Memorandum by the Working Party chaired
by Lord Alexander of Weedon QC
PROTECTING THE INDEPENDENCE, INTEGRITY AND
STRENGTH OF THE
JUDICIARY AND THE LEGAL SYSTEM
INTRODUCTION
1. This is the report of a Working Party of members
of House of Lords which has been considering the implications
of the proposed changes to the legal and judicial system announced
by the Prime Minister on 12 June 2003.
2. We were established in January 2004 on the
initiative of the Chairman of the Bar. Our membership comprises
peers of wide-ranging experience and varied political affiliation.
Our Chairman was Lord Alexander of Weedon QC, a former Chairman
of the Bar and the current Chairman of Justice, the all-party
law reform and human rights group. Other members were: Lord Mayhew
of Twysden, Lord Morris of Aberavon, Lord Wilson of Dinton, Lord
Millett, Lord Skidelsky, Baroness Warnock and Lord Dahrendorf,
with Professor Anthony Bradley acting as our advisor. Thus the
group included those with direct experience of the way in which
the legal system, judiciary, legislature and executive work, together
with academic specialists in constitutional and legal history.
We were supported by a team of barristers, chaired by Richard
Drabble QC, who provided us with considerable research assistance,
knowledge and advice. A full list of our members and our advisers
is at Annex 1.
3. In addition, we sought the views of others
with particular experience of the issues that concerned us and
we were fortunate to speak directly to the Master of the Rolls,
the Vice-Chancellor and Sir Thomas Legg, a distinguished former
Permanent Secretary to the Lord Chancellor's Department. We also
received written views from Lord Mackay of Clashfern. We are grateful
to them.
4. Although this report will be considered by
the Bar Council and will, we hope, gain its support, we should
make it clear that the Working Group is entirely independent of
the Bar Council and that the views expressed in this report are
those of its members. We do not seek to deal with the Government's
proposals in detail. We will express views on a few major points
but the real question, in our view, is over the role of the Lord
Chancellor and whether the absence of this figure could prove
a central weakness in an otherwise valuable reform.
BACKGROUND
5. In July 2003, the Prime Minister announced
by press release that the office of Lord Chancellor was to be
abolished and replaced by a Secretary of State for Constitutional
Affairs. A Judicial Appointments Commission was to advise on the
appointment of judges and a Supreme Court of the United Kingdom
was to be established in place of the Appellate Committee of the
House of Lords. Since that announcement, the Government has issued
consultation papers seeking views about the detailed implementation
of the Judicial Appointment Commission, the Supreme Court and
the future of the other powers and duties held by the Lord Chancellor.
But the consultation process did not extend to the principles
of the reform which were stated to represent firm Government policy
albeit they had never previously been formulated as such. Indeed,
so far as we are aware, the Government had always rejected such
proposals when raised by others in the past. Its change of heart
took place without any consultation with the senior judges, the
cabinet or users of legal services. The subsequent consultation
papers and the responses to them revealed the very difficult issues
of principle that would arise out of the abolition of the Lord
Chancellor's role.
6. At the end of January 2004, the Government
announced an agreement or "concordat" with the judiciary
over the division of judicial and executive responsibilities for
the appointment and disciplining of judges. This is obviously
subject to consideration and approval as part of the new legislation.
It also announced its proposals for the Supreme Court. At the
end of February 2004, the Constitutional Reform Bill was published
and, on 8th March, the House of Lords voted that the Bill should
be referred to a Select Committee for full consideration. This
accorded with the views of the Constitutional Affairs Select Committee
of the House of Commons that the changes were so radical that
they needed proper, considered scrutiny before an over-hasty rush
to legislation. We hope that this report will be of interest to
the Lords Select Committee.
7. The decision to refer the Bill to that Committee
reflects considerable concern about the way in which this matter
has been handled by Government. The fact that the original decision
was announced without any prior consultation with interested parties
is obviously unfortunate. It did not provide any confidence that
the issues had received sufficient consideration or that the principles
would be properly examined. We understand the concerns of the
Lord Chief Justice that because of the present uncertainty the
Judicial Appointments Commission should be established speedily.
We believe this to be the least controversial part of the proposals.
But the proposals for the abolition of the office of Lord Chancellor
and the creation of a Supreme Court are controversial and undoubtedly
deserve measured scrutiny.
8. As will become clear from this report, we
consider that the existing system provides a delicate but largely
effective balance between the roles of the executive and judiciary.
Accordingly, the reformed system will need to achieve a balance
that protects the independence of the judiciary while recognising
the interests of the executive. Otherwise, any change will be
retrograde.
9. Our purpose is to concentrate on the independence
and integrity of the legal system, to analyse the role that the
Lord Chancellor has played in protecting the system and to consider
how the loss of that role could be mitigated in a new system.
In doing so, we will analyse the proposed division of responsibilities
between the judiciary and executive and consider whether the published
Bill is likely to achieve a proper balance between the two arms
of state. We also consider whether it might be appropriate to
retain the Office of Lord Chancellor, even if its duties were
to be modified. We recognise that there are some aspects of the
role of the Lord Chancellor which would benefit from examination:
but they have been raised over the years and are not so urgent
that they need to be rushed through.
THE IMPORTANCE
OF THE
INTEGRITY AND
INDEPENDENCE OF
THE LEGAL
SYSTEM
10. It is of the utmost importance that the legal
system should remain independent from Government. Any properly
democratic society requires recognition of and protection for
the rule of law. The rule of law maintains social and economic
order. It provides due process for the citizen in dealing with
government at all levels. It upholds the rights of minorities,
as far as is possible under a largely unwritten construction,
particularly one which is based upon the doctrine of the supremacy
of Parliament, under which there is little formal protection against
the "tyranny" of the majority (as J S Mill called it).
The State must be seen to follow its laws. Its powers are immeasurably
greater than those of any individual. Courts exist to ensure that
the state follows the laws and that there is a proper balance
between the individual and the State.
11. The relationship between the executive and
the judiciary is a particularly delicate one. Some organ of state
is often a party to a dispute before the courts: for example,
all criminal cases (81,766 in the crown courts in 2002, plus the
much higher numbers in the magistrates courts), all immigration
cases (116,844 in 2002), the majority of Judicial Review cases
and most of those involving the interests of children (23,637
in 2002). These account for a considerable percentage of all those
which were heard by the courts in 2002. Government is as susceptible
as any other organisation to actions in the Employment Tribunal
and to other forms of court case. Other cases involving the European
Convention on Human Rights often affect Government policy, even
if the Government is not a party. Governments are human. They,
and those who serve them, can make mistakes. Defeat in the courts
can cause embarrassment and, at times, frustrate imperfectly executed
Government policy. There is also a risk that Governments, for
what they consider to be good reasons, will seek to expand their
powers.
12. It is vital for any democratic and free society
that Governments are subject to the same scrutiny as any other
litigant. The executive, however, has a greater temptation and
opportunity to seek to influence the judicial side either through
appointment or promotion and it is crucial that this should be
prevented. A principal function of the law is to act as guardian
of the individual against the state and against the abuse of executive
power. Because of this role, responsibility for the legal system
differs fundamentally from that of Government Departments, such
as Health, Education and Transport which exist to fulfil the policy
aims of Government. It is not a "service" that Government
can choose to provide or not; it is a separate branch of a democratic
government.
13. A feature of such a system is access for
the public to an independent legal profession. Individual members
of society need access to proper legal advice as to their rights
and duties; they need representation by competent lawyers before
the courts. The courts rely on those lawyers' own ethical duties
to ensure that they are not misled and are informed of the full
law affecting any case. This public need is recognised in Article
6 of the European Convention on Human Rights, incorporated into
UK law by the Human Rights Act 1998.
14. The legal system must also be bolstered by
efficient administration. The judges need to be supported by a
court service that provides the facilities they need to do their
work properly. They need adequate accommodation and sufficient
staff to ensure that courts are administered efficiently and their
judgments recorded and carried out expeditiously.
THE ROLE
OF THE
LORD CHANCELLOR
15. Many jurisdictions have achieved independence
for the judiciary through a system which, to a greater or lesser
extent, separates the powers and personnel of the different arms
of State and establishes a system of checks and balances to ensure
that no one branch of government becomes so powerful that balance
is lost. In England and Wales, our system has not sought to achieve
such an explicit, formal separation. Indeed, it is arguable that
it fundamentally rejects most of the doctrine altogether, at least
as it is generally understood, and not least in the United States,
which has been the other great exemplar in this field. Bagehot
argued that the "efficient secret" of the British Constitution
lies in "the close union, the nearly complete fusion, of
the legislative and executive powers". Even the doctrine
of the independence of the judiciary rests on the fallible foundation
of a continuing more-or-less self-denying ordinance of a sovereign
Parliament that is ruled in the main by the executive of the day.
The fusion has been most obviously apparent in the position of
the Lord Chancellor who, as Speaker of the House of Lords, Head
of the Judiciary and most senior member of the executive has a
role in all three arms of state.
16. The fact that the system in England and Wales
has worked well, in particular producing a judicial system that
is of the highest quality despite lack of a formal separation
of powers, is notable. Some protections are built in to our legislation.
It is not possible to dismiss a High Court judge without a resolution
of both houses of Parliament, and judges' salaries are drawn out
of the Consolidated Fund. Nevertheless, it remains true, as Gladstone
once said, that the British constitution "presumes, more
boldly than any other, the good faith of those who work it."
It is this presumption of good faith, of respect for the boundaries
between the functions of each branch of government that has served
to ensure the quality of our judiciary, the integrity of our judicial
system, and the strength of our legal profession. Historically,
the office of Lord Chancellor has been one of an array of such
counter-balances including long-standing laws and conventions,
the culture and tradition of the judges and legal profession.
17. Sir Thomas Legg drew our attention to the
justification for the office which was explicitly addressed by
Lord Chancellor Birkenhead in 1922 in his article "A Ministry
of Justice". In the course of a defence of the office of
Lord Chancellor, he said, in words which, in our view, still apply
today, that:
"In every democracy there arise from
time to time occasions of jealousy and difficulty between the
judiciary and the executive. Our present system, under which the
head of the judiciary is also a prominent member of the executive
Government, has its disadvantages. But it has this great advantage—that
it provides a link between the two sets of institutions, if they
are totally severed there will disappear with them any controlling
or suggestive force exterior to the Judges themselves, and it
is difficult to believe that there is no necessity for the existence
of such a personality, imbued on the one hand with legal ideas
and habits of thought, and aware on the other of the problems
which engage the attention of the executive Government. In the
absence of such a person the judiciary and executive are likely
enough to drift asunder to the point of a violent separation,
followed by a still more violent and disastrous collision."
A stark test of the proposal to substitute for
the Lord Chancellor a Secretary of State for Constitutional Affairs
is simply: does it preserve these virtues?
18. The main responsibilities of the Lord Chancellor's
office are as follows:
—Appointing judges and considering complaints
against them;
—The administration of the Court Service;
—The maintenance of a system of legal aid
to ensure access to justice;
—Policy concerning the rights and regulation
of the legal professions and the provision of legal services to
the public;
—Representation of the judges' views within
the Executive and, to some extent the Executive's views to the
judges.
It is notable, however, that the role has attracted
other functions, including those concerning Human Rights, data
protection, freedom of information, the Channel Islands and, most
recently, Scotland and Northern Ireland.
19. All the central functions straddle the executive
and judicial: there is a clear public interest in the use of taxpayers'
money to support the judiciary or fund the legal aid system, but
there is an equally strong judicial interest in ensuring that
the judges' functions are adequately supported. The Lord Chancellor
is in a strong position to take account of the judges' concerns
while accounting to Parliament for expenditure. As a lawyer in
immediate and frequent contact with senior members of the judiciary,
he can judge the merits of candidates for judicial appointment.
This latter, we understand to a judicial function: the Lord Chancellor
is accountable to Parliament for his policy, but not for an individual
appointment. He does not, and certainly should not, discuss individual
appointments with Cabinet colleagues; nor is he answerable to
Parliament for them. As a cabinet minister, he can articulate
the judges' concerns to the cabinet and act as a mediator between
the cabinet and the judiciary. Thus, to a large extent, the other
senior judges are able to avoid involvement in political questions.
Moreover, as a very senior and experienced figure, he can offer
advice on the wisdom of particular policy initiatives which impact
on his responsibilities. But precisely because so much of his
role is fulfilled by virtue of tradition or convention it is not
easy fully to particularise it.
20. We accept that this position is not entirely
comfortable. It is strongly argued that responsibility for a large
spending Department should not lie with-a Minister in the House
of Lords. It is not clear how often the Lord Chancellor in fact
used his position to influence policy—he is likely, inevitably,
to have felt it right to defer to the views of elected colleagues.
It is worth noting that the senior judiciary has been less reluctant
to comment upon Government policy in recent years and this may
reflect difficulties that Lord Chancellors have experienced in
putting their views across to colleagues.
21. Nevertheless, the absence of an individual
of this experience, knowledge and seniority in cabinet is likely
to cause difficulties. It may encourage a polarisation between
the views of the executive and the judiciary which could be harmful
to both. In this respect, we would particularly endorse the words
of the Constitutional Affairs Committee of the House of Commons[154]:
"Whoever carries out the functions of
the office of Lord Chancellor will be in charge of the Court Service
and will play a central role in the administration of justice.
Part of that role is the protection of the judiciary from political
pressure in Cabinet and, when necessary, in public. There is a
radical difference between on the one hand a Lord Chancellor,
who as a judge is bound by a judicial oath, who has a special
constitutional importance enjoyed by no other member of the Cabinet
and who is usually at the end of his career (and thus without
temptations associated with possible advancement) and on the other
hand a minister who is a fill-time politician, who is not bound
by an judicial oath and who may be a middle-ranking or junior
member of the Cabinet with hopes of future promotion."
To this can be added that there is no guarantee that
the minister will be a lawyer and so may lack the understanding
of successive Lord Chancellors of the role that the legal system,
the judges and the profession play in achieving a balanced constitution.
22. Whatever the exact detail of the Lord Chancellor's
role, it is clear that its absence will change the constitutional
fabric. It is crucial that the benefits that successive Lord Chancellors
have provided, which have been described as a "hinge"
between the executive and the judiciary, should be replicated
in the new system so that the integrity of our judiciary, profession
and legal system should be maintained, if not strengthened.
23. It is our view that a modified office of
Lord Chancellor should be retained on the basis that he will no
longer sit as a judge and as Head of the Judiciary and that his
duties will be reduced by removing those that have accrued in
recent years. We also assume. that the convention should be maintained
that the Lord Chancellor should be a very senior lawyer (who may
or may not have been a judge) who sits in the House of Lords and
will see his role in the traditional way that has been described.
We also envisage a return to the convention whereby the Lord Chancellor
largely confined himself to his Departmental role and did not
involve himself in front-line political issues on behalf of the
Government. This involves a political judgement, but there is
no reason why Lord Chancellors should not be able to take such
judgements in that, until recently, their predecessors have been
able to do so.
24. It follows that we would envisage one of
the consequences as being that, where the Bill currently provides
for appointments to be made by the Secretary of State, they should
continue to be made by the Lord Chancellor.
25. Consideration of the following areas in detail
will demonstrate the advantages of retaining the office:
— The arrangements for the Supreme Court;
—The arrangements for funding and administering
the courts;
—The Lord Chancellor's role in respect
of the professions and legal aid;
—The arrangements for ensuring that the
judges' concerns are heard in Parliament and by the executive;
—Protecting judicial independence within
Government.
JUDICIAL APPOINTMENTS
26. The "concordat" with the Lord Chief
Justice provides, in our view, a sensible foundation for ensuring
an independent and transparent mechanism for appointing judges.
We are, however, concerned that some benefits may be lost from
the system and that, as they stand, the proposals do not necessarily
provide the strongest mechanisms for securing the highest calibre
of judge.
27. We note that there has been no suggestion
that the current system has been failing to provide a generally
high calibre of judge. We are aware of concerns about the lack
of transparency in the system and, more generally, that the judiciary
does not completely reflect the diversity of today's society.
We agree that, in principle, it must be right to attempt to address
these issues but not at the expense of appointing the best candidates.
Merit
28. The Bill, as it stands, is silent on the
definition of "merit". We note also that, currently,
it would provide the Secretary of State with a power to give directions
to the Commission over the criteria that they should adopt in
assessing candidates. We were reassured that, in his speech on
the second Reading of the Bill, the Secretary of State indicated
that these powers would be withdrawn. We consider, however, that
the Bill should go further and should include a definition of
the "merit" qualification for judicial appointment.
That definition should, in our view, include the intellectual
and personal qualities necessary to decide complex legal questions
as well as experience within the justice system and that the person
appointed should be the single, best qualified, available candidate
without regard to race, sex or other irrelevant characteristics.
29. We share the view that, in principle, it
is desirable for the judiciary to reflect the diversity of the
society that it serves. This must not, however, be engineered
at the expense of quality. We are puzzled as to how the new system
will be better able to achieve diversity in judicial appointments
without diminishing quality than the present one. There have been
no constraints within the existing system precluding the Lord
Chancellor from searching for diversity. We consider that the
Judicial Appointments Commission will have an important role,
together with the professions, in providing encouragement and
opportunities for development for candidates from the under-represented
sections of society so that a diverse judiciary of the highest
quality can be achieved. It would, however, inevitably bring the
judiciary into disrepute and discourage meritorious candidates
if it were perceived that individuals were appointed by reason
of their sex or ethnic origin.
30. Allied to this, we are concerned that the
Judicial Appointments Commission, in following, quite rightly,
best equal opportunities practice, may not always succeed in attracting
the best candidates to the Bench if it waits passively for candidates
to apply. We are aware that many strong candidates at the peak
of their professional careers are diffident about completing application
formswithout an indication of whether or not they are likely to
succeed. We understand that the most suitable candidates for appointment
are often nominated by others for consideration or approached
directly. It would be unfortunate if the price for a transparent
system of this sort were a reduction in the quality or choice
of candidates available to the Commission. We recognise that this
may be a transitional issue but, at the start, it could be a real
one.
31. We therefore believe that the Commission
ought to have some power to seek to identify candidates who are
likely to be successful and to encourage them to apply along with
others. We also envisage that the Lord Chancellor should be able
to put forward suggestions to the Commission of candidates whom
it might wish to consider, though, obviously, without intervening
in the selection process itself once it has commenced.
Chairman of the Commission
32. We recognise the importance of lay involvement
in the system. Non-lawyers can bring real strengths to the system
by reason of their experience outside the legal system. They will
have an important role in avoiding "cloning" and ensuring
that the Commission looks at the widest range of suitable candidates.
But we are surprised by the restriction of the Chairmanship to
a layman. We think that individuals who have qualified as a lawyer,
whether or not they have practised as such, could have many useful
qualities to bring. We are not in favour of people being prevented
from playing a part in the system by such restrictions if they
are clearly the most appropriate candidate.
Rejection of Candidates
33. We would be concerned at the dangers that
could arise over the powers of the Secretary of State to reject
candidates proposed by the Commission. We accept that a strong
case can be made that, subject to appropriate safeguards, the
executive has a legitimate interest in judicial appointments.
We consider, however, that there are dangers inherent in this
approach, which could be very much lessened if the Lord Chancellor
were to remain the appointing officer.
34. First, if the Secretary of State were to
reject candidates regularly, then the Commission would lose its
authority. Moreover, if it becomes known that particular individuals
were, in effect, "second choices", their own authority
will be in question. It would be unfortunate if, as seems inevitable
in today's climate, in respect of controversial appointments,
the press were to become informed of the identity of the rejected
candidate. It will be essential that a convention should grow
that the Secretary of State will accept the Commission's first
choice unless there are wholly exceptional and persuasive reasons
for refusing.
35. There is one further threat to the appointment
of judges of appropriate calibre. This arises from the diminution
of their standing that can arise either from the failure of Government
to respect their independence or to provide appropriate resources
to support their work. If judges are not perceived to hold a respect
and status equivalent to the importance of their role in society,
the office will fail to attract applicants of the right calibre.
THE ARRANGEMENTS
FOR THE
SUPREME COURT
36. We do not propose to comment in detail on
the principle of the creation of the Supreme Court. We understand
the arguments in favour of retaining the role of the House of
Lords as the Supreme Court and also those for removing the judges
from it. We would wish, however, to draw attention to three points
which concern us.
37. We support the view expressed by the Lord
Chief Justice on second Reading that, if there is to be a Supreme
Court, it should be properly resourced and accommodated. It will
be wholly unacceptable if the most senior court in the United
Kingdom is to be based in temporary or shifting accommodation
for any time after the its removal from the House of Lords. The
new court will need all the necessary support and resources to
demonstrate its importance and help ensure that our highest appellate
tribunal continues to be held in proper respect. It should be
accommodated in a prestigious building suitably located, and preferably
close to the Royal Courts of Justice and the Inns of Court. There
is no need for it to be situated in Westminster and its removal
to a different location would serve to emphasise the separation
of power.
38. Secondly, the absence of the judges from
the House of Lords will mean that they lose their voice in that
Chamber and, thus, the opportunity to put the concerns of the
judiciary to that House. We accept that there are difficulties
with individuals acting both as legislator and judge, but we believe
that it is important that there should be a mechanisms for their
views to be expressed to the legislature. We deal with this point
further at paragraphs 54-56 below.
39. Thirdly, many of us consider that the range
of nominations (currently proposed to be between two and five)
is too great and gives too much scope for the executive to influence
such appointments. Moreover, it seems to us that appointments
of this seniority should lie with the Prime Minister, rather than
with the Secretary of State. There is a clear danger that the
Secretary of State may find it more difficult to deal robustly
with pressures from the Home Secretary to accept or reject particular
candidates if, as a result of judgments in the lower courts, they
were perceived to be holding an agenda contrary to Government
policy. We understand that, historically, Lord Chancellors have
taken the view that the role of appointing judges was unique to
the Lord Chancellor and not a matter of collective responsibility
within cabinet. This enabled him to maintain an independent line.
The proposed reform seems to weaken this. In our view, the most
appropriate solution would be either for the Lord Chancellor to
provide the Prime Minister with a single choice or, by analogy
with the procedure for appointing bishops, two.
40. The creation of a Supreme Court is a step
into the unknown. We understand and are sympathetic to the reasoning
behind its creation but believe that the maintenance of the role
of Lord Chancellor with his understanding of the role and function
of our courts will lessen the risk of any debasement of the institution
and ensure that it has a strong spokesman in cabinet.
THE ARRANGEMENTS
FOR FUNDING
AND ADMINISTERING
THE COURTS
41. The arrangements for funding and administering
the work of the courts date back to the recommendations of the
report of the Beeching Commission in 1971. That report, which
recommended the creation of the Crown Court, brought the administration
of all the courts superior to the Magistrates' Courts and below
the House of Lords under the control of the Lord Chancellor. Their
staff became civil servants and their funding was provided centrally
by that Department. The Lord Chancellor, essentially, provides
the staff to work to the direction of the judges and is responsible
to Parliament for their work.
42. The proposals in the "concordat"
between the Lord Chancellor and the judiciary broadly maintain
this distribution of functions. We note that it provides for substantial
involvement of the judiciary in boards which are to run the Court
Service. We support this aspect of the agreement.
43. It is understandable that the judiciary might
feel ill-equipped to manage the complexities of administering
courts. However, we have previously indicated that we regard that
adequate support for judges is important to bolster their independence.
This is particularly the case with respect to the function of
listing cases in which it is generally accepted that the executive
should have no role. It cannot be right that the executive should
have an influence over which judge should hear a particular case
and we agree that this must be regarded as a solely judicial function.
The staff in the Court Service are thus in a peculiar position
in that they are exercising judicial functions, working under
the direction of judges, although appointed by a member of the
executive.
44. It is particularly because of the delicate
relationship between the executive and the judiciary that we consider
that the running of the Courts should be in the hands of a minister
of the appropriate seniority to understand the needs of the judiciary
and the position of the staff supporting them. The Lord Chancellor
fulfils this requirement.
THE LORD
CHANCELLOR'S
ROLE IN
RESPECT TO
THE PROFESSIONS
AND LEGAL
AID
45. The role of legal professions in ensuring
access to justice and assisting the courts has been mentioned
above. It would be wrong for members of the professions representing
clients to be employees of the state because they have a role
to play in underpinning democracy and human rights which may clash
with the policy of the State. It is important to understand the
reasons why this role is so crucial and why its independence needs
to be maintained.
46. All members of society have a right to competent,
independent legal advice and representation in matter affecting
their legal rights, whether these concern their liberty, their
family, their employment or other areas of importance for their
economic and personal well-being. Access to such advice is provided
in the first instance by around 100,000 solicitors. More complex
cases needing expert advice and representation are dealt with
by barristers. The Bar has, for many years, imposed on itself
the "cab-rank" rule. This rule requires barristers to
accept any case that is offered to them which is within their
expertise provided that they have the time to do it and are paid
an appropriate fee. This ethos extends to the substantial amount
of pro bono work which is done by the Bar and, indeed, by solicitors.
47. The "cab-rank" rule has three important
benefits. It ensures that barristers are required to accept cases
within their expertise, no matter how distasteful the case or
unpopular the client, thus ensuring that individuals are not unrepresented.
It protects the barrister representing the unpopular client from
association with that client. Finally, it makes sure that barristers
gain expertise in representing a number of different interests,
thus nurturing the ethos of independence essential to those who
subsequently take judicial appointment.
48. It is often not understood that lawyers owe
particular duties to the court which may, on occasion, override
their duties to their clients. There is a duty not to mislead
the court and to act as an honest advocate in furtherance of their
clients' cases. They must ensure that the court is aware of all
statutes and authorities that are relevant to the case, whether
or not they are favourable to the contention for which he is arguing.
Finally, the barrister's expertise is of vast assistance to the
court. Judges do not generally have the advantage of research
assistants or the time to undertake complex research and so rely
on the expertise of the Bar to ensure that they have all the information
necessary to make informed and considered Judgments. These functions,
in our system, provide a vital buttress to judicial independence
and the rule of law.
49. We do not suggest that the professions should
be immune from scrutiny or that the State does not have a substantial
role to play in ensuring that there is an adequate supply of lawyers
to meet the needs of society. The cost of the legal aid system
alone would mean that the state had an interest in ensuring that
the taxpayer gained value for money.
50. There are, nevertheless, wider interests
than those of the state that need to be considered. There is increasing
evidence that, in certain areas, it is not proving possible to
provide funding at a sufficient level to attract lawyers to publicly
funded work. We have anecdotally heard concerns by judges that
the increasing number of litigants in person who are unable to
afford legal representation is causing difficulties for the courts.
We are aware of research that suggests that it is becoming difficult
to find lawyers of adequate calibre to advise clients in family
matters. It is regrettable that the Bar Council found it necessary
to decide that legal aid rates in criminal and family cases were
no longer "adequate" for the purposes of the "cab
rank" rule.
51. In addition, we are concerned that the ethical
rules which govern the conduct of advocates in court are not merely
subject to approval by the Secretary of State, but that the Secretary
of State has the power to amend them. While that role was given
to the Lord Chancellor, it was clear that a senior member of the
Government with legal knowledge and a judicial role was in charge
of the approval of these rules. A Secretary of State, even with
duties to consult the judiciary, may take a very different approach
from the Lord Chancellor and there must be genuine cause for concern
that there is an incentive. to interfere in the professions' rules
in ways that might assist the Government's own agenda, but which
might be inimical to the wider public interest in the administration
of justice.
52. We are aware that Sir David Clementi is looking
at these issues as part of his review of the regulatory framework
for the legal professions. In his consultation paper, he suggests
that the powers of the Secretary of State could be exercised by
some intermediate body. We would support this and would urge a
strong role for the judiciary in any future structure. It is unlikely,
however, that Sir David's proposals, whatever they may be, will
be implemented immediately. There is scope for damage in the meantime
and we would urge that the present legislative opportunity is
taken to provide some interim solution which gives a greater role
to the judiciary in this area.
53. We therefore recommend that the Lord Chancellor
should retain his role in respect of the legal professions and,
subject to the reservations of Lord Morris, noted at paragraph
66 below, legal aid for the time being.
THE ARRANGEMENTS
FOR ENSURING
THAT THE
JUDGES' CONCERNS
ARE HEARD
IN PARLIAMENT
54. We have indicated that we believe that a
mechanism should exist to enable the judiciary to have its views
heard and taken into account by Parliament and to compensate for
the absence of the senior judiciary from the House of Lords.
55. We propose that both Houses of Parliament
should establish a Joint Committee on the Administration of Justice.
Such a Committee would be able to hear evidence from the senior
judiciary about any matter relating to the administration of justice.
In our view, the Lord Chief Justice should have a right of access
to this Committee if he considers it to be necessary. Such a Committee
would have a role in considering:
—The administration of the courts by the
Government including their resourcing;
—The performance of the Judicial Appointments
Commission;
—Access to Justice and issues concerning
the independence of the legal professions;
—Other matters and proposals affecting
the rule of law.
Such a Committee's role would need to be carefully
circumscribed. It would be wrong for it to impinge upon the independence
of the judiciary by considering the conduct of individual judges
or by holding judges to account for their judgements. It would
also be inappropriate for the Committee to examine the merits
of individual appointments or of complaints against judges. Equally,
judges would need to be cautious in expressing views on legislation
which they might have to consider in their judicial capacity.
These limitations need to be set out clearly in the standing orders
and terms of reference for the Committee. We consider that such
a Committee would have a valuable function even if, as we recommend,
the office of Lord Chancellor is retained.
PROTECTING JUDICIAL
INDEPENDENCE WITHIN
GOVERNMENT
56. As we have indicated, we consider that the
Lord Chancellor presently holds a strong role in protecting the
independence of the Judiciary within Government. We believe that
this takes two forms. First, he acts as their spokesman in arguing
for resources to enable them to do their work properly and to
ensure that their position is protected. Secondly, he can remind
other members of the cabinet of their role within the justice
system. As such, he acts as a counter-balance to the equally important
role of the Home Secretary in looking after the interests of public
security.
57. Clause 1 of the Bill seeks to impose a statutory
duty on the Secretary of State for Constitutional Affairs to protect
the independence of the judiciary. A further duty to respect this
independence is proposed for other ministers with a role in the
justice system. We have the strongest doubts about the effectiveness
of these provisions. Their existence demonstrates the dangers
that arise from these reforms. We do not understand how such duties
can be enforced. We do not know how it could be demonstrated that
a Secretary of State had failed to carry out his own particular
duty. We also agree with the Constitutional Affairs Select Committee
that a relatively junior Secretary of State may not have the seniority
or political power or will to defend independence against more
senior colleagues.
58. We foresee three dangers to the independence
of the judiciary. First, the inevitable, often ill-informed, discussions
within the press that attend controversial judicial decisions
could have a chilling effect on judges, if there is no senior
member of Government able to speak on their behalf. We have heard
that the support of the Lord Chancellor enhances the morale of
judges in such circumstances.
59. Secondly, the absence of a senior figure
able to fight for resources for the judiciary in cabinet may mean
that their interests are not looked after properly. As we have
suggested, it is crucial that judges' pay and working conditions
should reflect their importance to society. We are concerned that,
in the battles for public expenditure, a relatively junior minister
advocating expenditure on matters which are not perceived to have
any political urgency will be unable to argue the case successfully
on behalf of the judges. This may lead to the diminution of the
prestige of judges and, as we have argued, a decline in the calibre
of individual willing to take appointment.
60. Thirdly, there is advantage in the Lord Chancellor's
current ability to see proposals at an early stage in their development
and to warn colleagues if they are likely to cause difficulties
for the judiciary. While recent proposals may cause us to doubt
whether this function is exercised in practice, this does not
detract from the value of a Government minister having the opportunity
to represent the judiciary's views within cabinet at a time when
proposals are discussed and before they are announced. It is thus
possible for a Lord Chancellor to influence and obtain modifications
to proposals before they are entrenched as Government policy.
We strongly doubt whether a Secretary of State for Constitutional
Affairs will have the same ability to carry out this function.
While it will be possible for the Lord Chief Justice to speak
out against individual proposals, it would appear that he would
only be able to do so in a public forum and at a time when proposals
are entrenched and it will be more difficult and embarrassing
for the Government to resile from them. The recent concerns over
the proposed "ouster clause" in the Asylum and Immigration
(Treatment of Claimants etc) Bill are an example of a case where
a Lord Chancellor ought to have been able to warn Government of
the objections in principle to their existence before they saw
the light of legislative day.
61. If, as we fear, the proposed statutory duty
proves ineffective, it is likely the Lord Chief Justice will,
inevitably, find himself drawn further into political and media
controversy in order to defend individual judges. This will be
undesirable. Judges, for good reason, are seen to exist outside
and above politics. The presence of the Lord Chancellor has provided
a protection to the Lord Chief Justice to enable him to concentrate
on his role as the most senior judge and avoid political discussions.
Without the Lord Chancellor there will be greater scope for dissension
between the executive and judicial arms. As Alexander Hamilton
noted, in Paper 58 of the Federalist Pages the judicial arm is
by far the weakest and there is scope for such dissensions to
weaken it further.
POSSIBLE SOLUTIONS
62. We are concerned that the reforms, as they
have been presented, risk upsetting the constitutional arrangements
that have served us well and that the removal of a prop to the
independence of the judiciary could result in a decline in the
calibre of judge and, therefore, in the quality of the justice.
The Attorney-General
63. We considered whether it would be appropriate
for the Attorney-General's role to be expanded to take on a responsibility
for protecting judicial independence and, generally, to provide
advice on the legal integrity of proposed legislation. The Attorney
currently has a strong role to maintain and protect the public
interest, notably in his role as Head of the Crown Prosecution
Service. He also provides independent legal advice to the Government
and is outside the Cabinet.
64. On reflection, however, we doubted the appropriateness
of the suggestion. The role of the Attorney-General is well established
and there were fears that any expansion of it would create uncertainty
over its existing features. We were fortified in this conclusion
by the firm views expressed by two distinguished former Attorney-Generals
who both considered that the proposal was unlikely to achieve
the desired result.
Retention of the Office of Lord Chancellor
65. By now it will be clear that we consider
that the reforms could go ahead provided that steps are taken
to meet the concerns of the Commons Select Committee and provide
appropriate independence for the system. We therefore considered
whether there was any way of preserving the role of the Lord Chancellor
to deal with these concerns. We accept that it is undesirable
for the Lord Chancellor to be a member of the Government but also
to have the right to sit as a judge even if this is not exercised.
66. There is an important role within our constitutional
arrangements for a figure who is explicitly responsible for maintaining
the independence and integrity of the system. Such a figure would,
however, need to hold considerable seniority within Government
and should have the legal knowledge and experience to carry the
confidence of the judiciary and the respect of cabinet colleagues.
The majority of us think that the following major roles could
be undertaken by this figure who could sensibly have the title
of Lord Chancellor:
—The appointment of judges on the recommendation
of the Judicial Appointments Commission;
—The administration of the courts and tribunals;
—The administration of the legal aid fund;
—Policy in respect of the regulation of
legal services;
—Non-contentious civil law reform proposals
from the Law Commission and elsewhere.
Lord Morris of Aberavon, however, while agreeing
that points 1, 4 and 5 are appropriate to the retained office
of Lord Chancellor considers that it would be inappropriate for
the Lord Chancellor having any jurisdiction over activity involving
significant spending. In his view, it would be unacceptable for
the Lord Chancellor to continue to be responsible for the legal
aid fund. He considers, however that it may be possible for the
Lord Chancellor to have an interest in the administration of the
courts and tribunals if it appertains to the role of the judiciary
and safeguarding their independence.
67. We are aware that there are a number of other
functions for which the Lord Chancellor has responsibility, such
as the Land Registry and the Public Record Office, which could
also remain part of his responsibilities. We do not seek to address
the detail of these in this report, noting, in particular Lord
Morris's reservations.
68. It may also be appropriate, though this is
a question for the House of Lords itself to consider, for the
Lord Chancellor to continue his duties as Speaker of that House.
This is not central to the thrust of our report and we make no
recommendation on this point. We are aware that the House of Lords
are looking at this question through its Committee on the Speakership.
Any decision on this can be independent of those concerning the
legal system.
69. It should, in any case, be a requirement
for the Lord Chancellor to be a lawyer. The same qualification
as those for a Law Lord (ie an individual who has held a right
of audience in relation to all proceedings in the Supreme Court
for 10 years). The result would be that there was a senior member
of Government with the seniority and expertise to ensure that
appointments of appropriate quality were made who could represent
the interests of the judiciary and the judicial system generally
within Government.
70. We recognise that there are difficulties
with the proposal. In particular, some of us think that it is
wrong in principle for a member of the House of Lords to have
responsibility for a major spending Department. This objection
may have had more force when the Lord Chancellor was the only
minister within his Department. The fact that, since the early
1990s, there have been junior ministers who are usually members
of the House of Commons provides, in our view, accountability
to the elected Chamber. In addition, there could be accountability
to an elected Committee.
71. We would, therefore, urge the Government
to continue the post of Lord Chancellor with the responsibilities
outlined above.
CONCLUSIONS AND
RECOMMENDATIONS
72. We summarise our conclusions as follows:
1. We doubt whether role played by the Lord Chancellor
in balancing the Constitution and protecting the independence
of the Judiciary can be successfully. We are concerned that future
Secretaries of State will possess neither the necessary gravitas
nor sufficient expertise to exert similar levels of influence
within future cabinets (paragraphs 15-21).
2. A modified office of Lord Chancellor should
be retained (paragraph 23). The functions of this new office would
be streamlined, removing many of the duties accrued in recent
years, and abolishing his role as Head of the Judiciary and his
right to sit as a Judge (paragraph 23 & 65-66).
3. The office should be restricted to lawyers
with the qualification to sit in the House of Lords (paragraphs
69 & 70).
4. Future Lord Chancellors should chart a course
which avoids involvement in major political issues (paragraph
23).
5. We are broadly content with proposals for the
Judicial Appointments Commission, but favour it being allowed
to be proactive in encouraging applications to the bench (paragraphs
29-31).
6. The Bill should include a definition of "merit"
(paragraph 28).
7. The Chairmanship of the Commission should be
open to suitably qualified lawyers (paragraph 32).
8. The Supreme Court should be appropriately accommodated
and have sufficient funding and resources (paragraph 37).
9. The range of nomination to the Supreme Court
proposed in the Bill is too large. Appointment should be made
by the Prime Minister on the recommendation of the Secretary of
State, and the Prime Minister should be given advice of no more
than two candidates (paragraph 39).
10. Irrespective of whether or not the role of
Lord Chancellor is retained, a joint Committee of both Houses
on the Administration of Justice should be established to ensure
that the judges have a mechanism for putting their views to Parliament
(paragraphs 54-55).
May 2004
154 Judicial Appointments and Supreme Court. First
report of Session 2003-04: HC48-I, para 13. Back
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