Conclusions and recommendations
Concordat
1. We
welcome the Concordat. It settles some of the outstanding issues
of detail which were not fully addressed in the Government's consultation
papers. (Paragraph 5)
2. 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. (Paragraph 7)
Legislative process
3. 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. (Paragraph
13)
4. 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. (Paragraph 14)
Qualifications for the office
5. Assuming
that the House retains the Bill to an extent in the format in
which it arrived from the House of Lords, on balance we prefer
to keep the office of Lord Chancellor and its distinctive status,
different from that of all other members of the Cabinet, because
as we said in our earlier report when contrasting the role of
the Lord Chancellor with other ministers, the Lord Chancellor
"has a special constitutional importance enjoyed by no other
member of the cabinet and … is usually at the end of his
career (and thus without the temptations associated with possible
advancement". Although it may be more likely that someone
in the House of Lords as at present constituted has the seniority
and lack of aspiration towards further office which we considered
desirable, it is by no means certain, and there will be suitable
candidates for the post in both Houses. There does not, therefore,
seem to be a compelling argument for insisting that the Lord Chancellor
must be a member of the Upper House. (Paragraph 28)
6. The Lord Chancellor
will have key roles in relation to the judiciary and in judicial
independence, the rule of law, judicial appointments and discipline.
The principal responsibility for judicial appointments will be
with the Judicial Appointments Commission and for judicial discipline
with the Lord Chief Justice. It may be an advantage for the holder
of the post of Lord Chancellor to be a senior lawyer. (Paragraph
30)
Speakership of the House of Lords
7. We
consider it to be for the House of Lords to decide who should
sit in the Woolsack, but that it is reasonable to assume that,
if the Bill is passed, the Lord Chancellor, who has responsibility
for running a large government department, should not have that
role. (Paragraph 33)
Amendments to the Bill
8. We
agree that the provisions to allow amendment of the primary legislation
by statutory instrument are undesirable, and we hope and expect
that the Government will bring forward further amendments in the
House of Commons to remedy this point. (Paragraph 36)
Jurisdiction of the new court
9. Clause
38 (1) is a clear statement that nothing in part 3 of the Bill
is to affect the distinctions between the separate legal systems
of the parts of the United Kingdom. (Paragraph 41)
10. The provisions
of Clause 38 that nothing in this part of the Bill is to affect
the distinctions between the separate legal systems of the parts
of the United Kingdom and that a decision of the Supreme Court
on appeal from a decision of a court of any part of the United
Kingdom is to be regarded as the decision of the court of that
part of the United Kingdom, except in relation to a devolution
matter, entirely satisfies the concern expressed by us in paragraph
27 of our First Report. (Paragraph 41)
11. The Select Committee
in the House of Lords agreed with a proposal to transfer jurisdiction
in devolution matters from the Privy Council to the Supreme Court.
We are content that the new Supreme Court should exercise this
jurisdiction. (Paragraph 42)
12. The Scottish Parliament
has now had a full opportunity to debate the proposals contained
in the Bill. Clause 38 protects the position of Scots law. (Paragraph
43)
Selection and appointment of members of the court
13. We
agree with the House of Lords Select Committee on the Bill that
"It should remain a convention that … at least two Supreme
Court Justices should have been Scottish judges". (Paragraph
45)
14. The Lord Chancellor
told us that "It is envisaged that one or more of the commissions
in the three jurisdictions will be asked to supply secretarial
and other support on an ad hoc basis when a vacancy is to be filled".
We found this to be "an insufficient answer" in February
2004, and twelve months later the picture is no clearer. (Paragraph
46)
15. We recommend that
the Bill be amended to allow the selection commission, if it so
chooses, to decide whether to provide the Minister with a choice
of more than one name. (Paragraph 50)
16. In our First Report,
we said that vacancies in the new Court should be publicised and
open to application in line with most other public service appointments,
although it would still be necessary for some element of active
searching for candidates to take place. We regret that there is
no provision for advertising appointments included in the Bill.
If such amendment is not made to the Bill, we hope that any selection
commission appointed under the Bill will as a matter of course
publicise and leave open to application posts on the Supreme Court
bench. (Paragraph 51)
Court administration
17. We
are pleased to see that the Bill has been amended to meet our
concerns about the independence of the administration and budget
of the Supreme Court. (Paragraph 53)
New court building
18. We
are confident that the former Middlesex Guildhall, if chosen,
will have the potential to be an excellent base for the new court
of final appeal for the United Kingdom providing that it is adapted
to allow the new court to function as a modern appellate court,
as the judges have urged. (Paragraph 55)
19. We
note with approval the acceptance of our recommendation that implementation
of part 3 of the Bill should not take place until the new Supreme
Court could sit in its own building, thereby making clear the
separation between the highest court of appeal in the United Kingdom
and the legislature. (Paragraph 59)
Diversity
20. We
believe that the Bill should place a duty on the Judicial Appointments
Commission of England and Wales to encourage diversity in the
range of persons available for selection. There is a precedent
for this in the duties placed on the Northern Ireland Judicial
Appointments Commission. (Paragraph 63)
Merit
21. We
note with approval that the Bill has been amended to remove the
Minister's power to define merit. (Paragraph 65)
Confidentiality
22. Since
the Bill now provides for only one name to be submitted to the
Lord Chancellor and for greater confidentiality we regard our
initial concern expressed in our First Report relating to confidentiality
of applications for judicial appointments as having been dealt
with by the Bill in its amended form. (Paragraph 67)
Judicial Discipline
23. We
note that the Bill allocates dual responsibility for discipline
to the Lord Chancellor and the Lord Chief Justice. We believe
that the Concordat provides an appropriate framework for these
responsibilities. (Paragraph 69)
Composition of the Commission
24. The
Bill in its present form provides that the Judicial Appointments
Commission will be chaired by a lay person. We understand that
this provision has the support of the judiciary. Viewed in the
context of the Concordat, which adequately preserves judicial
independence, and of the strong judicial element in the Judicial
Appointments Commission we now believe that a lay chair is acceptable.
(Paragraph 74)
Relations between the judiciary and Parliament
25. We
regard the provisions of Clause 6 as a useful mechanism for senior
judges to be able to communicate directly to Parliament. (Paragraph
76)
26. We welcome the
continued use of evidence sessions of our Committee as an opportunity
for members of the judiciary at all levels to advise Parliament
on the workings of the judicial system and on issues of policy.
(Paragraph 77)
Supreme Court annual report
27. We
note with approval the amended provision in Clause 51 under which
it is the Supreme Court Chief Executive who must prepare an Annual
Report, which the Minister will lay before Parliament. (Paragraph
79)
28. The Annual Report
will provide the opportunity to invite members of the court and
the Chief Executive to appear before a parliamentary select committee,
and from time to time might be the subject of a debate on the
floor of one of the Houses of Parliament. In these ways, a constructive
dialogue between the court and Parliament may be developed. (Paragraph
79)
A parliamentary committee for judiciary-related
matters
29. In
general we agree with the House of Lords Select Committee on the
importance of a continuing Committee with responsibility for judicial
matters. We think that this Committee serves this function. It
would be appropriate for both Houses to have their own Committees
for maintaining a relationship with the judiciary which can meet
jointly, if they see fit. We do not see the necessity for inserting
a provision to this effect in the Bill. (Paragraph 83)
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