Memorandum by the Council on Tribunals
1. This memorandum by the Council on Tribunals
is submitted in response to the Select Committee's call for evidence
dated 25 March 2004.
2. The Council was set up by the Tribunals
and Inquiries Act 1958 and now operates under the Tribunals and
Inquiries Act 1992. The Council's main statutory function is to
keep under review the constitution and working of the 80 or so
tribunal systems under its supervision and, from time to time,
to report on them. The Council must make an Annual Report to the
Lord Chancellor and the Scottish Ministers, which is laid before
Parliament and the Scottish Parliament. The Council must be consulted
before procedural rules are made for any tribunal under its supervision.
3. The Council's interest in the Constitutional
Reform Bill is mainly in Part 1 (Arrangements to replace office
of Lord Chancellor) and Part 3 (Judicial appointments and discipline).
The Council responded to the July 2003 consultation paper on "Constitutional
reform: a new way of appointing judges" (CP10/03).
ARRANGEMENTS TO
REPLACE OFFICE
OF LORD
CHANCELLOR
4. In commenting on CP10/03 the Council
said that it considered it vital that the Lord Chancellor's role
in preserving judicial independence should continue. The Council
thought that this should become the responsibility of the Secretary
of State for Constitutional Affairs. The Council therefore welcomes
clause 1 and the particular obligations that it imposes on the
Secretary of State for Constitutional Affairs ("the Minister").
5. The Lord Chancellor has a wide range
of statutory functions relating to tribunals. For the most part
these are to be transferred by the Bill to the Minister. Given
the special position of the Minister under clause 1, the Council
believes this to be appropriate. In particular, pending any new
arrangements that may emerge from the Government's decision to
set up a Tribunals Service under the Department for Constitutional
Affairs, the Council thinks it right that the Minister should
take over the Lord Chancellor's responsibilities for making procedural
rules for tribunals (and for statutory inquiries under section
9 of the Tribunals and Inquiries Act 1992) after consultation
with the Council.
6. Similarly, the Council considers it appropriate
that the Lord Chancellor's powers to make appointments to tribunals
should be transferred to the Minister. By virtue of Part 3 of
the Bill (see below) these will be made on the basis of selection
by the Judicial Appointments Commission. So far as the Lord Chancellor's
powers to remove members of tribunals are concerned, the Council
welcomes the fact that under the Bill the Minister will only be
able to exercise these powers with the agreement of the Lord Chief
Justice (or a judicial officer nominated by him). This is an important
safeguard of judicial independence and puts on a statutory basis
arrangements that have now pertained for some years.
JUDICIAL APPOINTMENTS
AND DISCIPLINE
7. As mentioned above, the Council responded
to the consultation on a new way of appointing judges (CP10/03).
The Council supported the proposal to create a Judicial Appointments
Commission and expressed the view that, in the interests of tribunals'
independence, those appointments that are at present made by the
Lord Chancellor or other Ministers should be the Commission's
responsibility. In the event, the Bill provides for the Lord Chancellor's
appointments to tribunals to be made by the Minister on the basis
of selection by the Commission. The Minister's powers to reject
a selection or require reconsideration of it are circumscribed
in the same way as they are for other judicial office holders.
The Council is content with these arrangements so far as they
go but hopes that further consideration will be given in due course
to the Commission's remit being extended to tribunal appointments
at present made otherwise than by the Lord Chancellor.
8. In responding to CP10/03 the Council
expressed the view that an essentially England and Wales Commission
should not be responsible for appointments to tribunals in Scotland.
Currently, appointments to Scotland-only tribunals are made north
of the Border. However, judicial appointments to cross-border
tribunals, that is, those that sit in Scotland as well as England
and Wales, are generally made by the Lord Chancellor, usually
in consultation with Ministers in Scotland. The Council adheres
to the view that tribunal appointments in Scotland should not
be a matter for the Judicial Appointments Commission.
9. The Council notes with approval that
the 15 Commissioners must include a tribunal member. In responding
to CP10/03, the Council commented that in respect of tribunal
appointments the Commission would need to have access to a wide
range of expertise, for example, in relation to the appointment
of doctors, valuers etc. The Council trusts that regard will be
had to this in making appointments to the Commission and in providing
it with assistance in connection with specialist tribunal appointments.
The Council also made observations about the importance of judicial
career development and the encouragement of diversity in appointments,
and suggested ways in which the Commission might assume a role
here. The Council expects these matters to be taken into account
in setting up the Commission.
10. Under section 5 of the Tribunals and
Inquiries Act 1992 the Council is empowered to make general recommendations
to Ministers as to the making of appointments to tribunals under
its supervision. The Council hopes that it will be similarly empowered
to make such recommendations to the Commission.
11. As regards judicial discipline, the
Council notes the new provisions for the Lord Chief Justice, in
cases falling short of dismissal, to advise, warn or reprimand
judicial office holders, and to suspend them from sitting in certain
circumstances, in accordance with prescribed procedures. In commenting
on CP10/03, the Council endorsed the importance of there being
a significant lay element in the consideration of complaints about
tribunal members. This is important for public confidence. The
Council suggests that such an element should be reflected in the
regulation-making powers in the Bill.
12. However, the Council shares reservations
that have been expressed by the British and Irish Ombudsman Association
about the establishment of an independent Judicial Appointments
and Conduct Ombudsman. In the Council's view, complaints about
appointment procedures and complaints relating to conduct do not
sit happily together. The Office of the Commissioner for Public
Appointments seems an appropriate body to consider complaints
about the judicial appointments process. The very limited remit
proposed for the new Ombudsman in matters relating to judicial
conduct hardly seems to amount to a true ombudsman role.
22 April 2004
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