House of Lords - Constitutional Reform Bill

Select Committee on Constitutional Reform Bill First Report

APPENDIX 7: Summary Report of the Online Consultation on the Constitutional Reform Bill

Background

The Hansard Society e-Democracy Programme is piloting innovative online consultation methods aimed at increasing public involvement and engagement with parliamentary decision making through the use of new media. We are interested in ways of informing representation and facilitating the broadest democratic participation.

The Select Committee on the Constitutional Reform Bill has been set up by the House of Lords to ensure that this Bill, which sets out to modernise the way in which the final court of appeal in this country is selected and organised, is thoroughly scrutinised. In order to gather a wider range of views on the Bill, the Committee commissioned an 'online forum' under the auspices of the Hansard Society to accompany its formal evidence-taking.

This online forum commissioned by the Select Committee on the Constitutional Reform Bill ran from 4 May 2004 for four weeks at www.tellparliament.net/constitutional. The Committee Secretariat provided background information about the inquiry, a list of the key questions for the online forum with a brief introductory note accompanying each of them.

Tellparliament.net/constitution was publicised through direct mailings, local media coverage, viral emails, web links and word of mouth. Although the site was designed with a view to encouraging people from all walks of life to take part in the online forum, the specialist subject of the inquiry failed to attract greater audiences and the general public. The majority of participants were experts in the field and came from the legal profession and academia. A list of organisations and academic institutions is available in Appendix 1.

Seventy-nine people registered to take part in the online forum at tellparliament.net/constitution and posted a total of 53 messages. The online forum was male-dominated. Though 18% of the participants registered on the site were female, none of them actually posted a message. As a comparison, in a recent online consultation on Human Reproductive Technology, run on behalf of the Science and Technology Select Committee at tellparliament.net/scitech, there was an even gender balance amongst participants.

The forum closed on 1 June 2004. This report summarises the responses to the online consultation, it does not aim to interpret or evaluate the views given or to make recommendations. All of the contributions to the online forum are available as a reference document and the web based discussion will be archived and accessible to view in full at www.tellparliament.net/constitution. (The full transcript is not published with this Report but will be placed in the House of Lords Record Office.)

This report is not given as a representative view of the population but as a method of representing the experience and expertise of a section of society. The extracts in italics have been taken directly from the messages posted in the consultation.

Discussion Summary

The online discussion was structured around four main questions:

'What is your view of the proposal to abolish the post of Lord Chancellor?'

'What do you think of the proposal to create a Judicial Appointments Commission to recruit and select judges?'

'Should the Supreme Court (final court of appeal) remain within Parliament, or be set up as a separate institution?'

'If a Supreme Court is established, should it be financially and administratively independent of Government?'

A section for 'General Comments' was also included. However, the overwhelming majority of posts were confined to discussions around the questions presented above.

The extracts included in this report reflect the depth and range of contributions to

this consultation; they are, however, just a glimpse at the topics discussed. For a

full account, readers are recommended to see the entire proceedings at

www.tellparliament.net/constitution. The messages contain both technical and

experiential detail that will greatly add to the understanding of the issues under

consideration. During the debate, the Hansard Society moderator interjected asking questions designed to stimulate discussion or introduce relevant news bulletins regarding constitutional reform to the debate. Please see the full transcript of the discussion to see their questions.

General Comments

The General Comments forum followed the established model of internet forum posting which allows for online discussions to evolve organically along and according to the lines of interest of the participants. It was not heavily used as participants chose to direct their comments towards the questions put before them. Summaries of the main points raised in this section are laid out below and grouped thematically.

Access to Justice

Having worked in the field of civil justice for 28 years, I am not infrequently disappointed in our system. On the other hand, particularly at the higher end (High Court and above) on the whole, the system is good and the quality of the judges is high. It might move a bit more swiftly and accept changes more readily but this does not warrant wholesale change and I fear that new elites will flourish and inhabit the new system with their own types of rope ladder. We will not really achieve an objectively better system with these reforms. Alex

The poster was concerned that an objectively better system would not result from the reforms being proposed because, in his view, some of the virtues of the old system would be lost without any guarantee that the advantages envisioned in a new system could not be achieved through a more gradual evolution of the system.

'What is your view of the proposal to abolish the post of Lord Chancellor?'

This question presented what the bill proposes (the abolition of the Lord Chancellor), who the Lord Chancellor is and what the role involves:

the Secretary of State for Constitutional Affairs, a Cabinet Minister in charge of the Department for Constitutional Affairs, with responsibility for policy on the courts system (amongst other things);

the head of the judiciary, appointing and disciplining judges;

a judge (although our current Lord Chancellor has chosen not to exercise his right to sit as a judge);

the Speaker of the House of Lords (a formal role with no real powers over the proceedings in the House).

Comments on this proposal were split. The initial reaction was simply yes or no—either in support of or against the elimination of the post. The issue of 'the times' came up with participants expressing that it is now the 21st century and that maybe the role should be redefined for the times. Conversely, other participants argued that the marching of time was no reason to do away with more traditional institutions.

Just because it is the 21st Century doesn't mean that long established Government posts have to be abandoned. As head of the judiciary—a single head—the post of Lord Chancellor is as important as that of Queen. Creating additional posts would only increase costs. ppotter64

The discussion expanded from there into a debate of what the benefits would be of the removal of such a post, and what would be the associated costs. It was noted that there would be increased costs in delineating all of the roles filled by the Lord Chancellor into separate ones, but argued that it would allow for a better expression of the removed sections of responsibility. On the negative side, it was noted that the abolition of this office would raise unnecessary fears that the independence of the judiciary would be under threat and that it would be an unnecessary use of parliamentary and legislative time.

People associate the Lord Chancellor most in his executive role, as a member of the government. That is the function I am suggesting should retain the title of Lord Chancellor. To confer the title on a lesser function (such as Speaker in the Lords) or another public office would be even more confusing. The title should remain with the core role, which is to be Minister of Justice and Constitutional Affairs. Professor Robert Hazell

The discussion returned to the question of why the role of Lord Chancellor would necessarily need to be abolished. Participants expressed concern that the removal of the role of Lord Chancellor did not seem to really address the issue of the separation of powers. Other participants pointed to duplications that exist between the role of the Lord Chancellor and the recently created post of Secretary of State for Constitutional Affairs.

The task of Speaker of the House of Lords is a quaint, historical one. It is harmless, and I for one like quaint, historical, harmless things. They cause less grief than charmless, modern, damaging things like the Constitutional Reform Bill. David Radlet

The discussion then shifted to Lord Maugham who had been raised as an example of a Lord Chancellor who had been effective in his role, and who felt competent enough to offer a judicial opinion. This fed into discussions of whether persons appointed Lord Chancellor are suited to the role, but also whether the role itself was logical:

How can the LC be government's voice in the judiciary, but protectior of the judiciary from government? Both the same man? It's a conflict of interest. The government's voice in the judiciary should be through having the same entitlement as all the people to make fault findings against court decisions. The judiciary can't be protected from government by a cabinet politician. Spread out the powers, or at least give the job to a Cross Bencher. Maurice Frank

The discussion moved away from this argument to whether or not the changes would fundamentally alter the constitutional and political relationships of British democracy. A recurring theme was the idea of the 'separation of powers'. Participants were not in agreement as to whether the separation of powers was something that the British system was built around.

There is no big problem that this proposal helps solve. It is based on a notion of separation of powers which is alien to the English Constitution. The English system is based on the mixture of powers, a commixture or intermixture in the words of J.J. Park in Dogmas of the Constitution, or a fusion of powers in the term of Walter Bagehot in The English Constitution. George Jones

The Rule of Law is fundamental to our form of civilisation, free market, democracy, & this principle is best maintained by constant vigilance to preserve the Separation of Powers within an unwritten (& so, flexible) Constitution of pragmatic rules. The Separation of Powers has been compromised in the latter part of the 20th century by massive parliamentary majorities and a weak, supervisory Constitutional Monarch, so enabling the Executive to dominate the Legislature. This situation needs sorting out but immediately is the threat of the Executive dominating the Judiciary too. This we must address with urgency. Mark Terrell

On the question of the 'separation of powers', a debate ensued as to whether the separation of powers was, in fact, a feature of the British system. The debate also covered whether this is effective in systems where it is employed, such as the United States. The argument was made that if one was to begin with a seperation of powers, then the Prime Minister and the Cabinet would need to be removed from the House of Lords. Further, the point was raised that the full separation of the Executive from the Judiciary and the Parliament does not necessarily minimize complaints of undue influence being exercised by the Executive over the Judiciary. Other participants welcomed the move to a more delineated relationship between Parliament, the Executive and the Judiciary.

1.The separation of powers arguments seem to be overwhelming.
2. The statutory duty on ministers to recognise the independence of the judiciary is welcome. This is the crucial point. The convention and statutory duty of judicial independence needs to be asserted, perhaps even in statute, in its particulars. Recent Lord Chancellors have been lawyers at the peak of their profession and, it seemed, without further political ambition. The office is to be replaced in some of its functions by a Secretary of State who, first and foremost, is a politician who is likely to have continuing political ambitions which may be reflected in her or his view of the judiciary. However, the abolition of the office of Lord Chancellor does not in itself threaten independence:- the high quality of recent Lord Chancellors should not blind us to the open political partiality of earlier ones. HDavis

The discussion concluded with a discussion of the effectiveness of such an abolition, continuing the vein of the comment made by participant HDavis who noted the political aspect of the role and the fact that the Lord Chancellor, under the current system, seems to be accountable to no one but the Prime Minister. Participants concluded noting that the abolition of the post would provide for a symbolic separation from political intervention, but the question of the practicalities of such a move were left unresolved.

Abolition would be symbolic provided that the separation from political intervention was, in any case, made quite clear. It may be that a compromise to appease the sentimentalists would allow the description to continue for a non-political personage. We're quite good at these illusions of tradition, and they usually work. Perhaps a noticeable change in the fancy dress would be cooler in both senses? Andrew Dundas

'What do you think of the proposal to create a Judicial Appointments Commission to recruit and select judges?'

This question presented the case that the current situation in England and Wales was that judicial appointments are primarily the responsibility of the Lord Chancellor. In addition it asked whether participants thought that the creation of a Judicial Appointments Commission was a more independent and accountable way of appointing judges? Should the Secretary of State for Constitutional Affairs retain the responsibility? Should he choose from a list of names or be given one recommendation?

Responses to this question were more homogenous. One participant pointed out that the debate had become polarised between the Judiciary and the Executive, to the effect that the Judiciary wants the selection of judges to be wholly removed from the hands of the Executive. Participants also added that there was no guarantee that the Judicial Appointments Commission would guarantee any more even handedness in the selection of judges than the current system, while greatly adding to the expenses associated with the selection and appointment of judges, with some arguing that the current proposal serves as an insult to current judges.

I am opposed to this proposal because it is an insult to the current judges. It implies they have been appointed in an improper manner and are not up to the job. But our judges are regarded throughout the world as the best, the most distinguished, models to be emulated. They are held in the greatest of respect. So what is the problem that needs to be solved by breaking away from a tried and trusted system? The answer is there is no problem. The motivation of the modernizers is fashionable poltical correctness that pays scant attention to quality and focusses on irrelevant social and cultural attributes. And, of course, the modernizers are infected by the alien ideological notion of separation of powers. They really should put away Montesquieu and De Lolme, and those influenced by such foreign observers who got it wrong, and study the history of English government as it happened. George Jones

Participants stressed the importance of the role of Parliament in the selection of judges. Participants argued that all three branches of government should play an active role in the selection of judges. There were also calls for the inclusion of lay people in the decision making process about judges.

To select judges is to give a direction to society and that is politics with a small "p". We choose people who have certain views and skills, and we seek a balance in the Bench as a whole. The present proposals for lay members makes them representatives of "civil society", rather than "political society". Politicians, for all their faults, do have both legitimacy and accountability. For all their personal dedication and qualities, lay members chosen from civil society will have neither. Linking the appointments process to Parliament would give authority to the lay members of the Commission in their discussions with the judicial and professional representatives. John Bell

Though the majority of views were opposed to this change, there were dissenting views. Such participants stressed that if a Judicial Appointments Commission could be guaranteed to be free from political influence or control, it seemed to be a good idea for the appointing of judges with the reservation that more senior appointments be made by the Lord Chancellor. Others appreciated the clear guidelines that such legislation would produce for judicial appointments.

1. I favour of this on the grounds of transparency and formalising the process.
2. There is a case for slightly enhancing the role of the Secretary of State, who at the moment can, as understood, only refuse one name put forward by the Commission. The interesting question relates to the balancing of the "merit" criteria with the other "diversity" criteria. HDavis

However, the majority of participants who posted on this question were of the opinion that the selection of judges through a Commission, such as the one proposed, would not be an improvement in the way that judges were chosen.

Britain should be generally proud of the quality of its judges, even though such pride is sometimes not reflected in the tabloids. A judicial appointments commission it is proposed, should be independent - but independent of what? I would suggest it should be free of political and especially executive influence. Such a system we already have, and since this has served us well there is no need to change it.

It is essential to remember that the duty of a judge, at whatever level, is to uphold the law of Parliament. His/her political views are of no relevance to this duty. Neither should the political views of the selectors for the post be relevant. Consequently there is nothing but potential detriment in any proposal for either judges or their selectors to be made by executive appointment. David Winn

'Should the Supreme Court (final court of appeal) remain within Parliament, or be set up as a separate institution?'

The question was put before participants in the context of the current state of affairs in which the final court of appeal currently resides within Parliament in the House of Lords.

Participants immediately expressed trepidations about this proposal, with worries of what other constitutional crises the creation of such a body would precipitate.

My only concern if the Supreme Court is separated would this lead to a UK constitution to separate the powers of Parliament and Judiciary. If so, then it should remain within Parliament. A written constitution like the US is unworkable and too rigid and should not be encouraged. If within Parliament who/ how would judges be chosen? This should be brought to the Dept of Constitutional Affairs with various options passed to a committee for final selection. panixxxx

Other participants felt that it might be a pointlessly symbolic exercise and that the Supreme Court (final court of appeal) should remain within the House of Lords.

If the name "House of Lords" is thought to be too elitist (a much misused word), let's call it the Final Court of Appeal, as in Hong Kong. It is because the Final Court of Appeal does not have power to override the wishes of the legislature - and the legislature can reverse any decision of which it disapproves - that there is no real justification for depriving the House of Lords, as a legislative body, of the experience of the Law Lords, not only on the floor of the House, where they seldom speak on matters of a non-legal nature, but more importantly in the business of the Committees, where they do much more valuable, if generally unsung, work which few without their legal knowledge are qualified to do as well. Edward Nugee, QC

The issue of separation of powers once again raised its head in the discussion. Participants argued that the conception of the separation of powers motivating this decision was too basic and did not fully comprehend the ramifications of its actions, and further, even if the conception was expanded, that the notion of the separation of powers was one which is not compatible to the British system.

I oppose this proposal because it is based on the theoretical doctrine of separation of powers which is alien to our Constitution. We should welcome its fusion with parliament. The judiciary is enhanced by its location in the House of Lords, and the House of Lords is enhanced because the leading judges announce their decisions from it and play a part in its other proceedings. It is a asset for a legislative body to have the most eminent judges part of its membership. Such intermingling of powers facilitates understanding of each other's positions and helps achieve a consensus instead of a paralysing confrontation. George Jones

Participants also discussed the necessity of the Supreme Court having a place to sit. Interestingly, participants opposed to the idea of the Supreme Court, took issue that its coming into existence be delayed because it had no place to 'sit' as an institution.

How strange to delay the creation of an institution of law or government, because a building is not ready? If an institution is right to have, it is better to have it while coping with temporary facilities, than not to have it. Scottish and Welsh devolution was not postponed from beginning until after the buildings had been built. Railways don't usually stop running because a station is being modernised. Maurice Frank

Support was offered on the basis of the separation of powers, but that support was relatively muted. Two such argument offered in favour were:

I support the idea of a Supreme Court established outside Parliament. The separation of powers arguments are convincing. An informed, fair minded person could reasonably take the view that a trial conducted by a judge who had already expressed himself or herself on the meaning and merits of the legislation in issue, was a trial tainted by an appearance of bias. To avoid this some Law Lords already have a self-denying practice and will not speak or vote in the chamber and independence simply gives institutional effect to this practice. HDavis

The Supreme Court is already de facto separate in most respects. It should now be made clearly and un-mistakenly, a separate Institution. That does not imply that we need a full written constitution. It may be convenient to allow the Supreme Court to be the final appeal court for the whole UK. There are potential conflict situations between the Regions and Countries within the UK (on the one hand) and Parliament (on the other) that might need the intervention of a Supreme Court. One way of avoiding that would be to declare that the UK Parliament is supreme, and hope that is never challenged. Andrew Dundas

Despite these arguments, the majority of the posts from participants came down in opposition to the proposal, with most participants arguing that the change either served no practical purpose or, in other extreme, actually served as a detriment to the Judiciary and the exercise of justice.

It is not reasonable to justify removing Law Lords from the second legislative chamber on grounds of the separation of powers, whatever relevance is placed on this concept. The danger to democracy is not from judges in the House of Lords obstructing the will of an elected government, but from the continuing failure of Parliament as a whole to control executive excesses. David Winn

'If a Supreme Court is established, should it be financially and administratively independent of Government?'

This question asked participants to look at the institutional linkages between the proposed newly separated Supreme Court and Parliament/the Executive. It asks whether the financial and administrative ties laid out in the bill including the Court's budget being part of the DCA's annual budget; the Secretary of State for Constitutional Affairs retaining some role in the appointment of Supreme Court judges; the Secretary of State having a role in disciplining judges; the Court being answerable to the Secretary of State for its administration; the Court's rules being subject to regulations drawn up by the Secretary of State; should be maintained.

Participants' response were mixed to this question. Initial response was that if the Supreme Court was set up independent of the House of Lords, then it should be fully independent. However, there was some objection to this point of view.

I am opposed because the removal of Treasury control over such an important chunk of public expenditure would damage Executive financial responsibility. The Judges would behave irresponsibly, continually wanting more public expenditure on their service. They would have no perspective wider than their own service, unlike the Treasury which has to have regard to demands from other public services and produce a set of priorities for public spending that balance with available resources. The way the judges will behave is already evident from their ambitions for grandiose new buildings. George Jones

It is silly to pretend that the proposed "Supreme Court" can be independent from the rest of government. It has to be paid for by the taxpayers; and that which is paid for by the taxpayers ought to be supervised by their representatives. It cannot be supreme for that matter, for that is the principal political and legislative quality of Parliament, of which the senior court would no longer be a part. David Radlett

A brief detour was taken to the question of the monarchy, with a participant arguing that the Legislature need not be as involved in the dispensing of money as it is, and if the monarchy had a stronger role it could play a greater role in the dispensing of funds to the court. The balance of opinion was that it is part and parcel with the idea of an independent Judiciary that the court be financially independent.

If you take the rationale of a supreme court as to secure the independence of the final court of appeal from the legislature, then it must also a fortiori be independent from the executive. There are obviously going to be some questions as to accountability but this should be balanced against the need to keep the two branches separate. David Christie

The question then shifted back to a debate of how to work the separate funding of an independent court. Participants suggested a number of ideas including strengthening the role of the Lord Chancellor, and then funnelling through that office to avoid interference from other areas of government. The debate concluded with no clear decision reached on the actual substance of the linkages proposed by the bill.

Well, yes. But how would it be funded other than from the Treasury? Some endowment perhaps? Realistically, no public body like this can be independent of government tax revenues and therefore should be accountable. The Supreme Court must be supervised by another body and needs to have its regular reports of activities and policies published and reviewed. I suggest those reviews could be accomplished by a Select Committee appointed by Parliament. Andrew Dundas

11 June 2004,

Milica Howell

E-Democracy Programme Manager

Hansard Society, edemocracy@hansard.lse.ac.uk

List of organisations taking part

4 New Square Chambers

Bournemouth University

Boyes Sutton & Perry

Cloisters Chambers

Cobden House Chambers

Commonwealth Lawyers Association

Doughty Street Chambers