Memorandum by the Blackstone Society
The members of this Society would wish to express
their views to the Select Committee on the very important issues
raised by this Bill. Our recommendations fall under three heads:
the abolition of the office of Lord High Chancellor; the establishment
of a new Supreme Court; and the proposed Judicial Appointments
Commission.
ABOLITION OF
THE OFFICE
OF LORD
HIGH CHANCELLOR
We see no need for this alteration of the constitutional
position. The Lord Chancellor is in a unique position to maintain
the independence of the judiciary, since he has a seat in the
Cabinet.
One of our members wrote the following letter to
"The Times" which was published on 6 March:
"Sir, it makes a difference that a Lord
Chancellor was a judge with a seat in the Cabinet. He could uphold
the inedpendence of the judiciary in a way which the Lord Chief
Justice cannot, because the Chief Justice will have to represent
the judges through the Secretary of State for Constitutional Affairs.
This latter officer may well not be a lawyer in the future.
Schedule 1 of the Constitutional Reform Bill,
however, will empower the Secretary of State, among other things,
to determine pay, pensions and terms and conditions of the judiciary
and the overall number of judges and the distribution of business
between different levels of courts.
So much for independence. It all sounds like
the conversion of our judiciary into civil servants as they are
in continental Europe. This is exactly what we do not need, if
our common law powers of checking the executive are to survive."
We support the views expressed in that letter
and would commend them to the Committee. It may be thought necessary,
in the case of the Lord Chancellor, to require him not to sit
in judgment with the Law Lords in cases brought before the highest
court in the land, while retaining his titles as Head of the Judiciary,
Speaker of the House of Lords and Member of the Cabinet.
A NEW SUPREME
COURTThere is no need for this.
The House of Lords Appellate Committee is most highly regarded
throughout the world and should continue in its present form.
This means that the Law Lords would continue to sit in the Lords'
House and make their wisdom available in debates. If the Bishops
retain their seats then so should the senior Judges. Janet Morgan
in her book on "The House of Lords and the Labour Government
1964-70" makes the point that ". . . the fact that many
Law Lords have presided over Royal Commissions, Tribunals and
Courts of Inquiry and other official investigations gives them
added authority in debate. The rest of the House respects the
Law Lords' strong convention of political neutrality, both for
its own sake and for the implication that it preserves some mysterious
essence of non-partisanship that pervades the Lords as a whole".
The White Paper on reform, Cmnd 3799, of 1968-69, expressly stated:
"There should be a place in the reformed House for Law Lords
and Bishops". The "strong convention of political neutrality"
mentioned above should put to rest accusations of breach of separation
of powers.
Added to the above is the expense of setting
up a separate Supreme Court, estimated as being between £6
million and £32 million. Other such estimates, as for the
Scottish Parliament, show how inaccurate they can be.
JUDICIAL APPOINTMENTS
COMMISSION
The present method of selection of Judges has
worked very well, over a long period of time, as evidenced by
the high quality of judgment in the courts. But there is a strong
public opinion that it is time for "transparency" in
the selection of Judges, and also a feeling that appointments
are not compatible with ethnic and gender sentiments. Our position
is that the only criterion for appontment should be merit, based
on service in the courts. However, we have no objection to the
system of selection envisaged by the Bill, although we are of
the opinion that the 15 Commissioners who will comprise the Judicial
Appointments Commission should be selected by a Parliamentary
Committee and not on a recommendation to The Queen by the Minister.
This will ensure that those who have a duty to select the best
people to serve as Judges are not those most favoured by the government
in power.
We express the wish that Your Lordships may
reach a conclusion on this Bill which reflects the power and rationality
of Your Lordships' debate on 8 March 2004.
April 2004
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