Memorandum by Clifford Chance LLP
1. This submission is made to the House
of Lords Select Committee on the Constitutional Reform Bill on
behalf of Clifford Chance LLP, the largest integrated law firm
in the world. Clifford Chance has some 8,000 staff around the
world in 32 offices based in 19 countries, of which around one
half are legal advisers, and some 640 partners. London is the
firm's largest office.
2. The provisions of the Constitutional
Reform Bill have major implications for the legal sector in the
UK. Overall, Clifford Chance welcomes the intention of the Government
to reform the legal system along the lines proposed. Our main
concern is that local courts should maintain their justified national
and international reputation for integrity, impartiality, efficiency
and excellence. The Committee will be aware that many companies
and individuals around the world choose to give courts here jurisdiction
over the determination of commercial disputes because of the high
standing of our senior judges and our legal profession. That in
turn brings legal business on a major scale to the United Kingdom
in general and London in particular. It is important in our view
that reforms to the system do nothing which may harm this reputation.
PART 1: ARRANGEMENTS
TO REPLACE
OFFICE OF
LORD CHANCELLOR
3. The Constitutional Reform Bill would
abolish the office of Lord Chancellor and re-distribute the functions
of that office. We support this decision because it will help
to clarify the separate constitutional roles of the executive,
judiciary and legislature. The re-assignment of the numerous powers
and functions of the Lord Chancellor therefore needs careful consideration
in order to ensure that none of the judges' previous protections
are lost and that the new partnership between government and the
judiciary is established on the correct footing.
4. We believe that the overriding aim must
be to safeguard the independence of the judiciary, whilst maintaining
proper accountability to Parliament for the stewardship of significant
resources. We therefore welcome clause 1 of the Bill, which places
a statutory duty on all Ministers and "all with responsibility
for matters relating to the judiciary or otherwise to the administration
of justice" to "uphold the continued independence of
the judiciary".
PART 2: THE
SUPREME COURT
5. We support the intention of Part 2 of
the Bill to set up a Supreme Court of the United Kingdom, which
would take over the existing appellate jurisdiction of the House
of Lords, together with the devolution jurisdiction of the Judicial
Committee of the Privy Council. We also welcome the widely worded
power granted in subsection 31(5) for the Court "to determine
any question necessary to be determined for the purposes of doing
justice in an appeal to it under this Act or any other enactment".
6. We accept the process of selection and
appointment of a candidate to a vacancy among the judges of the
Supreme Court, as set out in clauses 20 to 22 of the Bill. It
is essential, in order to maintain the independence of the judiciary,
that this process be as far removed from political pressures as
practicable. We consider that the proposed arrangements are sufficiently
removed.
7. Ideally, we would prefer the new court
to sit in banc, as is the practice of the United States
Supreme Court, and we hope it will do so whenever the case justifies
it. We accept, however, that the new UK Supreme Court will probably
continue to sit in panels for the most part, but we would prefer
to see larger panels than the customary five, wherever possible.
8. We believe that the new Court should
have full power to determine its own case-load, except in devolution
cases. There should be no exceptions to this rule, which should
apply equally to (for example) Scottish civil appeals as to appeals
from all parts of the United Kingdom. Differential access to justice
at the highest level is, in our opinion, unacceptable. The circumstances
in which leave to appeal is granted should, we believe, be left
to the judicial policy of the Court itself, and not fettered by
Parliament.
9. The accommodation of the new Supreme
Court is a matter of some importance. The size and quality of
the Court's building, and its equipment and facilities, not just
for the judges and their staff, but also for litigants, practitioners
and spectators, should meet reasonable needs. Particular attention
should be paid to facilitating the electronic filing of court
documents and to establishing an easily accessible record system.
PART 3: JUDICIAL
APPOINTMENTS AND
DISCIPLINE
10. We agree with the Government's decision
to establish a Judicial Appointments Commission on the basis that
such arrangements are more open and transparent than the current
system, and that they will more clearly separate at least part
of the process from the Executive. Our central concern is that,
whatever procedures the new Commission employs, the judges appointed
should be of at least the same professional calibre as those appointed
under the current system. We therefore welcome the explicit provision
in the Bill that "selection must be on merit". We are
concerned, however, that it is left to the Minister (after consulting
the Lord Chief Justice) to specify considerations that are to
be taken into account when assessing merit and that the Commission
and any selection panel must have regard to any guidance issued
by the Minister. This places too much power in the Executive in
the appointment process.
11. In the commercial area with which we
are most concerned, it is clear that clients, many of them from
abroad, are rightly anxious that the judges hearing their cases
should be drawn from the ablest lawyers in the relevant field.
In our view, the public interest in this outweighs all others
in play.
12. Subject always to this fundamental principle,
we would support the adoption of criteria which could lead to
a much wider professional diversity among those considered suitable
for appointment. The great majority of British judges at High
Court level and above have in practice been selected on the basis
that they have had long and successful careers as senior advocates.
However, we do not accept that prowess in oral advocacy, or even
specialised experience of litigation, is the only, or even always
the best, qualification for judicial appointment. Many senior
lawyers with long-standing expertise in commercial and corporate
matters have as much to offer as potential judges than lawyers
whose experience is restricted to advocacy or litigation. Widening
the pool to include lawyers of this kind would greatly increase
the field of potential candidates, and so tend to drive up quality
over time, to the benefit of the public interest.
13. To bring about such a widening of the
pool, it would in practice be necessary to make the system of
part-time judicial sitting more user-friendly to solicitors. The
present requirements have constituted a real obstacle for able
and well-qualified solicitors, certainly in the City of London,
where partnership structures can create difficulty in reconciling
individual aspirations with responsibilities to colleagues. That
problem has been under discussion for a number of years, without
significant change, but we consider that serious movement on it
is an essential condition of widening the pool of candidates for
judicial office in the way that we support. The establishment
of the new Appointments Commission will be a propitious moment
for this necessary reform.
14. We agree that the Commission should
have about 15 members, but we are concerned about the representation
of the legal profession on the Commission. The consultation paper,
"Constitutional Reform: A New Way of Appointing Judges",
published in July 2003, said that "the Government's preferred
option would be for the judges, legally qualified members and
lay members to be equally represented". Schedule 10, Part
1 proposes however, that only two out of the fifteen members be
professional members, one of whom should be a practising barrister
and one of whom should be a practising solicitor. This leaves
the legal profession seriously under-represented. There are over
76,000 practising solicitors in England and Wales, each of whom
is an officer of the Court and owes a duty to the Court. It is
not appropriate that they should be represented by one member
on the Commission.
15. We agree that disciplinary powers should
be exercised, in the main, by the Lord Chief Justice, as the new
head of the judiciary. We query, however, whether it should be
necessary for the Lord Chief Justice to obtain the agreement of
the Minister in order to give advice to a judicial office holder
for disciplinary purposes (clause 83(3)(b)), or even a warning
or a reprimand (clause 83(3)(c) and (d)). We agree that, both
in the investigation and sanctioning of judges in more serious
cases, there should be outside involvement in order to protect
the judiciary from any charge of looking after their own.
PART 4: OTHER
PROVISIONS RELATING
TO THE
JUDICIARY
16. We endorse the Government's policy of
disqualifying judges of the Supreme Court from membership of the
House of Commons, and from sitting or voting in the House of Lords,
and we welcome the extension of the disqualification preventing
other judges, listed in Schedule 1 to the House of Commons Disqualification
Act 1975, from sitting and voting rights in the House of Lords.
Nor should there be any presumption that retired members of the
Supreme Court be appointed to the House of Lords, though we see
no objection to occasional appointments of this kind, provided
they are genuinely exceptional.
23 April 2004
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