Evidence submitted by Professor Sir Colin
Campbell, Her Majesty's First Commissioner for Judicial Appointments
SECOND READING
OF THE
CONSTITUTIONAL REFORM
BILL
The Constitutional Reform Bill will receive
its second reading in the House of Lords on 8 March. Prior to
its publication you requested from the Commission for Judicial
Appointments (CJA) some background information on the issues raised
by the bill, which I hope you have already received. Subsequent
to its publication the Commission for Judicial Appointments has
been able to consider the bill's specific provisions. As a result,
I enclose a further briefing note which addresses a number of
specific concerns that the Commissioners have with regard to the
legislation as currently framed. They are:
— The new arrangements do not provide
for any proactive audit of judicial appointment competitions.
— The proposed new Judicial Appointments
Commission (JAC) will not have a lay majority as recommended by
the CJA.
— The new JAC should be able to make
appointments up to Circuit Judge level directly, rather than merely
making recommendations to the Secretary of State.
— Merit should be a matter for the
JAC alone to determine, in the light of the circumstances of each
appointment, without the possibility of interference from the
Minister.
— Similar concerns apply to the Supreme
Court Appointments Commission.
As you know, the CJA is an independent body
with responsibility for reviewing the appointments process and
investigating individual complaints. Since its establishment in
March 2001, the CJA has had unparalleled access to the workings
of the appointments process: studying paper trails; attending
sifting, interview and assessment centre meetings; work-shadowing
members of the judiciary; and so on. It is on the basis of this
unique insight into the workings of the current system that we
make our comments.
COMMISSIONERS FOR
JUDICIAL APPOINTMENTS
CONCERNS ON
THE GOVERNMENT'S
PROPOSALS FOR
JUDICIAL APPOINTMENTS
Audit
The role of the present Commissioners for Judicial
Appointments in auditing judicial appointment competitions will
be lost under the present Government proposals. The new arrangements
do not provide for any proactive audit of judicial appointment
competitions. The Commissioners regret this. The proposed new
Judicial Appointments and Complaints Ombudsman will only respond
to complaints (and to any other matter referred to him/her by
the Secretary of State or the Lord Chief Justice), but, as things
stand, will not have any ability to initiate scrutiny of competitions
as a whole. Nor will the function be given to any other existing
body such as the Office of the Commissioner for Public Appointments.
This would be a significant loss. The audits
the Commissioners have carried out over the last two years have
been key in enabling them to highlight some of the worst previous
appointment practices and help to drive them out. It will not
be a sufficient safeguard on the system and will be insufficient
to provide public confidence, simply to hand over judicial appointments
to the new Judicial Appointments Commission (JAC) as an independent
non-Departmental Public Body. A key principle of genuine audit
is that an independent body, separate from the body responsible
for the process that is being audited, should carry it out. Without
genuine audit the public cannot have confidence that the judicial
appointments system will become fully transparent, fair and accountable.
The present Lord Chancellor and his predecessor have both publicly
acknowledged this.
Lay majority on the JAC
The present proposals for lay representation
on the JAC are also insufficient. Although there will be a lay
chair, those who exercise a judicial function (7) and those who
are practising lawyers (2) will have a clear majority on the Commission
of 15 members. This will not give the public the assurance that
is needed that the Commission will take the lead in changing appointments
culture. The present Commissioners believe that, in the interests
of transparency, there should be a clear lay majority on the JAC.
In particular the JAC needs to continue the
process that has begun of moving away from appointments made in
practice largely or solely on the basis of responses from "automatic
consultees", which, at its worst, has in the past given every
senior judge a black ball. The public needs to be sure that the
JAC will instead bring in the best modern Human Resources practices,
in order to deliver a fair, transparent and accountable system.
This is especially important for ensuring the delivery of much
greater diversity in appointments, and that the JAC can be relied
on always to act first and foremost in the public interest.
Appointments made by the JAC
The Government has decided that the new JAC
should only make recommendations for appointments to the Secretary
of State, who will have the discretion to reject them. Although
the Commissioners can see there is an argument for this with a
small number of the most senior appointments, providing this power
to the Secretary of State for the 2,000 plus appointments made
each year up to Circuit Bench level creates an opportunity for
massive political patronage. Even if it were operated properly,
this process would still require wasteful bureaucratic double-checking
of recommendations just to have them pointlessly rubber-stamped.
The Commissioners therefore continue to believe the new JAC should
make (or recommend themselves to the Queen, as appropriate) all
appointments up to Circuit Judge level.
Definition of merit
The Constitutional Reform Bill is worrying,
because, although it says selection must be on merit (Clause 52),
it contains a power for the Secretary of State to "specify
considerations that are to be taken into account in assessing
merit". In other words the Secretary of State of the day
can say what should constitute merit to suit the circumstances
of the time. The requirements of different judicial appointments
will obviously be different (eg trying family business is different
from trying crime); and the JAC would need to set different appointment
criteria accordingly. Nevertheless, merit should be a matter for
the JAC alone to determine, in the light of the circumstances
of each appointment, without the possibility of interference from
Ministers. Only in this way can Parliament and the public be sure
that the relevant standards will be applied objectively and fairly
to all candidates.
SUPREME COURT
APPOINTMENTS COMMISSION
(SCAC)
Similar concerns apply to the SCAC. First, under
the present proposals this could comprise five judges, if the
three territorial commissions each chose a judge to represent
them, as the judicial members of each may well try to insist There
should be a requirement for the territorial commissions to be
represented by a lay (ie non-judicial, non-legal) member on the
SCAC. This would ensure a lay majority (three out of five) on
the SCAC.
Secondly the SCAC is required to put forward
at least two candidates for each vacancy to the Minister. Again
this creates space for political interference in what should be
an appointment strictly on merit. The SCAC should be able to submit
just one candidate, with a requirement on the Minister to give
it reasons for rejection if s/he did not after consultation find
that candidate acceptable.
Thirdly, under the Bill at present the SCAC
must consider candidates "according to prescribed criteria"—prescribed
that is by the Minister in regulations. The Commissioners' view
is that there should be a clear requirement on the face of the
statute for the SCAC, as there is for the JAC, to select on merit
Ministers should not be allowed to interfere with this.
Sir Colin Campbell
Her Majesty's First Commissioner for Judicial Appointments
4 March 2004
| 
