SECTION TWO—CONCORDAT AMENDMENTS
OVERVIEW AND
HANDLING
32. In order to deliver the agreements I reached
with the Lord Chief Justice and set out in the Concordat, I need
to propose further amendments to Part One of the Bill (arrangements
to replace the office of Lord Chancellor) and to Part Three (judicial
appointments and discipline).
33. Together with the minor amendments which
deal with matters consequential to the concordat (paragraphs 50
to 53 refer), these amendments will ensure that this Bill delivers
the arrangements I have agreed with the Lord Chief Justice. I
set out these arrangements in an oral statement to the House of
Lords on 26 January 2004 and placed a more detailed analysis of
them—the Concordat—in the libraries of both Houses
on the same day. For this reason, the effect of these amendments
is not new to this Committee, and much of what will be delivered
by them we have discussed in some detail with witnesses over the
last month or so. These amendments are very important, though,
and it would assist the Committee of the Whole House greatly if
they are included in the Bill which we return to that Committee
for further scrutiny.
34. I propose therefore, as we reach the relevant
clause or Schedule, to move these amendments to the Committee,
but would ask you to consider debating each amendment or each
group of amendments only if it appears to raise a significant
issue about which the Committee has concerns. Where the Committee
is content that this is not the case, and is satisfied with the
effect of an amendment or group of amendments, I would propose
that the amendments or group in question be agreed to be included
in the Bill without debate. This approach will allow these significant,
but in our view technical, amendments to be included in the Bill
for consideration by the Committee of the Whole House without
taking up our limited time. It will also, subject to the views
of members of the Committee of the Whole House, enable that Committee
to better focus on those amendments which are of broader policy
significance. To assist members of this Committee, a description
of the amendments and what they seek to achieve is set out below.
I would also like to assure the Committee that there is no amendment
set out in this section which has any effect other than to deliver
the arrangements in the Concordat, as described and published.
[June 2004: Before the Committee began
considering amendments, the Lord Chancellor decided to table all
his amendments, except only the very minor ones at Section 3 and
Annex A of this paper, for debate. The amendments in Section 2
"Concordat Amendments" were therefore moved by the Lord
Chancellor for debate.
In addition, at the Committee meeting
on 8 June when the amendments were discussed but not formally
moved, Viscount Bledisloe and Lord Carlisle expressed concern
about some of the minor amendments. A group of officials from
the Department for Constitutional Affairs met Viscount Bledisloe
and Lord Carlisle later that day to discuss the amendments, their
purpose and effect. The peers remained concerned about 14 amendments,
and these were not moved by the Lord Chancellor]
CONCORDAT AMENDMENTS
RELATING TO
THE ABOLITION
OF THE
LORD CHANCELLOR
Rule Making
35. The Concordat (at paragraphs 50-57) set out
the arrangements proposed for the making of procedural rules.
It has been agreed that, in general, functions relating to the
allowing of procedural rules of court will transfer to the Secretary
of State for Constitutional Affairs and the making of such rules
will rest with the relevant rule committees, where such committees
exist. Where no relevant rule committee exists, functions relating
to such rule making will be exercised by the Lord Chief Justice,
with the concurrence of the Secretary of State for Constitutional
Affairs. The policy relating to rule-making where no relevant
rule committee exists is given effect in Schedule 2 (introduced
by clause 6), Part 2 of which lists existing powers of the Lord
Chancellor which are in future to be subject to the new process.
This process, as described in paragraph 56 of the Concordat, is
set out in Part 1 of the Schedule. Schedule 1 deals with those
functions where rule committees do exist, making the relevant
amendments to existing legislation to bring it into line with
the Concordat.
36. On further analysis since the Bill was introduced,
we concluded that it was not necessary for a number of functions
listed in Part 2 of Schedule 2 to be made subject to the new procedure
in Part 1 of that Schedule. We reached this conclusion for two
reasons. First, a number of the rule-making powers listed in Part
2 have never been used, and rules within their ambit are currently
made by existing rule committees (principally the Civil Procedure
Rule Committee). It would therefore be more appropriate for this
reality to be acknowledged in the Bill, and any such powers removed
from Part 2 of the Schedule. We propose to repeal any of these
powers which are redundant, and whose scope is subsumed by Civil
Procedure Rules These changes will ensure greater consistency
of approach and enable users to find all relevant civil procedure
provisions in a single code. Secondly, a few of the functions
currently in Schedule 2 do not, in fact, relate to rules of court
and should, therefore, be dealt with by amendments made under
Schedule 1.
37. The details of the amendments necessary to
give effect to the above changes are included as separate minor
concordat amendments and marked up accordingly.
Practice Directions
38. At paragraph 62 of the Concordat, there is
an agreement to create a method of uniformly making directions
governing practice and procedure in civil matters across all levels
of court. I will seek to amend the Bill to create such a power
based on section 74 of the Courts Act 2003, as amended by Schedule
3 to the Bill. Section 5(1) of the Civil Procedure Act 1997, which
allows practice directions to be provided for by Civil Procedure
Rules will also apply to the new power. As a result of this amendment,
and consistent with the approach described in the previous paragraph
in relation to rules, I propose to bring forward amendments to
Part 2 of Schedule 3 to the Bill to remove references to direction-making
powers that either have never been used, or which would be subsumed
within the scope of the new, uniform directions power. We are
also considering how to better standardise the approach for making
practice directions with regards to Family Proceedings in line
with paragraph 62 of the Concordat. Given the stage these deliberations
have reached, it is possible that any amendments in this category
will not be ready in time for consideration by the select committee.
[June 2004: To note that these amendments are
still in preparation and will now be moved in the Committee of
the Whole House]
The amendment of enactments and documents of governance
39. I propose to move an amendment to clause
99 in line with the recommendation of the Delegated Powers Committee
to provide that any Order made under clause 98 which amends public
and general Acts will be subject to the affirmative, rather than
the negative, resolution procedure. The purpose of clause 98 remains
to allow the making of Orders to give full effect to the Bill.
It will be used, for example, to transfer, in accordance with
the principles set out in the Concordat, any functions of the
Lord Chancellor created since the introduction of the Bill or
inadvertently omitted from the Bill.
[June 2004: To note that this amendment is
still being prepared and will be moved in the Committee of the
Whole House]
40. I propose to move a further amendment to
clause 98 which will have the effect that, if an Order under the
clause that transfers a function from the Lord Chancellor to the
Secretary of State for Constitutional Affairs so provides, section
1 of the Ministers of the Crown Act 1975 will not apply to the
function after the transfer takes effect. This will mean that
functions so transferred will not be able to be transferred away
from the Secretary of State for Constitutional Affairs in the
future without primary legislation. The amendment will bring clause
98 into line with clause 96, which disapplies section 1 of the
Ministers of the Crown Act to certain judiciary related functions
transferred to the Secretary of State in the Bill. The amendment
will allow those Lord Chancellor functions transferred by Order,
which are of the same character as those currently transferred
in the Bill, to be treated in the same way as those transferred
in the Bill. The purpose of this is to ensure that the principle
of safeguarding judicial independence by limiting powers to transfer
away from the Secretary of State for Constitutional Affairs functions
relating to the judiciary, judicial appointments and the Great
Seal is upheld.
Other amendments required to deliver matters consequential
to the Concordat
41. As mentioned above, there are a number of
minor amendments required to give full effect to the provisions
in the Concordat. A number of these amendments have arisen out
of discussions with the Judges' Council's working party on the
detail of the Bill. These amendments are principally to be dealt
with in Schedule 1 and fall into two broad categories:
42. Those where the Bill currently fails to apply
the Concordat. In the main, these relate to particular functions
within a category in the Concordat which have been incorrectly
assigned as between the Secretary of State for Constitutional
Affairs and the Lord Chief Justice, or where the consultation/concurrence
requirements of the category have not been correctly reflected
in the Bill's treatment of a particular function. There are also
some cases where a category in the Concordat is incomplete in
the Bill, and a particular function needs to be added.
43. We are liaising with the Judges' Council's
working party concerning these amendments.
CONCORDAT AMENDMENTS
CONCERNING THE
JUDICIAL APPOINTMENTS
COMMISSION
Complaints and discipline—the Lord Chief
Justice
44. Paragraph 73 of the Concordat provides that
the Lord Chief Justice and the Minister are together responsible
for providing a system for considering and determining complaints
against the personal conduct of the judiciary. The subsequent
paragraphs set out the arrangements that will apply. The Concordat
does not, however, consider the arrangements that should apply
in the event of a complaint about the personal conduct of the
Lord Chief Justice himself. The Government does not consider it
appropriate for the Lord Chief Justice to be responsible for considering
and determining and such complaint himself; nor should it be the
responsibility of another—by definition more junior—judge
from England and Wales. I will therefore introduce an amendment
to Part Three of the Bill which will provide for this function
to be carried out by the President of the Supreme Court, subject
to the same conditions and procedures (including the concurrence
of the Secretary of State) as apply when the Lord Chief Justice
is exercising his disciplinary powers over other judges.
[June 2004: To note that this amendment is
still being prepared and will be moved in the Committee of the
Whole House]
Complaints and discipline—United Kingdom
tribunal members sitting in Scotland or Northern Ireland
45. The provisions relating to complaints and
discipline in Part Three of the Bill apply to the judiciary of
England and Wales. The Lord Chancellor, however, has responsibility
for discipline in relation to members of United Kingdom tribunals
who sit solely in Scotland and Northern Ireland. This responsibility
will pass to the Minister, but should be exercised in accordance
with the principles set out in the Concordat. I therefore propose
an amendment to provide for the application, with modifications,
of the powers set out in clause 83(3) to members of United Kingdom
tribunals who sit solely in Scotland or Northern Ireland.
[June 2004: To note that this amendment is
still being prepared and will be moved in the Committee of the
Whole House]
Complaints and discipline—report from the
Ombudsman relating to conduct
46. It is a central feature of the Concordat
that responsibility for providing a system for considering and
determining complaints and for discipline is shared between the
Minister and the Lord Chief Justice. This is reflected in the
Bill. One exception to this, however, is at clause 89, which requires
the Ombudsman to submit a report on an investigation relating
to conduct to the Minister, but not to the Lord Chief Justice.
This should be amended so that the report is also submitted to
the Lord Chief Justice.
Judicial appointments—decision not to fill
a vacancy
47. Under paragraphs 119(a) and 121(a) of the
Concordat, the agreement of the Lord Chief Justice is required
before the Minister can decide that a vacancy should not be filled.
The Bill does not yet reflect that agreement. I will introduce
amendments to correct this.
Judicial appointments—consultation with
previous office-holder
48. At present the Bill requires the Commission,
before it makes a recommendation to the Minister, to consult with
the Lord Chief Justice, and a person (other than the Lord Chief
Justice) who has held the office for which a selection is being
made or has other relevant experience. (Sub-clause 67(3).) In
submitting its report to the Minister (clause 68), the Commission
is required to state any recommendation from the Lord Chief Justice.
It is not required to state any recommendation from the person
who has held the office for which a selection is being made or
has other relevant experience. I think it should, and I will introduce
an amendment to achieve this.
Judicial appointments—Commission sub-committees
49. The Commission will almost certainly need
to create sub-committees to consider whom to recommend for appointment.
The sheer number of appointments, and the need to make timely
recommendations will almost certainly prevent all 15 members considering
every appointment. The Bill provides for this—at Paragraphs
18-19 of Schedule 10—and requires that for the purpose of
making recommendations for appointment, such committees should
include no less than three Commissioners. However, there is nothing
to require the Commission to ensure that there is judicial and
lay input into these sub-committees. While I want to ensure the
Commission has as much freedom as possible to decide its own practices
and procedures, I think it important to avoid the possibility
of recommendations being made to the Minister without the benefit
of lay and judicial expertise. It is also important that any judge
on such a sub-committee is at least as senior as the vacancy under
consideration. I therefore propose amendments to make these requirements.
50. It is important to distinguish this requirement
from the requirement that there be at least one judge of the appropriate
seniority and experience on any selection panel, as described
above at paragraph 26. Selection panels will be responsible for
the actual process of sifting and interviewing (or whatever selection
process the Commission chooses to employ), and will not necessarily
involve Commissioners themselves. The sub-committees that make
the recommendation to the Minister will be made up of Commissioners.
Judicial appointments—exercise of power
to reconsider and then reject
51. Paragraphs 120(h)-(j) of the Concordat explain
the procedure that should apply when the Minister asks the Judicial
Appointments Commission to reconsider its recommendation, and
the Commission recommends an alternative candidate whom the Minister
then rejects. Where, in such circumstances, the Commission selects
a third candidate, the Bill at present does not allow the Minister
to choose between that third candidate selected by the Commission
and the candidate originally put forward. I will introduce amendments
to ensure the Concordat is reflected.
Judicial appointments—power to withdraw
request for vacancy to be filled
52. I wish to make two amendments in this area.
The first of these brings the provisions into line with the spirit
of the Concordat. This amendment will require the Minister to
consult the Lord Chief Justice before withdrawing a request. This
was an issue raised by Lady Justice Arden in her evidence to the
Committee on 4 May.
53. The second amendment in this area reflects
the letter of the Concordat, paragraphs 121(e) and 126 of which
envisage a power for the Minister to restart the appointments
process. This power is equivalent to his power to do so for appointments
at High Court level and below. This is not yet reflected in the
Bill, however.
Judicial appointments—restrictions on membership
of the JAC
54. Paragraph 134 of the Concordat states that
"[m]embership of the Commission will not be open to Members
of Parliament, candidates for Parliament, or civil servants".
I will introduce amendments so that the Bill ensures that people
in these categories cannot be appointed to the Commission, and
existing Commissioners must resign if they fall into one of these
categories.
Judicial appointments—Chairman of the Commission
55. The Bill correctly ensures that the Chair
of the Commission should be a lay member (paragraph 133 of the
Concordat, and paragraph 4(2) of Schedule 10 of the Bill). However,
it was a key theme of the discussions that led to the Concordat
that there should be a specific recruitment exercise for the Chairman.
He or she should not simply be selected from among the lay members.
In amending Schedule 10 (discussed in paragraph 28 to 31, above),
I will clarify that the Chairman is a specific post, and should
be identified as distinct from the other lay posts on the Commission.
Judicial appointments—Vice-chairman of the
Commission
56. Paragraph 133 of the Concordat states that
the most senior Judge on the Commission should be its Vice-Chairman.
I will introduce an amendment to that effect. Seniority will be
based on the office held at the time. If two or more judges hold
offices of equivalent seniority, the judge who has served longest
in the office, over one or more periods, is the senior.
57. I will also amend the Bill to ensure that
the Vice Chairman can perform the functions of the Chairman where
the Chairman's office is vacant, or if the chairman is unable
to undertake those functions.
58. There is one exception to this principle:
underlying the Concordat is the understanding that the selection
panels for the appointment of Lords Justices of Appeal and Heads
of Division are made up of two judicial members and two lay members.
The lay members for these panels are to be the Chairman of the
Commission or his nominee, and one other lay member of the Commission
designated by the Chairman of the Commission (clause 61(1)). It
would clearly run counter to the spirit of the Concordat if the
Vice-Chairman of the Commission—a senior judge—were
to perform the function of the Chairman in this context. I therefore
propose to provide that, in order to maintain the balance of judicial
and lay members, in the absence of the Chairman, one of the lay
members of the Commission (selected by the lay members) performs
this function.
Judicial appointments—consultation with
professions before appointing Commissioners
59. The Bill currently requires the Minister
to consult the General Council of the Bar before appointing a
barrister to the Commission and the Law Society before appointing
a solicitor. Although this issue is not covered in the Concordat
it strikes me that it would better emphasise the independence
of the advisory panel if that responsibility were passed to the
panel itself. I propose to introduce an amendment to that effect.
Judicial appointments—increasing the size
of the Commission
60. Although careful thought has been given to
the size of the Commission, and the level of support it will need,
it may be that in the future, an unexpected increase in workload
is such that a Commission of 15 is no longer sufficient. The Bill
therefore provides—at Paragraph 7 of Schedule 10—that
the Minister may by order increase the size of the Commission.
This power is subject to consultation with the Lord Chief Justice.
However, to ensure that this power cannot be used inappropriately,
I think the concurrence of the Lord Chief should be required,
and I therefore propose such an amendment.
Judicial appointments—Judicial Appointments
Commission annual report
61. The concordat envisages a central role in
judicial appointments for the Lord Chief Justice. With that in
mind, I propose to introduce an amendment which requires the Minister
to consult with the Lord Chief before giving directions to the
Commission regarding any specific matters to be included in its
annual report (Paragraph 29 of Schedule 10).
Judges' Council
62. In reflecting the Concordat, the Bill makes
reference to the Judges' Council (in paragraph 5 of Schedule 10
which refers to the Council's role in the appointment of members
of the Commission). The Council is not defined in the Bill, and
I therefore propose an amendment which provides such a definition.
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