Judicial Appointments - Constitution Committee Contents

Chapter 2: The constitutional framework

Constitutional principles

14.  The principle of judicial independence, without which the rule of law is impossible, is recognised as an essential feature of constitutional democracies around the world. Many of our witnesses stressed the primary importance of judicial independence,[20] and none dissented. There was widespread agreement that the appointments process must be designed in such a way as to reinforce judicial independence.[21] Judges in the United Kingdom should not be appointed through political patronage.

15.  It is important not only that the judiciary act independently, but that they are seen to do so. This principle also extends to the appointments process. Lord Justice Toulson, Vice-Chairman of the JAC, noted that prior to the enactment of the CRA "there was widespread public concern that judges were being appointed through cronyism and secret soundings. Nothing, really, could disabuse the public of that."[22] The establishment of the JAC was intended to put an end to such concerns. By operating in an open and transparent manner—for example, by advertising vacancies, specifying the criteria for appointment and publishing diversity statistics—the existence of an independent appointments commission is aimed at helping to ensure that no suspicion of political patronage remains.

16.  As well as upholding independence and being open and transparent, the judicial appointments process must be effective. Assessment of professional competence must be central to the selection of judges in order to ensure the efficient delivery of justice. The CRA uses the term "merit" to refer to these criteria, which have been set out in some detail by the JAC.[23] We received different views as to how merit ought to be understood and applied in judicial selection. Given the importance of the merit principle, it is important that there is clarity over its basic meaning. We return to this in Chapter 3.

17.  Another principle relevant to judicial appointments is diversity. At one level this means that the process must be fair and non-discriminatory: by that we mean that it must continue to result in the appointment of high quality judges, but without the imposition of barriers against talented legal practitioners from any section of society. However, the issue of diversity goes further than this: we received evidence, with which we concur, arguing that diverse courts are better equipped to carry out the role of adjudicating than courts that are not diverse and that the public will have greater trust and confidence in a more diverse judiciary. As we argue in Chapter 3, the primacy of the merit principle is not inconsistent with the appointment of a diverse judiciary which is more reflective of the society which it serves.

18.  The principle of accountability is also important. Judicial independence does not require that no-one be held accountable for the operation of the appointments process or perhaps even, in exceptional cases, for individual appointments. Later in this Chapter we consider the practical mechanisms by which the JAC and the Lord Chancellor are held to account. Through annual reports, a detailed website and appearances before parliamentary committees, the JAC provides regular accounts of its work to Parliament, ministers and the public. The Lord Chancellor's role in the appointments process is justified as necessary to secure accountability to Parliament through the usual convention of individual ministerial responsibility. Some of the evidence we received questioned the effectiveness of the current accountability mechanisms, leading to calls for Parliament to have a greater role in the appointments process.

19.  None of our witnesses called for the complete replacement of the basic model for judicial appointments which was established by the CRA. We would not like to see that model replaced. But many of our witnesses disagreed about the precise role of the JAC and the Supreme Court selection commissions and about the extent to which Parliament, the executive and the judiciary should also have a role to play. All three branches of the state have a legitimate interest in the quality of justice[24] and in the quality of those appointed to act as judges. In the rest of this Chapter, we examine the respective roles of the Lord Chancellor, Parliament, the JAC and the judiciary to determine whether the current balance is right.

20.  The principles which we believe should continue to underpin the judicial appointments process are judicial independence, appointment on merit, accountability and the promotion of diversity. The achievement of the correct balance between these principles is vital in maintaining public confidence in the judiciary and the legal system as a whole.

The Lord Chancellor

21.  Under s 3(6)(a) of the CRA, the Lord Chancellor has a specific statutory duty to defend the independence of the judiciary. This duty underpins his role in the appointments process which is set out in Box 1 below. We examine here the principles governing the Lord Chancellor's involvement in the judicial appointments process.


The Lord Chancellor's power to reject or request reconsideration of nominations

When making nominations for filling judicial vacancies for the courts of England and Wales, the JAC recommends a single candidate to the Lord Chancellor. The Lord Chancellor then has three options: he may accept the recommendation, in which case the candidate's name is put to Her Majesty for appointment; he may reject the nomination if he considers that the candidate is unsuitable for appointment; or he may ask the JAC to reconsider the nomination if he considers that there is either insufficient evidence that the candidate is suitable or evidence that the person is not the best candidate on merit. If the Lord Chancellor rejects a candidate or asks the JAC to reconsider he must provide the JAC with written reasons for the request.

If the Lord Chancellor either rejects or asks the JAC to reconsider its first nomination, the JAC will then propose a second name to the Lord Chancellor. If the first candidate is rejected, that candidate may not be proposed again. If the JAC is asked to reconsider, it may either re-recommend the first candidate, or nominate a new candidate. The Lord Chancellor again has three options: accept the candidate; reject, but only if the candidate was nominated following a reconsideration; or ask for reconsideration, but only if the nomination was made following a rejection.

If the Lord Chancellor rejects or asks for reconsideration during the second round, the JAC must make a third nomination: again, a candidate previously rejected by the Lord Chancellor for this vacancy may not be re-nominated.

On receipt of the third nomination, the Lord Chancellor must either accept the third nomination or accept an earlier nomination which he had asked to be reconsidered and where the candidate had not subsequently been re-nominated. Effectively, at this stage the Lord Chancellor may select any candidate proposed by the JAC during the process, as long as he or she has not rejected that candidate at any stage.

The process for appointments to the Supreme Court is similar to that outlined above; though in the case of such vacancies the Lord Chancellor is also obliged to consult with certain senior judges, as well as the First Ministers of Scotland and Wales and the Northern Ireland Judicial Appointments Commission.


22.  As well as creating a new appointments process, the CRA removed the role of the Lord Chancellor as head of the judiciary and as Speaker of the House of Lords.[25] The position of Lord Chancellor, which is legally and constitutionally distinct from that of Secretary of State for Justice, is now a more political role than it once was. Although, to date, Lord Chancellors have all been lawyers, there is no longer any requirement for this to be the case. As the current Lord Chancellor, Kenneth Clarke MP, told us:

"I think that we will have a Lord Chancellor who is not a lawyer. The lawyers that we have, including me, will not be as senior and distinguished as they used to be ... A better understanding of my role would be to describe me as Secretary of State for Justice ..."[26]

23.  Lord Woolf, who was Lord Chief Justice at the time leading up to the passing of the CRA, told us that this changing role of the Lord Chancellor was one of the reasons why the Lord Chancellor's role was restricted by the CRA: it would have been inappropriate for a politician to continue to act as Lord Chancellors had done previously.[27] Although, in recent history, there has been no political misuse of the role, the risk of this occurring in the future if the Lord Chancellor were to be given increased powers cannot be ignored.[28]

24.  Despite this, some of our witnesses argued that the Lord Chancellor should have an increased role, particularly in relation to the appointments process as a whole.[29] Others considered that the Lord Chancellor should be removed from the process altogether, except in a purely formal capacity.[30] The majority of evidence we received urged caution in dramatically reducing or increasing the Lord Chancellor's role. The JAC's written submission stated that:

"The Lord Chancellor's role is potentially quite extensive, but ... a convention has emerged that the Lord Chancellor's involvement is minimal and the vast majority of the JAC's recommendations are accepted without request for reconsideration or rejection."[31]

25.  On this basis, Lord Mance, Justice of the Supreme Court, argued that the Lord Chancellor acted as "a remote long-stop [which] can have some impact, if only indirectly."[32] The Lord Chancellor is accountable to Parliament for the appointments process: it is important to maintain the connection between Parliament, the executive and the JAC partly so that "the government cannot entirely wash their hands of what is happening"[33] and partly to enable the Lord Chancellor better to defend the judges from attack by taking responsibility for the system which appointed them.[34]

26.  We agree that the Lord Chancellor should continue to have a limited role in the appointment of individual members of the judiciary: an increased role would risk politicising the process. However, we consider that the Lord Chancellor must retain responsibility and be accountable to Parliament for the overall appointments process.


27.  As detailed in Box 1, the Lord Chancellor may accept, reject or request the reconsideration of a nominee put forward by the JAC or a Supreme Court selection commission. The Lord Chancellor is responsible for making the vast majority of judicial appointments.[35] The Government's consultation paper states that:

"Last year the Lord Chancellor approved 686 judicial appointments; 400 for the Tribunal Service; 284 for the Courts Service; and 2 for the UK Supreme Court. The Lord Chancellor accepted every recommendation put forward by the Supreme Court and the JAC except for one."[36]

28.  Partly in the light of the establishment of a single head of the courts and tribunals judiciary (the Lord Chief Justice), the Government propose that the Lord Chancellor's role in relation to individual appointments should be removed from all posts below either the High Court or the Court of Appeal.[37] Responsibility for making all lower level appointments would rest with the Lord Chief Justice. The Government are of the view that the Lord Chancellor should retain his role in relation to more senior appointments since the complete removal of his role "would result in an accountability gap" which "increases with the seniority of the appointment being made, given the Lord Chancellor's statutory duty to Parliament for the operation of the justice system and the key role the senior judiciary play in that regard."[38]

29.  In oral evidence, the Lord Chancellor told us that his role:

"for appointments below the High Court has become largely ceremonial and ritualistic ... I do not know the people. I have no direct contact with the posts concerned and I do not think that anyone in my department is in any better a position than me to second-guess what the Judicial Appointments Commission does. Therefore, I think that we should present a little more of the reality to the outside world ..."[39]

30.  This argument was supported by the previous Lord Chancellor, Jack Straw MP, who described his role in relation to the lower tiers of the judiciary as "ridiculous".[40] The Lord Chief Justice, Lord Judge, also stressed that the Lord Chancellor "has no input at all to make other than to be there to look as if he is making an input ... It simply suggests there is political involvement when we have tried to get rid of it."[41] Another former Lord Chancellor, Lord Mackay, disagreed. He argued that "the elected government and the people—the democracy—have an interest in seeing that the judicial process will be properly run and that the people in it are proper for that job."[42]

31.  Some witnesses were also concerned that to remove the Lord Chancellor's role for all those except the senior judiciary would "send a signal that lower-tier appointments are not as important."[43] However, both Lord Justice Carnwath,[44] the then Senior President of Tribunals,[45] and the Association of HM District Judges[46] agreed with the Government's position that the Lord Chancellor's role should be limited to the most senior appointments. We do not consider that the proposed change would diminish the importance of individual appointments to the lower level courts.

32.  The appointments process needs to be robust and, so far as possible, efficient. The Lord Chief Justice has day to day responsibility for the judiciary of England and Wales: he knows what is required of judicial office at all levels. He is therefore better placed than the Lord Chancellor to make an informed assessment of whether a nominee put forward by the JAC should be appointed. Transferring the Lord Chancellor's power to request reconsideration or reject nominations to the Lord Chief Justice would strengthen the appointments system.

33.  The senior judiciary are responsible for decisions which have a significant impact on the whole of society: this particularly applies to the appellate courts whose decisions may not, or cannot, be further appealed. The need for proper accountability for appointments is therefore greatest in relation to the appellate courts. However, the significance of this change means that it would be better to restrict this change to appointments below the High Court for the time being.

34.  In order to maintain public confidence in the system, there is a need for the legal framework for appointments to reflect both the extent to which the executive should be involved in individual appointments and the reality of that involvement. We agree that the power to request reconsideration or reject nominations should be transferred from the Lord Chancellor to the Lord Chief Justice in relation to appointments below the High Court. This will promote the independence of the judiciary and increase public confidence in the system. Whether the Lord Chancellor's powers in respect of High Court appointments should be transferred to the Lord Chief Justice should be reviewed in three to five years' time.

35.  We recognise that this change may have resource implications for the Office of the Lord Chief Justice. The Government should consider whether the Lord Chief Justice will need additional support in order to take on this role.


36.  Some of our witnesses argued that the Lord Chancellor should be able to select from a shortlist of candidates proposed by the JAC, at least in respect of the most senior appointments.[47] Professor Cheryl Thomas pointed out that the system created by the CRA "is unique in relation to appointments commissions in most other jurisdictions" where the executive normally has the power to select from a shortlist.[48] The two main arguments given in favour of shortlists were democratic accountability[49] and diversity.[50] In relation to the former argument, we have already stated that the Lord Chancellor should primarily be accountable for the overall process.[51] His power to reject individual (senior) appointments enhances this accountability without undermining the independence of the process. As we note above,[52] his lack of involvement in the appointment of judges to the lower courts and tribunals, means that any democratic accountability in relation to those appointments is illusory. In relation to the diversity argument, we note evidence that unless a Lord Chancellor is committed to the promotion of diversity, the use of shortlists could have the reverse effect of reducing the diversity of the judiciary.[53]

37.  The use of shortlists would undermine judicial independence and be contrary to the principle of appointment on merit. The Lord Chancellor should not be offered a shortlist of candidates from which to choose.


38.  It is the responsibility of Parliament to establish the statutory framework for the judicial appointments process. Parliament also has an accountability role to play in overseeing the process and reviewing the success or failure of its operation. To what extent should Parliament or parliamentarians be involved in individual appointments? And how best can Parliament hold the Lord Chancellor and the JAC to account for the operation of the process?


39.  We received evidence arguing that candidates for some senior judicial posts[54] should be subject to a pre-appointment hearing before a parliamentary committee.[55] Professor Robert Hazell, Director of the Constitution Unit, University College London, and Professor Kate Malleson, Professor of Law, Queen Mary, University of London, set out the arguments in favour of such hearings as follows: [56]

·  hearings act as a check on political patronage, help to ensure that independent and robust candidates are appointed[57] and add to the appointee's legitimacy;[58]

·  Parliament has the power to scrutinise all acts of the executive—appointments of senior judges are an important exercise of ministerial discretion and should be subject to parliamentary scrutiny which is a useful check against political bias;[59]

·  Parliament nowadays has little contact with the judges: the senior judges are largely unknown to MPs; Supreme Court Justices will be unknown to the Lords now that the law lords have departed—through dialogue, political and judicial actors can better understand the constraints under which the other operates;[60] and

·  the judges should meet the body vested with the constitutional power to dismiss them.[61]

40.  A number of witnesses focused the case for some form of pre-appointment hearing on the increasingly complex role of the senior judiciary and the legitimate role for Parliament to consider candidates' competing judicial philosophies. Individual decisions made by judges impact on policy and determine the interpretation of legislation enacted by Parliament. Some witnesses argued that in respect of legislation such as the Human Rights Act 1998, and in the development of judicial review, the judiciary has a wide margin in which to develop the law and that Parliament has a legitimate interest in the manner in which this is done. Professor Alan Paterson, Professor of Law at the University of Strathclyde, argued that:

"We already have committees to ask Supreme Court nominees what they think the role of a Supreme Court justice is in a democracy. I see no reason why the appointments panel could not ask that and I see no reason why a parliamentarian could not ... ask it. Indeed, it could ask about the judge's views on parliamentary sovereignty. We know that there is a split among some judges in their views on this. I do not see why one could not elicit views in general terms on that sort of thing."[62]

41.  Jack Straw MP, a former Lord Chancellor, stressed the need to address the "lack of mutual confidence between the senior judiciary and this place [Parliament] in respect of the role of the senior judiciary and its broadening authority into areas that are inevitably political".[63] Sir Thomas Legg, former Permanent Secretary in the Lord Chancellor's Department, considered it to be "more and more desirable that our most senior judges should be able to ground their mandate on the authority, not only of the executive, still less of the judges themselves and a few laymen alone, but of Parliament itself."[64]

42.  A number of witnesses on both sides of the argument referred to the system of confirmation hearings in the United States.[65] However, Professor Cheryl Thomas, Professor of Judicial Studies, University College London, noting the more extensive powers of US judges and their appointment by the President, argued that there were "extremely good reasons for there to be a legislative hearing process for those judges that do not apply to judges in this country."[66]

43.  The weight of our evidence was against pre-appointment hearings for UK judges. Professor Brice Dickson, Professor of International and Comparative Law at Queen's University, Belfast, stressed the ability of Parliament to overturn individual judicial decisions,[67] whilst Lord Kerr, Justice of the Supreme Court, described such hearings as "the complete antithesis of the preservation of judicial independence".[68] The benefits of pre-appointment hearings in respect of senior public appointments are many,[69] but the relationship between Parliament and the judiciary is a unique one. Parliament is best placed to protect the independence of, for example, ombudsmen from the executive. Judges must be independent of both the executive and Parliament: it is imperative that they remain one step removed from the political process.

44.  Our witnesses also raised more immediate concerns about pre-appointment hearings. It would be difficult to limit the questioning of candidates to matters of general judicial philosophy and approach.[70] There is a real danger that questions might touch on specific issues that could come before the courts or on candidates' individual political positions. Even if parliamentarians did limit themselves, the answers would either be at a level of such generality as to be effectively meaningless[71] or be sufficiently detailed as to risk politicising the process.[72] Some witnesses were concerned that hearings would act as a disincentive to many potential candidates.[73] There is a further question of what impact criticism of a candidate, explicit or implicit, might have on his or her future public standing.

45.  Pre-appointment hearings "would also risk undermining the public's confidence that the senior judiciary is appointed strictly on merit and having regard to integrity and independence."[74] Roger Smith, Director of JUSTICE, thus described the proposal as "a quagmire into which no one would want to go."[75]

46.  We are against any proposal to introduce pre-appointment hearings for senior members of the judiciary. However limited the questioning, such hearings could not have any meaningful impact without undermining the independence of those subsequently appointed or appearing to pre-judge their future decisions. In the United Kingdom, judges' legitimacy depends on their independent status and appointment on merit, not on any democratic mandate.

47.  One alternative to pre-appointment hearings which we examined was the idea that senior members of the judiciary should appear before a parliamentary committee following their appointment. This would enable a dialogue to take place between those judges and parliamentarians with less risk of politicising the appointment. Our witnesses demonstrated little support for this idea. Baroness Hale, Justice of the Supreme Court, stressed that post-appointment hearings would not improve the accountability of the system.[76] Lord Judge CJ, noting that most senior judges are not responsible for administrative issues, argued that there was no purpose in parliamentarians simply meeting a Justice of the Supreme Court for the sake of it: "I think the idea of beauty parades is not a good one."[77]

48.  We agree that post-appointment hearings of senior judges would serve no useful purpose. There may be an exception in the case of the Lord Chief Justice and the President of the Supreme Court who undertake leadership roles for which they can properly be held to account.


49.  A number of witnesses, including some of those who disagreed with the concept of pre-appointment hearings, proposed that parliamentarians should in future sit as members of selection panels, in particular for the Supreme Court. Lord Justice Etherton and Baroness Hale both argued strongly in favour of this proposal on the grounds that "politicians have the legitimacy of being elected"[78] and that it would be "a small step towards increasing the democratic accountability of the process".[79] Baroness Hale further argued that it would "reduce the potential for 'cloning'",[80] an argument reflected in the evidence of Lord Mance who considered that this could be one way of ensuring that candidates were assessed "from different angles".[81]

50.  Lord Phillips, President of the Supreme Court, disagreed with this analysis. He argued:

"Once you start introducing some kind of parliamentary choice of who is appointed, one asks what the criteria are that Parliament is going to be adopting in making the choice. If it is simply to appoint the best person, well, I do not think Parliament is best placed to do that. If it is, alternatively, to have regard to political considerations, I do not myself think that is desirable."[82]

This concern was shared by a number of other witnesses, including Lady Justice Hallett[83] and Lord Neuberger MR.[84]

51.  We accept the concern raised by Baroness Hale and others that selection panels must not simply contain judges who might seek, subconsciously or otherwise, to appoint others in their own image. But we disagree that the involvement of parliamentarians is the means to prevent this. The first question, to which none of our witnesses suggested a convincing answer, is how would these parliamentarians be chosen, and on what basis? Whilst there is no objection to lay persons who happen also to be parliamentarians sitting on panels—indeed, the first Chair of the JAC, Baroness Prashar, is a cross-bench member of this House—and emphasising that there is a strong case for more lay representation on selection panels to increase diversity, we do not see what additional questions a parliamentarian might sensibly ask which could not be asked by a lay person.

52.  Parliamentarians, acting in that capacity, should not sit on selection panels for judicial appointments. There is no useful role that parliamentarians could play that could not be played by lay members on selection panels. It would not be possible to choose one or two parliamentarians without recourse to political considerations and in so doing it would be difficult to maintain the appearance of an independent judicial appointments process.


53.  The proper role of Parliament is to have oversight of the judicial appointments process rather than to be involved in specific appointments. The Lord Chancellor has ministerial responsibility for the appointments process and is accountable to Parliament for his actions. There is an additional question of the extent to which Parliament should be able to question judges directly on the appointments process and other matters.

54.  The Lord Chief Justice, as head of the judiciary of England and Wales, appears annually before this Committee to give evidence on issues of constitutional importance to both Parliament and the judiciary.[85] He similarly appears on a regular basis before the Justice Committee in the House of Commons.[86] Lord Judge CJ told us that he was "perfectly happy to come and speak" to us on a regular basis "provided that it does not happen too often and provided that the discussion is, as this one is, structured."[87] Lord Woolf, a former Lord Chief Justice, also agreed that such discussions were appropriate.[88]

55.  Lord Phillips, the current President of the Supreme Court,[89] also confirmed that he would be content with an annual appearance before this Committee.[90] We welcome the fact that a number of judges have provided evidence to this inquiry and other parliamentary inquiries in the past.[91] We recognise that judges, with the particular exception of the Lord Chief Justice,[92] do not speak for the judiciary as a whole. Lord Justice Toulson has recently raised this as a cause for concern in a note to Lord McNally, Minister of State for Justice:

"Judges who are called before such committees may have views of their own which do not necessarily represent the views of the judiciary. They may not be particularly well informed and it can be an easy temptation for them to become drawn into political areas."[93]

56.  We welcome the willingness of judges, once appointed, to give evidence to parliamentary committees on the judicial appointments process and other matters relating to the administration of justice. We recognise that the majority of judges speak on an individual basis and not on behalf of their fellow judges: indeed, Parliament benefits from the diverse range of views thus offered. We believe that this dialogue is of mutual benefit to both the judiciary and Parliament as it enables both to explore areas of common interest and concern. We encourage its continuation in the future.

The Judicial Appointments Commission


57.  Under the CRA the JAC is established as an independent body: it is not a servant or agent of the Crown and it is not part of the executive. Section 65 of the CRA provides that, with the concurrence of the Lord Chief Justice and subject to an affirmative resolution of both Houses of Parliament, the Lord Chancellor may issue formal guidance to the JAC. The Lord Chancellor's power to issue mandatory directions relates solely to the spending of money. Lord Justice Toulson concluded that, whilst operationally speaking there was a good deal of discussion between the Lord Chancellor and his officials and the JAC, "A very high level of constitutional independence is created for the Commission, which I think is valuable."[94]

58.  Both Baroness Hale and Cordella Bart-Stuart, Vice-Chair of the Black Solicitors Network and a serving Immigration Judge, argued that the Lord Chancellor should have the power to issue directions as well as guidance, primarily in pursuance of the aim of increasing diversity.[95] Baroness Hale based her argument on the ministerial responsibility of the Lord Chancellor for the JAC:

"The Lord Chancellor is in a leadership position and he is accountable to Parliament. If he says, 'These are the policies that I would like the JAC to pursue,' he can then be questioned in Parliament about whether they are justifiable and can justify them. That seems to be democratically entirely appropriate."[96]

59.  Noting that the Lord Chancellor has not so far used his power to issue statutory guidance,[97] we do not consider that there is a need for an enhanced power to issue directions to the JAC. Such a power could lead to political interference and undermine the independence of the appointments process.


60.  The Chair of the JAC is subject to a pre-appointment hearing by the House of Commons Justice Committee[98] which has also taken evidence from the outgoing Chair and other commissioners.[99] As part of this inquiry we received detailed written evidence from the JAC and heard from three commissioners, including the Chair. This level of engagement enables the relevant committees of both Houses to question the JAC on its overall approach to the appointments process.[100] It also enables the JAC to bring its concerns to the attention of Parliament. This could be crucial if, for example, the Lord Chancellor were to propose making serious changes to the structure or funding of the JAC. Such engagement tends to enhance, rather than diminish, the independence of the JAC.[101]

61.  In 2008, the JAC in its response[102] to the Ministry of Justice consultation paper, The Governance of Britain: Judicial Appointments,[103] raised the option of making the JAC a parliamentary body similar to the Electoral Commission. The Electoral Commission is established by statute and appointed by the Queen on an Address by the House of Commons.[104] To ensure independence from government, the Commission's Estimate is presented to Parliament by a Speaker's Committee which also approves the Commission's five-year plan.[105] Treating the JAC in a similar manner would remove the Lord Chancellor's current role in setting the JAC's funding[106] and "increase the independence, and the public perception of the independence, of the JAC."[107]

62.  Despite the understandable concern about the potential for executive interference in the JAC, the recently appointed Chair of the JAC, Christopher Stephens, did not seek to pursue the option of becoming a parliamentary body: "We are, I think, rather comfortable with our relationship with Parliament."[108]

63.  We agree that the current relationship between the JAC and Parliament is appropriate. We welcome continued dialogue between the JAC and this Committee, as well as with the relevant committee(s) in the House of Commons. As the JAC was only established in 2006, it is too early to consider whether making it a parliamentary body would better support its independence. Were a Lord Chancellor to seek in the future to undermine that independence in any way, this option should be revisited.

Judicial and lay representation on selection panels

64.  It is axiomatic that the judiciary must have a role in the appointments process. Currently, a small number sit as members of the JAC, on special selection panels for the most senior judiciary in England and Wales and on the Supreme Court selection commissions. Significant numbers of the judiciary are also involved as consultees or referees.

65.  Serving judges best understand the qualities required to fulfil a particular position and are able to provide an informed assessment of an individual's skills and abilities.[109] These factors need to be built into the appointments process, whether through membership of selection panels or through consultation and the provision of references. But the input of the judiciary is one significant factor which risks a candidate being preferred because his or her background, characteristics and manner resemble that of other judges. This could work against attempts to increase diversity.

66.  Many of our witnesses argued that having greater lay involvement in the selection process was the most appropriate way of avoiding the problem of self-replication within the judiciary.[110] Whilst some queried whether lay members could properly assess candidates for a judicial role,[111] others stressed that the lay members of the JAC "are very powerful people with strong backgrounds in business, politics or what have you"[112] who are "of extremely high calibre and [who bring] different qualities ... and a broader perspective".[113] We agree with the assessment of Baroness Prashar that:

"You do not just have a lay member on the panel to increase transparency and to satisfy public perception: they all bring something ... Once you were on the Commission, there was very little distinction between the judicial and the lay members. I know there is a perception out there lay members would be full of deference to judicial members: not at all. The Commission was a very robust body, and it worked extremely well. Lay members add real value, and what I valued most was their independence of mind."[114]

67.  For the judiciary to be solely responsible for the appointments process would risk undermining the promotion of diversity and, ultimately, public confidence in the judiciary. Furthermore, the appointments process is enhanced by the involvement of lay persons who can bring a different perspective to the assessment of candidates' abilities. It is therefore important that selection panels include a mixture of judicial and lay representation.

20   See in particular Q 40 (Lord Kerr), Q 41 (Lord Justice Etherton), Q 79 (Lord Justice Goldring), Q 376 (Lord Chancellor), written evidence by Jack Straw MP and by Baroness Prashar.  Back

21   See for example, Q 2 (Professor Alan Paterson), Q 40 (Lord Kerr), written evidence by Association of HM District Judges.  Back

22   Q 340. Back

23   See Box 2, Chapter Three.  Back

24   Written evidence by Jack Straw MP. Back

25   Constitutional Reform Act 2005, section 7, section 18 and Schedule 6. The Lord Chief Justice is now head of the judiciary, as well as being President of the Senior Courts of England and Wales. The Speakership of the House of Lords is now exercised by the Lord Speaker: see Companion to the Standing Orders and Guide to the Proceedings of the House of Lords, 2010, paras 1.39-1.44. Back

26   Q 382.  Back

27   Q 281.  Back

28   Q 92 (Lord Justice Goldring), Q 92 (Mrs Justice Macur), Q 172 (Lord Judge CJ) and Q 255 (Lady Justice Hallett). Back

29   Q 94 (Lord Justice Goldring), Q 121 (Jack Straw MP), Q 229 (Baroness Hale).  Back

30   Q 10 (Professor Brice Dickson), written evidence by Equality and Diversity Committee of the Bar Council of England and Wales.  Back

31   Para 92.  Back

32   Written evidence, para 24.  Back

33   Q 285 (Lord Woolf).  Back

34   Q 122 (Lord Falconer).  Back

35   Appointments and Diversity: A Judiciary for the 21st Century, Ministry of Justice, Consultation Paper CP19/2011, November 2011, para 36.  Back

36   Ibid, para 36.  Back

37   Ibid, paras 37-41.  Back

38   Ibid, para 38.  Back

39   Q 373.  Back

40   Q 131.  Back

41   Q 171.  Back

42   Q 129.  Back

43   Q 308 (Baroness Prashar); see also written evidence by Baroness Prashar and Q 93 (Mrs Justice Macur).  Back

44   Written evidence, para 23(a).  Back

45   It was announced on 20 December 2011 that Lord Justice Carnwath had been appointed as a new Justice of the Supreme Court. He will be sworn in following the retirement of Lord Brown, probably in the first week of the Easter Term. Back

46   Written evidence.  Back

47   Q 229 (Baroness Hale), written evidence by Sir Thomas Legg, paras 10 and 20, by Professor Alan Paterson, para 15, by the Equal Justices Initiative, para 42, and by Professor Robert Hazell and Professor Kate Malleson.  Back

48   Q 20.  Back

49   Q 229 (Baroness Hale).  Back

50   Written evnidence by Equal Justices Initiative, para 42. Back

51   See above, para 26. Back

52   Paras 29-30.  Back

53   Q 22 (Professor Cheryl Thomas). Back

54   In general it was argued that this would include Supreme Court Justices, the Lord Chief Justice, the Master of the Rolls, Heads of Division of the High Court and, possibly, Court of Appeal judges. Back

55   Q 8 and written evidence, para 15 (Professor Alan Paterson), Q 133 (Jack Straw MP), written evidence by Professor Mary Clark, by Sir Thomas Legg, paras 12-14, and by Professor Robert Hazell and Professor Kate Malleson. Back

56   This is a summarised version of the written evidence received. Back

57   See also written evidence by Professor Mary Clark, paras 7 and 8. Back

58   See also written evidence by Sir Thomas Legg, para 12.  Back

59   See also written evidence by Professor Mary Clark, para 3. Back

60   See also written evidence by Professor Alan Paterson, para 15, and by Professor Mary Clark, paras 7 and 8. Back

61   See also written evidence by Professor Mary Clark, para 4. Back

62   Q 11 (Professor Alan Paterson); see also QQ 8 and 12 and QQ 47-48 (Lord Justice Etherton).  Back

63   Q133 (Jack Straw MP). Back

64   Written evidence, para 12. Back

65   See, in particular, written evidence by Professor Mary Clark and by Graham Gee for detailed consideration of the possible lessons to be learnt from study of the US system of confirmation hearings.  Back

66   Q 15.  Back

67   Q 9.  Back

68   Q 50.  Back

69   Liaison Committee: 1st report (2010-2012): Select Committees and Public Appointments (HC Paper 830).  Back

70   Q 58 (Lord Justice Etherton), Q 294 (Lord Carswell).  Back

71   Q 58 (Lord Kerr), Q 164 (Lord Judge CJ), written evidence by Lord Mance.  Back

72   Q 85 (Lord Justice Goldring), Q 196 (Peter Lodder QC, Chairman of the Bar Council), Q 384 (Lord Chancellor), written evidence by Professor Aileen McColgan, Karon Monaghan QC and Rabinder Singh QC, para 16. For an alternative view of the politicisation of US confirmation hearings see written evidence by Graham Gee.  Back

73   Q 50 (Lord Kerr), written evidence by Professor Aileen McColgan, Karon Monaghan QC and Rabinder Singh QC, para 15. Back

74   Written evidence by Professor Aileen McColgan, Karon Monaghan QC and Rabinder Singh QC, para 15. Back

75   Q 197.  Back

76   Written evidence, para 7.  Back

77   Q 180.  Back

78   Q 53. See also Q 15 (Professor Cheryl Thomas).  Back

79   Q 229; see also written evidence by Richard Cornes and Charles Banner QC, paras 14-15.  Back

80   Written evidence, para 9; see also written evidence by Equal Justices Initiative, para 42.  Back

81   Written evidence, paras 18-19; see also Q 229 (Baroness Neuberger).  Back

82   Q 172.  Back

83   Q 255.  Back

84   Q 256.  Back

85   For the last such session, see Constitution Committee, 9th Report (2010-2012): Meetings with the Lord Chief Justice and the Lord Chancellor (HL Paper 89). Back

86   See, for example, Justice Committee, The Work of the Lord Chief Justice, uncorrected evidence taken on 26 October 2010: http://www.publications.parliament.uk/pa/cm201011/cmselect/cmjust/uc521/uc521.htm. Back

87   QQ 180 and 182.  Back

88   Q 295.  Back

89   Lord Phillips has announced that he will retire in the autumn of 2012: Supreme Court press notice 11 October 2011.  Back

90   Q 182.  Back

91   See, for example, Constitution Committee, 6th Report (2006-07): Relations between the executive, the judiciary and Parliament (HL Paper 151).  Back

92   The Lord Chief Justice, as Head of the Judiciary for the courts of England and Wales, may speak on their behalf.  Back

93   Published as written evidence.  Back

94   Q 343.  Back

95   Q 230 and Q 276 respectively.  Back

96   Q 230.  Back

97   Q 343 (Lord Justice Toulson), written evidence by JAC, para 30.  Back

98   Justice Committee, 2nd Report (2010-11): Appointment of the Chair of the Judicial Appointments Commission (HC Paper 770); see also Liaison Committee, 1st report (2010-2012): Select Committees and Public Appointments (HC Paper 830), para 59, which recommended that the post of Chair of the JAC become a joint appointment between the executive and Parliament.  Back

99   Justice Committee, The Work of the Judicial Appointments Commission, oral evidence taken on 7 September 2010.  Back

100   Q 59 (Lord Kerr, Judge Isobel Plumstead and District Judge Tim Jenkins), Q 94 (Lord Justice Goldring). Back

101   For the converse argument, see Q 196 (Law Society).  Back

102   http://www.judicialappointments.gov.uk/static/documents/JAC_Response_to_MoJ_Consultation_Paper_170108.pdf Back

103   Op. Cit.  Back

104   Political Parties, Elections and Referendums Act 2000, sections 1 and 3.  Back

105   Erskine May: Parliamentary Practice, 24th edn, 2011, pp 31-32.  Back

106   We note that the JAC informed us that they have "so far been able to operate effectively within [the] funding allocations." Written evidence, para 30. Back

107   Ibid., para 87.  Back

108   Q 342.  Back

109   Q 166 (Lord Phillips), Q 300 (Lord Carswell), and written evidence by Baroness Hale, para 6; but see Q 53 (Lord Justice Etherton). Back

110   Q 18 (Professor Cheryl Thomas), Q 376 (Lord Chancellor), written evidence by Lord Mance, paras 18-19, and by Equality and Diversity Committee of the Bar Council, para 49. Back

111   Q 302 (Lord Carswell), written evidence by District Judge Anne Arnold, para 18, and by Chancery Bar Association, para 5.  Back

112   Q 54 (Judge Isobel Plumstead). Back

113   Q 329 (Baroness Prashar).  Back

114   Q 329; see also Q 369 (Christopher Stephens).  Back

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