165)
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| Composition of Commission
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| 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. (Paragraph 175)
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| Chair of Commission
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| 25. | Notwithstanding the arguments in favour of a lay Chair, we believe that the Commission should be chaired by a judge. (Paragraph 185)
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| Conclusion |
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| 26. | The Constitutional Reform Bill is a clear candidate for examination in draft. (Paragraph 188)
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| 27. | The abolition of the office of Lord Chancellor should be delayed until the reforms are established. (Paragraph 191)
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| 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. (Paragraph 192)
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| 29. | 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. (Paragraph 193)
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