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:
- · 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.
- · 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.
- · responsible
for ensuring that the public interest is served in decisions taken
on matters affecting the judiciary in relation to the administration
of justice.
- · 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:
- · 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.
- · responsible
for ensuring that appropriate structures are in place to ensure
the well-being of and training and provision of guidance for the
judiciary.
- · 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:
- · a
senior member of the judiciary will be a non-executive member
of the Board for the new agency;
- · 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:
- · a
senior member of the judiciary will be a non-executive member
of the Corporate Board of the Department for Constitutional Affairs;
- · 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:
| Post | Concurrence or Consultation
|
| Senior Presiding Judge | Concurrence1
|
| Presiding Judges | Concurrence1
|
| Resident Judges * (other than where competition required i.e. Senior Resident Judges)
| Concurrence[47]
|
| Deputy Chief Justice * | Consultation
|
| President, Employment Appeal Tribunal | Consultation
|
| 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:
- · 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,
- · 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:
- · Magistrates
and General Commissioners of Income Tax;
- · All
judicial appointments (other than the appointment of magistrates
and General Commissioners of Income Tax ) up to and including
the High Court;
- · The
Court of Appeal; and,
- · 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
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