Select Committee on Constitutional Reform Bill First Report


APPENDIX 6: The Lord Chancellor's Judiciary-Related Functions: Proposals (the "concordat")

1.  This document sets out more detail on the Government's proposals relating to the transfer of the Lord Chancellor's judiciary-related functions, as set out in the Secretary of State's Oral Statement to the House of Lords on 26 January 2004.

Overview

2.  Abolition of the office of Lord Chancellor was announced in June 2003 as part of a suite of constitutional reforms, which also includes establishment of an independent Judicial Appointments Commission and a new Supreme Court. The overall aim of these reforms is to put the relationship between the executive, legislature and judiciary on a modern footing, respecting the separation of powers between the three. This paper sets out the Government's proposals relating to the transfer of the Lord Chancellor's judicial and judiciary-related functions in England and Wales that is intended to be affected by the Constitutional Reform Bill. These proposals are, of course, conditional on Parliamentary approval.

Key statutory responsibilities of the Secretary of State and the Lord Chief Justice

PRINCIPLE

3.  The key respective responsibilities of the Secretary of State and Lord Chief Justice should be set out in statute, so as to provide clarity and transparency in this relationship.

APPLICATION

4.  The Bill will provide that:

(a) The Secretary of State for Constitutional Affairs is:

  1. ·  under a duty to ensure that there is an efficient and effective system to support the carrying on of the business of the courts in England and Wales, as set out in Part 1 of the Courts Act 2003.
  2. ·  accountable to Parliament for the overall efficiency and effectiveness of the administration of the court system, including the proper use of public resources voted by Parliament.
  3. ·  responsible for ensuring that the public interest is served in decisions taken on matters affecting the judiciary in relation to the administration of justice.
  4. ·  responsible for supporting the judiciary in enabling them to fulfil their functions for dispensing justice.

(b) Neither the Secretary of State, nor any other Minister, will have any role in particular judicial decisions of individual judges.

(c) The Lord Chief Justice is:

  1. ·  responsible for ensuring that the views of the judiciary in England and Wales are effectively represented to Parliament, to the Government, and to the Secretary of State in particular, in such manner as the Lord Chief Justice considers appropriate.
  2. ·  responsible for ensuring that appropriate structures are in place to ensure the well-being of and training and provision of guidance for the judiciary.
  3. ·  responsible for ensuring that appropriate structures are in place for the deployment of individual members of the judiciary and for the allocation of work within the courts.

Judicial independence

PRINCIPLE

5.  The new arrangements should reinforce the independence of the judiciary.

APPLICATION

6.  A general statutory duty will be imposed on the Government, all those involved in the administration of justice and all those involved in the appointment of judges to respect and maintain judicial independence.

7.  In addition, there will be a specific statutory duty falling on the Secretary of State for Constitutional Affairs to defend and uphold the continuing independence of the judiciary.

Judicial posts held by the Lord Chancellor

PRINCIPLE

8.  The Secretary of State will not be a judge and shall not sit in a judicial capacity.

APPLICATION

9.  All statutory provisions conferring on the Lord Chancellor a judicial office will be amended to remove such references. Functions exercised by the Lord Chancellor in a judicial capacity should be transferred to the Lord Chief Justice (or other judicial office-holder, as appropriate).

Leadership of the judiciary in England and Wales

PRINCIPLE

10.  It is important to ensure that the roles and responsibilities of the most senior judiciary are clear in the new arrangements.

APPLICATION

11.  The Bill will provide that the Lord Chief Justice is to assume the title of "President of the Courts of England and Wales". The courts intended to be covered by this title are as follows: the Court of Appeal, the High Court, the Crown Court, the county courts and the magistrates' courts.

12.  The Lord Chief Justice will no longer act as president of the Queen's Bench Division. A new title of "President of the Queen's Bench Division" will be provided for and a new, separate, appointment will be made to this post. The appointment will be made in accordance with the provisions for the appointment of other Heads of Division.

13.  A new statutory title of "Head of Criminal Justice" will be created. This post is to be held ex officio by the Lord Chief Justice or, after consultation with the Secretary of State, his nominee.

14.  A new statutory title of "Head of Family Justice" will be created; this post is to be held ex officio by the President of the Family Division. The existing statutory title of "Head of Civil Justice" will be held by the Master of the Rolls ex officio. New statutory titles of "Deputy Head of Family Justice" and "Deputy Head of Criminal Justice" should be provided for. Following the Courts Act 2003 model of the Deputy Head of Civil Justice, these posts are not to be automatically filled, but there will be a power that the Lord Chief Justice may appoint to these posts, after consultation with the Secretary of State. Those eligible to be appointed will be judges of the Court of Appeal.

15.  The current title of "Vice-Chancellor of the Supreme Court" will be replaced with a new title of "Chancellor of the Chancery Division" and he will be recognised as the president of the Chancery Division.

Oath-taking

PRINCIPLE

16.  It will not be appropriate for judges to be sworn in by the Secretary of State; those who do so now should instead take their oaths in the presence of the Lord Chief Justice.

APPLICATION

17.  All statutory provisions relating to oath-taking by judges will be amended to replace "Lord Chancellor" with "Lord Chief Justice".

18.  The swearing-in of the Lord Chief Justice will be undertaken by the Master of the Rolls, as the next most senior member of the judiciary, in the presence of the other Heads of Division.

Provision of resources

PRINCIPLE

19.  As set out in Part 1 of the Courts Act 2003, the Secretary of State will be under a duty to "ensure that there is an efficient and effective system to support the carrying on of the business of the courts in England and Wales" and "that appropriate services are provided for those courts". The Secretary of State is responsible for the provision and allocation of resources for the administration of justice (including resourcing the judiciary and the education and training of the judiciary within that system). Resources cover financial, material and human resources. The Secretary of State is accountable to Parliament for his decisions as to the allocation of resources and for the effectiveness and efficiency of the system.

20.  Arrangements will be put in place to ensure that the judiciary can be effectively involved in the resource planning of the Unified Courts Agency and the Department for Constitutional Affairs, to ensure that the judiciary is enabled to have early engagement with the new agency and Department at a strategic level, including on issues concerning resource plans and bids.

APPLICATION

21.  The Secretary of State is responsible for the pay, pensions and terms and conditions of the judiciary.

22.  The Secretary of State will be responsible for providing the staff and resources, including financial resources, necessary for the Lord Chief Justice to carry out his functions, including his relations with the media. It is not intended to provide specifically for this responsibility in the Bill. The office of the Lord Chief Justice will be responsible for accounting to the Department for the expenditure allocated to him.

23.  Prior to the transfer of any functions to the Lord Chief Justice, the Secretary of State will determine, after consultation with the Lord Chief Justice, the resources necessary in order that the Lord Chief Justice can effectively carry out those functions which have been assigned to that office. The level of such resources will be reviewed on an annual basis by the Permanent Secretary and the Lord Chief Justice.

24.  The Framework Document for the new Unified Courts Agency will set out its responsibilities and methods of operation. This Document will be made available in the libraries of both Houses of Parliament. The Framework Document will set out the manner in which involvement of the judiciary is to be achieved; specifically:

  1. ·  a senior member of the judiciary will be a non-executive member of the Board for the new agency;
  2. ·  at least two separate bilateral discussions during the year between the Chief Executive of the new agency and representatives of the Judges' Council will be held, concentrating on providing the opportunity for judicial input into future resource planning of the agency.

25.  In addition to this, at a Departmental level:

  1. ·  a senior member of the judiciary will be a non-executive member of the Corporate Board of the Department for Constitutional Affairs;
  2. ·  in Spending Review years the Director General, Finance and the Permanent Secretary will meet the Lord Chief Justice or his representative when the Departmental bid and Public Service Agreement is being worked up, and then again before final Departmental allocations are made after the settlement. Such meetings will be held at a similar stage in non-Spending Review years, focussing on the delivery arms of the Department.

Deployment

PRINCIPLE

26.  The Secretary of State, in consultation with the Lord Chief Justice, will be responsible for the efficient and effective administration of the court system. This includes setting the framework for the organisation of the courts system (such as geographical and functional jurisdictional boundaries).

27.  The Lord Chief Justice will be responsible for the posting and roles of individual judges, within the framework set by the Secretary of State.

28.  Real and effective partnership between the Government and the judiciary is seen as being paramount, particularly in this area. Therefore, all significant issues should be decided after consultation or, for those where responsibility must be equally shared, by concurrence.

APPLICATION

NUMBERS, ASSIGNMENT AND AUTHORISATIONS OF JUDGES TO DIVISIONS, CIRCUIT AND DISTRICTS

29.  The Secretary of State will be responsible, after consulting the Lord Chief Justice, for determining the overall number of judges required, including the number required for each Division, jurisdiction and region and the number required at each level of the judiciary; and for the provision of the courts, their location and sitting times and consequent administrative staffing to meet the expected business requirement.

30.  Subject to the Secretary of State's decisions above, and the recommendations of the Judicial Appointments Commission for the appointment of new judges to particular posts, the Lord Chief Justice will be responsible, after consulting the Secretary of State, for determining which individual judge should be assigned to which Division, Circuit, District, or Court in accordance with the requirement.

31.  The Lord Chief Justice will be responsible, after consulting the Secretary of State, for the authorisation of individual members of the judiciary to sit in particular levels of court other than their usual level (within the statutory framework). In respect of the deployment of Circuit Judges and Recorders to sit in the High Court, the Lord Chief Justice will select from a list he is to maintain of those considered suitable, which will be agreed with the Judicial Appointments Commission.

DISTRIBUTION OF BUSINESS AND CONFERRING OF JURISDICTION

32.  Functions dealing with the distribution of business between courts at different levels (e.g. as between the High Court and County Courts) will transfer to the Secretary of State, with a requirement for consultation with the Lord Chief Justice.

33.  Generally, functions dealing with the distribution of business within the same level will be exercised by the Lord Chief Justice, with the concurrence of the Secretary of State. Functions dealing with the distribution of business within Divisions of the High Court will transfer to the Lord Chief Justice, with a requirement for consultation with the Secretary of State.

34.  Order-making powers for conferring jurisdiction on specific courts will transfer to the Secretary of State, to be exercised with the concurrence of the Lord Chief Justice.

35.  Order-making powers regarding the destination of appeals and where classes of proceedings should be commenced will transfer to the Secretary of State, with a requirement for consultation with the Lord Chief Justice.

ALLOCATION OF WORK TO COURTS/JUDGES

36.  The judges are responsible for deciding on the assignment of cases to particular courts and the listing of those cases before particular judges, working with the Court Service (Secretary of State) as at present.

37.  The Lord Chief Justice will be responsible, after consultation with the Secretary of State, for deciding the level of judge appropriate to hear particular classes of case (including the issuing of Practice Directions in that regard).

38.  The Lord Chief Justice will be responsible, after consultation with the Secretary of State as to for example, numbers, criteria, levels, for the authorisation of individual judges to hear specified cases or classes of case.

NOMINATIONS

39.  There is a range of nominations to various posts, both permanent and temporary, which are very similar to deployment issues. For example, particular judges may be nominated to deal with specific areas of business, such as patents cases. Such nominations will be made by the Lord Chief Justice, after consultation with the Secretary of State.

MAGISTRATES' DEPLOYMENT ISSUES

40.  Section 19 of the Courts Act 2003 provides that rules may make provision for committees (which will build on the current Bench Training and Development Committees) to have certain functions, including responsibility for advising the Lord Chancellor in relation to authorisations of justices as members of family proceedings courts or youth courts, and granting or revoking such authorisations.

41.  The general responsibility for this authorisation function will transfer to the Lord Chief Justice in accordance with the general policy in relation to the professional judiciary. It will not be practicable for the Lord Chief Justice personally to issue authorisations to individual magistrates. The Lord Chief Justice will instead be given statutory responsibility, in consultation with the Secretary of State, for making the rules setting out the framework within which authorisations are made and the training which will need to have been completed in order to obtain a particular authorisation. The detailed arrangements as to the granting of individual authorisations will then be handled locally.

CAVEAT RELATING TO DEPLOYMENT FUNCTIONS WITH RESOURCE IMPLICATIONS

42.  Functions relating to deployment which have significant implications for resources will transfer to the Lord Chief Justice, with a requirement for the concurrence of the Secretary of State. Examples include authorising certain judicial office-holders to sit beyond their retirement age or to continue hearing a specific case beyond their retirement.

'Leadership' posts

PRINCIPLE

43.  The nomination of judges to fill posts that provide judicial leadership, but which do not involve formal promotion, will fall to the Lord Chief Justice either with the concurrence of or in consultation with the Secretary of State.

APPLICATION

44.  The majority of judicial appointments are planned to fall within the remit of the Judicial Appointments Commission (JAC). In particular, the JAC will handle all appointments to judicial office which require a formal competition. There is a range of posts, however, that do not involve formal promotion to a more senior judicial level (and in which the JAC will not be involved), which can be classed as providing judicial leadership. Such posts are often held for a limited period of time.

45.  Examples of the types of post and how these will be handled are set out in the table below:
PostConcurrence or Consultation
Senior Presiding JudgeConcurrence1
Presiding JudgesConcurrence1
Resident Judges * (other than where competition required i.e. Senior Resident Judges) Concurrence[47]
Deputy Chief Justice *Consultation
President, Employment Appeal TribunalConsultation
Vice-President, Court of Appeal (Civil) Consultation
Vice-President, Court of Appeal (Criminal) Consultation
Vice-President, Queen's Bench Division Consultation
Chancery Supervising Judges *Consultation
Family Division Liaison Judges *Consultation
Temporary Chairman of various tribunals (where existing chairman is prevented from discharging his duties i.e. for reasons of sickness) Consultation

*These posts are non-statutory and it is not intended to place them on a statutory footing

Appointments to committees, boards and similar bodies

PRINCIPLE

46.  The Secretary of State will have responsibility for determining the framework regarding the appointment of judicial office-holders to committees, boards and similar bodies.

47.  The Lord Chief Justice will have responsibility for determining which individual judges should be appointed to such bodies.

APPLICATION

48.  The Secretary of State, after consultation with the Lord Chief Justice (and others as required), will determine the level, mix and numbers of judges required for any such bodies.

49.  The Lord Chief Justice, after consultation with the Secretary of State, will be responsible for determining which individual judge should serve, subject to any formal appointments procedures required, for example, in the Code of Practice of the Office of the Commissioner for Public Appointments. It is understood that the Code will not normally apply to appointments made by the Lord Chief Justice.

The making of procedural rules for judicial fora

PRINCIPLE

50.  In general, functions relating to the allowing of procedural rules of court will transfer to the Secretary of State. The making of such rules will rest with the relevant rule committees, where such a committee exists. Where no rule committee exists, functions relating to such rule-making will be exercised by the Lord Chief Justice, with the concurrence of the Secretary of State.

APPLICATION

RULE-MAKING WHERE RULE COMMITTEE IS RESPONSIBLE

51.  The power to allow rules will transfer from the Lord Chancellor to the Secretary of State.

52.  The power to disallow rules will transfer from the Lord Chancellor to the Secretary of State with a new requirement that the Secretary of State must provide written reasons in the event that he decides to disallow rules.

53.  The power of the Lord Chancellor to alter rules made by a rule committee, subject to consultation with that committee will be repealed. In its place, there will be a new power to provide that the Secretary of State may require a rule committee to change the rules to achieve a particular desired outcome. It would then be for the committee to amend the rules they had made and re-submit them. There will be a corresponding duty on the committee, in accordance with this requirement, to change rules required by the Secretary of State within a reasonable period. Rules made in accordance with such a requirement will remain subject to the Secretary of State's powers to allow or disallow.

54.  There will also be a more general power for the Secretary of State to require a rule committee to make new rules on specific issues so as to achieve a particular desired outcome. As above, rules made in accordance with such a requirement will remain subject to the Secretary of State's powers to allow or disallow.

55.  The Secretary of State, after consultation with the Lord Chief Justice, will also exercise the power to amend, repeal or revoke any enactments governing practice and procedure to facilitate the making of rules considered necessary/desirable.

RULE-MAKING WHERE NO RULE COMMITTEE EXISTS

56.  There are a number of existing rule-making powers conferred on the Lord Chancellor alone and the general policy outlined above will be followed. In practice, this will mean that the rule-making powers will transfer to the Lord Chief Justice, but (to mirror the allowing and disallowing powers) the concurrence of the Secretary of State will be required. The two new powers of the Secretary of State to require changes to existing rules or new rules to achieve a particular desired outcome are to be applicable for such rule-making.

RULES FOR TRIBUNALS

57.  As announced by the Government in March 2003, a White Paper on tribunals' reform is to be published. Given this, for those tribunals for which the Lord Chancellor currently exercises rule-making powers, such functions will transfer for the time being to the Secretary of State. No change will be made for those tribunals where rule-making powers rest with other Secretaries of State.

Rule committee appointments

PRINCIPLE

58.  Appointments of non-judicial members of rules committees will be exercised by the Secretary of State, in consultation with the Lord Chief Justice. Appointments of judicial members of rules committees will be exercised by the Lord Chief Justice, after consultation with the Secretary of State.

APPLICATION

59.  Statutory provisions concerning the appointment of non-judicial members of rules committees will transfer to the Secretary of State, to be made after consultation with the Lord Chief Justice. Requirements concerning others who are to be consulted will remain.

60.  Statutory provisions concerning the appointment of judicial members of rules committees will transfer to the Lord Chief Justice, to be made after consultation with the Secretary of State. Requirements concerning others who are to be consulted will remain.

61.  The Secretary of State, with the concurrence of the Lord Chief Justice, will exercise statutory functions concerning the ability to amend the composition of rules committees.

Practice Directions

PRINCIPLE

62.  The Lord Chief Justice will make Practice Directions, with the concurrence of the Secretary of State. The model introduced by Section 74 of the Courts Act 2003 regarding the making of criminal Practice Directions should be applied uniformly across civil and family business and in all levels of court.

APPLICATION

63.  The Lord Chief Justice may, with the concurrence of the Secretary of State, give directions as to the practice and procedure of the criminal, civil and family courts.

64.  This function may be delegated by the Lord Chief Justice, with the expectation that the power would usually be delegated to the Heads of Justice. Others may make directions only with the approval of the Lord Chief Justice and the Secretary of State.

65.  The Lord Chief Justice may act without the concurrence of the Secretary of State for directions concerning guidance as to the law or making of judicial decisions.

Education and training

PRINCIPLES

66.  The Lord Chief Justice is responsible for the provision and sponsorship of judicial training within the resources provided by the Secretary of State.

APPLICATION

67.  Responsibility for assessing the need for and providing training of professional judicial office-holders should remain, as now, with the Judicial Studies Board, broadly as set out in the Memorandum of Understanding.

68.  The Lord Chief Justice will, after consultation with the Secretary of State, appoint the Chair and members of the body delivering judicial training (the Judicial Studies Board). Committee members will continue to be appointed by the Chair, who will consult the Lord Chief Justice instead of the Lord Chancellor.

69.  The Lord Chief Justice will be required to appoint ex officio members of the body to represent the Secretary of State, as happens now.

70.  In line with the arrangements for the professional judiciary, the Lord Chief Justice will also be responsible for the provision and sponsorship of training for the magistracy and tribunal members (in consultation with the Secretary of State) within the resources provided by the Secretary of State. Where there are existing statutory arrangements for the training of certain tribunals' members, however, these will continue as they are at present.

71.  As now, the Judicial Studies Board will set out the framework for the training of the magistracy, and provide some national training material, but it will continue to be the case that delivery of training will be managed at a local level by magistrates' courts staff in the form of legal advisers, Justices' Clerks and Training Managers. Following the implementation of the Courts Act 2003, these will be Department for Constitutional Affairs staff. There will need to be a partnership between the Lord Chief Justice and the Secretary of State over the deployment of staff who will have both training and administrative responsibilities.

72.  These developments will be reflected in a revised Memorandum of Understanding, the terms of which will be agreed between the Secretary of State and the Lord Chief Justice.

Judicial complaints and discipline

PRINCIPLES

73.  The Lord Chief Justice and the Secretary of State are together responsible for providing a system for considering and determining complaints against the personal conduct of the judiciary.

74.  High Court Judges and above can only be removed from office by The Queen, on an Address from both Houses of Parliament. Subject to this, a judicial office-holder will only be removed from office by the Secretary of State with the agreement of the Lord Chief Justice.

75.  A judicial office-holder will only be suspended from sitting pending the outcome of an investigation if both the Lord Chief Justice and the Secretary of State agree to this action.

76.  Judicial office-holders will be reprimanded, warned or advised as to their behaviour only by the Lord Chief Justice with the agreement of the Secretary of State, in accordance with the process outlined below.

77.  In relation to magistrates and tribunal members, the Lord Chief Justice and Secretary of State may, by agreement, delegate the functions of suspending, reprimanding, warning or advising to a nominated judge or the Tribunal President as appropriate.

APPLICATION

STRUCTURE

78.  The framework for handling complaints against the judiciary, magistrates and tribunal members will be set out in a protocol, agreed by the Lord Chief Justice and Secretary of State, which will be laid before Parliament and subject to the negative resolution procedure.

79.  The Secretary of State will be responsible for providing and resourcing an effective and efficient complaints secretariat. An independent Head of Secretariat appointed in accordance with the paragraphs below will be responsible to both the Secretary of State and Lord Chief Justice.

THE RESPECTIVE ROLES OF THE LORD CHIEF JUSTICE AND SECRETARY OF STATE

80.  The Lord Chief Justice and Secretary of State will be jointly responsible for the operation of the complaints system and jointly responsible for the final decisions in relation to individual complaints. All disciplinary sanctions will be decided by them jointly.

81.  Sanctions short of removal will be administered by the Lord Chief Justice, in that he will write or speak to the office-holder concerned, or arrange for another appropriate person to do so. The Secretary of State will be responsible, with the agreement of the Lord Chief Justice, for any decisions to remove judicial office-holders from office (subject to the Parliamentary procedures that apply to the higher judiciary).

82.  The Secretary of State will be able to require a judicial investigation of a particular case. He will not be in the position of personally reprimanding judicial office-holders or requiring the Lord Chief Justice to reprimand judicial office-holders.

83.  The Secretary of State is accountable to Parliament for the operation of the complaints and discipline system, in the same way that he is accountable for the administration of the courts system, but not for the outcome of individual cases. He will answer Parliamentary Questions on the complaints system, and will reply to letters from Members of Parliament and Peers. Where correspondence raises complaints about specific cases, these will be referred to the secretariat to deal with; they will provide a draft for the Secretary of State who will reply to the Member of Parliament or Peer concerned. Arrangements for consultation with the Lord Chief Justice about such correspondence will be set out in the complaints protocol. The Lord Chief Justice may also appear before the Commons Constitutional Affairs Select Committee to answer questions as necessary, but will not deal with individual cases.

84.  The secretariat will prepare a quarterly statistical report to the Lord Chief Justice and Secretary of State about all the complaints that have been dealt with. The report will give details of the number and types of cases dealt with, and what the results of the complaints were, but will not give particularised details of individual cases or judicial office-holders.

Process: minor complaints[48]

85.  Complainants can send their complaints to the Lord Chief Justice, the Secretary of State, the secretariat or an ombudsman (whose role is described in paragraphs 100-102, below). All complaints will be forwarded to the secretariat.

86.  If complaints are clearly ill-founded or misconceived (e.g. about judicial decisions) the secretariat will reject them on behalf of the Lord Chief Justice and Secretary of State, giving the reasons for rejection.

87.  If a complaint prima facie relates to personal conduct, but is minor (i.e. it would not, even if found to be true, justify considering whether to remove the judicial office-holder concerned), initial inquiries will be made by the secretariat in accordance with the protocol procedures. If, as a result of the initial inquiries, it becomes clear that the complaint is clearly unfounded, in that it raises no question of conduct, or is clearly untrue or mistaken, the secretariat will reject it.

88.  If as a result of the initial inquiries, a complaint seems to be substantiated, or open to any doubt, it will be referred to an appropriate judge (depending on the seniority of the judicial office-holder complained of and the potential seriousness of the complaint) to consider and propose a course of action. The Judge's advice will be passed to the Lord Chief Justice and Secretary of State to decide what action to take.

89.  Having considered the advice, the Secretary of State and the Lord Chief Justice may find that the complaint is in fact unsubstantiated, or so trivial as not to warrant further action, in which case it will be dismissed. Or they may find that the complaint is substantiated in whole or in part, and will decide what disciplinary action to take. They may decide that the Lord Chief Justice should write to the judicial office-holder formally reprimanding him, or write warning him as to future behaviour, or advising him to reflect further on the complaint; they may decide that the Lord Chief Justice should speak to the judicial office-holder concerned, or ask another judge to speak to him on his behalf. Both the Secretary of State and Lord Chief Justice must agree to the imposition of any disciplinary sanction. If the judicial office-holder is unhappy with the decision of the Lord Chief Justice and Secretary of State, he may ask for the matter to be referred to the Review Body (covered at paragraphs 96-99 below).

90.  Before writing a disciplinary letter to a judicial office-holder, the Lord Chief Justice will consult the relevant Head of Division, Presiding Judge, President of Tribunal, Senior District Judge or other equivalent as appropriate.

91.  Alternatively, if in the light of the investigation which has taken place either the Lord Chief Justice or the Secretary of State or both views the complaint as so serious that a judicial investigation is required, there will be a judicial investigation.

Process: serious complaints[49]

92.  If either at first sight or after preliminary investigation it appears that a complaint is potentially so serious that, if the complaint turns out to be well founded, removal might be considered, or where the circumstances are so complex that an ordinary investigation is insufficient, the Lord Chief Justice and Secretary of State will appoint an investigating judge either on their own initiative or at the request of the ombudsman.

93.  The investigating judge's report will be submitted to the Lord Chief Justice and the Secretary of State; they may accept its findings or either of them can refer the complaint and report to the Review Body for reconsideration. The judicial office-holder who is the subject of the complaint may also require that it be referred to a Review Body, as may the ombudsman.

94.  The Review Body will make findings of fact and, where it deems it appropriate, make recommendations as to any sanction to be applied to the judicial office-holder. The Secretary of State and the Lord Chief Justice will be bound by any findings of fact and must decide, subject to any representations from the judicial office-holder concerned, whether or not to accept any recommendations of the Review Body. They may agree not to impose a sanction recommended by the Review Body, or to impose a lesser sanction, in the light of any representations made to them, but may not impose a sanction more severe than that recommended by the Review Body. No disciplinary action may be taken unless both the Lord Chief Justice and the Secretary of State agree that it is appropriate.

95.  If the Lord Chief Justice and the Secretary of State agree that removal is justified, the Secretary of State will write to inform the judicial office-holder concerned, making it clear that he is acting with the consent of the Lord Chief Justice. In the case of a High Court Judge or above, the Secretary of State will then seek an address of both Houses.

THE REVIEW BODY

96.  A Review Body will be established on an ad hoc basis in cases where a complaint has been subject to judicial investigation and, either the Secretary of State or the Lord Chief Justice or both of them are not satisfied with the findings of the investigation; or where the judicial office-holder concerned asks for the complaint to be reviewed; or where the ombudsman refers a complaint to be considered by the Review Body.

97.  The Review Body will reconsider the merits of the complaint, not merely the way in which it has been handled, and may invite further representations from the judicial office-holder concerned and any other interested parties.

98.  In cases where removal is being considered, the Review Body will advise whether, in its view, removal could be justified in the circumstances of the case, although it will not take the decision whether to remove or not.

99.  The Review Body will consist of two judges of appropriate seniority and two lay members, appointed by the Lord Chief Justice and the Secretary of State. The senior judicial member will chair and have a casting vote if necessary. If the Review Body is considering the case of a judge, one of the judicial members will be at the same level as the judge concerned. If the Review Body is considering the case of a magistrate, one of the members will be a magistrate. If the Review Body is considering the case of a tribunal member, one of the members will be a tribunal member (lay or judicial as appropriate).

THE OMBUDSMAN

100.  It will be open to a complainant or a judicial office-holder to complain about the handling of a complaint to an ombudsman. The ombudsman will also have a role in considering complaints about appointments: applicants who have complained to the Judicial Appointments Commission about the handling of their application, and who remain dissatisfied after the Commission has considered their complaint, will be able to refer their complaint to the ombudsman. In relation to conduct complaints, the ombudsman will review the handling of the complaint and may make recommendations to the Lord Chief Justice and Secretary of State but cannot make his own decision on the merits of a complaint; he cannot rebuke or reprimand a judicial office-holder, or decide to trigger procedures for removing a judicial office-holder from office. If the ombudsman finds that a complaint has not been considered properly, he can require that it be reconsidered, require that it be subject to judicial investigation, or refer it to the Review Body.

101.  The ombudsman can consider the way in which particular complaints, or types of complaint have been dealt with at the request of either the Lord Chief Justice or the Secretary of State and can make recommendations.

102.  The ombudsman will submit an annual report, which will be laid before Parliament, in which he will comment on the complaints he has dealt with in an anonymised form, and on whether they have been handled in an effective and efficient way.

COMPLAINTS AGAINST MAGISTRATES

103.  Complaints against magistrates will continue to be investigated, in the first instance, by the local Advisory Committees. If, on investigation, they consider that there is a need for disciplinary action, or if it is desired to remove a magistrate who is no longer sitting, the case will be referred to the complaints secretariat. Each advisory committee will also submit reports to the complaints secretariat from time to time in respect of the complaints which have not resulted in any action being taken.

104.  The secretariat will consider the case and prepare advice for the Lord Chief Justice and the Secretary of State. Removal will be by the Secretary of State, with the agreement of the Lord Chief Justice. Any lesser disciplinary penalty will be imposed by the Lord Chief Justice, or a judge nominated by him, in agreement with the Secretary of State.

105.  A judicial investigation of a case may take place if, after the preliminary investigation by the Advisory Committee, either the Lord Chief Justice or the Secretary of State decides, after consulting the other, that this is required.

106.  A magistrate may ask for his case to be considered by the Review Body, which, in such a case, will include a magistrate as one of its four members.

107.  Complaints about these cases may be considered by the ombudsman in the same way as other judicial complaints.

TRIBUNAL MEMBERS

108.  Those tribunals with complaints procedures will continue to deal with complaints internally, referring to the complaints secretariat only those cases in which they wish formal disciplinary action to be taken or which otherwise warrant consideration by the Lord Chief Justice and Secretary of State.

CRIMINAL CONVICTIONS

109.  The full disciplinary procedure is not gone through when a judicial office-holder is convicted of an offence actually or potentially carrying a sentence of imprisonment; this is viewed as generally incompatible with judicial office, and the office holder concerned is required to inform the Lord Chief Justice immediately. If the office holder wishes to argue that there are exceptional circumstances that mean that he should not be removed, he will be entitled to refer the matter to the Review Body. If he chooses not to refer the matter to the Review Body, and the Lord Chief Justice and the Secretary of State agree that removal is appropriate, the Secretary of State will either trigger the Parliamentary procedure or take steps to remove him as appropriate.

THE STATUS OF THE COMPLAINTS SECRETARIAT

110.  The complaints secretariat will have a status broadly equivalent to the Judicial Studies Board, but without a Complaints Board. There will be a Memorandum of Understanding setting out the nature of the links between the secretariat the Department for Constitutional Affairs and the Lord Chief Justice. The staff will continue to be Department of Constitutional Affairs civil servants, as are the staff of the Judicial Studies Board.

111.  The Head of the Secretariat will be selected by open competition, run by the Civil Service Commissioners, for a renewable term of three years. Representatives of the Secretary of State and Lord Chief Justice will also be involved in the selection process. The post-holder would assume civil service status (if an external appointee) for the duration of the contract. The Lord Chief Justice would have to approve renewal of the contract or a decision, for whatever reason, to terminate the contract early.

RECORDS

112.  The secretariat will maintain records of disciplinary action taken against judicial office-holders. This will be used to provide general statistical information, and will be made available to the Secretary of State in order, for example, to enable him to respond to Parliamentary Questions about the numbers of judicial office-holders who have been reprimanded. The secretariat will not comment publicly on whether or not a particular judicial office-holder has been subject to any disciplinary sanction, save that:

  1. ·  the complainant in a case will always be told what the outcome is, including whether the judicial office-holder concerned has been reprimanded or removed from office; and,
  2. ·  the Lord Chief Justice and Secretary of State may agree in a particular case that public confidence in the justice system demands that the fact that a judicial office-holder has been subject to disciplinary action, or has been exonerated, be made public.

113.  Information about particular judicial complaints, and other personal information held about judicial office-holders, will continue to be exempt from disclosure under the Data Protection Act and the Freedom of Information Act as it is at present.

Judicial Appointments Commission - process

114.  This section sets out the proposed future process for judicial appointments currently made by the Lord Chancellor. The proposal covers four levels of appointment:

  1. ·  Magistrates and General Commissioners of Income Tax;
  2. ·  All judicial appointments (other than the appointment of magistrates and General Commissioners of Income Tax ) up to and including the High Court;
  3. ·  The Court of Appeal; and,
  4. ·  Heads of Division

115.  This section also considers principles relating to judicial appointments that might be set out in legislation, and the membership of the Commission.

MAGISTRATES AND GENERAL COMMISSIONERS OF INCOME TAX

116.  Magistrates and General Commissioners of Income Tax have been appointed by the Lord Chancellor on the basis of advice from local Advisory Committees. The Judicial Appointments Commission will assume responsibility for making recommendations to the Secretary of State for these appointments. The Secretary of State will make the appointment, with the same limited discretion to reject or to ask the Commission to reconsider as professional judicial appointments - as set out at Paragraph 120.

117.  Administratively, however, the Commission will not be able to assume responsibility for dealing with appointments of the professional judiciary and of magistrates at the same time. The Commission will instead take on its role in magistrates' appointments and the appointment of General Commissioners of Income Tax when it informs the Secretary of State that it is ready to do so. In the interim period, recommendations from the Advisory Committees will be passed to the Lord Chief Justice, who will submit his approved list to the Secretary of State.

118.  Members of the Advisory Committees will be appointed by the Secretary of State in concurrence with the Lord Chief Justice.

JUDICIAL APPOINTMENTS UP TO AND INCLUDING THE HIGH COURT

119.  For these appointments, the following process is proposed, up to the point at which a recommendation is made to the Secretary of State:

a.   The Secretary of State, after consultation with the Lord Chief Justice, shall inform the Judicial Appointments Commission (JAC) of a prospective vacancy (or vacancies) and their nature, unless the Lord Chief Justice and the Secretary of State agree that the vacancy need not be filled.

b.   The JAC advertises the vacancy.

c.   Applicants apply to the JAC.

d.   The JAC is responsible for deciding on all aspects of the selection process up to the point at which a single candidate for each vacancy is recommended to the Secretary of State.

e.   The JAC will identify selection panels to sift applications and interview candidates or otherwise conduct the appointments process. All panels will include at least one judicial office-holder whose seniority and experience is relevant to the posts under consideration.

f.   The JAC, or a sub-committee of the JAC, will receive all the papers relating to a selection process, and will approve or amend the panel's recommendations.

g.   Prior to making any decision as to which candidate(s) to recommend, the JAC must consult the Lord Chief Justice about the candidate or possible candidates.

h.   The JAC will recommend to the Secretary of State the name of one candidate for appointment to each vacancy.

120.  The JAC's recommendations - an outline of the process:

The recommended candidate:

a.   The JAC will recommend to the Secretary of State one name for each vacancy.

b.   The JAC will also submit their reasons for recommending that candidate.

c.   The JAC will provide supporting papers on that candidate.

Other candidates:

d.   The JAC will provide the names of those applicants whom the JAC considered appointable.

e.   The JAC will provide papers on those applicants to the Secretary of State.

The Secretary of State's responsibility:

f.   The Secretary of State has four options at this stage. He can:

i.  accept the JAC's recommendation; or

ii.   ask the JAC to reconsider, if he considers that the evidence submitted to him does not demonstrate that the recommended candidate meets the criteria, or if the evidence suggests that the recommended candidate is not the strongest candidate; or

iii.   reject the JAC's recommended candidate, if he considers that there is some evidence that the candidate cannot be considered for a judicial appointment; or

iv.   if the Secretary of State considers that the competition has not been conducted in a proper fashion, he may, after consultation with the Lord Chief Justice, require that the competition be re-run.

g.   The Secretary of State must give reasons if he asks the JAC to reconsider, or if he rejects their recommendation.

RECONSIDERATION:

h.   If the Secretary of State asks the JAC to reconsider, the JAC can either confirm its initial recommendation, with reasons for doing so or recommend an alternative candidate, with reasons.

i.   The Secretary of State may then reject the recommendation put forward by the JAC at this stage only if he considers that there is some evidence that the candidate cannot be considered for judicial appointment. He must give his reasons in writing for doing so. If the Secretary of State exercises his power to reject a candidate at this stage, having previously asked the JAC to reconsider, he is obliged to accept either their next recommended candidate or the candidate originally put forward.

j.   If there is no reason to reject the recommendation, the Secretary of State is obliged to accept this further advice, and appoint one of the candidates put forward (whether the initial candidate, or a second recommendation).

REJECTION:

k.   If the Secretary of State rejects the JAC's first recommended candidate, the JAC must put forward an alternative candidate, giving reasons for their choice. If there is no alternative candidate, the competition must be re-run.

l.   The Secretary of State can either accept the Commission's second recommendation, or ask them to reconsider.

m.   If the Secretary of State asks the JAC to reconsider, he is obliged, on receiving the further advice of the JAC, to appoint one of the candidates that have been recommended by the JAC (whether the alternative candidate or any second recommendation that may have been made after reconsideration).

APPOINTMENTS TO THE COURT OF APPEAL

121.  The proposed process:

a.   The Secretary of State, after consultation with the Lord Chief Justice, shall inform the JAC of a prospective vacancy (or vacancies) and their nature, unless the Lord Chief Justice and the Secretary of State agree that the vacancy need not be filled.

b.  A senior appointments panel would be established by the JAC comprising:

i.   the Lord Chief Justice (or a deputy chosen by him);

ii.   a Head of Division, or other Court of Appeal judge appropriate to the vacancy chosen by the Lord Chief Justice;

iii.   the chairman of the JAC (or a deputy chosen by him from among the lay members); and

iv.   a further lay member of the JAC, chosen by the chairman.

c.   The Lord Chief Justice (or his deputy) will chair the panel and will have a casting vote.

d.   The process will be supported by the JAC and its staff and will be subject to the approval of the JAC;

e.   The panel will recommend one candidate for each vacancy, and will provide information in support of that recommendation. The panel will also provide the Secretary of State with the names of other candidates whom the panel considered, with their assessment of their suitability for appointment. The Secretary of State's powers will be the same as for more junior appointments: he will be able to ask the panel once to reconsider, and he will have the power to reject a candidate once. If necessary he could require the panel to restart the appointments process.

APPOINTMENTS TO HEAD OF DIVISION (INCLUDING THE LORD CHIEF JUSTICE)

122.  It is proposed that the appointments panel should be:

i.   the most senior of the judges from England and Wales who are members of the Supreme Court from England (or a deputy chosen by him);

ii.   the Lord Chief Justice or, if that is the post being appointed to, a Head of Division or other appropriate judge chosen by the senior judge of the Supreme Court from England and Wales (judges who are candidates for the vacancy cannot be chosen for the selection panel; nor can the Head of Division who is retiring);

iii.   the chairman of the JAC (or a deputy chosen by him from among the lay members); and

iv.   a further lay member of the JAC, chosen by the chairman.

123.  The judge of the Supreme Court will chair the panel and will have a casting vote.

124.  The panel will be required to consult the retiring Head of Division.

125.  The process will be supported by the JAC and its staff and will be subject to the approval of the JAC.

126.  The panel will recommend one candidate for each vacancy, and will provide information in support of that recommendation. The panel will also provide the Secretary of State with the names of other candidates whom the panel considered, with their assessment of their suitability for appointment. The Secretary of State's powers will be the same as for more junior appointments: he will be able to ask the panel once to reconsider, and he will have the power to reject a candidate once. If necessary he could require the panel to restart the appointments process.

PROCESS FOLLOWING ACCEPTANCE OF THE COMMISSION'S RECOMMENDATIONS

127.  Following the Secretary of State's acceptance of the JAC's recommendation:

a.   For those appointments made by The Queen[50], the Secretary of State will inform the JAC he has accepted their recommendation and forward the recommendation to the Palace, or to the Prime Minister for formal transmission to the Palace in the case of judges of the Court of Appeal and above.

b.   For those appointments made by the Secretary of State, the successful candidate will be informed by the JAC that "the Secretary of State has appointed you on the recommendation of the Judicial Appointments Commission".

c.   The JAC will inform all unsuccessful candidates, and provide feedback if required.

d.   The Secretary of State will return to the JAC all papers relating to candidates.

e.   The JAC will provide the Department for Constitutional Affairs with the information it needs on the successful candidate(s) for the purpose of fulfilling its obligations in relation to pay, pensions, terms and conditions and any related matters.

f.   The JAC will provide the Lord Chief Justice with a copy of all relevant papers on file for the successful candidate(s). This will form the basis of the personnel file held by the Lord Chief Justice.

g.   The JAC will hold the reserve list and will submit any recommendation for an appointment to be made from the list (i.e. an appointment without a further competition) to the Secretary of State, after consultation with the Lord Chief Justice. The Secretary of State will then have the same powers as in relation to a recommendation made after a competition.

APPOINTMENT PRINCIPLES

128.  Primary legislation should provide that the sole criterion for making judicial appointments is merit.

129.  Any requirements as to the appointments process, such as the expectation that the JAC will work to encourage a more diverse pool of potential appointees and will take account of the need for expert judicial knowledge in relation to particular posts, will be subject to Parliamentary scrutiny.

130.  Any formal guidance for the JAC will also be subject to Parliamentary scrutiny.

Judicial Appointments Commission - membership

131.  This section sets out the proposals for membership of the Judicial Appointments Commission.

NUMBER AND BALANCE OF MEMBERSHIP

132.  It is proposed that the balance of membership on the Commission should be as follows:

? Five judges:

Three judges of the Court of Appeal or High Court (including at least one Lord Justice of Appeal and at least one High Court Judge)

One Circuit Judge

One District Judge or equivalent (i.e. A Master or equivalent judge from the High Court appointed under s.89, Supreme Court Act 1981 or a District Judge of the county courts or a District Judge (Magistrates' Courts).

? Two lawyers:

One barrister

One solicitor

? One magistrate

? One tribunal member - who could be full time or fee paid and legal or lay

? Six lay members who do not hold judicial office and are not practising lawyers (but may include non-practising academic lawyers), one of whom must have particular knowledge of social, cultural and economic factors in Wales.

CHAIR OF THE COMMISSION

133.  The chair should be one of the lay members of the Commission. The vice-chair should be the most senior judge on the Commission.

APPOINTMENT OF COMMISSIONERS

134.  Membership of the Commission will not be open to Members of Parliament, candidates for Parliament or civil servants.

135.  Judicial members below the High Court, lay members and legal members should be appointed following full and open competition. These vacancies should be advertised, and appointments should be made by an independent panel (see paragraph 138), measuring candidates against published criteria.

136.  The panel should make recommendations for appointment to the Secretary of State in line with Nolan principles. The Secretary of State would in turn make recommendations for appointment to The Queen.

137.  The Judges' Council will nominate the judge of the Court of Appeal and the High Court judge. In providing nominations, the Judges' Council will provide information to the Secretary of State on how the nominees meet the criteria for appointment.

THE APPOINTING PANEL

138.  The panel to appoint Commissioners will be chaired by the Commissioner for Public Appointments. The Lord Chief Justice will also be a member of the panel. A third member, who will be neither a member of the Government nor a civil servant, will be chosen by the Commissioner for Public Appointments. After being appointed by the panel, the chair of the Commission will join the panel for the appointment of other members.

WORKING ARRANGEMENTS

139.  Commissioners will perform four key roles:

i.   Approving and selecting candidates and making recommendations for appointment to the Secretary of State;

ii.   Overseeing the appointments process, and setting the strategy for the Commission;

iii.   Examining how best to improve the appointments process, to make it more efficient, more effective, and better able to produce a judiciary appointed on merit and more reflective of society; and

iv.   Advising the Secretary of State for Constitutional Affairs as required on matters relating to the appointment of the judiciary.

140.  The length of tenure will be up to five years, although in the establishment phase tenures would need to be staggered with some appointments shorter than five years initially. The minimum length of service will be for three years, which is in line with the Code of Practice for Public Appointments.

141.  There would also be the option for members to serve for another term of up to five years, provided they have given satisfactory service, making a total of ten years but no longer.

142.  There should be statutory provision to ensure they cannot be removed from office for making a decision that is contrary to the will of those who appointed them. It is therefore proposed that the power to remove members should mirror that for other Non-Departmental Public Bodies: the Secretary of State for Constitutional Affairs may dismiss members if:

a.   they fail to exercise their functions for a continuous period of six months;

b.   they have been convicted of a criminal offence;

c.   they have been made bankrupt; or

d.   they are otherwise unfit to exercise their functions.

143.  Members should be able to resign by notice in writing to The Queen.

144.  A member of the Commission would be required to stand down if that member applied for a judicial post.

Other issues

MINISTERS OF THE CROWN ACT

145.  Statutory functions which are to be transferred from the office of Lord Chancellor to the Secretary of State should fall specifically to the Secretary of State for Constitutional Affairs and the provisions of the Ministers of the Crown Act 1975 should be disapplied. This is essential given the specific duty relating to the Secretary of State for Constitutional Affairs' responsibility for defending and upholding judicial independence.

TRANSFER OF FUNCTIONS TO THE JUDICIARY

146.  Unless there are specific reasons to the contrary, all functions that are to be transferred to the judiciary, or where the judiciary is to be consulted, shall be transferred to the Lord Chief Justice.

DELEGATION OF FUNCTIONS BY THE LORD CHIEF JUSTICE

147.  The Bill will provide that any function that is to be transferred to the Lord Chief Justice may be delegated to another judicial office-holder. The Lord Chief Justice should also be permitted to transfer responsibility for those functions where he is to be consulted by the Secretary of State.


47   The Secretary of State will be able to object to the appointment proposed by the Lord Chief Justice within a specified time period, to be agreed between the two, after which his consent will be assumed.  Back

48   For magistrates provisions, see paragraphs 103-07 Back

49   For magistrates provisions, see paragraphs 103-07 Back

50   Legislation will provide that holders of the offices of District Judge or Master, or equivalent judges of the High Court, appointed under s.89 of the Supreme Court Act 1981 will, in future, be appointed by The Queen.  Back


 
previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries index

© Parliamentary copyright 2004