Select Committee on Constitutional Affairs Third Report

1  Introduction


1. On 12 June 2003 the Prime Minister announced a plan to establish a new Supreme Court, to abolish the office of Lord Chancellor and to reform the judicial appointments process in England and Wales. Lord Falconer replaced Lord Irvine as Lord Chancellor and the office of Secretary of State for Constitutional Affairs was created. In July 2003 the Department for Constitutional Affairs (DCA) published the consultation papers: "Constitutional Reform: A Supreme Court for the United Kingdom"[1] and "Constitutional Reform: A New Way of Appointing Judges"[2] and in September it published the consultation paper "Constitutional Reform: reforming the office of the Lord Chancellor".[3]

2. Between October 2003 and February 2004 we inquired into the DCA's proposals leading to publication of our report "Judicial appointments and a Supreme Court (court of final appeal)".[4] The Government introduced the Constitutional Reform Bill [Lords] in the House of Lords on 24 February. On the 19 April the Government responded to our Report.[5] Subsequently we took evidence from the witnesses listed on page 46. The purpose of this Report is to update our previous Report in the light of the continuing debate on the proposals since February 2004, in particular changes in Government policy.

3. There have been two main developments since we took evidence in preparation for our First Report: a Concordat between the Lord Chief Justice, on behalf of the judiciary of England and Wales, and the Government; and the legislative process in the House of Lords which has submitted the Constitutional Reform Bill [Lords]to unusually extensive scrutiny.


4. On 26 January 2004 the Government announced the outcome of negotiations between the Lord Chancellor and the Lord Chief Justice of England and Wales about the transfer of functions following the abolition of office of Lord Chancellor. The product of these negotiations—usually referred to as the Concordat (officially 'The Lord Chancellor's Judiciary-Related Functions: Proposals')[6]—was announced shortly before our First Report was published (on 10 February 2004). In essence, it is a set of principles for allocating responsibilities between the Lord Chief Justice (who under the Bill becomes Head of the Judiciary in England and Wales) and the Minister with responsibility for judiciary related matters. It settles many of the issues relating to the appointment of judges and the independence of the judiciary in England and Wales. Although the Concordat was negotiated and drafted on the assumption that the Minister responsible for judiciary-related matters would be a Secretary of State (who might be a non-lawyer and a Member of the House of Commons), its principles are equally applicable to the continued existence of the office of Lord Chancellor, albeit in modified form.

5. We welcome the Concordat. It settles some of the outstanding issues of detail which were not fully addressed in the Government's consultation papers.

6. On behalf of the Judges' Council, Dame Mary Arden has argued that the Concordat should be given some special recognition, even entrenchment, in the Bill. While agreeing that the Concordat was a constitutionally significant document, the House of Lords Select Committee on the Bill did not believe that entrenchment was necessary.[7]

7. We agree: many of the principles set out in the Concordat are reflected in the Bill. Further recognition, even entrenchment, is unnecessary. The Concordat will remain a document of constitutional importance.

Legislative process

8. After the introduction of the Constitutional Reform Bill [Lords] into the House of Lords there was a series of statements and debates on the proposals in the Bill. From February to October the Bill was debated extensively in the House of Lords. This included the highly unusual step of referral of the Bill to a Select Committee, which reported on 2 July 2004 with an amended Bill. The amended Bill was given extensive examination during subsequent stages on the floor of the House. As part of the arrangements for scrutiny, the House of Lords agreed to carry over the Bill into the next Session.[8]

9. The House of Lords Select Committee approached their task of considering the Bill in a consensual way, without taking votes. Many Government amendments to the Bill were agreed to. It was clear from the outset that on three of the main planks of the Bill—abolition of the office of Lord Chancellor, establishment of a Supreme Court and disqualification of judges from sitting and voting in the Upper House (then Clause 94)—there was a division of opinion. On these three issues the report of the Lords Select Committee on Bill sets out the rival arguments based on the written and oral evidence received. There was broad agreement that a Judicial Appointments Commission for England and Wales was desirable.

10. Despite disagreement over the formal qualifications and characteristics of the minister responsible for judiciary related matters (should he be called 'Lord Chancellor', be a senior lawyer and a member of the Upper House—or be a mainstream Secretary of State?), there was broad acceptance that the minister should no longer be head of the judiciary in England and Wales, or sit as a judge, and that the terms of the Concordat should be fulfilled

11. There was significant debate and comment on the Bill outside the House of Lords. There was a further debate on 27 March 2004 in Westminster Hall on this Committee's Report. Between March and May the Justice 2 Committee of the Scottish Parliament conducted an inquiry into the Bill and published a Report.[9] On 1 July 2004 the Commission for Judicial Appointments published a review of the High Court 2003 competition. On 13 October 2004 DCA published a consultation paper: "Increasing Diversity in the Judiciary" (responses were requested by 21 January 2005).[10]

12. In our First Report we emphasised that the way in which these complex and fundamental proposals were announced, as a part of a Cabinet reshuffle and without consultation or advice, had 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.[11] The consultation process had been too short and the legislative timetable as originally planned was too restrictive to deal with changes which were so far reaching in their effects. We recommended 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. [12]

13. We believe that our previous inquiry, the Lords Select Committee and the Carry Over procedure have ensured that there has, after all, been proper examination of the Government's proposals set out in the Bill. In practical terms these processes gave the Bill the scrutiny that a draft Bill would expect to receive.

14. The Bill was introduced into the House of Commons on 21 December 2004 and received its Second Reading on 17 January. This interval did not allow us sufficient time to report to the House in time for the Second Reading debate, which is regrettable.

Amendments in the Lords

15. The Bill has been extensively amended since its introduction in the House of Lords. The Select Committee agreed to over 400 amendments to the Bill—all moved by the Government. The principal changes to the Bill which were made by the House of Lords are set out in the Table below (see Table B).

16. Debate concentrated on several important issues:

17. We discuss the outstanding issues in detail below.

DCA Consultation Paper, CP 11/03 Back

2   DCA Consultation Paper, CP 10/03 Back

3   DCA Consultation Paper, CP 13/03 Back

4   Judicial appointments a and a Supreme Court (court of final appeal), First Report of the Constitutional Affairs Committee, Session 2003-04, HC 48-I and II Back

5   Judicial appointments and a Supreme Court (court of final appeal): The Government's response to the report of the Constitutional Affairs Committee, Cm 6150 Back

6   The text is published at House of Lords, Report of the Select Committee on the Constitutional Reform Bill [HL], Session 2003-04, HL Paper 125, pp 202-224 (Appendix 6) Back

7   ibid, para 85; and see ibid Qq 713, 726 Back

8   HL Deb, 22 March 2004, col 472; the debate about the reforms has also been informed by recent academic literature, including Andrew Le Sueur (ed) Building the UK's New Supreme Court: National and Comparative Perspectives (OUP, 2004) and Derek Morgan (ed) Constitutional Innovation: the Creation of a Supreme Court for the United Kingdom: Domestic, Comparative and International Reflections (LexisNexis 2004) (also published as a special issue of the journal Legal Studies, vol 24, March 2004) Back

9   Justice 2 Committee, Fourth Report, 2004 Back

10   DCA Consultation Paper, CP 25/04 Back

11   op cit, paras 14 and 15 Back

12   op cit, paras 188 and 193 Back

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Prepared 28 January 2005