Joint Committee On Human Rights - Twenty-Third Report

Joint Committee On Human Rights Twenty-Third Report

Bills drawn to the special attention of both Houses

Government Bills

1 Constitutional Reform Bill

Date introduced to the House of Lords
Current Bill Number
Previous Reports
24 February 2004
House of Lords 91
None

Background

1.1 The Constitutional Reform Bill is a Government Bill, introduced to the House of Lords on 24 February 2004. The Lord Falconer of Thoroton, Lord Chancellor and Secretary of State for Constitutional Affairs, has made a statement of compatibility with Convention rights under s. 19(1)(a) of the Human Rights Act 1998. Explanatory Notes to the Bill have been published[6] and deal with the Government's view as to the compatibility of the Bill with Convention rights at paragraphs 318-326.

1.2 At Second Reading on 8 March 2004 the Bill was committed to a Select Committee by the House of Lords. The Select Committee on the Constitutional Reform Bill reported the Bill with amendments to the House of Lords on 24 June 2004.[7] The Bill was reprinted as amended by the Select Committee on the Bill and recommitted to a Committee of the Whole House. The Bill completed its Committee stage on 11 November 2004 and will be carried over to the new Session.

The effect of the Bill

1.3 The Bill introduces very significant changes to the structure of the judicial system, the relationship between the judiciary on the one hand and the legislature and the executive on the other, and the process for judicial appointments.

1.4 Part 1 of the Bill provides for the abolition of the office of Lord Chancellor and the arrangements for the future exercise of the functions of that office. It also makes provision designed to guarantee continued judicial independence.

1.5 Part 2 of the Bill creates a new Supreme Court of the United Kingdom, which will be separate from Parliament, and provides for the transfer of the appellate jurisdiction of the House of Lords and the devolution jurisdiction of the Judicial Committee of the Privy Council to the new Supreme Court. It also provides for the process of appointment of judges to the new Court.

1.6 Part 3 of the Bill creates a new Judicial Appointments Commission and provides for the process of selecting and appointing judges, and judicial office-holders from within the judiciary (e.g. the Lord Chief Justice, Heads of Division etc.). It provides for a disciplinary procedure in relation to the judiciary. It also provides for a Judicial Appointments and Conduct Ombudsman, to deal with complaints about the appointments process and about judicial disciplinary cases.

1.7 Part 4 provides for parliamentary disqualification of members of the Supreme Court and certain other holders of high judicial office. It disqualifies them from membership of the House of Commons and also bars them from sitting or voting in the House of Lords. It also removes the right of the Lord President of the Council to be a member of the Judicial Committee of the Privy Council.

1.8 The Bill has aroused very considerable political controversy. This is not surprising for a Bill which aims to redesign some of the most important features of the UK's constitutional arrangements. We recognise that on matters of constitutional design there will be a wide range of strongly held views and that there will be considerable scope for disagreement between reasonably and legitimately held views. As we have pointed out before in relation to controversial bills, our task is to examine carefully and dispassionately the content of the relevant international human rights obligations which bind the UK, and to advise Parliament as to whether the provisions of a Bill are compatible with those obligations. In performing that task, we confine ourselves strictly to the relevant human rights obligations and other recognised standards which are engaged by the subject matter of the Bill. The range of issues with which we are concerned is therefore very much narrower than that considered by the House of Lords Select Committee on the Bill, as many of those issues do not engage human rights law.

The human rights implications of the Bill

The relevant human rights standards

1.9 The Bill has major implications for the independence of the judiciary from both the executive and Parliament, and for both the actual and perceived impartiality of courts. The independence and impartiality of the judiciary is a subject on which there exists a wide range of international human rights standards.

1.10 It has come to be internationally accepted that a truly independent judiciary is an inherent feature of the rule of law on which the protection of human rights in democratic societies depends. All of the major human rights instruments by which the UK has chosen to be bound include an individual right to a fair hearing before an independent and impartial court in the determination of both criminal charges and disputes involving civil rights, and since the coming into force of the Human Rights Act 1998 UK law on the requirements of independence and impartiality has itself been modified to bring it into line with these international obligations.

UN standards

1.11 Article 10 of the Universal Declaration of Human Rights ("the UDHR") provides—

Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.

1.12 Article 14 of the International Covenant on Civil and Political Rights ("the ICCPR") provides—

All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. …

1.13 The Human Rights Committee, in its General Comment on Article 14, has indicated the reach of this provision by the sort of information it has asked to be provided with by States—

The Committee would find it useful if, in their future reports, States parties could provide more detailed information on the steps taken to ensure that … competence, impartiality and independence of the judiciary are established by law and guaranteed in practice. In particular, States parties should specify the relevant constitutional and legislative texts which provide for the establishment of the courts and ensure that they are independent, impartial and competent, in particular with regard to the manner in which judges are appointed, the qualifications for appointment, and the duration of their terms of office; the condition governing promotion, transfer and cessation of their functions and the actual independence of the judiciary from the executive branch and the legislative.[8]

ECHR standards

1.14 The most significant international standard from the UK point of view is Article 6(1) of the European Convention on Human Rights ("the ECHR"), which provides, so far as relevant—

In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

1.15 There is considerable case-law of the European Court of Human Rights elaborating the standards of judicial independence and impartiality which are required by that Article. The case-law establishes that there is a close relationship between the concepts of independence and that of impartiality in Article 6(1), and that, in relation to both, objective appearances are important.

1.16 "Independence" in Article 6(1) means independent of the executive, of Parliament and of the parties. In determining whether the "independence" requirement is satisfied, it is necessary to have regard to factors such as the manner of appointment of judges, their terms of office, the existence of guarantees against outside pressure, and whether the court presents an appearance of independence.[9]

1.17 The test to be applied to determine whether a court satisfies the Article 6 guarantee of an "impartial" tribunal has relatively recently been the subject of an important evolution in Convention case-law. A distinction is drawn by the European Court of Human Rights between a "subjective" approach on the one hand, which endeavours to ascertain the personal conviction of a given judge in a given case, and an "objective" approach on the other, that is, determining whether the tribunal "offered guarantees sufficient to exclude any legitimate doubts" about impartiality.[10]

1.18 As the Court explained in Piersack, a purely subjective test for impartiality is not sufficient, because "in this area, even appearances may be of a certain importance". The "objective" test is therefore a recognition of the fact that appearances are important. Moreover, the European Court of Human Rights was explicit about the rationale for adopting such an objective approach: it said, "what is at stake is the confidence which the courts must inspire in the public in a democratic society".[11] It followed that "any judge in respect of whom there is a legitimate reason to fear a lack of impartiality must withdraw".

1.19 In Piersack itself, application of this test for impartiality led to a finding that there had been a breach of the guarantee of an impartial tribunal in Article 6(1) because the trial court had been presided over by a Judge who, when senior deputy procureur, had been in charge of the department which had decided to prosecute the accused. The test for impartiality which had been applied by the Belgian Court, namely whether the Judge had previously intervened in the case in the exercise of his functions in the public prosecutor's department, did not satisfy the requirements of Article 6(1). The Court of Human Rights applied a stricter objective test for impartiality—

In order that the courts may inspire in the public the confidence which is indispensable, account must also be taken of questions of internal organisation. If an individual, after holding in the public prosecutor's department an office whose nature is such that he may have to deal with a given matter in the course of his duties, subsequently sits in the same case as a judge, the public are entitled to fear that he does not offer sufficient guarantees of impartiality.[12]

1.20 In a large number of cases since Piersack, the European Court of Human Rights has repeatedly reiterated the importance of appearances when deciding whether the impartiality guarantee has been complied with, and that the rationale for the objective approach is rooted in the importance of maintaining the public's confidence in the administration of justice.[13] In Borgers v Belgium the Court noted that the concept of a fair trial in Article 6(1)—

… has undergone a considerable evolution in the Court's case law, notably in respect of the importance attached to appearances and to the increased sensitivity of the public to the fair administration of justice.[14]

1.21 "Independence" and "impartiality" therefore require not only that the court must be truly independent and free from actual prejudice or bias, but also that it must not appear in the objective sense to lack independence or impartiality. In deciding whether there is an appearance of bias or lack of impartiality, the Court of Human Rights has explicitly connected the standard to be applied with the importance of courts commanding the confidence of the public in their impartiality.

1.22 Neither the Convention nor the Court of Human Rights, however, prescribe a rigid constitutional doctrine of separation of powers. The Court has always been careful to make clear that neither Article 6 nor any other provision of the Convention requires States to comply with any theoretical constitutional concepts regarding the permissible limits of interaction between the judiciary, the legislature and the executive.[15] Because it is part of an international supervisory mechanism which entertains complaints about violations of individual rights, the Court is always concerned with whether the requirements of the Convention are met in the circumstances of an individual case.

1.23 Inevitably, however, the application of these standards in individual cases often has structural implications. In recent years the notion of the separation of powers between the political organs of government (Parliament and the Executive) on the one hand and the judiciary on the other has assumed growing importance in the Court's case-law. For example in McGonnell v UK, the Court found there to be a violation of the independence and impartiality requirement in Article 6(1) because of the close connections between the judicial functions of the Bailiff of Guernsey (as President of the Royal Court) and his legislative and executive roles.[16] The Bailiff's overlapping functions meant that he had presided over the Guernsey legislature when it had adopted the Development Plan which was relevant to the applicant's planning application. He subsequently sat, in his judicial capacity, on the court which determined the applicant's planning appeal. The Court held this to be in breach of the requirement of impartiality in Article 6(1), because it gave legitimate grounds to the applicant for fearing that the Bailiff may have been influenced by his prior participation in the adoption of the development plan.

1.24 The growing importance attached by the Strasbourg Court to the separation of the judicial function from the political branches is also shown by Stafford v UK, in which the Court held that "the continuing role of the Secretary of State in fixing the tariff and in deciding on a prisoner's release following its expiry, has become increasingly difficult to reconcile with the notion of separation of powers between the executive and the judiciary".[17] And in Sovtransavto Holding v Ukraine, the Court held that there had been a breach of the fair trial guarantee in Article 6(1) where there had been interventions in the judicial process at the highest political level:[18] such interventions were said to disclose a lack of respect for the very function of the judiciary.

Domestic law under the Human Rights Act 1998

1.25 Some witnesses to the House of Lords Select Committee on the Bill questioned whether Article 6 introduced anything new into UK law when it was given direct domestic effect by the Human Rights Act 1998. Edward Garnier QC MP, for example, told the Select Committee that "the principle enshrined in Article 6 has been fundamental to English law for centuries. … This is not some new principle which entered our law for the first time with the Human Rights Act 1998. … It is inaccurate for the Government to say that the Human Rights Act requires a stricter view to be taken towards independence or impartiality".[19]

1.26 It is true that the right of an individual to a tribunal which is "independent and impartial" was recognised by the common law in various ways long before the enactment of the Human Rights Act made Article 6 ECHR part of UK law. But the Government is also correct to say that the Human Rights Act requires a stricter view to be taken towards independence and impartiality. Indeed, this has been expressly recognised in decisions of the Court of Appeal and House of Lords following the coming into force of the Act.

1.27 The Court of Appeal in the Proprietary Association case conducted a thorough review and restatement of the precise test to be applied in determining whether a court or tribunal meets the guarantee of impartiality, in light of the coming into force of the Human Rights Act 1998 and the consequent domestic effect of the Article 6(1) jurisprudence of the European Court of Human Rights.[20] The Court noted that the common law test for bias laid down by the House of Lords in Gough (which had become known as the 'real danger of bias' test)[21] had not commanded universal approval outside of England and Wales, and that Scotland and some Commonwealth jurisdictions had preferred an alternative test (the 'reasonable apprehension of bias' test) which was said to be more clearly in harmony with the jurisprudence of the European Court of Human Rights.

1.28 Since this was the first occasion on which the question had arisen since the coming into force of the Human Rights Act 1998 on 2 October 2000, the Court of Appeal treated the case as an occasion to review Gough to see whether the test it lays down was compatible with the Strasbourg test, or needed some modification. It therefore proceeded to conduct a thorough review of both the English and the Strasbourg authorities concerning "apparent bias" on the part of a tribunal.

1.29 Having reviewed the case-law, the Court sought to summarise the principles to be derived from the Strasbourg line of cases. It said that the Court has to decide whether, on an objective appraisal, the material facts gave rise to a legitimate fear that the Judge might not have been impartial, and "an important consideration in making an objective appraisal of the facts is the desirability that the public should remain confident in the administration of justice."

1.30 Taking that jurisprudence into account, the Court concluded that a "modest adjustment" of the Gough test was called for, which made it clear that it is, in effect, no different from the test applied in most of the Commonwealth and in Scotland. The test to be applied has two elements—

(1) first, the Court must ascertain all the circumstances which have a bearing on the suggestion that the tribunal is not impartial; and

(2) then it must ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, (the two being the same), that the tribunal was biased.[22]

1.31 In short, the test is "whether the objective onlooker might have a reasonable apprehension of bias".[23]

1.32 The Court of Appeal's modification of the Gough test for common law bias in the Proprietary Association case has since been endorsed unanimously by the House of Lords in Magill v Porter.[24] It held that "the question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased".[25] As Lord Steyn subsequently explained—

… the purpose and effect of this modification was to bring the common law rule into line with the Strasbourg jurisprudence. … The small but important shift approved in Magill v Porter has at its core the need for 'the confidence which must be inspired by the courts in a democratic society.[26]

Other international standards and guidelines

1.33 In addition to the case-law of the European Court of Human Rights under Article 6(1), there are some important other human rights instruments which seek to elaborate on the requirements of the internationally recognised standards of independence and impartiality. The most important of these are—

— The United Nations Basic Principles on the Independence of the Judiciary (1985)[27]

— The Council of Europe's Committee of Ministers Recommendation on The Independence, Efficiency and Role of Judges[28]

1.34 Although these instruments are strictly non-binding, they are a useful and convenient articulation of the more concrete requirements of the very abstract standards of "independence" and "impartiality". The Government has expressly had regard to the Recommendation No. R (94) 12 when drafting Part 3 of the Constitutional Reform Bill.[29] That Recommendation itself expressly takes account of the UN Basic Principles.[30] We have therefore paid them close attention in our scrutiny of the human rights implications of the Bill.

1.35 Also relevant are some recent statements of principle and guidelines adopted by the Commonwealth Heads of Government, which contain statements of "best practice principles" in relation to judicial independence—

— Latimer House Guidelines on Parliamentary Supremacy and Judicial Independence for the Commonwealth;[31]

— Commonwealth Principles on the Accountability of and the Relationship between the three branches of Government.[32]

The human rights issues

1.36 The human rights issues which arise when the Bill is measured against the relevant international standards fall into three broad categories—

(1) Judicial independence from the executive

— Whether there are sufficient guarantees of judicial independence from the executive in clause 1 of the Bill

— Whether the redistribution of the Lord Chancellor's functions respects the requirement that there be a complete functional separation of the judicial from the executive power

— Whether the new process of judicial appointments satisfies the requirements of independence and impartiality

— Whether the disciplinary procedures for the judiciary contain sufficient guarantees of independence against political and outside pressure

(2) Judicial independence from the legislature

— Whether the separation of the Supreme Court from the legislature in Part 2 satisfies the relevant standards

— Whether the parliamentary disqualifications in Part 4 satisfy the requirements of independence and impartiality

— Whether a parliamentary committee responsible for the oversight of judiciary-related matters is compatible with judicial independence.

(3) Judicial diversity

— Whether the process of judicial appointments satisfies the obligation to ensure the equal participation of women in public life.

Judicial independence from the executive

The strength of the statutory guarantee of judicial independence

1.37 Clause 1 of the Bill contains a statutory guarantee of continued judicial independence. It places a duty on Ministers of the Crown and all others with responsibility for matters relating to the judiciary or the administration of justice to uphold the continued independence of the judiciary.[33] It also imposes two particular duties for the purpose of upholding judicial independence—

(1) Ministers of the Crown are placed under a duty not to seek to influence particular judicial decisions "through any special access to the judiciary";[34] and

(2) the Secretary of State for Constitutional Affairs is required to have regard to the need to defend the continued independence of the judiciary, the need for the judiciary to have proper support to enable them to exercise their functions and the need for the public interest in matters relating to the judiciary or the administration of justice to be properly represented in decisions affecting those matters.[35]

1.38 We welcome in principle the inclusion in the Bill of an express recognition of the constitutional principle of judicial independence. This is already explicitly recognised as a legal principle by the common law, and its constitutional status is also recognised, but nevertheless we consider it desirable that it also be accorded express statutory recognition. We note that it is a feature of a number of the relevant international statements of principles and guidelines that they call for the independence of the judiciary to be enshrined in the constitution of the country, or at least incorporated into legislation. The UN's Basic Principles on the Independence of the Judiciary, for example, states—

The independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the country. It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary.[36]

The Committee of Ministers' recommendation similarly recommends that amongst the measures which should be taken to respect, protect and promote the independence of judges—

The independence of judges should be guaranteed pursuant to the provisions of the Convention and constitutional principles, for example by inserting specific provisions in the constitution or other legislation …[37]

1.39 We consider that the express statutory duty on Ministers in clause 1(1) of the Bill, to uphold the continued independence of the judiciary, will serve in practice to enhance the guarantee of judicial independence, in addition to the common law's recognition of the principle, as recommended by these international statements of principle.

1.40 We also welcome the recognition in clause 1(3) of the reality that the executive enjoys special access to the judiciary and that this must never be used to influence particular judicial decisions. This gives effect to the important guideline in the Latimer House Guidelines, that "while dialogue between the judiciary and the government may be desirable or appropriate, in no circumstances should such dialogue compromise judicial independence".[38]

1.41 However, we consider that the particular duties imposed on the Minister in relation to judicial independence in clause 1(4) are too weakly stated and that this potentially represents a retrograde step in terms of the degree of legal protection given to judicial independence. A duty expressed in terms of a duty to "have regard to" various "needs" is a weak form of duty.[39] It is a procedural rather than a substantive duty: instead of requiring the Minister to secure the actual achievement of the matters listed in clause 1(4), it merely requires him or her to treat them as a relevant consideration in the decision-making process. We have recently made similar criticisms of the strength of some of the duties contained in the Children Bill using the same weak formulation.[40]

1.42 We think that if express ministerial duties are to be included in the Bill the strength of their statement is of paramount importance. Since it is widely accepted to be one of the current functions of the Lord Chancellor to uphold judicial independence,[41] any weaker statutory duty would amount to a decrease in the level of guarantees for judicial independence. We therefore consider that if particular ministerial duties are to be included in the Bill in addition to that in clause 1(1), they ought to be much more strongly stated.

1.43 The House of Lords Select Committee on the Bill also considered whether clause 1 of the Bill should be amended to include a duty on Ministers to uphold the rule of law.[42] We have considered the arguments for and against the inclusion of such a duty, but we are not persuaded of the necessity to include a reference to the "rule of law" on the face of the legislation. This is not because we consider that there is too much scope for disagreement as to what the rule of law requires, which was one of the concerns expressed to the Select Committee on the Bill.[43] It is because we consider the rule of law to be an overarching constitutional principle, binding on all organs of the State not just the executive, and which does not and should not depend on statutory recognition for its vitality in our constitutional arrangements.

Abolition of the office of Lord Chancellor

1.44 Part 1 of the Bill also provides for the abolition of the office of Lord Chancellor and the arrangements for the future exercise of the functions of that office.

1.45 It is clear that there is nothing in either Article 6(1) ECHR or its case-law, or any other international human rights instrument, which requires the abolition of the office of Lord Chancellor as such. However, the increasing importance of appearances in the evolving case-law of the European Court of Human Rights, as described above, does have serious implications for the discharge of the judicial functions of that office so long as they are combined with other functions of an executive and legislative nature.

1.46 The most obvious and direct implication is for the Lord Chancellor's function as a judge eligible to sit on the Appellate Committee of the House of Lords. The decision of the European Court of Human Rights in McGonnell v UK makes clear that the Lord Chancellor's involvement in any case in the House of Lords involving the Government, or a measure promoted by the Government, would be very likely to be contrary to Article 6(1). Indeed, this much is implicitly acknowledged by Lord Bingham in his evidence to the House of Lords Select Committee, who said that he thought that "the time had come when the Lord Chancellor had to stop sitting judicially".[44] He gave an indication of the sorts of matters in which it was clearly thought inappropriate for the Lord Chancellor to sit as a judge: "It was agreed between us that he could not do anything to do with crime because that affected his colleague, the Home Secretary, he could not deal with human rights because he piloted the Bill through the House, he could not deal with judicial review because it was of governmental interest".[45] It is also implicitly acknowledged in the present Lord Chancellor's announcement on assuming office that he would not sit in a judicial capacity in the House of Lords.

1.47 There are also implications for certain other of the Lord Chancellor's judiciary-related functions, the exercise of which by a member of both the executive and the upper house of the legislature might give rise to an appearance of a lack of independence or impartiality. Clause 3 and Schedule 1 of the Bill provide for the redistribution of the Lord Chancellor's judiciary-related functions between the Minister on the one hand and the Lord Chief Justice on the other. We find that this redistribution generally enhances the UK's compliance with the relevant standards of judicial independence and impartiality by making it less likely that grounds will arise for complaining that a particular judge appears to lack independence or impartiality. For example, the transfer to the Lord Chief Justice of the Lord Chancellor's functions concerning the deployment of individual judges, for example to deal with specific areas of business, or their appointment to committees, boards or similar bodies, clearly makes future challenges to the independence or impartiality of judges less likely in practice.[46]

1.48 In light of both the refinement of the UK test for impartiality so as to place greater importance on appearances, and the developing jurisprudence of the European Court of Human Rights, we conclude that although there is nothing in Article 6(1) ECHR or any other international human rights standard to require the abolition of the office of Lord Chancellor, the complete functional separation of those parts of the office which are identifiably judicial, executive and legislative would enhance the UK's compliance with the guarantee of independence and impartiality by making less likely a successful future challenge to the Lord Chancellor sitting as a member of the Appellate Committee, or to other exercises of the Lord Chancellor's judicial functions, e.g. in relation to the appointment of judges.

Judicial appointments

1.49 Part 3 of the Bill creates a Judicial Appointments Commission[47] and sets out the process to be followed by the Commission and by the Minister in appointing the Lord Chief Justice and other Heads of Division,[48] Lords Justices of Appeal,[49] and High Court Judges and other judicial office holders.[50] It also creates a Judicial Appointments and Conduct Ombudsman[51] and provides for complaints about the appointments process to be made to the new Ombudsman.[52]

1.50 The Minister has the power to reject a selection, following which the Commission or selection panel may not select the person rejected.[53] The main compatibility issue is whether this power in the executive to reject a candidate for judicial appointment who has been selected by an independent judicial appointments commission is compatible with the principle of judicial independence from the executive?

1.51 It is clear to us that nothing in human rights law requires that judicial appointments be made by a body which is independent of the executive. Principle 10 of the UN Basic Principles on the Independence of the Judiciary provides that "any method of judicial selection shall safeguard against judicial appointments for improper motives." Similarly the Committee of Ministers Recommendation on the Independence of the Judiciary states an independent appointments process as the ideal, but expressly recognises that the constitutional or legal provisions and traditions in some European states allow judges to be appointed by the government, in which case there should be "guarantees to ensure that the procedures to appoint judges are transparent and independent in practice and that the decisions will not be influenced by any reasons other than those related to objective criteria.[54]

1.52 Therefore, although an appointing commission might be thought to provide the strongest possible guarantee of judicial independence, because it would remove the power of appointment from the executive altogether, the mere fact that the Judicial Appointments Commission created by the Bill is a recommending commission rather than an appointing commission, or a hybrid commission making some appointments itself, is not itself incompatible with any human rights obligations or non-binding principles or guidelines. The question is whether the safeguards built into the recommending commission framework are adequate to ensure transparency and independence from the executive in practice.

1.53 One of the safeguards is the requirement that "selection must be on merit".[55] We welcome the inclusion of this requirement in the Bill. It reflects the central importance of the principle that judicial appointments should be merit-based in the various elaborations of the relevant international human rights standards. Those standards, however, are rather more detailed than a bald assertion of "merit" as the basis for selection. The UN Basic Principles, for example, state that "persons selected for judicial office shall be individuals of integrity and ability with appropriate training or qualifications in law".[56] The Committee of Ministers Recommendation provides that "all decisions concerning the professional career of judges should be based on objective criteria, and the selection and career of judges should be based on merit, having regard to qualifications, integrity, ability and efficiency".[57] In our view, the safeguards in the Bill would be strengthened if it included at least an indicative elaboration of what is meant by "merit" in the context of judicial appointments, and what sorts of objective criteria will be relevant to such appointments.

1.54 We are also concerned about the detrimental impact on the appearance of independence of the Judicial Appointments Commission of the Minister's power to give guidance to the Commission[58] and the requirement that the Commission and any selection panel must have regard to such guidance.[59] Although the power is expressed to be a power to give guidance to the Commission about procedures for the performance of its functions, the scope of that power is very broadly defined. It includes the power to give guidance as to how the Commission should assess eligible candidates for the purposes of selection.[60]

1.55 We consider that the ministerial power to give guidance to the Judicial Appointments Commission as to how to assess candidates for appointment, to which the Commission is obliged to have regard, is incompatible with the principle of judicial independence.

1.56 Finally, we consider that the disqualification of members of the House of Lords from eligibility for membership of the Commission[61] is unnecessarily restrictive, as it would prevent cross-bench peers from serving on the commission without any justification, and is therefore likely to be an unjustified interference with the right to participate in public life under the ICCPR.[62] In our view, since it is possible for a member of the House of Lords to move to the cross benches in the Lords, there should be no such blanket disqualification, rather the question should be dealt with on an ad hoc basis.

Judicial Discipline

1.57 Clause 90 of the Bill confers on the Lord Chief Justice a number of disciplinary powers over all judicial office holders, including the power of suspension. All of the international standards recognise the need for such powers to ensure that the judiciary fulfil its responsibilities. We are concerned, however, that these disciplinary powers can only be exercised "with the agreement of the Minister".[63] The very existence of this requirement risks creating a perception of political interference in judicial discipline, and we therefore consider it to be incompatible with the principle of judicial independence.

Supreme Court budget and administration

1.58 Clauses 41-44 of the Bill make provision for the budgetary and administrative arrangements for the new Supreme Court. The Minister is placed under a general duty to ensure that there is an efficient and effective system to support the carrying on of the business of the Supreme Court, and to ensure that appropriate services are provided for it.[64] The Minister is given a discretion to appoint such officers and staff,[65] or make such staffing arrangements with third parties,[66] as he thinks appropriate for the purpose of discharging his general duty.[67]

1.59 According to the Government's evidence to the House of Lords Select Committee on the Bill,[68] what is envisaged in practice in relation to the Supreme Court's budget is that the Supreme Court will prepare a budget and put it to the Minister who will have to be satisfied of its reasonableness before making a bid to the Treasury. The Treasury itself will then make a judgment about the reasonableness of the budget put forward for running the Supreme Court and will give such amount as it considers reasonable, through the Minister, to the Supreme Court. The rationale for interposing the Minister between the Supreme Court and the Treasury is to provide ministerial accountability for the expenditure of the money.[69]

1.60 A majority of the House of Lords Select Committee on the Bill considered that the Supreme Court should have greater financial and administrative autonomy than envisaged by these clauses.[70] It considered that the Supreme Court should be established according to the model of a non-ministerial department, whereby funding would go direct from the Treasury to the Supreme Court, and not into the budget of the Department for Constitutional Affairs.

1.61 We have commented before in the context of the proposed Commission for Equality and Human Rights on the importance of financial and administrative autonomy for both the actuality and the appearance of independence from the executive.[71] These concerns apply with even greater force in relation to the budgetary and administrative arrangements for the country's highest court. The potential for conflict with the important requirement of judicial independence from the executive, including the appearance of independence, is self-evident.[72]

1.62 The Government states that its proposals "aim to guarantee genuine independence and autonomy." To give effect to this aim, in our view, there should be no interposition of a Minister between the Supreme Court and the Treasury, and the Government should prefer the model of the National Audit Office, which does not have to go through a minister to bid to the Treasury for its money.

Judicial Independence from the legislature

A separate Supreme Court

1.63 Part 2 of the Bill creates a new Supreme Court of the United Kingdom, which is to be separate from Parliament, and provides for the transfer of the appellate jurisdiction of the Appellate Committee of the House of Lords and the devolution jurisdiction of the Judicial Committee of the Privy Council to the new Supreme Court.

1.64 The Explanatory Notes explain that the arrangements for a new Supreme Court are considered to be sufficient to entrench and safeguard judicial independence as required by Article 6 ECHR, and to prevent any legitimate or objectively justified fear of a lack of impartiality on the part of those coming before the new Supreme Court.[73]

1.65 In its written evidence to the House of Lords Select Committee on the Bill, the Government argued that the Law Lords are judges, not legislators, and that the separation between those two roles should be made explicit.[74] The independence of the highest court from the legislature should be "demonstrable", in the sense of "plain for all to see." Referring to the ECHR requirement that judges must be independent, impartial and free of any prejudice or bias, both real and perceived, the Government argued that—

… for this to be ensured, judicial independence needs not just to be preserved in practice, but also to be buttressed by appropriate and effective constitutional guarantees. The establishment of a Supreme Court will provide those guarantees.

1.66 The Report of the Select Committee on the Constitutional Reform Bill states that "the Government and others argue that a Supreme Court separate from Parliament is required in order to comply with the requirements of Article 6 of the European Convention on Human Rights",[75] while several other witnesses "rejected the Government's reliance on Article 6 of the ECHR".[76] In our view, there is scope for misunderstanding as to precisely what Article 6 requires in terms of separation between the judiciary and the legislature.

1.67 It is clear that Article 6 does not require the UK to abolish the Appellate Committee of the House of Lords and establish a new Supreme Court which is entirely separate from Parliament. Neither Article 6, nor the case-law under it, prescribes with such specificity the constitutional structures which must be adopted by Member States. This is not surprising, bearing in mind that the Convention and the case-law of the Court of Human Rights lay down the standards to be followed by some 46 countries with a very wide range of constitutional traditions.

1.68 However, it is clear from the case-law of the European Court of Human Rights, and in particular the judgment in McGonnell v UK, that a judge who has both legislative and judicial functions may well fail to satisfy the Article 6(1) requirement of independence and impartiality in a particular case, where his or her involvement in their legislative capacity in the passage of a statute relevant to the determination of a case gives rise to legitimate grounds for fearing that the judge may have predetermined the issue in question in the case. The current arrangement, whereby sitting Law Lords are entitled to participate in parliamentary debates, gives rise to this risk in subsequent cases concerning legislation in relation to which a Law Lord may have made his or her views known in the course of parliamentary debate.

1.69 We do not think it is an answer to this concern that the Law Lords have in practice exercised considerable restraint in their involvement in parliamentary debates. Although in June 2000 the Senior Law Lord, Lord Bingham, made a statement outlining the circumstances in which Law Lords would speak in the House of Lords in their legislative capacity,[77] it is clear that there is still no sufficiently established constitutional convention separating the judicial branch from the legislative in politically controversial matters. A number of examples of recent involvement in parliamentary debates can be cited to make clear the nature of the problem. Lord Woolf spoke in the House of Lords at the Second Reading debate of the Criminal Justice Bill on 16 June 2003. He subsequently placed in the House of Lords library a memorandum containing critical comments in relation to a number of aspects of the Bill, which subsequently became the Criminal Justice Act 2003. He also spoke in the House of Lords debate on the Asylum and Immigration (Treatment of Claimants, etc.) Bill, and again placed a letter in the House of Lords library, this time welcoming the Government's amendments to that Bill, which has since become the Asylum and Immigration (Treatment of Claimants etc.) Act 2004. Two Law Lords voted in the recent House of Lords debate on the Hunting Bill. In any subsequent case which arose raising issues on which these Law Lords had expressed a view in their legislative capacity, the case for their not sitting as a judge on Article 6(1) grounds would be irresistible, having played such an active part in their legislative capacity, and they would therefore be effectively unavailable to sit in a judicial capacity in such cases.

1.70 We therefore conclude that, although Article 6 does not per se require the abolition of the Appellate Committee of the House of Lords and the creation of a new and separate Supreme Court, such a step would make it much less likely that violations of Article 6(1) will occur in practice, or that individual members of the highest court will have to recuse themselves from hearing particular appeals because of their involvement in some relevant way in their legislative capacity.

Parliamentary disqualification

1.71 Clause 101 of the Bill disqualifies from sitting and voting in the House of Lords Judges of the Supreme Court, members of the supplementary panel of the Supreme Court, and other serving judges who hold peerages.[78]

1.72 The Government's rationale for the parliamentary disqualification clause is the same as its argument for a separate Supreme Court: it reinforces the separation between the judiciary and the legislature by making it impossible to hold high judicial office and at the same time be an active member of the House of Lords.

1.73 The relevance of the international human rights instruments to this provision is the same as noted above in relation to the Bill's provision for a Supreme Court separate from the legislature. It is clear that nothing in Article 6(1) ECHR requires a State to disqualify judges from also being members of the legislature. However, a State must have in place arrangements to ensure that in individual cases the individual litigant's right to a trial before an independent and impartial tribunal is respected. Disqualifying serving judges from being members of the legislature is one way of guaranteeing that such independence from the legislature is achieved in practice. In our view, this will make it less likely in practice that the right in Article 6(1) will be violated in particular cases.

1.74 We therefore conclude, as we did above in relation to the provisions of the Bill creating a separate Supreme Court, that, although Article 6 ECHR does not per se require the disqualification of serving judges from sitting in Parliament, such a step would make it much less likely that violations of Article 6(1) will occur in practice, or that individual judges will have to recuse themselves from hearing particular appeals because of their involvement in some relevant way in their legislative capacity, and will therefore strengthen the arrangements in place to secure in practice the independence and impartiality required by Article 6.

1.75 We note, however, that the Bill's additions to the list of judicial offices disqualifying for membership of the House of Commons only cover judges of the new Supreme Court and members of the supplementary panel for that Court.[79] They do not include other judicial offices not currently covered by the disqualification, such as magistrate or Recorder of the Crown Court, or Deputy District Judge. In our view, the same reasoning applies to such judicial office holders as applies to judges of the Supreme Court. A magistrate or recorder who had voted as a Member of Parliament on a particular statute would have to recuse themselves from hearing a case in which any such statute was relevant. We therefore consider that, in order to be consistent with the underlying rationale of the Bill's provision for parliamentary disqualification, provision should be made to ensure that any holder of judicial office does not sit as a judge whilst also a member of the House of Commons. We recognise that the position of members of the House of Lords, who are not elected, is different, and we urge the Lords authorities to consider the matter and to make recommendations.

A parliamentary committee

1.76 The House of Lords Select Committee concluded that a parliamentary committee would be desirable to act as a channel for communication between the judiciary and parliament, but that such a committee should not seek to hold individual judges to account.

1.77 We agree with both conclusions. It is an important aspect of the principle of judicial independence that "judges should no be obliged to report on the merits of their cases to anyone outside the judiciary".[80] However, we and other parliamentary committees have found the evidence of serving members of the judiciary invaluable in some of the inquiries we have conducted. A parliamentary committee through which the judiciary could maintain a dialogue with Parliament would also be consistent with the scheme of the Human Rights Act 1998 which makes it a common goal of the executive, legislature and judiciary to act compatibly with human rights. In our view, the legitimate concern that such a committee should not seek to hold the judiciary to account can be accommodated by appropriate drafting of the committee's remit.

Diversity

1.78 The Bill contains a provision enabling the Minister to issue guidance to the Judicial Appointments Commission for the purpose of encouraging diversity in the range of persons available for selection.[81] It does not, however, contain any duty on the Commission itself to engage in a programme of action aimed to secure that judicial appointments are "reflective of the community", such as is contained in the Justice (Northern Ireland) Act 2002.

1.79 The House of Lords Select Committee considered whether there should be such an express diversity duty on the Commission.[82] Although it agreed that diversity among the judiciary should be promoted, it was unable to agree on whether the Commission should be under a positive duty of its own in relation to diversity.

1.80 In addition to the above international human rights standards concerning the requirement of independence and impartiality, there are certain international standards concerning equality of opportunity which are relevant to the question of judicial diversity in the appointments process. Article 7 of the UN Convention for the Elimination of Discrimination Against Women, for example, specifically addresses the participation of women in political and public life. It provides—

7. States parties shall take all appropriate measures to eliminate discrimination against women in the political and public life of the country and, in particular, shall ensure to women, on equal terms with men, the right

…

(b) to participate in the formulation of government policy and the implementation thereof and to hold public office and perform all public functions at all levels of government.

1.81 General Comment No. 23 of the UN Committee on the Elimination of Discrimination Against Women (1997) deals with the obligation on States under Article 7 of CEDAW to ensure equal participation in political and public life. Para. 1 of the General Comment reminds States that CEDAW places special importance on the participation of women in the public life of their countries. Para. 5 makes clear that the obligation in Article 7 to take all appropriate measures to ensure that women enjoy equality with men in political and public life extends to all areas of the political and public life of a country, a concept which includes "the exercise of political power, in particular the exercise of legislative, judicial, executive and administrative powers" (emphasis added).

1.82 A number of the non-binding statements of principle, recommendations and guidelines referred to above also contain provisions concerning the need for judicial diversity. The Latimer House Guidelines, for example, provide that "judicial appointments to all levels of the judiciary should be made on merit with appropriate provision for the progressive removal of gender imbalance and other historic factors of discrimination".[83]

1.83 In light of these standards, we are of the view that the provision about diversity in the guidance clause is not sufficient. We agree with the evidence of Baroness Hale to the House of Lords Select Committee that a more robust approach to redressing gender imbalance in judicial appointments is required, particularly in light of the inclusion of the "merit" principle within the Bill.[84] We therefore conclude that the Commission should be under an express duty in relation to the diversity of the appointments it makes, comparable to that in the Northern Ireland Act of 2002. We are also concerned that the lack of any provision for audit of appointments, as highlighted by the Commissioner for Judicial Appointments Sir Colin Campbell, is inconsistent with the UK's obligations in relation to equal opportunities.

6 HL Bill 91-EN Back

7 Select Committee on the Constitutional Reform Bill [HL], Constitutional Reform Bill [HL], HL Paper 125-I Back

8 Human Rights Committee, General Comment 13, Article 14 (21st session, 1984), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI\GEN\1\Rev.1 at 14 (1994). Back

9 For example, see Findlay v UK (1997) 24 EHRR 221 para 73; Kingsley v UK, App. No. 35605/97, 7 November 2000, para. 47 Back

10 See Piersack v Belgium (1982) 5 EHRR 169, at para. 30 Back

11 ibid., at para. 30(a) Back

12 ibid., at para. 30(d) Back

13 See for example, De Cubber v Belgium (1984) 7 EHRR; Hauschildt v Denmark (1989) 12 EHRR 266 (what is decisive is whether the test can be held objectively justified). Back

14 (1993) 15 EHRR 92 Back

15 See for example, McGonnell v UK (2000) 30 EHRR 289 at para. 51; Kleyn v Netherlands, 6 May 2003, at para. 193. Back

16 McGonnell v UK (2000) 30 EHRR 289 Back

17 (2002) 13 BHRC 260 at para. 78. The House of Lords in R (Anderson) v Secretary of State for the Home Department [2002] UKHL 46 subsequently held that the Executive should play no part in the sentencing of prisoners, because the rule of law depends on the complete functional separation of the judiciary from the executive. Back