Memorandum by Professor J A Jolowicz QC
1. THE LEGISLATION
1.1 This is one of the most impenetrable
pieces of legislation I have had occasion to try to work through.
So much is achieved by way of Schedules containing amendments
to innumerable legislative provisions that on many topics nothing
can be understood save by working through the Schedules against
each and every legislative provision affected. There is also a
great deal of referencing to and fro. For example the definition
of "judicial member" (Schedule 10, para 8(1)) refers
back to para 3(1), which uses the term "qualifying office"
which is in turn defined in para 8(1), which refers back to para
6(2). So much for "transparency."
1.2 I have not attempted to work through
it all. Even so, however, I have noticed what I believe to be
some simple errors. For example, paragraph 124 of Schedule 1 amends
Section 2 of the Supreme Court Act 1981, but apparently leaves
untouched the provision that "(a) the Lord Chancellor and
(b) any person who has been Lord Chancellor" are ex officio
judges of the Court of Appeal. Similarly paragraph 126 of the
same Schedule amends section 4 of the same Act, but apparently
leaves untouched the provision that the High Court consists of
"(a) the Lord Chancellor . . ."
2. ABOLITION OF
THE OFFICE
OF LORD
CHANCELLOR
2.1 It is understandable and, in my view
right, that much of the work done by the old Lord Chancellor's
Department as a major spending Department should be transferred
to a new Department under an "ordinary" Minister. This,
however, could be done without abolition of the office of Lord
Chancellor with its triple role as Head of the Judiciary, Cabinet
member and Speaker of the House of Lords. I share the widespread
belief that the Lord Chancellor's supposedly—but not historically—anomalous
position is of great value to the administration of justice and
to preservation of the independence of the judiciary. I also believe
that it has endowed our Constitution with an office, each holder
of which in modern times has maintained an impeccable and unchallenged
record of adherence to the distinction between those of his functions
in which his actions may properly be influenced by his political
affiliation and membership of the Government, and those, such
as judicial appointments, in which they may not.
2.2 It is, in my opinion, seriously misguided
deliberately to destroy an office whose traditions have succeeded
in creating for its holders a remarkable and deserved reputation
for trustworthiness. Retention of the office of Lord Chancellor—shorn
of the responsibilities of a major spending Department that could
properly be transferred to a Ministry of Justice—is, in
my view, desirable in its own right. It would also, amongst other
things render unnecessary the whole of Clause 1 of the Bill. That
clause creates what is a fine example of lex imperfecta. Or is
it envisaged that Clause 1 should open the door to an application
for judicial review? That conjures up a vision to delight the
enthusiastic lawyer, but may not be entirely sensible.
2.3 In the remainder of this paper, it will
be assumed that there will be no reprieve for the Lord Chancellor
and that Clause 1, amended perhaps, will become law, with such
legal significance as it may be found to have.
3. APPORTIONMENT
OF FUNCTIONS
BETWEEN LORD
CHIEF JUSTICE
AND SECRETARY
OF STATE
FOR CONSTITUTIONAL
AFFAIRS
3.1 The subject of this paragraph is much
affected by the form of drafting adverted to in paragraph 1. Nevertheless
it is not difficult to see that there are many instances of transfer
of a power to the Lord Chief Justice, which he may only exercise
after consultation with the Minister. These instances do not appear
wholly consistent with maintenance of judicial independence. I
note, for example, that such consultation is required under the
amended Section 6 of the Supreme Court Act 1981. This deals with
nomination by the Lord Chief Justice (formerly the Lord Chancellor)
of High Court judges to be judges of the Patents, Commercial and
Admiralty Courts. This is a matter only of the assignment of persons
who are already judges to particular elements of the High Court.
Why should consultation with the Secretary of State be required
for that? I can find no similar requirement in relation to nomination
by the Lord Chief Justice of judges to be judges of the Administrative
Court.
4. JUDICIAL SELECTION
4.1 The composition and selection of members
of the Judicial Appointments Commission seem to me unnecessarily
complex, and the emphasis on ensuring the absolute "laity"
of the "first qualifying member" of the advisory panel
(Schedule 10, para 5(2) is grotesque. See Schedule 10, para 5(4).
My main concern, however, relates to the extent of the Minister's
power over actual appointments.
4.2 I do not challenge the need for some
ministerial involvement in the appointment of judges in order
to retain answerability to Parliament and to comply with the Convention
that the Queen acts only on the advice of her Ministers. However,
in my opinion, the Bill gives much more power to the Minister
than is necessary or desirable. An extraordinary but, ultimately,
a trivial example may be found in clause 22(1) of the Bill. This
states, in relation to appointments to the Supreme Court that
the Prime Minister must recommend to Her Majesty the appointment
of the candidate whose name has been notified to him by the Minister.
4.3 In my view, sufficient ministerial involvement
to attract parliamentary answerability would be obtained by the
Minister's proposed role in appointments to the Judicial Appointments
Commission (and the Commission for the Supreme Court) and by retaining
the proposed power to reject the Commission's selection or to
require the Commission to reconsider the selection (clause 69
(1), (b),(c)).
4.4 At this stage, I wish to emphasise a
more general point that I believe to be of great importance to
the genuine and perceived independence of the judiciary. Clearly
much attention must be paid to the constitution of the Appointments
Commissions and their membership. For that a ministerial input
is probably inevitable. But once in position the Commissions should
be trusted. The newly created Secretary of State for Constitutional
Affairs cannot, unfortunately, be regarded as the Lord Chancellor
under another name, and his powers in relation to actual appointments,
if any, should be minimal. I do not agree, for example, that the
list prepared by the Supreme Court Commission must contain more
than one name (clause 21(3)(a)); I do not agree that the Minister
should have power to prescribe criteria (clause 21(2)(a) with
clause 21 (7)—definition of "prescribed"—or
to specify considerations to be taken into account in assessing
merit, even if after consultation with the Lord Chief Justice
(clause 51(4)); still less do I agree that he should have the
right to issue guidance to the Commission (clause 52). Equally
inappropriate is the obligation imposed on a selection panel to
supply information to the Minister, both in and after submission
of its report (eg, clauses 62(2)(b), (4) and 68(2)(f), (4). As
a less satisfactory alternative, if the Minister is to have power
to prescribe considerations to be taken into account by the Commission,
to issue guidance to the Commission or to demand information from
the Commission, the considerations, guidance, or information required
should be made public.
4.5 The Commission for the Supreme Court
raises a number of additional points.
4.5.1 The Commission is required to consult
the senior judges: clause 21(2)(b). I see no reason why the Minister
should be required or even allowed to do the same: clause 21(4)(a).
4.5.2 The Commission must contain a member
from each of the Judicial Appointments Board for Scotland and
the Northern Ireland Appointments Commission, to be appointed
by the Minister: clause 20(2)(c). These two members should be
appointed not by the Minister, but by the First Minister in Scotland
and the First Minister and deputy First Minister in Northern Ireland
(compare clause 21(4)(b), (d)).
4.5.3 Wales creates a difficulty, having
no First Minister. I believe this could be overcome by the addition
to the Commission of a member of the Judicial Appointments Commission
who appears to the Minister (or, better, to the presiding officer
of the Welsh Assembly) to have special knowledge of Wales (compare
Schedule 10, para. 6(1). Adoption of these last two suggestions
would remove the need for the ministerial consultation mentioned
in clause 21(4)(b), (c), (d).
5. THE SUPREME
COURT
5.1 In a case in 1305 Hengham CJ said to
counsel, "Ne glosez point le statut; nous le savons meinz
de vous, quar nous le feimes" (cited Holdsworth, HEL
II, 308 n 5). There would be a strong argument for removing the
final court of appeal from the ambience of Parliament if such
an observation from a member of the Appellate Committee were conceivable
today. It is not. More than 100 years ago, Lord Chancellor Halsbury
explicitly refrained from writing a judgment on the sole ground
that he had been concerned with the drafting of the legislation
the interpretation of which was before the House (Hilder v
Dexter [1902] AC 474, 477-478)
5.2 The case for a Supreme Court is largely
cosmetic, being based on a supposed need to separate the judges
of the final court of appeal from the legislature on the ground
that not everybody understands the reality of the present position.
The one practical advantage that would accrue from creation of
the Supreme Court would be the combination within one court of
the jurisdiction of the Appellate Committee and that of the Judicial
Committee of the Privy Council in devolution cases. It is also
argued that creation of a Supreme Court, "suitably accommodated"
would help to solve the problem of accommodation in the Palace
of Westminster (Supreme Court Consultation paper, para 4). Even
if true, this is an unworthy argument for so major and costly
a constitutional change. In any case, I understand that so far
no suitable accommodation has been able to be identified.
5.3 It is said, and I can well understand
that it should be so, that the Law Lords' membership of the House
of Lords is of considerable benefit to the working both of the
House itself and of the Appellate Committee. It is also said that
the existing arrangements for devolution cases is working well
(Consultation paper para 19). It seems to me, therefore, that
the case for replacing the Appellate Committee with a Supreme
Court for the United Kingdom is not made out.
19 April 2004
|
