Memorandum by Sir Konrad Schiemann, Judge
at the Court of Justice of the European Communities
ICLAUSES 19, 29,
30 AND 48
1. There seems to me to be a case for allowing
former members of the European Court of Justice, the Court of
First Instance and of the European Court of Human Rights (Former
European Judges) to be eligible to sit as members of the Supreme
Court either as full members or as acting judges. There are a
number of cases where their expertise gained as judges or advocates
general might, I should have thought, be of significant help.
As the Bill stands there is no mention of Former European Judges
as such.
2. Clause 19 is so drafted as to allow some Former
European Judges to be eligible for appointment but not all of
them. It might be thought that to rule out in principle someone
who has been appointed to one of the European Courts after rather
less than 15 years as a qualifying practitioner but has served
in Europe for a further 12 or more years has little advantage.
If such a person is thought personally to be not the best candidate
he will not be appointed.
3. More important are clauses 29 and 30. The
way into appointment as an acting judge appears barred to:
—someone who has never held High Judicial
Office as defined in clause 48;
—someone who has held High Judicial Office
but whose membership of the supplementary panel has not been approved
by the President of the Supreme Court whilst he holds such office.
4. Thus it seems that there will be Former European
Judges who are eligible to sit as full members of the Supreme
Court but are not eligible to be acting judges of that Court.
The policy reasons behind this difference of approach, if they
exist, are not clear to me.
5. My present view is that there is something
to be said for widening the definition of High Judicial Office
so as to include at least former Advocates General and Judges
of the ECJ and arguably former judges of the CFI or the ECHR.
6. Perhaps it is appropriate to add on a personal
level that at the time of my nomination to act as a Judge of the
ECJ it was made clear to me that it was envisaged that I stay
in that court for the rest of my judicial career and I accepted
the job on that basis.
IITHE POSITION
OF THE
MINISTER
The Bill contains extensive provisions as to the
minimum qualifications for the exercise of various judicial positions.
By contrast, there are no minimum qualifications which need to
be held by the Minister save the trust of the Prime Minister of
the day. The system has worked well enough during my professional
lifetime but the office of Lord Chancellor has been thought of
as one to be held by someone with no further political ambitions.
If in future the crucial powers ascribed to the Minister in the
Bill are to be held by someone not sustained by a long tradition
and who wishes to move on to become leader of his party, Home
Secretary or Prime Minister he will be exposed to severe temptation
to sacrifice the independence of the Judges to the popular or
prime ministerial will of the moment. Not all will be able to
resist them. Would it be desirable to consider whether to enact
that the Minister would not be eligible to hold other Ministerial
office after having been Secretary of State for Constitutional
Affairs?
III CLAUSE 22
Since the Prime Minister has no discretion whatever,
what is the point of bringing him into the process at all? The
only effect will be to introduce delay.
IV CLAUSE 21(2) AND
(7)
I am not clear as to what is intended to be the nature
of the prescribed criteria referred to here. The concept of merit
which is enshrined in the Bill as an express criterion for the
selection of judges in general (see clause 51(3)) does not appear
as an express criterion in the selection of Supreme Court judges.
Are the prescribed criteria supposed to take the place of the
vaguer "merit"? Given the quality of the Commission
envisaged under Clause 20 why are prescribed criteria needed?
If the desire for transparency motivates the expression of criteria
then should the Criteria not be expressed in the Bill and be subject
to debate rather than left to be dealt with by way of resolution?
VCLAUSES 51 AND
52
I have the same hesitations in relation to these
clauses. The reference to guidance—not I think to be subject
to Parliamentary approval—is again puzzling. What is aimed
at here which can not be dealt with by the order procedure envisaged
in clause 51(4). There seems to be a tension between clause 51(5)
and Clause 52.
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