Crime and Courts Bill
[HL]
1. The Constitution Committee is appointed "to
examine the constitutional implications of all public bills coming
before the House; and to keep under review the operation of the
constitution". In carrying out the former function, we endeavour
to identify questions of principle that arise from proposed legislation
and which affect a principal part of the constitution.
2. This report draws to the attention of the
House three aspects of the Crime and Courts Bill.
The National Crime Agency and counter-terrorism
policing
3. Part 1 of the Bill establishes a major new
non-ministerial department, the National Crime Agency (NCA), in
place of the Serious Organised Crime Agency and the National Policing
Improvement Agency. Intended "to lead the fight against serious
and organised crime and strengthen border security",[1]
the agency will have two principal functions. The first is the
"crime-reduction function" of "securing that efficient
and effective activities to combat organised crime and serious
crime are carried out (whether by the NCA, other law enforcement
agencies, or other persons)" (clause 1(4)). The agency will
thus be an operational agency, directly engaged in the prevention,
detection and investigation (but not prosecution) of criminal
activity, as well as a networking body with duties of cooperation
and coordination. Secondly, the NCA will have the "criminal
intelligence function" of gathering, storing, processing,
analysing and disseminating information relevant to activities
to combat, in particular, organised crime and serious crime (clause
1(5)). The new agency will be headed by a Director General, appointed
by the Secretary of State. It will initially be comprised of four
commands ("Organised Crime", "Border Policing",
"Economic Crime" and "Child Exploitation and Online
Protection") and will also house the National Cyber Crime
Unit.[2]
4. Clause 2 ("Modification of NCA functions")
concerns the possible future extension of the agency's remit into
counter-terrorism. Currently, the counter-terrorism command of
the Metropolitan Police has the lead national role in counter-terrorism
policing. Although not intending to conduct a whole-scale review
of existing structures in the immediate future,[3]
the Home Office would like to have the option of assigning or
transferring relevant functions to the new agency.[4]
Clause 2 would thus give the Secretary of State an enabling power
to "make provision conferring, removing, or otherwise modifying"
NCA counter-terrorism functions. In turn, provision could be made
conferring or otherwise modifying the counter-terrorism functions
"of any person".[5]
5. The enabling power in clause 2 is an order-making
power of the "Henry VIII" type, so empowering the minister
to "amend or otherwise modify this Act or any other enactment".
It is proposed that a clause 2 order be subject to a form of "super-affirmative"
procedure[6] (clause 28
and Schedule 16).[7] The
fact remains that the ordinary legislative processes of amendment
and debate, and with it much of the substance of the role of the
House of Lords as a revising chamber, would be circumvented. Clause
2 raises the fundamental constitutional issue of the proper relationship
between parliamentary and executive lawmaking.
6. As shown by our report last session on the
Public Bodies Bill,[8]
the Committee is concerned about excessive demands for enabling
powers in the name of "flexibility". Our approach to
Henry VIII clauses is based on the constitutional principle that
it is for Parliament to amend or repeal primary legislation. The
use of powers allowing amendment or repeal of primary legislation
by ministerial order is therefore to be avoided, except in narrowly-defined
circumstances. A departure from the constitutional principle
should be contemplated only where a full and clear explanation
and justification is provided. For assessing a proposal in a bill
that new Henry VIII powers be conferred, the Committee has adopted
a two-fold test
"Whether Ministers should have the power to
change the statute book for the specific purposes provided for
in the Bill, and, if so, whether there are adequate procedural
safeguards." [9]
7. We are not persuaded that clause 2 passes
the first test.[10] The
subject-matter of the proposed order-making powersthe allocation
of functions and attendant responsibilities and accountabilities
of counter-terrorism policingis of great importance and
public interest. The House will wish to consider whether the constitutionally
appropriate vehicle is primary legislation.
The size of the UK Supreme Court
8. The Constitutional Reform Act 2005 reflected
and reinforced the increasing importance of the principle of separation
of powers in the UK constitution. In particular, Part 3 of the
Act replaced the appellate jurisdiction of the House of Lords
with the new UK Supreme Court. At the same time, the statute underwrote
Parliament's chief role in determining the size of the Supreme
Court, which clearly is a significant constitutional matter. Section
23 of the 2005 Act thus specifies that "the Court consists
of 12 judges appointed by Her Majesty"; the number may be
increased, but only through an Order in Council following approval
of a draft by resolution in both Houses. The 2005 Act makes no
provision for a permanent decrease in the number of Supreme Court
judges.
9. In dealing with "judicial appointments",
clause 18 of and Schedule 12 to the current Bill are largely concerned
with promoting the Government's aim of a more diverse judiciary
(further comment on this is made below). In order to extend the
principle of salaried part-time working to the Supreme Court,
it is proposed to amend the maximum number of judges, so that
it is specified in terms of full-time equivalents. In the words
of paragraph 2(2)(b) of Schedule 12, "no appointment may
cause the full-time equivalent number of judges of the Court at
any time to be more than 12". The maximum of 12 full-time
equivalents may be increased, but once again only with the approval
of both Houses to an Order in Council.
10. These provisions are apt to obscure a shift
in the constitutional balance proposed in paragraphs 2 and 3 of
Schedule 12. This involves two legislative steps. First, for the
"12 judges appointed" in section 23 of the 2005 Act
(above), paragraph 2(2)(a) would substitute "the persons
appointed as its judges". Secondly, paragraph 3(3) would
require the Lord Chancellor to convene a selection commission
if the full-time equivalent number of judges is or soon will be
less than the maximum, but only if the Lord Chancellor or the
President of the Court "considers it desirable that a recommendation
be made for an appointment".[11]
A letter to our chairman from the Lord Chancellor makes plain
the Government's thinking
"Removing the requirement that there must always
be twelve Justices of the UK Supreme Court
will give greater
flexibility for the Court to operate below the mandatory current
level of twelve Justices if this is agreed by the President of
the Court."[12]
11. Parliament however would be side-lined. There
is also a risk with the proposed approach of future consideration
of the size of the Supreme Court being clouded by considerations
relating to potential applicants. In our view, if provision
for a possible reduction in the size of the Supreme Court is to
be made, Parliament should for constitutional reasons of transparency
and check retain a role. We consider that the established mechanism
of Order in Council following approval of a draft by resolution
in both Houses should apply to any changes in the size of the
Supreme Court.
Judicial appointments
12. Schedule 12 to the Bill contains a number
of other changes to the process by which members of the judiciary
are appointed. These include proposals aimed at improving the
diversity of the judiciary.
13. The Committee published a report on the judicial
appointments process towards the end of the last session,[13]
to which the Government responses were published in May 2012.[14]
We are pleased that a number of our recommendations are reflected
in the provisions of Schedule 12. However, we remain concerned
about four matters: the role of the Lord Chancellor in relation
to the appointment of the Lord Chief Justice and the President
of the Supreme Court; the absence of an express diversity duty
on the Lord Chancellor and the Lord Chief Justice; the absence
of proposals to increase the retirement age for certain senior
judges; and the absence of proposals about government lawyers
becoming judges.
14. Following the introduction of the Bill, the
Lord Chancellor, Rt Hon. Kenneth Clarke QC MP, and the Minister
of State at the Ministry of Justice, Lord McNally, attended an
informal meeting with the Committee to discuss the above four
matters. We found this discussion helpful, and are grateful to
the ministers for their constructive approach.[15]
However, we believe that more progress is needed. In order to
assist the House, we reiterate below the relevant recommendations
contained in our report on judicial appointments.
THE ROLE OF THE LORD CHANCELLOR
15. On the role of the Lord Chancellor in relation
to judicial appointments in general we recommended 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."[16]
16. We also commented on the Lord Chancellor's
involvement in the appointments process for the offices of Lord
Chief Justice and President of the Supreme Court. Our report stated
"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. 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."[17]
We recommended that: "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."[18]
We were concerned, therefore, to note that paragraphs 4 and 54
of Schedule 12 would allow the Lord Chancellor to sit as a member
(though not the chair) of the selection panels for the offices
of President of the Supreme Court and Lord Chief Justice (respectively).
The House may wish to consider whether it is appropriate for
the Lord Chancellor to sit as a member of the selection panels
for these offices.
A DUTY TO HAVE REGARD TO THE NEED TO ENCOURAGE DIVERSITY
17. Under section 64 of the Constitutional Reform
Act 2005, the Judicial Appointments Commission (JAC) must have
regard to the need to encourage diversity in the range of persons
available for selection for appointments. In our report on judicial
appointments we noted that improvements in diversity will not
come about without decisive and persistent leadership
"Leadership must come from both the Lord Chancellor
who is responsible to Parliament for the appointments process
and the Lord Chief Justice as head of the judiciary. Both individuals,
along with the JAC, can make it clear to all those involved in
the appointments process, whether as applicants or selectors,
that improving diversity is taken seriously as an aim within government
and the judiciary. The message that all those who meet the merit
criterion are capable of becoming judges is one which should not
be left to the JAC alone to make. Although a statutory duty is
not necessary for this leadership to be given, it will help to
ensure that all Lord Chancellors and Lord Chief Justices properly
recognise and fulfil their roles in this regard."[19]
We went on to recommend that the duty contained in
section 64 should be extended to the Lord Chancellor and the Lord
Chief Justice.[20]
18. We were disappointed, therefore, that the
Government have not used the Bill as an opportunity to extend
the section 64 duty as we recommended. Whilst we do not doubt
the commitment of the current Lord Chancellor and Lord Chief Justice
to the encouragement of diversity, the creation of a statutory
duty would help to ensure the recognition and fulfilment of this
role by future holders of these offices. We draw the attention
of the House to the omission from the Bill of the proposal to
extend the section 64 duty to the Lord Chancellor and Lord Chief
Justice.
JUDICIAL RETIREMENT
19. At present judicial office holders first
appointed to the judiciary after 31 March 1995 must retire at
the age of 70. Our report on judicial appointments included the
following recommendation
"We do not agree that there should be a uniform
retirement age across the whole of the judiciary. There should
be differential retirement ages: of 75 for Court of Appeal judges
and Supreme Court Justices and 70 for all other judges. This will
ensure the retention to age 75 of judges at the highest level,
where proven judicial quality and experience are at a premium
in the development of the law. This will also ensure that posts
become available at the lower levels whilst leaving time for talented
individuals who have not followed a traditional career path to
reach the highest levels. Differential retirement ages will thus
help to promote diversity and to maintain public confidence in
the judiciary as being of the highest quality."[21]
20. The Government in their response to our report
did not accept our recommendation, and stated their intention
to retain the uniform judicial retirement age.[22]
We invite the House to consider the conclusion we reached in
our report about judicial retirement ages, and believe it applies
with particular potency with regard to judges of the Supreme Court.
GOVERNMENT LAWYERS
21. Lawyers employed by the Government (both
in the Government Legal Service and the Crown Prosecution Service)
are, as a class, more diverse than many other branches of the
legal profession.[23]
On the ability of government lawyers to attain judicial appointment,
we recommended that
"Those who work for the Government Legal Service
and Crown Prosecution Service must not be prevented from becoming
judges because of their status as government lawyers. The Government
and the JAC must act to overcome any undue impediments to their
appointment as both fee-paid and full-time judges. This is important
both from the perspective of ensuring equal access to judicial
appointment and because it would promote the diversity of the
judiciary. Furthermore, it is in the public interest that high
quality candidates are not discouraged from applying to join the
GLS or CPS because of a potential lack of career progression to
the judiciary."[24]
22. We draw attention to the importance of these
principles, both in terms of improving the diversity of the judiciary
and of ensuring that high calibre lawyers are not discouraged
from entering Government service. The House may wish to consider
whether to address this issue during the passage of the Bill.
1 Explanatory Notes, paragraph 10. Back
2
Home Office, The National Crime Agency: A plan for the creation
of a national crime-fighting capability, Cm 8097, 2011. Back
3
Ibid., para 4.2. Back
4
See also Home Affairs Committee, 14th Report (2010-12): New
Landscape of Policing (HC 939), paras 86-90. Back
5
NCA counter-terrorism activities in Northern Ireland would require
the agreement of the Chief Constable of the Police Service of
Northern Ireland: clause 2(2). Back
6
This procedure requires Ministers to take into account any representations,
any resolution of either House and any recommendations of a parliamentary
committee, in respect of a draft order (a draft order being laid
for a period of 60 days). Back
7
As for precedents, the Government chiefly rely on section 5 of
the Public Bodies Act 2011 (modification and transfer of functions
of bodies such as the British Waterways Board): Home Office and
Ministry of Justice, Crime and Courts Bill: Delegated Powers-Memorandum,
para 12. The super-affirmative procedure applies. Back
8
Constitution Committee, 6th Report (2010-12): Public Bodies
Bill [HL] (HL Paper 51). Back
9
Ibid., para 5. As originally drafted, key provisions of
the Public Bodies Bill did not adopt the super-affirmative procedure.
Back
10
The Delegated Powers and Regulatory Reform Committee have reported
on clause 2: 2nd Report (2012-13): Crime and Courts Bill [HL]
(HL Paper 12). Back
11
The qualification does not apply in respect of vacancies in the
offices of President and Deputy President of the Court: Schedule
12, paragraph 3(2). Back
12
Letter to the chairman from the Lord Chancellor, Rt Hon. Kenneth
Clarke QC MP, 14 May 2012. See also the Explanatory Notes, paragraphs
276-77. It is not proposed to alter the principle that between
them the Supreme Court judges have knowledge of, and experience
of practice in, the law in each part of the UK (Constitutional
Reform Act 2005, section 27(8)). Back
13
25th Report, session 2010-12, HL Paper 272. Back
14
The Government's response to their public consultation on judicial
appointments and diversity addressed a number of the Committee's
recommendations: Appointments and Diversity "A Judiciary
for the 21st Century-Response to public consultation, Ministry
of Justice, 11 May 2012. Those recommendations not covered in
that response were addressed in the Government's response to the
Committee: Cm 8358, May 2012. Back
15
During the last session, the Committee adopted a similar approach
when scrutinising the Health and Social Care Bill: see 22nd Report,
session 2010-12, HL Paper 240. Back
16
25th Report, session 2010-12, HL Paper 272, para 26. Back
17
Ibid., para 138. Back
18
Ibid., para 139. Back
19
Ibid., para 110. Back
20
Ibid., para 111. Back
21
Ibid., para 197. Back
22
Op. cit., paras 33 to 36. Back
23
Op. cit., para 126. Back
24
Op. cit., para 132. Back
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