Memorandum by The Odysseus Trust
1. The Odysseus Trust[84]
is a non-profit company limited by guarantee, which seeks to promote
good governance and the effective protection of human rights.
Lord Lester of Herne Hill QC directs the Trust[85],
together with his Parliamentary Legal Officers, Lydia Clapinska
and Alison Hayes. This paper has been prepared in response to
the call for evidence by the Select Committee on the Constitutional
Reform Bill ("the Bill"). We support the broad thrust
of the proposals contained within the Bill and we take account
of the welcome concessions made by the Government in their response
to the report of the Constitutional Affairs Committee[86].
ARRANGEMENTS TO
REPLACE OFFICE
OF LORD
CHANCELLOR
Minister of Justice
2. We strongly favour the creation of a powerful
Minister of Justice, with the legal stature and qualifications
of a traditional Lord Chancellor, and a specific duty to uphold
the rule of law and the independence and integrity of the judicial
system. It is imperative that clause 1 of the Bill imposes this
important personal duty on the Secretary of State for Constitutional
Affairs, if that is to remain his Departmental responsibility.
THE APPOINTMENT
OF JUDGES
Judicial Appointments Commission for England and
Wales
3. In relation to the appointment of judges,
the Concordat[87]
formed between the Lord Chancellor and the Lord Chief Justice
has not yet been fully translated into the Bill. In particular,
the panel to appoint members of the Judicial Appointments Commission
for England and Wales should be an appointing panel and not an
advisory panel to be consulted by the Minister, (see paragraphs
136 and 138 of the Concordat compared with paragraph 5 of Schedule
10 of the Bill). We welcome the concession made by the Lord Chancellor
and Secretary of State for Constitutional Affairs, Lord Falconer
of Thoroton QC, at the Second Reading of the Bill that the panel
for appointing members of the Commission will be chaired by the
Commissioner for Public Appointments, Dame Rennie Fritchie[88].
The Bill should be amended to reflect the intended nature of the
panel and its chairmanship.
Appointment on merit
4. Appointment based on merit is of fundamental
importance. Equally it is essential to avoid any appearance of
a self-appointed judicial oligarchy. The executive should have
no substantive role in the selection of individuals to be judges
or in their promotion or appointment to certain offices. It should
be for the Judicial Appointments Commission and not the Minister,
to specify the considerations that are to be taken into account
in assessing merit. We welcome the fact that this point was accepted
by Lord Falconer during the Second Reading of the Bill[89]
and that it has now been confirmed by the Government in their
Response to the Constitutional Affairs Committee[90].
5. Appointment on merit for all appointments
is essential. Promoting diversity is equally important and the
two should not be seen as mutually exclusive. We recognise that
membership of the Supreme Court will mainly comprise senior jurists
who have exercised judicial responsibilities. Appointment to the
Supreme Court should be confined to those who have practised law,
but we would hope that the criteria will be sufficiently flexible
to include not only advocates, but solicitors and legal scholars[91].
Just as not every Appeal Court judge is an expert in every field
of law and yet decides cases beyond his or her expertise so a
former solicitor, law professor or member of the Government Legal
Service may make wise and informed judgments without having had
trial experience. Opening up the qualification for membership
would help to ensure greater diversity in the Supreme Court whilst
maintaining the very high standard of its work.
Appointments to the Supreme Court for the United
Kingdom
6. The process of appointment to the Supreme
Court for the United Kingdom should correspond to the process
for the appointment of senior judges in England and Wales. Contrary
to the current proposal in clause 21 of the Bill, only one name,
rather than two to five names, should be submitted by the Commission
set up by clause 20. Furthermore, the name of that candidate should
be submitted, not to the Minister, unless we have a Minister of
Justice, but to the Prime Minster. There should be a requirement
to give reasons to the Commission, (but not to Parliament or the
general public), for rejection if the Prime Minister did not find
that candidate acceptable. These important changes to the Bill
are necessary to reduce the scope for political interference.
The Government's Response to the Constitutional Affairs Committee
proposes that the Judicial Appointments Commission will recommend
to the Secretary of State only one name[92].
However, it is not clear whether the Government accepts this principle
in relation to the Supreme Court.
7. When selecting candidates for the Supreme
Court, the Commission needs to be broad-based and to include members
of the Scottish and Northern Ireland Commission. The provision
in clause 21(4) for further consultation by the Minister with
politicians in Scotland, Northern Ireland and Wales, and for secret
soundings by the Minister with senior judges, is objectionable
because of the risk of political influence and arbitrary interference.
Sir Colin Campbell has rightly drawn attention to the defects
in the present secret system of secret soundings. The Bill must
depart from these systems. The Secretary of State for Constitutional
Affairs and Lord Chancellor stated himself in the foreword to
the consultation paper[93]
that, "the appointments system must be, and must be seen
to be, independent of Government. It must be transparent. It must
be accountable. And it must inspire public confidence". That
is why we believe that the system of secret soundings should not
be used, whether for the Supreme Court or for appointments in
England and Wales.
THE SUPREME
COURT
Membership of the Supreme Court
8. The membership of the Supreme Court should
consist of 12 permanent, full time judges. We do not agree with
ad hoc appointments. We are concerned that the supplementary panel
proposed in clause 30 is contrary to the important constitutional
role of the Supreme Court. Judges of the Supreme Court should
be concerned exclusively with the work of that court. They should
not, other than in exceptional cases, conduct public inquiries
or sit, vote or otherwise take part in the work of the House of
Lords. They should control their caseload so that the Supreme
Court does not become overloaded.
The Operation of the Supreme Court
9. The advantage of the current system of sitting
in panels is that it enables the Law Lords to cover a greater
number of cases. However, we recommend that membership should
be determined by lottery, with the President of the Court, assisted
by the Registrar, having a residual discretion. The Court should
continue normally to sit in panels. However, in cases of constitutional
importance the Court, at its own instigation or on the application
of the parties, should sit en banc, or at least in an enlarged
court of nine Justices chosen (apart from the President) by lottery.
This will promote consistency and legal certainty.
Deferment of Part 2 of the Bill
10. The Supreme Court of the United Kingdom must
have adequate resources not only to promote efficiency and quality
in the judicial process but also for lawyers and the general public.
It should be well endowed as a first class Supreme Court, at least
on a par with the Final Courts of other Commonwealth countries.
We would therefore support deferring the commencement of Part
2 of the Bill until suitable accommodation and resources have
become available.
Resources
11. With regard to clause 38, we believe that
the Supreme Court should have responsibility for the administration
of its own resources and for negotiating this with the Treasury.
In Australia, a one-line budget is agreed annually between the
High Court's Chief Executive Officer and the Attorney-General.
In the Law Lords' Response to the Government's Consultation paper
on a Supreme Court, the Law Lords argued that a similar arrangement
to the Australian model would be appropriate here. We agree. The
Supreme Court of the United Kingdom as a whole should not be administered
by the Court Service for England and Wales but should have responsibility
for the administration of its own resources. Its running costs
should not be recouped by imposing a surcharge on court fees,
but should come from general taxation. The Supreme Court should
control its own administrative arrangements and be given an adequate
budget to do so.
Accommodation
12. The Government should be under no doubt as
to the size of the undertaking. A suitably prestigious building
with adequate facilities must be located and prepared before the
Law Lords can begin to contemplate moving from their existing
accommodation. The following facilities are a minimum requirement
and whilst they are perhaps obvious, many of them are lacking
from the existing arrangements:
—A properly equipped law library (paper
and electronic) with a qualified law librarian.
—A registrar and other lawyers to work
in the Court office to prioritise and list cases with administrative
staff to support them.
—Other legal support staff such as clerks
for each judge.
—Adequate administrative support for each
judge.
—Interview rooms for legal representatives
and their clients.
—Adequate facilities for counsel and solicitors
to conduct their cases eg photocopiers, access to law reports.
—Refreshment facilities for the litigants
and interested parties as well as separate facilities for Counsel
and the judiciary.
—Adequate accommodation for law reporters
and judicial assistants.
—Facilities for people with special needs
such as hearing amplification.
Adequate facilities are essential not only to promote
efficiency and quality in the judicial process but also to provide
proper facilities for the legal representatives of parties and
the general public.
26 April 2004
84 For more information about the work of the Trust,
please visit www.odysseustrust.org Back
85
Lord Lester is a Liberal Democrat Peer. He is a member of the
Joint Committee on Human Rights. He is also a Council Member of
JUSTICE and President of the Liberal Democrat Lawyers Association. Back
86
"Judicial Appointments and a Supreme Court (court of final
appeal): The Government's response to the report of the Constitutional
Affairs Committee" published by the Department for Constitutional
Affairs in April 2004. Back
87
References to the concordat are references to the document entitled,
"The Lord Chancellor's judiciary-related functions: Proposals"
published by the Department for Constitutional Affairs in January
2004. Back
88
House of Lords Official Report (Hansard) 8 March 2004 col
983. Back
89
Ibid, col 984. Back
90
See paragraph 44 of "Judicial Appointments and a Supreme
Court (court of final appeal): The Government's response to the
report of the Constitutional Affairs Committee" published
by the Department for Constitutional Affairs in April 2004. Back
91
For example Justice Bertha Wilson, former member of the Supreme
Court of Canada was a solicitor and law teacher. Sir Kenneth Keith
of the New Zealand Court of Appeal is a former Law Professor and
Chair of the New Zealand Law Reform Commission. Similarly Justice
Frankfurter was a distinguished member of the US Supreme Court
whose previous experience was as a Law Professor. Judge Louis
H Pollak is a renowned Federal Judge of the US District Court
(3rd Circuit), having previously been Dean of Yale Law School
and the University of Pennsylvania Law School. Back
92
See paragraph 34 of the Government's Response. Back
93
"Constitutional reform: a new way of appointing judges"
published by the Department for Constitutional Affairs in July
2003. Back
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