Memorandum by Liberal Democrat Lawyers
Association
SUMMARY
1. As Liberal Democrats and lawyers we believe
that the issues raised by the Constitutional Reform Bill (the
"Bill") are of fundamental importance for our society
and the democratic values we hold. Broadly, we welcome the Bill.
2. Our views in summary are as follow:
| Part 1
| Arrangements to Replace the Office of the Lord Chancellor
We support the abolition of the role of Lord Chancellor, but regret the transfer of powers to the Secretary of State for Constitutional Affairs, rather than to a Secretary of State for Justice, as head of a Department of Justice and having responsibility of the whole of the justice system. There should be a statutory responsibility imposed on the Secretary of State to protect the independence of the judiciary.
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| Part 2 | The Supreme Court
We support the creation of a new Supreme Court for the United Kingdom to replace the present judicial functions of the House of Lords. We make detailed recommendations for its composition and arrangements. It should be a prestigious court, well and independently funded.
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| Part 3 | Judicial Appointments and Discipline
We believe that the process of appointment and promotion of judges, both for the Supreme Court and the courts of England and Wales, should be carried out mainly by an independent Judicial Appointments Commission ("JAC"). Ministerial involvement in the process should be kept to a minimum and be restricted to appointments at High Court level and above. We make detailed recommendations as to composition and functions of the JAC. The JAC should be responsible for complaints against and discipline of the judiciary, though final responsibility for the removal of judges should remain with Parliament. The opportunity should be taken to introduce measures likely to increase diversity in the judiciary. We suggest allowing for appointments of part-time judges who are not currently in full-time practice and abolishing the family-unfriendly circuit system.
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Part 1—Arrangements to Replace the Office of Lord Chancellor
3. We broadly welcome the proposals to replace the office
of Lord Chancellor. The role is a historical anomaly, which, over
time, has become increasingly difficult to reconcile with the
doctrine of separation of powers. We believe the threefold role
of the Lord Chancellor is an affront to people's views of fairness.
It is notable that in the recent past Lord Chancellors have sometimes
sat in a judicial capacity in cases of political sensitivity.
It is also notable that the Lord Chancellor has held a very strong
political role within Cabinet in the recent past, even chairing
Cabinet committees. It is our view that the more prominent the
Lord Chancellor's judicial, legislative and executive roles are
and are perceived to be, the more their combination in one office
offends against constitutional propriety.
4. We agree that it is not sensible simply to abolish
the position of Lord Chancellor. However we have the impression
that the current proposals for the role of the Secretary of State
for Constitutional Affairs are the consequence of a territorial
contest between members of the Cabinet and their departments,
rather than a properly considered and measured response to an
issue of immense importance.
5. We believe that the executive role of the Lord Chancellor
would be more logically performed by a Secretary of State for
Justice at the head of a properly constituted Department of Justice,
responsible not only for the current ministerial functions of
the Lord Chancellor, but also for those parts of the criminal
justice system currently within the remit of the Home Office.
6. We believe that the Government's proposed reforms
will be incomplete until responsibility for the making of the
criminal law is transferred from the Home Office to the DCA. The
Home Office should remain responsible for police and prisons.
The present division of responsibility for the courts and the
law is a historic anomaly. The abolition of the office of Lord
Chancellor provides a unique opportunity to reconsider the division
of responsibilities between the Home Office and what is now the
DCA and to reconstitute it on a more logical basis. We regret
the lost opportunities which will result if the Bill is passed
as currently drafted.
7. It is illogical for the Scottish Office and the Wales
Office to be the Ministerial responsibility of the Secretary of
State for Transport and the Leader of the House of Commons respectively,
both under the umbrella of the DCA. The current arrangements make
it unclear which minister has overall authority in respect of
Scottish and Welsh matters. For example, will the Secretary of
State for Constitutional Affairs (currently a member of the House
of Lords) be able to overrule the Leader of the House of Commons
in the case of a disagreement between them about how a particular
matter of policy relating to Wales is to be managed?
8. We agree with the provisions of clause 1 that there
should be a statutory obligation on all ministers to respect and
protect the independence of the judiciary. However, we believe
that the Secretary of State for Constitutional Affairs should
have a particular and personal statutory duty to act as protector
of the constitution in general and the independence of the judiciary,
in particular in Cabinet. This function should be exercised impartially
and without regard to party political considerations. The Secretary
of State should be required to report to Parliament annually on
the discharge of this responsibility. He or she should be required
to give independent advice to the Government on constitutional
issues, on a basis similar to that on which the Attorney-General
gives legal advice, but his or her advice should be made public.
These duties should not be capable of being transferred to another
Minister by a Transfer of Functions Order.
9. We believe that the Speaker of the House of Lords
should be a member of the House of Lords and should be elected
by the other members.
Part 2—The Supreme Court
10. We believe the new Supreme Court should be accorded
the high status it deserves. The current House of Lords is rightly
respected throughout the world. The value we set upon our judiciary
should be reflected in the arrangements made for the new court.
These should include a built-for-purpose court building, with
good and substantial public access. They should also include a
separate budget, to be controlled by the Supreme Court staff,
with provisions for an annual financial report to the Secretary
of State for Constitutional Affairs.
11. We believe that these arrangements would strengthen
the standing of the highest court in England and Wales, and would
foster greater public understanding of the role of the Supreme
Court and its importance in relation to the exercise of executive
power. The role and standing of the US Supreme Court (though not
its overly political flavour) are worth emulating.
12. We agree with the provisions of clause 31 that devolution
cases currently heard by the Judicial Committee of the Privy Council
should be transferred to the Supreme Court. The reason for assigning
them originally to the Privy Council was that it was inappropriate
for them to be assigned to the House of Lords, which as one of
the Houses of the Westminster Parliament might be regarded as
an interested party on devolution issues. That reason would no
longer apply. The Privy Council should retain its functions as
the final court of appeal for the Crown Dependencies and British
Overseas Territories, and for Commonwealth countries which accept
it as a final court of appeal.
13. We believe that clause 17 is unsatisfactory. A Supreme
Court membership of 12 provides relatively little reserve capacity,
given the need to provide members frequently for two panels, or
for one panel and the Judicial Committee of the Privy Council,
while allowing for absences due to other commitments or illness.
The present system of allowing retired Lords of Appeal to sit
when needed to fill gaps until they reach the age of 75 has worked
satisfactorily but is not ideal. Given the role of the Supreme
Court, we can see some constitutional objections to anyone participating
in decisions of that Court who is not currently a member of it.
We would prefer to see an increase in membership of the Court
from 12 to 15, with an increase in the retirement age from 70
to 72, but no reserve panel (as currently provided for in clause
30). We also believe that members of the Supreme Court should
not be asked to do outside work, such as chairing inquiries, which
is likely to take them away from the Court for long periods of
time. If a reserve panel is established it should be limited by
statute to retired members of the Court under the age of 75 and
current or retired holders of the highest judicial offices below
the Supreme Court. In England these would be the Lord Chief Justice,
the Master of the Rolls, and the other heads of divisions, but
not other members of the Court of Appeal.
14. We agree with the proposed provision in clause 94
that newly appointed judges of the Supreme Court should not become
members of the House of Lords. Members of the Supreme Court who
are members of the House of Lords at the date of their appointment
(which will be the case with all or most of the first appointments
to the Supreme Court) should not vote or (except in special circumstances)
speak in the House of Lords for the duration of their service
in the Supreme Court, but we think this could be dealt with by
agreement rather than legislation.
15. We do not believe that all former judges of the Supreme
Court should have a right or expectation of appointment to the
House of Lords on retirement. There are a number of reasons for
this:
i. If—as Liberal Democrats and most members of
the House of Commons believe we should—we move to a second
chamber most of whose members are elected, the number of appointed
members will have to be reduced and inclusion of all former Supreme
Court judges would take up too many places.
ii. Active membership of the House of Lords would be
inconsistent with membership of a reserve panel of former judges
available to sit when needed as an additional judge of the Supreme
Court, if such a panel is retained.
iii. It is doubtful whether it is sensible to include
a category of appointees who would not, in practice, be eligible
for appointment until they reach the age of 70.
However, we believe that so long as an appointment system
exists there is a case for appointing the Lord Chief Justice,
and the heads of the judiciary in Scotland and Northern Ireland
as members of the second chamber so that they can express the
views of the judiciary in debate. There is also a good case for
appointing some retired members of the Supreme Court if they are
able and willing to make a particular contribution to the work
of the House.
16. We believe that the Supreme Court should normally
sit in panels of five. In cases of exceptional importance however
(such as those which are now heard by a panel of seven) the Court
should sit in banc as a single body containing all available members
of the Court. This would avoid the risk that the outcome might
be seen to be affected by the selection of the panel. When the
Court sits as a panel, selection of the panel should be by the
President of the Court, the Deputy President and another senior
member. Far too often at present the result of cases is perceived
to be and is influenced by the choice of judges, which is made
in a thoroughly opaque way.
17. We believe that it would be desirable for the Supreme
Court to be funded independently of the Department for Constitutional
Affairs ("DCA"). While we recognise that there is some
overlap between the services which will be provided for the courts
of England and Wales and of the Supreme Court, the constitutional
importance of the Supreme Court makes it highly desirable that
its funding should be negotiated directly with the Treasury. Otherwise,
there is a risk that the DCA would squeeze the funding of the
Supreme Court to make room for other kinds of expenditure within
its overall allocation.
Part 3—Judicial Appointments and Discipline
18. There is no provision in Part 3 setting out precisely
which appointments are to be the responsibility of the Judicial
Appointments Commission ("JAC") and which are to be
dealt with by different means.
19. We see no need to involve ministers in appointments
to the judiciary in England and Wales below the High Court level.
It is only judges of the High Court or above who can sit in judicial
review cases or whose decisions constitute precedents. The number
of appointments of circuit judges, let alone district judges or
tribunal members, is so great that ministers are unlikely to be
able to come to an informed opinion in particular cases. We believe
that the JAC exclusively should make all appointments up to and
including the level of circuit judge and recorder.
20. We would welcome a fully appointing JAC, with power
to make appointment at all levels in England and Wales, including
the High Court and the Court of Appeal. However, we recognise
that there are constitutional arguments that a Minister should
bear some degree of accountability for senior appointments to
the judiciary. If so, we believe that Ministerial involvement
in addition to being restricted to appointments to the High Court
and Court of Appeal, should be strictly circumscribed. We believe
that generally only a single name should be put forward by the
JAC to the responsible Minister, and that the latter should have
the power only to approve the recommendation or reject it. Furthermore,
we agree with the mechanism in clauses 57(5), 63(5) and 69(6)
that a Minister who rejects a recommendation or requires it to
be reconsidered should be required to give reasons to the JAC.
If the JAC does not accept those reasons it should have power,
with the consent of the nominee, to publish those reasons and
its grounds for rejecting them. Having two or more names put forward,
with power to choose between them would give a Minister power
to exclude a nominee without having to exercise an actual veto
or give reasons. A Minister offered a choice between (let us call
them) Cocklecarrot and Rumpole, and who did not want to appoint
Rumpole for political reasons, would find it easy to achieve this
by simply appointing Cocklecarrot. If the Minister was offered
Rumpole alone, the Minister would find it much more difficult
actually to reject Rumpole unless he or she had justifiable reasons
for doing so.
21. We believe that the same principle should apply to
the appointment of judges of the Supreme Court. It would in our
view be absurd to have JACs making recommendations for appointments
to the highest levels in England and Wales, Scotland and Northern
Ireland but to have no involvement by an Appointments Commission
at the most important and politically sensitive level of all—the
Supreme Court. For the same reason, we think that for appointments
to the Supreme Court any involvement by the Prime Minister should
be limited to accepting or rejecting a single name put forward
by an Appointments Commission, rather than the list of candidates
currently envisaged in clause 21(3). We also believe that, if
the single candidate is rejected, the Prime Minister should be
required to give reasons for the rejection. We recognise that
such an Appointments Commission would have to be separate from
the JAC for England and Wales. It should be composed of members
of the JAC and the equivalent bodies in Scotland and Northern
Ireland. Given the limited number of appointments to the Supreme
Court it could be somewhat smaller than the JAC.
22. We would be strongly opposed to an entirely centralised
system for the appointment of lay magistrates. We believe that
the local Advisory Committees should have the main responsibility
for nominating magistrates and should forward names to the JAC
for formal appointment. The JAC should monitor the work of the
Advisory Committees. The JAC should appoint the district judges
who sit in magistrates' courts. The JAC should appoint coroners
and members of tribunals.
23. We believe that the JAC is so important that it should
be subject to an external review procedure. This should be provided
by an individual or body playing an Ombudsman role, and should
not be combined with the office of Parliamentary Ombudsman. The
JAC should be required to lay an Annual Report before Parliament.
24. We agree that the JAC should be a Non-Departmental
Public Body, with power to recruit its own staff as provided for
in Schedule 10 paragraph 20.
25. We agree that the decision to vary the number of
judges in any category, and decisions as to their functions and
pay, must remain the responsibility of the Government, but the
JAC will acquire much expertise on these issues and must be consulted
on them. This requirement for consultation should be included
within the CRB.
26. We agree that appointment on merit is essential as
is stated in clause 51(3). However, increased diversity is also
important and we believe that it can be achieved without diluting
merit. The existing appointment system is heavily skewed in favour
of successful advocates, but good advocates do not necessarily
make good judges and some lawyers who are not outstanding advocates
or who practise mainly in fields other than advocacy, may make
excellent judges. In addition, the career of a full-time advocate
requires constant availability and is very family-unfriendly,
making it particularly difficult for women with children to reach
the top. Women and solicitors are both at a serious and unjustified
disadvantage under the present system.
27. We believe that a JAC including lay people will be
aware of these problems and will be able to increase diversity.
In this context, we believe that the JAC should investigate and
make appropriate recommendations regarding an alternative career
path, allowing lawyers at a relatively young age to take a full
or part-time judicial appointment at a lower level with a realistic
prospect of promotion if they do well. At present, part-time appointments
as judges are normally for only a few weeks a year and are combined
with practice. It should be possible for lawyers with family responsibilities
to take appointments on a regular part-time basis without remaining
in practice. This emphasises however, the importance of ensuring
that any Ministerial role in promotions is minimised so that judges
do not feel that they will lose out on promotion if they reach
decisions which are unpopular with the Government of the day.
28. One other step which would be likely to increase
diversity at the higher levels would be the abolition of the circuit
system for High Court judges. This requires judges of the High
Court (other than the Chancery Division) to divide the judicial
year between sitting in London and sitting in different cities
outside London. This is likely to deter many potential candidates
with relatively young families—men as well as women. Consideration
should be given to abolishing the circuit system and instead establishing
a permanent branch of the High Court in Wales and in each of the
English regions (except the South East, which would be combined
with London for this purpose). This would tie in well with the
development of the English regions as administrative and, in future,
political units. Some trials of specialist cases would probably
have to be heard in a restricted number of regions or in London
alone.
29. We believe that the JAC, and not the Lord Chief Justice
as provided for by clauses 83-87, is the appropriate body for
dealing with complaints and discipline. Independence of the judiciary
requires that departmental ministers should be excluded from the
process. Removal from the High Court, the Court of Appeal or the
Supreme Court should continue to require a resolution of each
House of Parliament but such resolutions should only be moved
following a recommendation from the JAC or the equivalent body
for the Supreme Court. Even complaints which, if proved, will
only require a reprimand or warning should be handled by the JAC
rather than the senior judiciary, both because the JAC will be
better placed to carry out any necessary investigations and because
of the impact that complaints may have on the prospect of a judge's
promotion. We see no justification for giving this role to the
Ombudsman rather than the JAC.
30. We believe that the balance of lay people and professional
lawyers as provided for in Schedule 10 paragraph 2 could be improved.
The present proposals envisage too many current judges or tribunal
chairs. There should be an equal number of judges and lawyers,
four each, and seven lay members. It is justifiable in our view
to retain a small professional majority on the JAC, but we agree
with Schedule 10 paragraph 4(2) that the Chair should be a lay
member. While 15 members makes the JAC rather large, we recognise
that the large number of appointments to be made is going to require
the JAC to delegate many of its functions to small panels or individual
members. A sizeable JAC is therefore appropriate.
31. We agree that the judicial members of the JAC should
be recommended for appointment by the Judges' Council. We believe
that neither the Bar Council and the Law Society nor relevant
bodies outside the profession should have a statutory right to
nominate members of the JAC, though they should of course be consulted.
Persons nominated in this way can often be appointed on the basis
of their ability and willingness to present the arguments of their
nominating body rather then the ability to act dispassionately.
32. We agree that the there should be a separate appointments
body, chaired by an independent person, to recommend the appointment
of members of the JAC. The First Civil Service Commissioner would
be an obvious possibility for chair of this body.
23 April 2004
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