SECTION ONE—SUBSTANTIVE AMENDMENTS
OVERVIEW AND
HANDLING
11. I wish to move substantive amendments to
Parts Two and Three of the Bill (the Supreme Court and Judicial
Appointments Commission).
12. Since these amendments deal with issues which
this Committee has been considering, and introduce provisions
which, although some were outlined in my Second Reading speech,
will be new to both Houses, I propose to move these amendments
to the Committee for debate and consideration.
13. The amendments and what they will achieve
are set out below.
SUBSTANTIVE AMENDMENTS
CONCERNING THE
SUPREME COURT
Appointment of judges of the Supreme Court
14. I propose to amend clauses 19 to 22, which
make provision for the process of selection and appointment of
judges of the Supreme Court, to bring those provisions more into
line with the arrangements in Part 3 of the Bill for senior appointments
involving the Judicial Appointments Commission in England and
Wales. In particular, clause 21 as presently drafted provides
for the Supreme Court Appointments Commission (SCAC) to provide
the Secretary of State for Constitutional Affairs with a list
of between two and five suitable candidates for each vacancy,
from which he will recommend a single candidate to the Prime Minister.
The process as it is proposed to be amended will require the Commission
to recommend only one candidate, with the Secretary of State having
the same limited range of options in response to that recommendation
as in Part 3.
15. I propose also to amend the provisions governing
the composition of the SCAC, with a view to guaranteeing that
the SCAC has a balance of lay and judicial representation and
expertise. To that end, clause 20 will be amended in such a way
that the Secretary of State will always be in a position to ensure
that at least one member of the Commission is lay.
16. As to the process of considering candidates,
the provision in Part 2 will be amended to align it far more closely
with that in Part 3, providing for appointments to be on merit,
with no power in the Secretary of State to prescribe criteria
by which candidates must be considered. Merit will be for the
SCAC alone to determine. An important and vital difference from
the process in Part 3 is that, subject to the overriding criterion
of merit, the SCAC will be required to ensure that the Court is
able to call on direct experience of and expertise in the law
of each of the United Kingdom's legal systems. While the SCAC
will be responsible for assessing both merit and territorial balance,
it will in doing so be required to consult the senior judiciary
in each jurisdiction and the judges of the Supreme Court other
than the President and Deputy President (so long as they themselves
are not candidates), the Heads of the Devolved Administrations
and the Secretary of State for Constitutional Affairs. I also
propose that the Secretary of State for Constitutional Affairs
should be able, before the SCAC convenes, to provide non-binding
guidance relating to the vacancy that has arisen by, for example,
drawing attention to the existing and future jurisdictional balance
and requirements of the Supreme Court.
17. The Secretary of State for Constitutional
Affairs will receive one name from the SCAC along with details
of the other candidates seriously considered, and must consult
again the senior judiciary in each jurisdiction, as well as the
Heads of the Devolved Administrations. The Secretary of State
will then have the same options available as currently proposed
in relation to appointments in which the Judicial Appointments
Commission is involved, in Part 3 of the Bill, with the exception
of the option of re-running the competition completely. The Secretary
of State, if he does not approve the candidate, will be able to
(i) ask the SCAC to reconsider its original selection or (ii)
reject the candidate submitted. The amendments will be substantial,
and I am therefore attaching, as annex B, a note which explains
in more detail the process as it will operate when revised.
18. In the Bill there is no specific provisions
for the appointment of a new Deputy President or President. The
amendments which I propose to table will also make provision for
altering the composition of the SCAC for such appointments and
for cases when either the Deputy President, the President or both
is or are unable to be members of the SCAC. The note at annex
B provides more detail on this aspect also.
19. Ministerial views are currently being sought
in regard to the proposals for appointment detailed at paragraphs
14 to 17.
The jurisdiction of the Supreme Court
[June 2004: To note that amendments in paragraphs
20, 22 and 23 are still in preparation and will be moved in the
Committee of the Whole House]
20. The next amendment relates to clause 31 and
Schedules 8 and 15 and seeks to make specific provision for the
extent to which certain decisions of the Supreme Court are to
have binding effect. The issue was canvassed during the debate
on Second Reading, in evidence before the "Justice 2"
Committee of the Scottish Parliament and in evidence before this
Committee, in particular by Lord Hope of Craighead and Lord Cullen
of Whitekirk. The amendment will make it clear that a decision
of the Supreme Court on an appeal from one jurisdiction within
the United Kingdom is not to have effect as a binding judicial
precedent in any other such jurisdiction, or in a subsequent appeal
before the Supreme Court from another such jurisdiction. This
provision is essentially declaratory of the position which is
generally accepted to pertain in proceedings on appeal before
the House of Lords. It is not necessary, and not intended, to
extend this provision to decisions on devolution issues and the
amendment will be limited in effect to decisions in appeals within
the jurisdiction presently exercised by the House of Lords. In
other words, it will not apply to decisions in proceedings under
the Scotland Act 1998, the Government of Wales Act 1998 and the
Northern Ireland Act 1998, within the devolution jurisdiction
presently exercised by the Judicial Committee of the Privy Council
(JCPC). This is because decisions of the JCPC are presently binding
in all proceedings other than those before the JCPC and a similar
provision will ensure that decisions of the Supreme Court should
be similarly binding in all proceedings other than those before
the Supreme Court. The proposals outlined above are subject to
Ministerial views.
The number of permanent Supreme Court Judges
21. It is also my intention to amend clause 17
to provide that the number of Supreme Court judges may, by affirmative
resolution, be increased or further increased from 12 to some
greater number, but that their number cannot be less than 12.
Whereas there may, in future, be a need to increase the number
of judges to cope with additional workload and it would be appropriate
for this to be exercisable by secondary legislation as at present
for the number of Lords of Appeal in Ordinary, I am persuaded
that it would not be appropriate to decrease the membership of
the Supreme Court except by primary legislation. The amendment
in regard to the number of Supreme Court judges is subject to
Ministerial views.
Acting judges
22. I wish to make two amendments in respect
of the persons who may be acting judges of the Supreme Court.
The first is an amendment to clause 29(1)(a) to ensure that a
person who holds high judicial office may act as a judge of the
Supreme Court only if (in addition to holding high judicial office)
that person is also a member of the Privy Council. The Bill as
introduced already requires, in clause 29(1)(b), that members
of the Supplementary Panel who act as judges of the Supreme Court
must be Privy Councillors. The proposed amendment provides consistency
in this regard, and will aid manageability by reducing the pool
of potential acting judges to those of greater seniority.
23. The other amendment which I propose is to
ensure that those who are currently eligible to sit on appeals
in the House of Lords as "Lords of Appeal" within the
meaning of s.5(3) of the Appellate Jurisdiction Act 1873 should
continue to be available to assist the Supreme Court by becoming
members of the supplementary panel. I wish to introduce a new
provision, analogous to clause 18(a), to provide those who are,
immediately before commencement, Peers who hold high judicial
office, other than the Lords of Appeal in Ordinary and the Lord
Chancellor, or who are Peers who before commencement have held
high judicial office, will become members of the supplementary
panel.
Taking of the judicial oath by the President
24. I also wish to supplement the provision in
clause 23 which presently provides that a person appointed as
a judge of the Supreme Court must take the oath of allegiance
and judicial oath in the presence of the President. The proposed
amendment will cover the situation where the person is being appointed
as President, and also that where the office of President is vacant.
If the President is unavailable for the taking of the oath, the
Deputy President will stand in for the President, failing which
(for example, where it is the Deputy President who is to take
the oaths), the oaths may be taken in the presence of the senior
Justice. This amendment will also provide for the President and
Deputy President to take the oaths on appointment to these offices,
even though they may previously have been sworn in as members
of the Supreme Court. This mirrors the approach for judges of
the existing Supreme Court of England and Wales and Scottish and
Northern Irish superior courts where the specified office requires
a separate oath whether or not the oath has been taken before
appointment to a different judicial office. To give effect to
this policy, there may also need to be consequential amendments
in terminology.
SUBSTANTIVE AMENDMENTS
CONCERNING THE
JUDICIAL APPOINTMENTS
COMMISSION
The definition of merit
25. I wish to amend clause 51 to delete sub-sections
(4) and (5) so that the Minister no longer has a power to specify
considerations that are to be taken into account in assessing
merit. All selections will be made on merit, and it will be for
the Commission itself to decide what constitutes merit in relation
to appointments to a particular post or category of posts.
Issuing guidance to the Commission
26. Clause 52 provides that the Commission must
have regard to any guidance issued by the Minister. I wish to
amend this clause in order to stipulate that the Lord Chief Justice
must first be consulted about any guidance issued by the Minister
to the Commission under this section, and that guidance must be
issued in the form of a statutory instrument laid before Parliament
and subject to the affirmative resolution procedure. The clause
should also provide that such guidance may, for example, relate
to such matters as the need to encourage applications for judicial
appointment from a more diverse pool of candidates, and the need
to ensure that any selection or interviewing panel used by the
Commission as a means of assessing candidates should include a
judge of appropriate seniority and experience. This would bring
into effect paragraph 119(e) of the Concordat.
Rejection and reconsideration of selections for
appointment
27. Clauses 57 and 58, 63 and 64, and 69 and
70 enable the Minister to reject the selection made by the Commission
and require it to make a new selection, or to require the Commission
to reconsider its selection. I wish to amend these provisions
in order to make it clear that the Minister may only reject a
selection if he considers that the selected candidate is unsuitable
for that judicial appointment; and that he may only require the
Commission to reconsider if he is not satisfied that the selected
candidate meets all the criteria for appointment, or is not satisfied
that the selected candidate is the candidate best suited to the
post. In either case, the Minister will have to give reasons for
his decision in writing.
Clarification of the process of appointing members
of the Commission
28. The processes for appointing the members
of the Commission, and the requirements as to membership are set
out in Schedule 10 to the Bill. The Schedule as currently drafted
does not reflect in full the terms of the Concordat, and it needs
reworking. Depending on the views of Parliamentary Counsel, and
of the Committee, the best way of proceeding may be to substitute
a new draft of the entire Schedule, in one amendment, rather than
by making changes piecemeal in numerous small amendments.
29. One of the key amendments I will introduce
to Schedule 10, and which I mentioned during the Second Reading
debate on 8 March, is to ensure that the Bill reflects paragraph
137 of the Concordat. The three senior judicial members will be
nominated by the Judges' Council. All the other members of the
Commission will be selected by an advisory panel and their names
put forward to the Minister for final decision in accordance with
Nolan procedures.
30. Other key points that I wish to ensure are
reflected more clearly in schedule 10 include the following:
—The Commission will consist of a lay Chairman
and 14 members appointed by Her Majesty on the advice of the Minister.
—The Chairman will be selected and appointed
as such and will not hold office separately as a Commissioner;
if he resigns as Chairman, his seat will be vacated.
—Apart from the Chairman there will be
five other lay members, five judicial members, two legal practitioners,
a lay magistrate, and a member of a tribunal or holder of another
office listed in Part 3 of Schedule 12 to the Bill.
—The most senior judicial member of the
Commission will be the Vice-Chairman.
—The advisory panel will consist of either
three or four members: a chairman, selected by the Minister and
the Lord Chief Justice; the Lord Chief Justice or a judge nominated
by him; an independent person selected by the chairman, and the
Chairman of the Commission, provided that that post is not vacant
and is not the post which is being selected for. Civil servants
and Members of Parliament will not be permitted to be members
of the advisory panel.
31. More details of these and other amendments
which I wish to make to Schedule 10 to bring it into line with
the Concordat are included in Section Two of this paper, in the
description of Concordat amendments.
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