Joint Committee on the Draft Constitutional Renewal Bill

Joint Committee on the Draft Constitutional Renewal Bill First Report

CHAPTER 4: COURTS AND TRIBUNALS

134._The Executive has historically been responsible for judicial appointments, most notably through selections made by the Lord Chancellor. For many years the process was viewed as "largely a closed system" that, while maintaining a world class judiciary, promoted the "establishment mould".[77] The Constitutional Reform Act 2005 (the 2005 Act) marked a significant change to the appointments process. It established the Judicial Appointments Commission (JAC) as an independent body to carry out selection exercises based solely on merit. The role of the Lord Chancellor was reduced to accepting, rejecting or requiring a reconsideration of the JAC's selected candidate. A statutory duty was also imposed on the Lord Chancellor and other Ministers to maintain judicial independence.[78]

135._The then Lord Chief Justice, Lord Woolf, hailed the 2005 changes as "a gigantic step forward in our constitutional arrangements … the future independence of the judiciary will be safer than it has ever been".[79] The then Lord Chancellor, Lord Falconer of Thoroton, told us that the careful and lengthy process of consultation and reform led to "proper accountability" for appointments, as part of "a sensible constitutional settlement ensuring proper independence in the appointment of judges". (Q 169)

136._The JAC was officially launched in April 2006 and, following the introduction of its new selection processes in October 2006, has been fully operational for less than two years.[80] We have heard criticisms of inefficiencies and delays leading to difficulties for candidates and a shortage of judges in a number of courts. (QQ 102, 107, 117, 129, 180, Ev37)[81] There has also been concern about the lack of measurable progress towards achieving a diverse judiciary.[82] Baroness Prashar, Chair of the JAC, has acknowledged "teething problems" but describes the reforms as a "quiet revolution" as part of which the JAC has made a good start.[83]

137._In July 2007 the Government announced, in The Governance of Britain Green Paper, its intention of further reviewing the judicial appointments process, including the role of the Executive and "conceivably a role for Parliament itself".[84] This led to a consultation paper, The Governance of Britain: Judicial Appointments, published in October 2007, which outlined a range of options including the complete surrender of the role of the Executive and the introduction of post-appointment hearings before Parliamentary select committees. During the consultation process, the Lord Chancellor stated that his "default setting" was "to leave things where they are because the system was changed only a couple of years ago".[85]

138._The Draft Bill and White Paper propose a number of reforms to the appointments process, including the repeal of the Prime Minister's residual role and the removal of certain powers of the Lord Chancellor in relation to appointments below the High Court. Other proposals are aimed at reviewing accountability arrangements or attempting to reduce bureaucracy by, for instance, transferring responsibility for medical checks from the JAC to the Lord Chancellor.[86]

139._A number of witnesses, including the JAC and the Bar Council, recognised the need to address the procedural inefficiencies and delays, but argued that it was far too early to pursue "wholesale reform" or "significant changes" to the "carefully calibrated" balance achieved in the 2005 Act. (QQ 88, 107, 279)[87] Lord Falconer made his concerns plain:

"I am genuinely disturbed by what seem to me to be either pointless or damaging proposals in relation to what was a well crafted and well worked out new process for appointing judges." (Q 169)

140._The JAC favoured a period of "effective implementation … [to] enable a later assessment to be fully informed by a body of evidence on its consequences."[88] In contrast, Andrew Holroyd, President of the Law Society, told us "even though it has only been in existence for two years, we do actually feel that there are some criticisms of the constitutional setup; in particular, the fact that the process is still not independent from government influence and intervention. We feel that what is proposed in this Bill does take us a long way down that road". (Q 88) Mark Ryan, Senior Lecturer in Constitutional and Administrative Law, Coventry University, agreed that it was "never too early" to correct problems that have been identified. (Ev36, para 11)

141._The Constitutional Reform Act 2005 made fundamental changes to the judicial appointments process by introducing a "carefully calibrated" balance between the roles of the Executive, the judiciary and the newly-created Judicial Appointments Commission. We accept the need to improve the efficiency and performance of the process in light of problems experienced to date, but it is far too soon to propose significant reform, only two years after the changes were introduced. The delicate relationship between judicial independence and democratic accountability for appointments should not be reassessed until the new system is fully established and a comprehensive body of evidence is available to assess its operation.

142._The following sections of this Chapter examine the various legislative and policy reforms that are proposed in Part 3 and Schedule 3 to the Draft Bill and the White Paper. Where those proposals are inconsistent with our view that it is too early for significant reform, we nonetheless outline the evidence that has been received and comment on it, to inform future consideration.

The Role of the Executive

THE PRIME MINISTER

143._Part 1 of Schedule 3 of the Draft Bill removes the Prime Minister's residual role in the judicial appointments process, in which he makes a recommendation to the Queen that the Lord Chancellor's nominated candidate be appointed to the Supreme Court.[89]

144._The majority of witnesses supported this change, including the Lord Chief Justice who emphasised that the Prime Minister could only "forward" the Lord Chancellor's nomination and should therefore be removed from the process as he was unable to contribute. (Ev56, page 2) Timothy Dutton QC, Chair of the Bar Council, also stated that the new statutory selection process made it unnecessary for there to be a "prime ministerial filter", contrary to the position prior to the 2005 reforms. (Q 91) However, JUSTICE maintained that appointments to the Supreme Court affected the whole of the United Kingdom and should therefore be made by the Prime Minister "rather than the Lord Chancellor of England and Wales." (Ev45, para 21) In this context we note the JAC's statutory duty to consult the First Minister in Scotland, the First Minister for Wales and the Secretary of State for Northern Ireland as part of the selection process.

145._While there is no need for urgent reform, we accept the proposal to remove the Prime Minister's residual role in relation to appointments to the Supreme Court. The additional check that the Prime Minister used to provide on the Lord Chancellor's nomination is no longer necessary in light of the statutory selection processes introduced by the Constitutional Reform Act 2005.

THE LORD CHANCELLOR

146._Part 5 of Schedule 3 removes the Lord Chancellor's discretion to reject or require reconsideration of the JAC's selected candidate in relation to appointments below the High Court. During an inquiry into the proposals that led to the current law, the then Constitutional Affairs Committee noted that "The balance of democratic accountability for judicial appointments 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."[90] Both the Government's consultation and the evidence that we have received demonstrate a similar range of views about the desirability of altering the Executive's role.[91]

147._Lord Phillips of Worth Matravers, the Lord Chief Justice, while generally opposed to "radical or fundamental reform", supported this proposal on "pragmatic" grounds. He stated that it "removes nothing of significance and may help to speed things up" since the volume of junior level appointments means the Lord Chancellor could "usually add nothing in practice". (Ev56, page 2) Mark Ryan was also in favour. He told us "it would help to realign our constitutional arrangements in accord with a purer separation of powers." (Ev36, para 11) Joshua Rozenberg and Frances Gibb accepted that appointments to the High Court and above were different because they were fewer, attract greater security of tenure and were more likely to be significant since, as the Lord Chancellor highlighted, their judgments set binding precedents for the future. (QQ 128, 757)These views were shared by the Judicial Appointments and Conduct Ombudsman and the Lord Chief Justice. (Ev35)[92]

148._Some witnesses were in favour of reforms that went further than the Government's proposal. For instance, the Law Society argued for the complete removal of the Lord Chancellor from the judicial appointments process in order to increase judicial independence, transparency and openness and remove "the continued perception of appointments as a source of patronage by ministers." (Ev42, para 8)Frances Gibb wished to limit the Lord Chancellor to assuming overall responsibility for the process without being involved in individual appointments, while Joshua Rozenberg suggested that the Lord Chancellor might need to retain a role only in relation to the most senior judiciary. (QQ 21, 128)

149._Those witnesses opposed to significant further reform of the appointments process, such as the JAC and the Bar Council, were also generally opposed to the Government's proposal on the grounds of poor timing or lack of evidence. (Ev55, para 32) The Lord Chancellor told us that this was a personal proposal of his own, rather than a response to external demand. (Q 756) While agreeing that fundamental changes should not be introduced, he did not consider this proposal overstepped the threshold of undesirable major reform, given his view that "no Lord Chancellor of the future is going to wish, I think, to intervene in recommendations about some hundreds of judicial appointments below the High Court." (Q 757)

150._In contrast, Lord Falconer argued that the proposal would affect the vast majority of appointments made by the Lord Chancellor, including some 430 of the 458 selections made by the JAC in its first year of operation. He described it as a "very significant" change: "in the vast majority of judicial appointments there will be no accountability at all … suppose you had indirect discrimination over a long period of time, if you take away the Executive's power to say not 'I want X' but 'I am worried about the way that you are doing it', if you take away their power to do anything about it you remove the partnership element that was so important in relation to it". (QQ 169-171)

151._In response, the Lord Chancellor stated that Lord Falconer was wrong to suggest that the limited powers at issue could be used to reject an individual candidate on grounds of general concerns about diversity. (Q 756) That may be right, but Lord Falconer's wider concern about the significance of the Government's proposal was underlined by the White Paper's suggestion that it may produce an "accountability gap" for appointments below the High Court, as discussed below.

152._A number of witnesses, such as the Law Society, were opposed to creating a divide between different levels of the judiciary. Professor Dame Hazel Genn, Judicial Appointment Commissioner and Professor of Socio-Legal Studies, University College London, stated: "if there is a constitutional argument for the executive being involved in these appointments … [it] applies all the way down the judicial hierarchy … [otherwise it] might reinforce the sense that there is somehow a glass ceiling somewhere in the judiciary, that posts below the High Court do not count and that those above certainly do." (Q 284) The JAC also objected "given that judges at all levels can have a direct and profound impact on the public and business." (Ev52, para 24) Lord Falconer stated that the proposal, taken together with other changes in Part 3 and Schedule 3 of the Draft Bill, marked a "handing over" of power to the judiciary. (Q 173)

153._We oppose the proposal to remove the Lord Chancellor's power to reject or require reconsideration of the Judicial Appointments Commission's selected candidate in relation to appointments below the High Court. The new system has not been in operation long enough to justify such a significant and controversial departure from the balance achieved by the 2005 reforms. We are also concerned about treating junior level appointments in a different way from senior level appointments, particularly given the importance of decisions made by the junior judiciary to the public.

Accountability

154._The Lord Chancellor is accountable to Parliament for the judicial appointments process. In addition, the Judicial Appointments and Conduct Ombudsman has jurisdiction to determine complaints made by individual candidates or, following a request by the Lord Chancellor, to carry investigations into the procedures of the JAC.[93] The JAC also publishes an annual report, while its Commissioners and Chief Executive have made themselves available to attend meetings with Parliamentary select committees, including as part of this inquiry. A further informal process of review also takes place through "regular trilateral meetings between the Chairman of the JAC, Lord Chancellor and Lord Chief Justice to discuss any concerns." (Ev26)

POWER TO SET TARGETS OR ISSUE DIRECTIONS

155._The White Paper raises the prospect of giving the Lord Chancellor a power to set targets or issue directions to the JAC in order to avoid an "accountability gap in the event that the Lord Chancellor is removed" from the selection process below the High Court: "if he is to be held accountable for any failure of the JAC, he arguably needs to have the means at his disposal to reduce the risk of failure".[94]

156._The Government has recognised that the proposal raises "complex issues".[95] It was strongly opposed by a majority of witnesses, including the JAC and the Law Society. They argued that it would undermine the independence of the appointments process, which was a primary reason for the creation of the JAC. (Ev42, para 33, Q 289) The Lord Chief Justice expressed similar concerns, arguing that the Lord Chancellor's existing power to terminate an unsatisfactory selection exercise gave sufficient control. (Ev56) He also stated that at the minimum, the exercise of any new power should be subject to the Lord Chief Justice's agreement and to Parliamentary approval under the affirmative resolution procedure. (Ev56)

157._Other witnesses were prepared to accept a narrow power, restricted to issues such as timeliness and efficiency levels. For instance the Bar Council argued that anything broader was "not justifiable and could lead to the weakening of the quality of the judiciary." (Ev55, para 39) The JAC, amongst others, was sceptical even about a narrow power:

"the Lord Chancellor is not necessarily in a very good position to determine what is the most efficient way in which the body with which he is concerned only at arm's length operates ... [and the effect of targets] is normally to concentrate resources on the area covered with adverse effects on the overall efficiency of the organisation." (Q 289)

158._Professor Robert Hazell, Director, Constitution Unit, University College London, argued that the Lord Chancellor's responsibility for the appointments process justified the new powers, provided there was close scrutiny of their exercise by the House of Lords Constitution Committee and the House of Commons Justice Committee. He argued that the JAC could publish a special report to highlight its concerns if it considered particular targets or directions were inappropriate. (Q 76)

159._We do not accept that it is appropriate to give the Lord Chancellor a power to set targets or to issue directions to the Judicial Appointments Commission. Such a power would have the potential seriously to undermine the independence of the appointments process, which was a primary reason for the 2005 reforms.

A NEW ROLE FOR PARLIAMENT?

160._The White Paper acknowledges the valuable scrutiny that is already performed by Parliamentary select committees, but questions whether there could be merit in a joint meeting of the House of Commons Justice Committee and the House of Lords Constitution Committee "to hold the system to account on an annual basis."[96] There was broad support for some form of select committee scrutiny of the JAC's progress and procedures, although relatively few witnesses commented on the additional benefit that might arise from a joint meeting. (QQ 92, 110, Ev04, para 60) The Lord Chief Justice considered that the proposal might be "fruitful" but felt it was properly a matter for Parliament to decide. (Ev 56)

161._We support the role of select committees in holding the judicial appointments process to account. Whilst we note the Government's proposal for the House of Commons Justice Committee and the House of Lords Constitution Committee to hold an annual joint meeting, we leave it to those individual committees to determine whether it might improve scrutiny overall. Either way, we also note that increased Parliamentary scrutiny will not require legislation in order to be implemented.

162._The White Paper restates the Government's intention to subject future appointments as Chair of the JAC to pre-appointment scrutiny by the appropriate Parliamentary committee.[97] This proposal was supported by the JAC and Democratic Audit, although the Judicial Appointments and Conduct Ombudsman were against a general requirement for Commissioners to be subject to pre-appointment hearings. (Ev52, para 57, Ev04, para 60, Ev35)

163._We welcome the Government's undertaking that future appointments to the Chair of the Judicial Appointments Commission will be subject to pre-appointment scrutiny by the appropriate Parliamentary committee.

164._A substantial majority of respondents to the Government's consultation were opposed to Parliament being given any role in the selection or making of judicial appointments, including particularly strong concerns about confirmation hearings.[98] Strong concerns were expressed about the risk of politicising the process, including by the Law Society, the Bar Council and Frances Gibb, although the Constitution Unit and Graham Allen MP were in favour of Parliamentary hearings for the most senior levels of the judiciary.(QQ 92, 111, Ev07, para 7.3, Ev17, para 13) Democratic Audit also drew attention to what it saw as the potential benefits of the model for post-appointment hearings that has been developed in Canada. Professor Hazell hoped that the idea might be reconsidered in future. (Ev04, para 60, Q 76)

165._We note that giving Parliament a role in the appointment of individual judges remains controversial and is widely opposed, particularly the suggestion of "confirmation hearings". Any future re-assessment of Parliament's role should await a comprehensive review of the appointments process, as recommended in paragraph 201.

Key Principles

166._Part 2 of Schedule 3 to the Draft Bill introduces statutory key principles for the JAC and others involved in the appointments process, namely to act independently and in a way that is "fair, transparent, efficient, flexible, proportionate and effective". The White Paper states that statutory principles should help to guide the bodies involved in the appointments process and provide a better basis on which to hold them to account.[99] In general, the evidence that we received recognised that the principles identified in the Draft Bill were the right ones. (QQ 99-100, Ev56) However there was strong opposition to placing the principles in legislation. The Lord Chief Justice stated:

"it is not entirely clear what is gained by stating them in legislation. If it was ever suggested that the JAC used selection processes which were not 'fair, transparent, efficient, flexible, proportionate and effective' it would presumably be open to disappointed candidates to seek judicial review of its proceedings, and they would also be able to complain to the Judicial Appointments and Conduct Ombudsman." (Ev56)

167._The JAC was also opposed to putting the principles into statute. The JAC explained that it already published key principles in its Annual Report and introducing statutory principles that are vague or not clearly defined "could lead to confusion and increase the potential for challenge, possibly by unmeritorious application for judicial review". (Ev52, paras 9-10) Jonathan Sumption QC, a JAC Commissioner, gave the example of a candidate attempting to rely upon the principle of flexibility to judicially review a decision to refuse a late application. He argued that the proposal "has the propensity to make us a great deal less efficient without achieving any compensating advantage." (Q 300)

168._We welcome the proposal to introduce key principles but are not convinced that they should be statutory. We encourage the Lord Chancellor to keep their impact under review in case the Judicial Appointments Commission is proved right in its argument that they are too broad to be meaningful or could lead to an unacceptable increase in speculative litigation.

Judicial Appointments Commission Panel

169._Part 3 of Schedule 3 places a duty on the JAC to establish a panel representing potential candidates. Under the proposal, the panel would have power to make representations to the JAC, including an opportunity to make representations about the JAC's draft annual report prior to its publication. The JAC would then be required to consider those recommendations.

170._The Law Society welcomed the proposal as an "additional check" in relation to diversity issues whilst also supporting a greater separation of powers: "the Panel should prove to be the medium through which the experiences of the consumers of the judicial appointments process can be fed into the JAC and thereby achieve improvements." (QQ 90-96, 101, Ev42, para 17) Others, such as the Bar Council, stated that the JAC already achieved this objective through its various internal groups, including its Advisory Group and Diversity Forum. (Ev55, para 43) The JAC maintained that these groups were working well and provided a more flexible, as well as a less expensive, alternative to the proposed statutory panel. (Ev02, paras 16-17) The Lord Chief Justice deferred to the JAC's view, while JUSTICE argued that a statutory panel would simply add an additional layer of bureaucracy. (Ev56, Ev45, para 22)

171._We oppose the proposal to establish a statutory Judicial Appointments Commission panel. The Judicial Appointments Commission has already formed working groups which benefit from being more flexible and potentially less expensive.

Non-Statutory Eligibility Criteria

172._Part 2 of Schedule 3 gives the Lord Chancellor the power to set non-statutory eligibility criteria concerning, for instance, the qualifications, experience and expertise that is required for a judicial post. The proposal is intended to remove uncertainty about who holds this power at the present time:

"At present, legislation is unclear on where ultimate responsibility for non-statutory eligibility lies and, as a result, currently the Lord Chancellor and the JAC jointly consider what is appropriate. There can, therefore, be some degree of tension between the JAC's statutory requirement to have regard to the need to encourage diversity in the range of persons available for selection for appointments and the business need to ensure that specific posts are filled by those best able to do the job needed."[100]

173._The JAC stated that it was best placed to determine the criteria in consultation with the Lord Chancellor and Lord Chief Justice, particularly given its statutory duty to promote diversity. (Q 279) The Law Society and Frances Gibb agreed, although they noted that in future the Lord Chancellor will be subject to the same statutory duty to promote diversity as the JAC. (QQ 93, 135, Ev42, paras 12-15 and 35)

174._The Lord Chief Justice told us that the JAC was not in an appropriate position to set eligibility criteria, which need to take into account the requirements of a particular court or location:

"The JAC cannot determine these matters, since it is not responsible for the running of the courts and tribunals and cannot determine their needs. In this respect it is in a somewhat analogous position to any other appointing body or a recruitment agency, which must respond to the needs of the client's business; but those needs must be judged and articulated by the business, not the recruitment agency … If explicit statutory provision is to be made for this, it would be essential that these requirements should have to be agreed by the Lord Chancellor and the Lord Chief Justice, or the Senior President of Tribunals, as appropriate, or their delegates." (Ev56)

175._We agree that the Lord Chancellor should be given the power to determine non-statutory eligibility criteria, although we strongly encourage the Lord Chancellor to seek the concurrence of the Judicial Appointments Commission and the Lord Chief Justice or his delegate in respect of each determination.

Improving the process: reducing bureaucracy and delay

176._As noted above, there have been early problems with the judicial appointments process, including procedural inefficiencies and delays. A large majority of witnesses called for these problems to be addressed, although there was concern about using legislation to make further changes to a process that has been criticised for being "over-engineered" and "unduly cumbersome". (Q 107)[101] For instance, Frances Gibb stated: "If there are changes to be made … they are procedural things, bureaucratic points that do not require Parliament to intervene". (Q 107) Lord Falconer told us: "The one thing you do not want to do is to blunder in with more legislation." (Q 180)

MEDICAL CHECKS

177._Part 6 of Schedule 3 makes a minor change to the appointments process by transferring responsibility for medical checks from the JAC to the Lord Chancellor, and introducing a statutory power to require candidates to undergo a medical assessment prior to selection. JUSTICE stated that medical checks should be the responsibility of the JAC. (Ev45, para 22) However, the majority of our witnesses, including the Lord Chief Justice and the JAC, were in favour of the proposal as it would speed up the process, despite ambiguity about whether it would require legislation. (Q 285)

178._We welcome the transfer of responsibility for medical checks from the Judicial Appointments Commission to the Lord Chancellor, although we question whether this proposal would actually require legislation to be implemented.

VACANCY NOTICES AND FORECASTING

179._A key criticism of the appointments process has been the inadequate forecasting of vacancies and either a failure of the Lord Chancellor to issue vacancy notices in a timely manner or the inability of the JAC to act before a notice is received. (Q 180) The White Paper states that consideration is being given to whether legislation is necessary to allow the JAC to take formal steps before a vacancy notice is received (paragraphs 120-121). Both the JAC and the Lord Chief Justice were encouraged by recent improvements to the forecasting process, in view of which the JAC no longer considered it necessary to pursue a legislative change. (Ev52, paras 39-41) Lord Falconer argued that these issues should be resolved without further legislation. (Q 180)

180._We welcome the progress that has been made towards improving the forecasting of judicial vacancies and we encourage the Lord Chancellor to resolve the remaining procedural inefficiencies, as far as possible without introducing further legislation.

EXCLUSION OF APPOINTMENTS FROM THE SCHEDULE 14 LIST

181._Part 4 of Schedule 3 gives the Lord Chancellor a power to exclude nominated posts from the list of appointments that require a JAC selection pursuant to Schedule 14 to the 2005 Act. The exercise of proposed power is subject to the Lord Chancellor consulting the Lord Chief Justice and an Order being approved under the affirmative resolution procedure.

182._The White Paper states that the aim of the power is to allow vacancies to be filled by a deployment where this is more appropriate than a full selection procedure, suggesting that the proposal "emerged in discussions with the judiciary and the JAC".[102] However the Lord Chief Justice told us that the Government's proposal failed to meet the need that has been identified, which is "for the Lord Chief Justice to recommend to the Lord Chancellor that an existing judicial office holder be appointed to fill a vacant post at the same level … with the agreement of the Lord Chancellor, Lord Chief Justice and Senior President of Tribunal as appropriate." (Ev56)

183._The JAC was also strongly opposed. They told us that "the whole approach of removing posts from Schedule 14 of the CRA is defective and open to abuse … where posts are to be filled by the deployment of an existing judge into another position at the same level such a post should be filled without a competition by the Lord Chief Justice". (Ev52, para 20) The House of Lords Delegated Powers and Regulatory Reform Committee was content with the proposal from a technical standpoint.[103] The House of Lords Constitution Committee, however, drew attention to the "Henry VIII" power in this Part (i.e. a power that allows Minister to change primary legislation by way of secondary legislation):

We are concerned by the apparent breadth of the Henry VIII power, which seems far more extensive in its potential operation than is necessary to give effect to the proposed policy. The substance of the proposal also appears to us to have constitutional implications. Powers to redeploy judges always carry with them a risk to the principle of the independence of the judiciary. It is important that there should be effective safeguards so that judicial independence is not compromised. (Ev71, para 17)

184._We oppose the proposal to give the Lord Chancellor a broad delegated power to remove posts from the statutory list of appointments requiring a selection by the Judicial Appointments Commission. We recommend that the proposal be amended to meet the more limited need that has been identified by the Lord Chief Justice, namely the flexible deployment of existing judges to the same level of appointment subject to the approval of the Lord Chancellor, the Lord Chief Justice and the Senior President of the Tribunal as appropriate.

DEPLOYMENTS, AUTHORISATIONS AND NOMINATIONS

185._Part 8 of Schedule 3 removes the Lord Chief Justice's requirement to consult or concur with the Lord Chancellor prior to deploying, authorising, nominating, or extending the service of specific judicial posts. It also creates a delegated power to achieve the same result in relation to other judicial posts in the future. The White Paper refers to general support for this proposal during the Government's consultation (paragraph 119).

186._At present, the Lord Chief Justice is also required to gain the concurrence of the JAC prior to authorising a Circuit Judge or Recorder to sit as a Deputy High Court Judge.[104] The JAC suggested that the best way of balancing efficiency against transparency is to require it to approve the procedure that is operated by the Lord Chief Justice in relation to "each type of significant designation or nomination".(Ev52, para 37) The Draft Bill implements this suggestion, but only in relation to Deputy High Court Judge authorisations.[105] This would exclude, for instance, a designation to become a Presiding Judge. (Ev52, para 36) The Law Society indicated that such important decisions should only be made following a full selection process carried out by the JAC. (Ev42, paras 28-30) Although the JAC accepted that decisions of this type can be of "real significance to the administration of justice" it did not accept that this was a necessary role, provided the process has been approved. (Ev52, para 37)

187._In broad terms, we welcome the proposal to allow the Lord Chief Justice to deploy, authorise, nominate or extend the service of judicial office holders without being required to consult or gain the concurrence of the Lord Chancellor. However, we recommend that the process used by the Lord Chief Justice to make "significant" authorisations and nominations be approved by the Judicial Appointments Commission in order to balance the need for efficiency against the importance of maintaining a transparent process. The Lord Chancellor and the Lord Chief Justice should work with the Judicial Appointments Commission and others to identify those kinds of authorisations and nominations that should be subject to this procedure.

Size, composition and re-appointment of the JAC

188._The White Paper invites the Committee to comment upon the possible reform of the size and composition of the JAC, particularly in light of the proposal to introduce a JAC panel (which we have rejected). There are currently 15 Commissioners including two professional members, five judicial members, six lay members, one tribunal member and one lay justice. Some witnesses supported change, including the Judicial Appointments and Conduct Ombudsman, who argued that the size of the JAC should be reduced and the composition altered to include members with business and public relations skills. (Ev35) Graham Allen MP argued that one or more Members of Parliament should be Commissioners. (Ev17) Other witnesses, such as the JAC and the Lord Chief Justice, favoured the status quo on grounds that it was working well and represented "a complex settlement of issues raised during lengthy Parliamentary debates just three years ago." (Ev52, para 61) Both the Law Society and Bar Council specifically opposed any reduction in the number of professional Commissioners. (Q 101)

189._The White Paper also invites views on whether the process for reappointing Commissioners should be reviewed. At present each Commissioner can serve terms of up to five years' duration with a maximum of 10 years service in total.[106] In the absence of a formal reappointment process, each Commissioner is required to reapply for their position at the end of their term. The Lord Chief Justice was in favour of making it easier to reappoint Commissioners. (Ev 56) The JAC agreed, subject to reviewing the "detail of the proposed procedures in relation to any decision of the Lord Chancellor not to reappoint a particular Commissioner." (Ev52, para 67)

190._We consider that it is too soon to undertake a general review of the size and composition of, and reappointment process applying to, the Judicial Appointments Commission. There does not appear to be any urgent need for change.

Disclosure of information

191._The White Paper invites views on whether section 139 of the 2005 Act should be amended to make it clear that confidential information obtained as part of the selection process can be disclosed to the police for the purposes of investigating a crime. The proposal would bring the judicial appointments process into line with other organisations. It is supported by the JAC. (Ev52, para 70)

192._We support the proposal to bring section 139 of the Constitutional Reform Act 2005 into line with other legislation permitting the disclosure of information for the purposes of investigating a crime.

Diversity

193._During our inquiry the JAC explained the wide range of steps that it is taking to fulfil its statutory duty to promote diversity at all levels of the judiciary. (QQ 296-298) Professor Dame Hazel Genn also explained that the "culture" in some law firms was holding back some solicitors from applying for judicial posts. She stated that it would take a "sophisticated strategy" to resolve the issue, which the JAC was working towards. (Q 296) The Law Society accepted that the JAC was a young organisation and told us that it would keep a "very close eye" on the overall number of applications from solicitors in the "hope that going forward we would see the percentage of solicitors appointed increase as a result of the clear and transparent processes now put in place". (Q 95)

194._The JAC has stated that its efforts to widen the pool of candidates were "beginning to show results" but, disappointingly, figures released in April 2008 showed the percentage of judicial posts awarded to women or black and minority ethnic applicants was lower than in 2006.[107] This led a commentator, Marcel Berlins, to conclude:

"… it may be too soon to reach the verdict that the JAC has failed to do its job on the diversity front. One year's poor statistics is not enough. Yet the figures are disturbing enough to justify the minister of justice setting up some sort of mini-inquiry. A laudable reform appears to be going astray."[108]

195._Other recent reports suggest that the process for selecting a successor to the current Lord Chief Justice, Lord Phillips, has been viewed as "a done deal" with parts of it being "run like an old boys' network", contrary to the main purpose for establishing the JAC.[109]

196._There has been some support for diversity quotas, including from a Senior Liaison Judge for Diversity, Mrs Justice Dobbs, who is reported as being concerned about "woefully slow" progress to date.[110] However, this idea was generally opposed in evidence to our inquiry. For instance, Joshua Rozenberg told us: "[a]ny perception in the public's eye that people are being appointed because they tick a box or because they are in a minority is demeaning to them, it is damaging to people who have made it in the past without such targets or assistance … and it is damaging to public confidence in the judiciary". (Q 134) Lady Justice Hallett, one of the JAC's Commissioners, has expressed concerns about the breadth of the "available pool" of candidates, but regarded positive discrimination to be patronising and stated that it would compromise the overriding principle of selection on merit.[111] The Bar Council maintained that the better approach was to hold the JAC to account for its progress. In this context, we note the Lord Chancellor's power to direct the JAC to deal with specific issues in its annual report. (Q 89)[112]

197._We are disappointed by the lack of measurable progress towards increasing diversity at all levels of the judiciary, although we acknowledge the short period of time during which the Judicial Appointments Commission has been operating. We encourage the Judicial Appointments Commission and others, including the Lord Chancellor and the Lord Chief Justice, to continue exploring the best ways of addressing this important issue.

Statutory salary protection

198._Clause 20 of the Draft Bill introduces statutory salary protection for tribunal judges to mirror the protection that is offered to judges in other courts. We have not received any evidence that opposes this proposal and it has been supported, for instance, by the Law Society. (Ev42, para 2)

199._We welcome the proposal to give statutory salary protection to tribunal judges.

Other changes

200._The JAC has called for a range of other statutory changes to be made to the appointments process that are not included in the Draft Bill. They include: the repeal of the statutory procedure for drawing up lists of candidates; the introduction of a statutory duty to require the Lord Chancellor adequately to resource the JAC; and the repeal of the Lord Chancellor's power to issue guidance. (Ev52, paras 71 to 81) Some of the proposals received support during our inquiry and we hope that the Government will keep them under review.

Conclusion

201._Our overall view is that most of the proposals to reform the judicial appointments process are premature. We comment upon whether the proposals should be omitted from the Draft Bill at paragraph 378 below. Once the Judicial Appointments Commission is fully established we believe it would benefit from a comprehensive review by the Government and either or both of the House of Commons Justice Committee and the House of Lords Constitution Committee. This review should precede any legislative reform of the appointments process.

77 The Governance of Britain, Judicial Appointments, Consultation Paper CP 25/07, para 3.3 Back

78 Constitutional Reform Act 2005, section 3 Back

79 HL Deb, 7 December 2004, Col 759 Back

80 JAC's Annual Report 2006/07, Committed to Selection on Merit, HC 632, 4 July 2007, page 15 Back

82 'Judicial diversity goes into reverse', The Guardian, 19 May 2008, available at http://www.guardian.co.uk/uk/2008/may/19/law Back