House of Lords - Judicial Appointments

Judicial Appointments - Constitution Committee Contents

Chapter 4: Appointment of the Lord Chief Justice and the President of the Supreme Court

136. Of all judicial appointments, two stand out as being of particular importance: those of the Lord Chief Justice and the President of the Supreme Court. The former is the head of the judiciary in England and Wales, whilst the latter leads the most senior Court in the United Kingdom. As well as having the qualities required of a senior judge, candidates for these positions must possess high level leadership and administrative skills and be able to work closely with the Lord Chancellor. We therefore consider that their appointments require special attention.

The role of the Lord Chancellor

137. The Government's consultation paper asks whether the Lord Chancellor should sit on selection panels for the positions of Lord Chief Justice and President of the Supreme Court.[234] If these changes were made, the Lord Chancellor would lose his right of veto in relation to these appointments. The argument made by the Government in support of these proposals focuses on "the importance" of each role and the "level and nature of engagement" between each of these individuals and the executive.[235] The Government do not believe that this proposal would undermine judicial independence since the Lord Chancellor would be only one member of a selection panel consisting of five or more members.[236]

138. Several witnesses underlined the need for a close working relationship between the Lord Chancellor and, in particular, the Lord Chief Justice.[237] It was also noted that these appointments "involve strong administrative and executive skills"[238] which the Lord Chancellor may be well-placed to assess. However, we consider that there are others better placed to assess such skills, notably the Chair of the JAC who should have experience of leadership and administration in other contexts as well as a thorough understanding of the needs of the judiciary in this regard.[239] The Lord Chancellor should be properly consulted before an appointment is made to either of these positions, and there may be a need to strengthen the current consultation process.[240] It is also important that he retain the right to reject a candidate whom he considers does not possess the necessary leadership and administrative skills. But the very fact of the close working relationship between the Lord Chancellor and these two senior judges creates an increased risk that the Lord Chancellor, if he were to sit on the selection panels, might exercise a political (with a small "p") rather than a wholly impartial judgment.

139. The Lord Chancellor should not sit on selection panels for the appointment of either the Lord Chief Justice or the President of the Supreme Court. He should be properly consulted before the start of each selection process and retain his right of veto. Any closer involvement risks politicising the process and would undermine the independence of the judiciary.

The appointment of the Lord Chief Justice

140. The selection panel for the appointment of the Lord Chief Justice is currently chaired by the most senior English and Welsh Justice of the UK Supreme Court. The Government's consultation recommends that this role be taken instead by the Chair of the JAC on the grounds that a Supreme Court Justice may "have limited experience of the responsibilities or leadership skills required for the role."[241] The Lord Chancellor argued that "it is difficult to find anyone more obviously objective and in touch with the system [than the Chair of the JAC] to chair it."[242] We did not receive any evidence to the contrary.

141. We agree that the Chair of the JAC should chair the selection panel for the appointment of the Lord Chief Justice.[243]

The President and Deputy President of the Supreme Court

142. One anomaly in the appointments system established by the CRA which has been universally criticised by our witnesses is that the CRA requires the President and Deputy President of the Supreme Court to sit on (and, in the case of the President, to chair) the selection commissions which appoint their successors. It is contrary to well-recognised principles of appointment for an individual to select his or her successor[244] and this requirement undermines attempts to promote an independent appointments process under which judges are not solely responsible for the appointment of other judges. The requirement was variously described by senior members of the judiciary as "inappropriate"[245], "undesirable"[246] and "indefensible."[247] The current President, Lord Phillips, wished to remove the requirement, as did the Judicial Executive Board, the Advisory Panel on Judicial Diversity and the Government.[248]

143. We agree that the CRA should be amended to remove the requirement that the President and Deputy President of the Supreme Court should sit on the selection commissions formed to choose their successors.

234 Appointments and Diversity: A Judiciary for the 21st Century, op. cit., questions 7 and 9. Back

235 Appointments and Diversity: A Judiciary for the 21st Century, op. cit., paras 64 (Lord Chief Justice) and 71 (President of the Supreme Court). Back

236 Appointments and Diversity: A Judiciary for the 21st Century, op. cit., para 65. Back

237 Q 291 (Lord Carswell), Q 291 (Lord Woolf), Q 384 (Lord Chancellor). Back

238 Q 129 (Jack Straw MP). Back

239 For details of the post and person specification see Justice Committee, 2nd Report (2010-2011): Appointment of the Chair of the Judicial Appointments Commission (HC Paper 770), para 9 and Appendices C and D. Back

240 Q 345 (Christopher Stephens). Back

241 Appointments and Diversity: A Judiciary for the 21st Century, op. cit., para 66. Back

242 Q 386. Back

243 For consideration of who should chair selection commissions for the President of the Supreme Court, see below, paras 148-150. Back

244 See, for example, written evidence by JAC, para 67. Back

245 Q 179 (Lord Judge CJ). Back