Supplementary memorandum by the Rt Hon
the Lord Woolf
I have been asked by the Select Committee on the
Constitutional Reform Bill to clarify my position on the deployment
of judges, including the appointment of judges to committees,
boards and similar bodies. My response not only reflects my personal
view but I reply also in my capacity as chairman of the Judges'
Council.
The concordat recognises that the deployment of judges
is a matter for the judiciary and not the executive. This is accurately
reflected in clause 2(2)(c) of the Bill which clearly states that
the maintenance of appropriate arrangements for the deployment
of the judiciary of England and Wales and the allocation of work
within courts is the responsibility of the Lord Chief Justice.
This wording should remain. However, in order to more accurately
reflect the concordat, this clause should be amended to state
that the arrangements for deployment include appointments of judges
to committees, boards and similar bodies. Exactly the same rationale
applies to serving judges who are asked to represent the judiciary
on such bodies, as it does to the deployment of judges to hear
cases. Where a serving judge is asked to take on such responsibilities
it is extremely important that these appointments should also
be the responsibility of the Lord Chief Justice. The Judges' Council
would therefore strongly support any amendment to clarify the
position, that such appointments, fall under the definition of
deployment and are a matter for the Lord Chief Justice.
In saying this, we do not suggest that the Lord Chief
Justice should have to agree to every appointment of a judge to
any committee/board etc, but only those where he is invited as
a serving judge to represent the judiciary and/or where his appointment
could interfere with the performance of his judicial duties. There
may, of course, be other responsibilities a judge may take on,
in a personal capacity and not affect his judicial duties, such
as positions of responsibility within one of the Inns of Court.
These would not be a matter for the Lord Chief Justice.
If drafting problems do arise in defining the sorts
of bodies concerned, I am sure that these could be resolved through
close consultation between the Judges' Council Working Party and
the officials at the DCA.
The officials at the DCA have raised with us the
alternative possibility of amending the explanatory notes to refer
to the relevant paragraphs of the concordat. If there is an alternative
manner of achieving the same objective we would be content. However,
having regard to the period during which the new constitutional
arrangements are likely to apply it is probably desirable to make
amendment to the Bill, despite the short term inconvenience of
doing so.
The position regarding appointments to public inquiries
is slightly different as they were overlooked in the negotiations
leading up to the concordat. However, I have since made clear
in correspondence with the Lord Chancellor that I am firmly of
the view that the Lord Chief Justice should have to concur with
any appointment to a public inquiry. I have arrived at my position
for two reasons:
(1) I must have the right to say whether a particular
judge can be released to conduct an inquiry. Placing a serving
judge on an inquiry prevents him from being deployed on his normal
judicial duties.
(2) Whilst some inquiries are appropriate for
a judge to sit on, other inquiries are of a highly politically
sensitive nature and it is not appropriate for a judge to be involved.
The LCJ should be entitled to say not only who, but whether, a
judge should conduct the inquiry at all.
The Judges' Council support this position and in
fact I would be extremely surprised if any judge in practice would
accept an appointment if the acceptance was not endorsed by the
Chief Justice of the day.
7 June 2004
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