Constitutional Reform Bill [HL]

HOUSE OF LORDS

Select Committee on the Constitutional Reform Bill [HL]

Volume 2:Evidence

HL Paper 125-II HOUSE OF LORDS

Select Committee on the Constitutional Reform Bill [HL]

Constitutional Reform Bill [HL]

Volume 2:Evidence

Ordered to be printed 24 June and published 2 July 2004

Published by the Authority of the House of Lords

London : The Stationery Office Limited £34.00

HL Paper 125-II

CONTENTS

Oral Evidence Rt Hon Lord Falconer of Thoroton QC (Lord Chancellor), Mr Edward Adams, Mr Jonathan Freeman and Mr Alastair Clegg, Department for Constitutional Affairs Written Evidence 1 Oral Evidence, 1 April 2004 22 Supplementary Written Evidence 44 Further Written Evidence 416

Professor Robert Stevens and Professor Robert Hazell, UCL Constitution Unit and Dr Kate Malleson, LSE Written Evidence, Dr Kate Malleson 58 Oral Evidence, 6 April 2004 59

Lord Rees-Mogg Oral Evidence, 6 April 2004 73

Lord Mackay of Clashfern Written Evidence 79 Oral Evidence, 20 April 2004 80

Mr Roger Smith, Director, JUSTICE Written Evidence 92 Oral Evidence, 20 April 2004 95

Lord Ackner Written Evidence 100 Oral Evidence, 20 April 2004 101

Professor Diana Woodhouse, Oxford Brookes University Written Evidence 106 Oral Evidence, 22 April 2004 108

Lord Bingham of Cornhill, Lord Nicholls of Birkenhead Memorandum by Lord Bingham of Cornhill 114 Response of the Law Lords to the Government’s consultation on a Supreme Court for the United Kingdom, laid also before the Select Committee 116 Oral Evidence, 22 April 2004 126

Professor the Lord Norton of Louth Written Evidence 137 Oral Evidence, 22 April 2004 140

Lord Woolf, Lord Chief Justice Memorandum by the Judges’ Council of England and Wales 146 Oral Evidence, 27 April 2004 149 Supplementary Written Evidence (Duplicate of Memorandum on p 463) 175 Supplementary Written Evidence 463 Further Supplementary Written Evidence 464

Mr Peter Williamson and Mr Russell Wallman, Law Society and Mr Stephen Irwin QC and Mr Richard Drabble QC, General Council of the Bar Written Evidence, the General Council of the Bar 160 Written Evidence, the Law Society 162 Oral Evidence, 27 April 2004 165

Mr Duncan L Murray, Mr Gerard A Brown and Mr Michael P Clancy OBE, Law Society of Scotland Written Evidence 177 Oral Evidence, 29 April 2004 182

Lord Hope of Craighead Written Evidence 189 Oral Evidence, 29 April 2004 192

Sir Tom Legg KBE QC and Sir Hayden Phillips GCB, Permanent Secretary, Department for Constitutional Affairs Oral Evidence, 29 April 2004 203

Lady Justice Arden, Court of Appeal, and Lord Justice Thomas, Senior Presiding Judge RCJ Written Evidence, Judges’ Council Working Party on the Bill 213 Oral Evidence, 4 May 2004 216

Roy Martin QC, Faculty of Advocates Written Evidence 234 Oral Evidence, 4 May 2004 241

Lord Cullen of Whitekirk, Lord President of the Court of Session Written Evidence, Lord President of the Court of Session and the Senators of the College of Justice 249 Oral Evidence, 6 May 2004 253

Professor Sir Colin Campbell, Commission for Judicial Appointments Written Evidence 263 Oral Evidence, 6 May 2004 266 Supplementary Written Evidence 276

Sir Brian Kerr, Lord Chief Justice of Northern Ireland Oral Evidence, 6 May 2004 278

Dame Sian Elias GNZM, Chief Justice, Thomas Gault DCNZM, Judge, and Sir Kenneth Keith KBE, Judge, the New Zealand Supreme Court Written Evidence, Dame Sian Elias 285 Oral Evidence, 25 May 2004 287

Colin Boyd QC, Lord Advocate Written Evidence, Scottish Ministers 297 Oral Evidence, 25 May 2004 299

Mrs Sally Dickinson and Mrs Rachel Lipscomb, the Magistrates’ Association; Mr Neil Clarke, Justices’ Clerks’ Society Written Evidence, Magistrates’ Association 305 Written Evidence, Justices’ Clerks’ Society 307 Written Evidence Justices’ Clerks’ Society (Duplicate of Memorandum on p 307) 367 Oral Evidence, 25 May 2004 310 Government Response to the Justices’ Clerks’ Written Evidence 461 Written Evidence Ross Gilbert Anderson 317 Association of Personal Injury Lawyers 320 Association of Women Barristers 321 Professor John Bell QC (hon) FBA, University of Cambridge 321 Blackstone Society 323 Professor Vernon Bogdanor FBA, Oxford University 324 Lord Brightman 328 British and Irish Ombudsman Association 328 Sir Robert Carnwath CVO, Court of Appeal 329 David Christie 333 Clerk of the Parliaments 335 Clifford Chance LLP 336 Richard Cornes, Essex University 338 Council on Tribunals 342 Dr Stephen Cretney QC (hon) FBA 343 Lord Donaldson of Lymington 344 Ecclesiastical Judges Association 352 Lord Elton TD 353 Faculty Office of the Archbishop of Canterbury 354 Fawcett Society 355 Edward Garnier QC MP (Harborough, Conservative), 356 Professor John Griffith FBA 361 Baroness Hale of Richmond 362 Lord Jauncey of Tullichettle 364 Professor J A Jolowicz QC, Trinity College Cambridge 365 Liberal Democrat Lawyers Association 370 D G B Lyon 374 Professor Hector McQueen 375 Lord Nolan 378 Edward Nugee QC 379 Odysseus Trust 382 Aidan O’Neill QC 384 Royal Society of Edinburgh 399 Mark Ryan 401 Sir Konrad Schiemann, Court of Justice of the European Communities 402 Professor Ian Scott, University of Birmingham 403 Michael Shrimpton 415 Sir Michael Wheeler-Booth KCB, Magdalen College, Oxford 456

Lord Alexander of Weedon QC 465 South Wales Bench Chairmen/Cadeiryddio y Fainc De Cymru 476 Faculty Office of the Archbishop of Canterbury 477 Lord Morris of Aberavon KG QC 478

NOTE:

The Report of the Committee is published in Volume I, HL Paper No 125-I. The Evidence of the Committee is published in Volume II, HL Paper No 125-II.

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Minutes of Evidence

TAKEN BEFORE THE SELECT COMMITTEE ON THE CONSTITUTIONAL REFORM BILL [HL] THURSDAY 1 APRIL 2004

Present Bledisloe, V Holme of Cheltenham, L Carlisle of Bucklow, L Howe of Aberavon, L Carter, L Kingsland, L Craig of Radley, L Lloyd of Berwick, L Crickhowell, L Maclennan of Rogart, L Gibson of Market Rasen, B Richard, L (Chairman) Goodhart, L Windlesham, L

Memorandum by the Secretary of State for Constitutional Affairs

Introduction This document provides written evidence from the Secretary of State for Constitutional AVairs and Lord Chancellor to the House of Lords Select Committee on the Constitutional Reform Bill. The evidence covers the three main parts of the Bill: — the abolition of the oYce of Lord Chancellor; — the creation of a new Supreme Court for the United Kingdom; and — the creation of an independent Judicial Appointments Commission.

Part One Part One of the evidence examines the development of the oYce of Lord Chancellor, and the various—and often contradictory—roles that the oYce involves: Cabinet Minister and politician, Head of the Judiciary in England and Wales, a judge, and Speaker of the House of Lords. This part describes some of the diYculties that Lord Chancellors have experienced in trying to juggle these roles. It explains why these roles can no longer be fused into a single oYce, and outlines the Government’s proposals for the future handling of the roles, including the proposals that have been agreed with the senior judiciary. These proposals are contained in more detail in a document submitted to Parliament on 26 January 2004, and now referred to as the Concordat. Part One also explains how these proposals will ensure the continued protection of judicial independence and the rule of law.

Part Two Part Two provides evidence on the proposals for a Supreme Court. It explains the issues of principle that point to reform being long overdue. This section also covers the jurisdiction of the Court, the process for appointing members of the Court, and the arrangements for its governance. It examines the costs associated with the creation of the Court, and, ﬁnally, the issues relating to accommodation and facilities.

Part Three Part Three outlines the Government’s proposals for a Judicial Appointments Commission, including the role of the Commission, the processes it will operate, its status, and its membership. It makes clear the Government’s commitment to merit remaining the sole criterion for appointment. The Constitutional Reform Bill also proposes a new ombudsman to oversee the work of the Commission (and, separately, to oversee the process for handling complaints about judges). These proposals are also explained in Part Three of the document. 9674111001 Page Type [E] 28-06-04 20:11:49 Pag Table: LOENEW PPSysB Unit: PAG1

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Part One

Abolition of the Office of Lord Chancellor 1. The Lord Chancellor’s oYce involves being: — a Cabinet Minister, responsible for the administration of the courts and related matters; — the Head of the Judiciary in England and Wales; — a judge; and — Speaker of the House of Lords. 2. The Government’s firm view is that the combination of these roles in one oYce is no longer appropriate or tenable in our modern democracy. Crucially, the tensions between the oYce-holder’s role as a politician, as a member of the Government and his role as Head of the Judiciary, which have been present for many years, are now such that the fusion of these roles cannot continue. 3. The Lord Chancellor is appointed by the Prime Minister. He is appointed because of his political aYliations to the governing party. He performs the job of a normal Minister in his departmental responsibilities and in his accountability to Parliament for those responsibilities. The main ministerial responsibility is for courts and legal aid, which, along with the many other areas of policy that his Department is responsible for, accounts for annual expenditure of around £3 billion. 4. The Lord Chancellor also performs a non-political role in sitting as a judge, appointing judges, and in disciplining and deploying judges. Statutorily, he is the senior judge in England and Wales. The oYce of Lord Chancellor also has special responsibilities, given his role, for upholding the independence of the judiciary and ensuring respect for the rule of law. 5. The conflicts are obvious. It is necessary to examine whether, in practice, these conflicts give rise to problems.

Cabinet Minister 6. The growth of the ministerial responsibilities of the Lord Chancellor, the establishment of the Lord Chancellor’s Department (now the Department for Constitutional AVairs), and its development into a mainstream Government Department, all point to a marked change in the nature of this oYce. The level of expenditure for which the Lord Chancellor has become responsible reﬂects that change. 7. My Department is now fundamentally diVerent to what it was before. Writing of the 1980s, Professor Robert Stevens argues that there was “a clear intention of making the Lord Chancellor’s Department operate like any other government department.”1 The Department for Constitutional AVairs’ responsibilities within Whitehall now include: — Courts and Tribunals — Civil law and justice — Legal services (including legal aid) — Family justice — Judicial appointments — Constitutional business — Northern Ireland Court Service — The National Archives — Her Majesty’s Land Registry — Freedom of Information — Data protection — Electoral reform — Human rights 1 Robert Stevens, The Independence of the Judiciary: the view from the Lord Chancellor’s OYce (1993). 9674111001 Page Type [O] 28-06-04 20:11:49 Pag Table: LOENEW PPSysB Unit: PAG1

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8. In 1885, the Lord Chancellor was supported by a Permanent Secretary and an oYce comprising seven oYcials. While the Lord Chancellor’s OYce gradually increased in size and responsibility, it remained a small organisation staVed almost exclusively by lawyers until 1972, when the Lord Chancellor assumed direct responsibility for the administration of the court system as a whole following the Courts Act 1971, and the restructuring of the OYce and the Court Service as the Lord Chancellor’s Department. Until 1990, the Permanent Secretary had to be a lawyer. The Courts and Legal Services Act enabled non-lawyers who had worked at the Department for at least 5 years to take on the role. In 1998 the Supreme Court (OYces) Act finally removed these requirements. As a consequence of its increased responsibilities, my Department now comprises 13,000 staV, and has drawn in civil servants with a variety of backgrounds from across Whitehall. 9. The Department now has an annual budget of some £3 billion. As Lord Mackay of Clashfern wrote in Current Legal Problems in 1991, the Lord Chancellor must be accountable for this expenditure so that “Parliament is able to satisfy itself that public funds voted for the administration of justice are properly expended and that the courts are being eYciently and eVectively managed”.2 Parliamentary scrutiny has indeed increased in recent years. Until 1992 the Department had no Minister in the House of Commons—now it has three Junior Ministers, two of whom sit in the Commons. With this, the number of Parliamentary Questions for the Department has risen from 363 in 1988–89 to 1273 in the 2003–04 session. In 1991 it was accepted that the Department should be subject to scrutiny by the Home AVairs Select Committee, and in 2003 the Lord Chancellor’s Department Select Committee was established to scrutinise the Department’s work. 10. Thus, recent developments have resulted in the emergence of a mainstream Government Department, with an extensive agenda for the delivery of services and a significant budget to manage. The political role played by the Lord Chancellor in the management of such a Department has, inevitably, increased, since the running of the courts and legal aid brings with it issues of great political significance. How can the Department encourage co-operation between the courts and other agencies in order to make the Criminal Justice System work better? What priorities should be set for the spending of legal aid? How can court and legal aid processes be improved so that cases can be heard more quickly and eVectively? And how should the court system be structured to ensure both justice and value for money? These issues are diYcult. The responses of the judges to these issues will frequently, as a matter of policy, be diVerent from those of the Government. That diVerence of approach has sometimes been reflected in conflicts between Lord Chancellors and the judges over legal aid and other court-related issues. It is reflected in the dispute between Lord Mackay of Clashfern and the judiciary over rights of audience in the higher courts—this dispute is described in more detail below. 11. The role of the Lord Chancellor in running the courts and in overseeing the spending of legal aid—and indeed in his discharging his wider responsibilities—is as a Minister. In addition to the issues for which he has direct responsibility he is consulted and is able, like any other Minister, to be involved in a whole range of other policy proposals where departmental co-operation is required, particularly those aVecting the criminal justice system and asylum. Those are areas where his wider constitutional role in upholding judicial independence and ensuring respect for the rule of law may also be engaged. 12. In performing this ministerial role, the qualities which will make him or her a success are the same as his other ministerial colleagues. Yet the current system involves the oYce holder being drawn from a restricted pool—those with senior legal and political standing. In addition, the oYce holder’s role in relation to the judiciary is significantly diVerent from other Ministers’ relationship with their stakeholders. This can lead to the inherently unsatisfactory situation where the oYce holder can be subject to a practical conflict between the views of the judges and what he and his colleagues see as in the wider public interest. That tension should not be contained in a single role.

Head of the Judiciary and judge 13. The Lord Chancellor has the right to sit as a member of the Appellate Committee of the House of Lords and the Judicial Committee of the Privy Council, as President of the Supreme Court, as President of the Chancery Division, and as a judge of the Court of Appeal, the Courts-Martial Appeal Court, the High Court, the Crown Court and is eligible to be President of the Immigration Appeal Tribunal. 14. Although it is not a statutory title, the Lord Chancellor has been traditionally regarded as the Head of the Judiciary in England and Wales. This role, generally recognised from the 18th century onwards, stems from his function of presiding over the House of Lords in its judicial capacity. There is, however, no requirement for the Lord Chancellor to have been a judge (or, for that matter, a lawyer) prior to appointment. Indeed Lord 2 Lord Mackay, The Lord Chancellor in the 1990s [1991] 44 Current Legal Problems 241. 9674111001 Page Type [E] 28-06-04 20:11:49 Pag Table: LOENEW PPSysB Unit: PAG1

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Mackay of Clashfern was only the fourth Lord Chancellor since the Appellate Jurisdiction Act 1876 to have been a serving Lord of Appeal in Ordinary when appointed. 15. In the fairly recent past, Lord Chancellors set great store on the judicial role of the oYce. Lord Hailsham, for example, argued that sitting regularly was “the only factor ensuring that a politically motivated Prime Minister does not give the oYce to a no-good lawyer.”3 But this role has declined dramatically in recent years and I made it plain on appointment that I would not sit as a judge. 16. Participation by Lord Chancellors in the hearing of appeals in the House of Lords has become far less frequent, partly as a result of the pressures placed by the Lord Chancellor’s other functions on the time available, and partly because of the increasing proportion of cases raising issues of Government policy in which it would be inappropriate for the Lord Chancellor to participate. In a lecture to the Chancery Bar Association in June 2002, Lord Cooke of Thorndon said: “Obviously there will be cases about constitutional issues, recent statutes, human rights and other subjects on which the Lord Chancellor should not sit judicially. There would be a real risk of the appearance of bias because an answer one way might suit the Government of the day—or even Governments as a class. A more subtle obverse objection may also exist. A sensitive Lord Chancellor might feel driven to a liberal or anti-bureaucratic judgment from apprehension that otherwise he would expose himself to public criticism for bias.” 17. Very few would now defend the idea of the Lord Chancellor sitting as a judge. It is not an eVective use of time for a Minister with such extensive departmental responsibilities, nor is it constitutionally appropriate. 18. The Lord Chancellor has been seen as the leader, and spokesman, of the judiciary. In reality, that role has been changing, and the arrangements no longer work as they did. For example, in 1987 the Kilmuir Rules4 were abolished, to be followed by unprecedented criticism of the Lord Chancellor by senior members of the judiciary (in relation to rights of audience of the legal profession—see below). Then in 1988 the Judges’ Council of the Supreme Court was re-instated by the Lord Chief Justice to enable the judiciary “to put a common view to the Lord Chancellor about the needs for resources and about priorities for some needs”,5 and has since been developed further. The judiciary has increasingly seen the need to have leadership and a means of representation that are separate from the Lord Chancellor.

The Lord Chancellor’s judiciary-related functions

19. The Lord Chancellor is also responsible for judicial appointments, discipline and deployment of judges. These are important functions which are central to judicial independence, and the Government proposes to ensure the continued independence of the judiciary in the Constitutional Reform Bill. Before settling upon these proposals, extensive discussions with the Lord Chief Justice were held to agree the way forward, in which the Lord Chief Justice represented the views of the judiciary. These discussions resulted in the Oral Statement that I made to the House of Lords on 26 January 2004, accompanied by a document setting out the agreed position. Both my Statement and the accompanying document which has since become known as the Concordat (annexed hereto) were agreed in advance by the Lord Chief Justice, on behalf of the judiciary. The Lord Chief Justice recognises that the terms of agreement we have reached “are a highly desirable package of measures designed to ensure the continued independence of the judiciary.”6 20. The Bill that the Government proposed to Parliament reflects the Concordat agreed with the Lord Chief Justice on behalf of the judiciary. As I said in my Statement to the House “it is for Parliament to consider that legislation, and my proposals today are conditional upon parliamentary approval”.7 This was confirmed by Lord Woolf—”If they are accepted by Parliament, their implementation will have my firm support”.8 The proposals set out in the Concordat are now given eVect in Parts 1 and 3 of the Bill. In his response to my Statement the Lord Chief Justice added: “I emphasise that what is announced is a package of proposals and I make it clear that the judiciary’s endorsement is conditional on the proposals being implemented as a whole.” 3 Lord Hailsham, A Sparrow’s Flight, 1990. 4 A letter written in 1955 by Lord Kilmuir, the Lord Chancellor, to the Director General of the BBC in which he stated that it was “undesirable for members of the judiciary to broadcast on the wireless or to appear on television”. These ‘rules’ were taken to mean that members of the lower judiciary should secure the permission of the Lord Chancellor before giving interviews, publishing or speaking in public.. 5 JAC GriYths, The Politics of the Judiciary, 1991. 6 Hansard, 8 March 2004, Column 1004. 7 Hansard, 26 January 2004, Column 13. 8 Hansard, 26 January 2004, Column 22. 9674111001 Page Type [O] 28-06-04 20:11:49 Pag Table: LOENEW PPSysB Unit: PAG1

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We will, of course, consider very carefully any suggestions that can improve upon the detail of the Concordat and, indeed, I have already signalled a number of amendments that I will wish to bring in order to give better eVect to it.

Appointments 21. As the appointer of judges, the Lord Chancellor’s role has changed markedly. He now makes a far greater number of appointments than previously was the case. Whereas 1950 saw 25 or so appointments to the judiciary (excluding lay magistrates),9 around 700 judges and tribunal members were appointed in 2003.10 That figure rises to over 2,000 if lay magistrates are included. 22. The system of appointments has in recent times operated entirely without political bias. But the existence of a politically unbiased process for the appointment of judges is in fact a relatively modern development. This is shown by the much more political approach to appointments sometimes taken in the past. Lord Halsbury, the Lord Chancellor (with short interruptions) from 1885 to 1905, openly appointed judges on the basis of their political sympathies. Likewise, Lord Loreburn, Lord Chancellor under Asquith’s premiership, “continued to give weight to the Prime Minister’s wish to reward Liberal lawyers in the Commons”.11 23. The appointments system is based much more on modern human resources practices than ever before— it includes sifts, interviews, a structured consultation process and, for some appointments, assessment centres. Yet despite recent improvements to the system of appointments, it is still vulnerable. More changes need to be made to make the system robust, and to increase diversity in the pool of candidates who come forward for appointment. 24. In its last two annual reports, the Commission for Judicial Appointments has reported conclusions that the present appointments system lacks transparency and fails to deliver diversity. In particular, the Commission found that the appointments system is not well understood across the legal profession, let alone in wider society. The Commission has also expressed concern that the system leads to qualified candidates from less traditional backgrounds, such as women and minorities being excluded or put oV from applying for judicial oYce all together. This is explored in greater detail in Part 3. 25. In the House of Lords on 8 March, the Lord Chief Justice confirmed this when he stated that “. . . a new method of appointing judges is urgently necessary. We need an appointments commission. The present method of appointing judges has proved unsatisfactory by modern standards”.12

Discipline 26. The Lord Chancellor is responsible for the disciplining of judges because he is regarded as the senior judge in England and Wales. In serious cases, however, discipline is now undertaken in conjunction with the Lord Chief Justice. There is a widespread acceptance that without the co-operation of the judiciary, the disciplining of the judiciary by a politician alone would carry neither practical nor constitutional authority. The position that has been developing inevitably needs to be formalised. 27. The system we have agreed in the Concordat will require that both the Secretary of State for Constitutional AVairs and the Lord Chief Justice must agree before a judge can be removed from oYce or disciplined. The system also provides for judicial investigations of cases where dismissal is a possibility. By working together in such a partnership, the Secretary of State and Lord Chief Justice will ensure that the system is open and fair, that complaints are subject to proper scrutiny, that the independence of the judiciary is guaranteed. It will, at the same time, maintain proper accountability to Parliament for the complaints system.

Deployment 28. In relation to deployment, there is, again, no viable practical or constitutional justiﬁcation for the Lord Chancellor to deploy individual judges. Purely as an administrative matter, it is not good personnel management for a politician to decide which judge should sit in which location. As a matter of practice, it does not happen. There is however a legitimate role for the politician in deciding strategic issues—the breakdown between civil, criminal, and family judge manpower for example—because these issues eVect both priorities 9 Whitaker’s Almanack 1949, 1950. 10 Judicial Appointments Annual Report 2002–03. 11 N Underhill, The Lord Chancellor, 1978. 12 Hansard, 8 March 2004, Column 1004. 9674111001 Page Type [E] 28-06-04 20:11:49 Pag Table: LOENEW PPSysB Unit: PAG1

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1 April 2004 and resources. But there is no longer either a practical or a constitutional basis for the Lord Chancellor to exercise a role in the deployment of individual judges. Again, the respective responsibilities of the Secretary of State and Lord Chief Justice, respecting the appropriate boundaries between the two, are set out in the Concordat.

Improving partnership

29. Partnership between the Lord Chancellor and the Lord Chief Justice has been essential to make the existing arrangements work. But this has rested on goodwill. The Concordat, together with other provisions in the Bill, now sets out clearly and in detail the respective roles of the Lord Chief Justice and Secretary of State for Constitutional AVairs. Whilst recognising these distinct roles, partnership working is being enhanced in other ways, for example by the Deputy Chief Justice’s appointment as a non-executive member of the Department’s Corporate Board.

Independence of the judiciary 30. As the Senior Law Lord stated in his evidence to the Constitutional AVairs Select Committee, “what protects it [judicial independence] most is the tradition and the culture. I could say, and I feel quite sure we would all agree, that in over 20 years of holding judicial oYce none of us would ever have experienced any attempt whatsoever by anyone in any oYcial position to influence any decisions which any of us was about to make no matter how sensitive the case might be. The general public have no conception of the degree of fastidiousness which on the whole governments and oYcials show in this particular respect, and sometimes go to almost unnecessary lengths to avoid anything which could even be construed as an attempt to influence the thing”.13 Judicial independence also depends, as Lord Hailsham noted in 1989 on the “ independence and integrity of the legal professions.”14 The acceptance of that culture of independence is the critical issue. It does not necessarily require the presence of the Lord Chancellor in Cabinet. 31. In recent issues relating to the rule of law and to judicial independence, the role of the Lord Chancellor has not necessarily been on the side of the judges or, if on the side of the judges, eVective in succeeding. There are numerous examples throughout history to illustrate this: — An example is the appointment of Lord Hewart as Lord Chief Justice in 1922. The Chief Justiceship fell vacant in 1921, when Lord Reading (who had himself been the Liberal Attorney General before his appointment) was appointed Viceroy of India. The Attorney General, Sir G Hewart, wanted the appointment but was not immediately available. The Prime Minister, Lloyd George, devised a plan to give the post to a Lord Justice, on the condition that he signed an undated letter of resignation. He overruled Lord Birkenhead, the Lord Chancellor in the Coalition Government, who said the plan was illegal, and would make the Lord Chief Justice “a transient figure subject to reversal at the will of the Government of the day”.15 Lawrence LJ was appointed and became Lord Trevethin CJ. It is said that the first he knew of his own resignation the following year was when he read of it in The Times. Lord Hewart was then appointed Lord Chief Justice, who later caused a political storm when he accepted appointment as a member of a Liberal Party Committee, defending his right to do so as a peer. — Another example is the controversy concerning the Orders in Council under the National Economy Act in which the National Government under Macdonald attempted to reduce judicial salaries by 20 per cent in 1931. The judges resisted, arguing that this was unconstitutional. The Lord Chancellor, Lord Sankey, supported the view of the judges in private but was not able to persuade his colleagues of their case. In this dispute it was left to the Master of the Rolls, Lord Hanworth, to represent the judges’ views (the Lord Chief Justice at the time was ill). Since then judicial salaries have been regularly increased further, and no other attempt has been made to reduce them. However, in 1992 the Top Salaries Review Body recommended an increase of 19 per cent in judicial salaries. Despite the convention established in the 1970s, the Government rejected the award and implemented a 9 per cent increase (staged over three years) instead.

13 Q459, Constitutional AVairs Select Committee, First Report of Session 2003–04 (HC 48–I & 48–II): Judicial appointments and a Supreme Court (court of ﬁnal appeal). 14 Hansard, 7 April 1989, column 1331. 15 As quoted in Robert Stevens, The Independence of the Judiciary: the view from the Lord Chancellor’s OYce (1993). 9674111001 Page Type [O] 28-06-04 20:11:49 Pag Table: LOENEW PPSysB Unit: PAG1

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— A further example is the dispute between Lord Mackay of Clashfern and the judiciary in relation to the extension of rights of audience in court. In 1988, Lord Mackay published a set of Green Papers on the reform of the legal profession, proposing changes to its regulation, training, and to rights of audience and right to conduct litigation. The Bar reacted with hostility, and the senior judiciary with more than that both to the papers and eventually to the Bill, accusing the Government of a breach of the separation of powers. Lord Elwyn-Jones and Lord Hailsham, previous Lord Chancellors, both attacked the proposals. Lord Lane, then Lord Chief Justice, described the proposals as “one of the most sinister documents ever to emanate from Government’ and went on to say in the House of Lords that ‘Loss of freedom does not happen overnight . . . oppression does not stand on the doorstep with a toothbrush moustache and a swastika armband. It creeps up step by step; and all of a sudden the unfortunate citizen realises it has gone.”16 32. In reality, it is the Lord Chief Justice who is best placed to voice the views of the judiciary- and the Constitutional Reform Bill will recognise in statute that leadership role, so that he can lead the judiciary with the authority that comes from being appointed on merit to the position of chief judge. 33. For the first time, the Bill provides for an explicit duty on all Ministers to uphold the continued independence of the judiciary. This is bolstered by a particular requirement on the Secretary of State to have regard to the need to defend that independence. To provide for such duties on the face of the Bill is a significant step forward in ensuring that we enhance and embed the vital independence of the judiciary. Such a provision fits well with international declarations concerning the independence of the judiciary. For example, the United Nations Basic Principles on the Independence of the Judiciary states that “The independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the country.”17 The Council of Europe Committee of Ministers recommended that the independence of the judiciary should be guaranteed pursuant to the European Convention on Human Rights “and constitutional principles, for example by inserting specific provisions in the constitutions or other legislation or incorporating the provisions of this recommendation in internal law.”18

The Rule of Law 34. The independence of the judiciary is a central pillar of the broader notion of the rule of law. The rule of law is fundamental to our constitutional democracy and must be safeguarded accordingly. Parliament is, and must be, sovereign but it is important to recognise that many other persons and institutions (including the Lord Chancellor, the courts and the legal profession) have important roles in upholding the rule of law. We must ensure that appropriate mechanisms are in place to guard against any infringement or weakening of the rule of law, and in this respect the role of the Secretary of State for Constitutional AVairs will be as important as that of the Lord Chancellor. 35. In recent times, no Lord Chancellor has resigned in protest at the actions of his government, irrespective of any perceived threat to the rule of law. The ability of the Lord Chancellor to resist what the lawyer would regard as attacks on the rule of law, or on the independence of the judiciary, depends to a large extent on his political standing. His position is no more secure than that of any other Minister: the Lord Chancellor’s tenure in oYce is dependent on the Prime Minister and, as RVF Heuston notes, Lords Simonds and Kilmuir, for example, were “dismissed with peremptory abruptness for reasons which seemed good to the Prime Minister of the day”.19 Simonds was summarily dismissed as Lord Chancellor by Winston Churchill from his post-war Cabinet (Churchill asking Salisbury to tell Simonds that he was no longer needed) and Kilmuir was dismissed by Harold Macmillan as part of the ‘Night of the Long Knives’ in 1962. 36. The Government is of course subject to the law, and Government action or inaction (whatever the source of its claimed legal power) is liable to be overturned by judicial review. There are, in addition, other speciﬁc mechanisms for upholding the rule of law: for instance, all legislation has to be accompanied by a statement of ECHR compatibility. All Ministers are bound by the rule of law, and to ensure compliance with the European Convention on Human Rights. The Attorney-General’s role in advising on the lawfulness of Government proposals will continue. The courts are there to ensure that the law prevails and to ensure that aggrieved parties can seek redress. Nothing in the Bill undermines this. Separating the politician from the senior judge can only strengthen current arrangements and will, in fact, better secure the rule of law by distancing the judiciary from political inﬂuence. 16 Hansard, 7 April 1989, columns 1307 and 1331. 17 United Nations Basic Principles on the Independence of the Judiciary, http://www.unhchr.ch/html/menu3/b/h—comp50.htm 18 Recommendation No R (94) 12, adopted on 13 Oct 1994 at 518th meeting of Ministers’ Deputies. 19 R.V.F. Heuston, Lives of the Lord Chancellors 1940–70. 9674111001 Page Type [E] 28-06-04 20:11:49 Pag Table: LOENEW PPSysB Unit: PAG1

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37. By incorporating the European Convention on Human Rights into law we have set ourselves minimum standards by which we measure the irreducible minimum of rights to which the citizen is entitled. This provides protection and enshrines fundamental principles that can be upheld in the courts.

Speaker 38. Finally, the Lord Chancellor’s role as Speaker of the House of Lords. It is a self-regulating House. Before the War, the Lord Chancellor could sit judicially and then take the Woolsack for public sittings. When judicial and public sittings clashed the Lord Chancellor generally gave precedence to the Woolsack, but the increasing pressures of his oYce have made even this burdensome. 39. Since 1972, the Lord Chancellor’s duties in the House have come under increasing pressure because of his other duties. This prompted Lord Hailsham to arrange for a number of Deputy Speakers to take his place on the Woolsack after starred questions on a rota, unless business required him to be present. That pattern continues. Yet, under Standing Orders, the Lord Chancellor still needs the leave of the House to be absent. For a busy Minister, sitting as Speaker is a heavy burden. The Government’s view is that the House should have the beneﬁt of a Speaker who can devote his time solely to its service.

Retention of the ofﬁce of Lord Chancellor 40. Various commentators have argued for the retention of the oYce of Lord Chancellor in some form, with diVerent permutations of responsibilities, whilst accepting the need for reform of the current oYce. 41. They argue that there is a continuing role for an oYce, with the title of Lord Chancellor, to ensure the views of the judiciary are represented in Cabinet. It has been suggested that it would be appropriate for the oYce to be responsible for safeguarding the independence of judiciary and rule of law within Cabinet, perhaps also undertaking the role proposed for the Secretary of State for Constitutional AVairs in the Bill regarding judicial appointments. It is however hard to see how such an oYce-holder would carry weight with Cabinet colleagues. The holder would have no budget, no involvement in policy matters, no role as a judge or representative of the judiciary and would risk being seen as an irrelevance. Introducing a new Judicial Appointments Commission without abolishing the post of Lord Chancellor would not signal a clear break with old arrangements, and the beginning of a new appointment system. The clarity and transparency provided in the Bill could not be achieved by retaining the title of Lord Chancellor—and important reforms, welcomed by many, could well be lost. 42. If the holder of the slimmed-down oYce no longer sits as a judge, nor carries out other judicial roles inappropriate for a Minister, nor exercises other traditional roles of the oYce, it would be misleading to call that oYce ‘Lord Chancellor’.

Conclusion 43. The idea of reform of the oYce of Lord Chancellor is not a new one. As early as 1836 Lord Melbourne’s Whig Government introduced a Bill into the House of Lords which would have divided the Lord Chancellor’s duties into two separate oYces (both of which would have had judicial functions). The Bill was defeated, in part because of a speech by Lord Langdale MR, who advocated a three way split of the oYce of Lord Chancellor: a judge to sit in the Court of Chancery (called “the Lord Chancellor”); a judge and legislator to sit in the House of Lords and Privy Council (to be called “the Lord President in matter of Appeals and Writs of Error”); and a Minister to oversee the administration and improvement of the law (to be called “the Minister of Justice”). The Haldane Report of 1918 recommended that the Lord Chancellor should be “freed from the duty of daily or even frequent sitting”20 and that the Lord Chancellor should cease to be the Speaker of the House of Lords. 44. Proposals for similar reforms have arisen and receded a number of times over the years. In a brieﬁng to the Commons LCD Committee in February 2003, JUSTICE pointed out that modern Lord Chancellors have not only been a “central force in terms of Government activity” (such as by contributing to the Government’s legislative programme), they have also played a strong party political role. Indeed, Lord Irvine acknowledged as much when he said: “It is not the case that Lord Chancellors are not party political. They are appointed by the Prime Minister; they take the party Whip; they speak and vote for the Government in Parliament; they sit 20 Report on the Machinery of Government, Cd. 9230 (1918). 9674111001 Page Type [O] 28-06-04 20:11:49 Pag Table: LOENEW PPSysB Unit: PAG1

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1 April 2004 in Cabinet; and they campaign for their party.”21 As JUSTICE said, “these are roles which do not sit easily with the independence and impartiality required of judges”. 45. The role of Lord Chancellor is vastly diVerent from what it was in previous generations. As the Legal Action Group stated in 1997, the current arrangements “cannot survive for long once the Lord Chancellor becomes politically visible, taking unpopular decisions, however justified.”22 46. The above analysis leads to the conclusion that: — The Minister with the Lord Chancellor’s portfolio of responsibilities should be a mainstream Minister who is able to focus on that important job; — The idea of a Minister sitting as a judge is no longer supported and should not continue; — The Lord Chancellor’s role as the appointer of judges needs to be changed, and the decisive role in appointments should be played by a Judicial Appointments Commission that provides a proper balance of lay, legal and judicial representation, employs modern human resources methods in assessing candidates, and looks at ways of widening the pool of applicants; — The Lord Chancellor should not continue to discipline or deploy individual judges. That is a role which should be ascribed to the Lord Chief Justice in England and Wales, to be exercised through an appropriately defined relationship with the Secretary of State for Constitutional AVairs. 47. As Professor Woodhouse states “Although the rule of law therefore justifies judicial independence, it does not support the need for the head of the judiciary and the guardian of its independence also to be a Cabinet Minister. Such an amalgam of responsibilities may be seen as interfering with the constitutional role of the judiciary in relation to the executive and with judicial independence.” And “Arguments that suggest that the Lord Chancellor is there to protect the separation of powers and not to overturn it, or that his function is to ensure that the separation of powers works, are without theoretical merit. The truth is that within the oYce of the Lord Chancellor there is fundamental congruence of executive and judicial functions. This allows one role to dominate and thus upset the balance between the judicial and the executive. The position is therefore unsustainable on the basis of the separation of powers and is constitutionally undesirable.”23 48. Further, history shows us that the stability and safeguards which many claim to have been provided by the oYce have been honoured more in the breach. The conflicts of the role of Lord Chancellor are obvious and real—and do matter. 49. The Government believes that it is time to abolish the position of Lord Chancellor—and to implement in its place the changes covered by the Concordat. This will bring transparency and clarity to our constitutional arrangements. It will resolve the real and ever increasing tensions in the Lord Chancellor’s role, and it will reflect and cement changes that are already occurring. It will provide the guarantee of independence and protection that the judiciary needs, and it will improve the delivery of our public services.

Part Two

A Supreme Court for the United Kingdom 50. The Government approaches the establishment of a Supreme Court for the United Kingdom as an issue of principle. We agree with Professor Robert Hazell of the Constitution Unit of University College London that this is “a long overdue reform”.24 The Government’s case is supported by the Law Society, the Bar Council and by JUSTICE. It is supported by the Senior Law Lord, Lord Bingham of Cornhill, who recently stated that he regarded “the establishment of a suitably accommodated, adequately resourced, appropriately staVed, Supreme Court, visibly separate functionally, institutionally and geographically from either House of the Legislature, as an all but imperative feature of a modern democratic State.”25 He went on to say that he had yet to hear any principled argument to the contrary. The Government respectfully agrees. 51. The Law Lords are judges and not legislators: the separation between those two roles should be made explicit. That principle of separation is already established in many other democracies. It is time, as Lord Bingham argued in his evidence to the House of Commons Constitutional AVairs Select Committee, for our institutional arrangements to reﬂect the reality of the constitutional position. 21 Hansard, 21 February 2001, Column 814. 22 LAG Bulletin, April 1998. 23 D Woodhouse, The OYce of Lord Chancellor, 2001. 24 Professor Robert Hazell, Director of Constitutional Unit—13 & 18 June 2003. 25 Lord Bingham delivered the attached to the Judicial Studies Board March 2004 ‘A Written Constitution’. 9674111001 Page Type [E] 28-06-04 20:11:49 Pag Table: LOENEW PPSysB Unit: PAG1

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52. The Government believes strongly that our highest court should be one which others can look to as a beacon of excellence. The quality of the current Law Lords is undisputed. But if our highest court is to be an example to all, it must also be demonstrably independent of the legislature—in Lord Steyn’s phrase, “a badge of independence and neutrality [and] a potent symbol of the allegiance of our country to the rule of law”.26 Its independence must be plain for all to see—for members of the judiciary, for our legal professions, for users of the court system, and for the wider public. The European Convention on Human Rights, established in English law by the Human Rights Act, stresses that judges must be independent, impartial and free of any prejudice or bias—both real and perceived. For this to be ensured, judicial independence needs not just to be preserved in practice, but also to be buttressed by appropriate and eVective constitutional guarantees. The establishment of a Supreme Court will provide those guarantees. It will provide clarity in our constitutional arrangements, and give people confidence that the institutional arrangements for our highest court are robust and will endure. 53. Nor does the Government’s case for the creation of a Supreme Court rest solely on the theory of the separation of powers. There have in fact been a number of very practical examples where the dual role of the Law Lords as members of the Appellate Committee and of the Upper Chamber have raised questions about their ability to sit on specific cases. I do not seek to suggest that the Law Lords’ independence has ever been compromised. But the Government does not want to sustain a position whereby a Law Lord could be lobbied in the corridors of Parliament whilst hearing a case, or whereby a Law Lord might have to withdraw from hearing a particular case because of comments he had made in the House when the legislation was being considered. 54. As a result of that last issue, it became necessary in June 2000 for the Senior Law Lord to make a statement in which he outlined the circumstances in which the Law Lords would speak in the House: “Mindful of their judicial role, they consider themselves bound by two general principles when deciding when to participate in a particular matter or to vote: first, the Lords of Appeal in Ordinary do not think it is appropriate to engage in matters where there is a strong element of party political controversy; and secondly, the Lords of Appeal in Ordinary bear in mind that they might render themselves ineligible to sit judicially if they were to express an opinion on a matter which might later be relevant to an appeal to the House”.27 55. What this statement reveals in stark form is a fault line that is beginning to open in our constitutional arrangements. As JUSTICE have said in a recent policy paper: “recent jurisprudence on the independence of judicial bodies has emphasised that independence and impartiality must be measured against both subjective and objective standards... although there is no question of subjective impartiality, Law Lords can be placed in constitutionally diYcult positions”.28 The growth in judicial review cases over the past 50 years has made this fault line more apparent. It serves to emphasise the need for there to be a physically separate Supreme Court, with appropriate safeguards in place to protect its independence from the very real pressures that a court at the apex of the justice system faces. 56. The facilities available to and provided by the Court are of the utmost importance. In his Constitution Unit Spring Lecture last year, Lord Bingham made clear the importance he attaches to improvements in this area. The benefits he said would lie “in regularisation and rationalisation of the Constitutional position of the Supreme Court and (it would be hoped) improved facilities leading to a clear enhancement of its operational eYciency.”29 As we all know, the accommodation for the Law Lords within this building leaves a lot to be desired. Their oYces are cramped and inconveniently located. Constraints on the space available limit the number of support staV. And the presence of the Appellate Committee within Parliament makes it diYcult for members of the public to gain access to the building, and to see our highest court in action. I think this last area should be one of particular concern to the Committee, and we should pause to question why it is that the highest court in the land should be the most diYcult for members of the public to observe in action. 57. In the proposed UK Supreme Court, none of these artificial constraints would apply. The Government would be able to provide the resources necessary for the Court to function properly—and stands ready to do so. We see scope for real improvements to the Law Lords in the provision of information technology; of additional research assistants; and of additional secretarial support. We are committed to providing a world class law library. And, very importantly, we will ensure that the public—including visitors from overseas— have the opportunity they deserve to see the Supreme Court of the United Kingdom at work. 26 Lord Steyn, Neill Lecture 1 March 2002. ‘The Case for a Supreme Court’. 27 Lord Bingham. House of Lords 22 June 2000. 28 JUSTICE. 29 Lord Bingham, Constitution Unit Spring Lecture 1 May 2003. 9674111001 Page Type [O] 28-06-04 20:11:49 Pag Table: LOENEW PPSysB Unit: PAG1

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Jurisdiction of the Court

58. The supremacy of Parliament is at the heart of our system of government. The fact that the UK Supreme Court will not be able to strike down legislation will not make it in any way inferior to Supreme Courts in other countries, such as the United States. As Lord Steyn has said “the aim must be a Supreme Court independent of the other branches of Government, in the framework of our existing system in which the supremacy of Parliament is the paramount principle of our constitution.”30 It is the Government’s intention to maintain the supremacy of Parliament, and the UK Supreme Court will therefore have the same appellate jurisdiction as that exercised by the Appellate Committee of the House of Lords, and with the devolution jurisdiction of the Judicial Committee of the Privy Council. 59. Nor will the exclusion of criminal appeals from Scotland from the UK Supreme Court’s jurisdiction weaken the Court’s authority. Jurisdiction over Scottish criminal appeals has for a long time been an exclusive matter for the High Court of Justiciary and has never been a matter for the House of Lords. This was settled at common law in 1876 and was given statutory recognition by the Criminal Procedure (Scotland) Act 1887. The Government has no intention of overturning that. 60. Decisions of the UK Supreme Court will, so far as they determine devolution issues raised under the Scotland Act 1998, the Government of Wales Act 1998 or the Northern Ireland Act 1998, be binding in all legal proceedings throughout the UK. This will precisely replicate the position as it applies to the decisions of the Judicial Committee of the Privy Council in proceedings under those three Acts. But so far as its more general jurisdiction is concerned, we intend the Supreme Court, like the Appellate Committee, which is a part of, and reports it decisions to, the Upper House of the UK Parliament, to be a UK institution, but applying English, Scots or Northern Ireland law according to the jurisdiction from which the appeal originated. This means that as with the House of Lords when exercising the same jurisdiction, its decisions are to be binding only in the jurisdiction from whence the case has come. In each of the other jurisdictions its value as precedent would be persuasive only. 61. I am of the view that the principle of stare decisis, that is, the general maxim that when a point has been settled by decision, it forms a precedent which is not afterwards to be departed from, provides a high level of comfort as to how decisions of the Supreme Court will only be binding in the jurisdiction in which the relevant case originated. However, I am mindful that others could argue the doctrine of stare decisis may not provide the necessary levels of protection for our respective legal systems in the United Kingdom. 62. Lord Cullen of Whitekirk and Lord Hope of Craighead have suggested that, as the Bill stands, we may be in danger of opening up an argument that creating a Supreme Court of the UK will make that Court’s decisions binding on all courts in all cases or will at least increase a temptation already present in the House of Lords to extrapolate for one jurisdiction a precedent decided in an appeal arising from and examined in the context of a diVerent jurisdiction. This is emphatically not our intention, and we are examining how it might be ensured that there is no possibility that this could be the eVect. I anticipate, therefore, bringing forward to the Committee amendments at a later stage, which will put the matter beyond doubt. 63. There is a further point to make about the Court’s jurisdiction in hearing cases originating in three separate parts of the UK. The number of Supreme Court judges will be set (initially at least) at twelve (which is the existing number of Lords of Appeal in Ordinary). There is no indication that the workload of the Supreme Court will diVer from that of the Appellate Committee and the Judicial Committee of the Privy Council in devolution matters, so there is no current reason to increase the number of judges. The Government will also adhere to the convention under which at least two of the judges are drawn from Scotland, and, as is the case now, it is envisaged that there would normally be one judge from Northern Ireland. But in considering Scottish or Northern Ireland civil appeals or some categories of devolution issue, it may be desirable for the President of the Court to have ﬂexibility in composing an appropriate panel for example to ensure a majority of Scottish judges for a Scottish Civil Appeal. Under current arrangements this can be, and frequently is, achieved by drawing on the services of retired Law Lords from Scotland or other Peers who hold or have held high judicial oYce. This ﬂexibility will exist for the Supreme Court. The Court will be able to sit in panels, the size of which will be determined by the President, and through additional acting judges drawn from its Supplementary Panel. In addition, it will also be possible for the President of the Supreme Court, in exceptional cases, to draw on a wider range of acting judges who are not members of the Supplementary Panel. This additional pool of judges will comprise judges of the Superior Courts—Lords Justices of Appeal in England and Wales and Northern Ireland, or Senators of the Inner House of the Court of Session who are also 30 Lord Steyn, Neill Lecture 1 March 2002. ‘The Case for a Supreme Court’. 9674111001 Page Type [E] 28-06-04 20:11:49 Pag Table: LOENEW PPSysB Unit: PAG1

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Privy Councillors—without the restriction of their being Peers of Parliament. We regard this as a potentially important new ﬂexibility, which will strengthen the Supreme Court in comparison to both the existing Appellate Committee and Judicial Committee of the Privy Council.

Appointments to the Court 64. In Part 3 of the Bill, the Government proposes the establishment of a Judicial Appointments Commission of England and Wales, to assume responsibility for recommending candidates for appointment to judicial oYces. A similar body is being established in Northern Ireland, and a non-statutory judicial appointment board was established in Scotland in June 2002. These proposals have been generally welcomed, and indeed the Lord Chief Justice of England and Wales amongst others has called for the proposed procedures for England and Wales to be implemented as a matter of urgency. The Supreme Court proposals present an opportunity to make similar improvements to the appointments process for the highest court in the land. 65. In designing an appointments procedure appropriate to the Supreme Court of the United Kingdom, a vital consideration has been to enable the Government to draw on the expertise of each of the three territorial appointing commissions in applying the test of merit to candidates, but to balance this by an overriding assessment of the need to maintain an appropriate balance of experience and expertise in the Court, particularly in regard to the balance of jurisdictional background. The Government considered that this balance would be most appropriately achieved through the Secretary of State for Constitutional AVairs, working in consultation with the devolved administrations. It was in recognition of this, that the Government suggested a procedure whereby an ad hoc committee under the chairmanship of the President of the Supreme Court would be assembled comprising also the Deputy President and representatives from each of the territorial commissions. They would consider the potential candidates on merit, and put forward to the Secretary of State a range of between two and five candidates, the precise number being for them to decide upon which he would consult the devolved administrations. This procedure has been criticised as placing too much discretion in the hands of the Secretary of State particularly when set against the process in Part 3 which has been developed in consultation with the judiciary of England and Wales. As I made clear at Second Reading, the Government is sympathetic to the views which have been expressed, and is keen to bring forward proposals which will improve the arrangements, and in particular, introduce safeguards to ensure there is no possibility of political interference in appointments at this level. 66. The Government is currently consulting with the Law Lords, and with the heads of the devolved administrations, over the way in which these improvements can be made. Once those consultations are complete, the Government will have to take a view collectively as to how to proceed. I hope that it will be possible to bring forward amendments for the consideration of this Committee at a later stage. But I think it would also be helpful if I outlined now the preferred option on the basis that it is work in progress rather than a definitive proposal. I would be grateful for the views of the Committee on it. 67. In considering the appointments model for the Supreme Court I believe that the following principles must apply. The process must be transparent, objective and unbiased, whilst retaining the principle of Ministerial accountability. Appointments must be made on merit but consideration must also be given to the geographical balance of the Court. In regard to the latter it is essential that the heads of the devolved administrations have an eVective input as well as the senior judiciary in each jurisdiction. I believe my preferred model will meet all these aims. It is broadly similar to the procedure for filling judicial vacancies in England and Wales whereby the executive discretion of the Secretary of State is circumscribed by receiving one name from the Appointments Commission, rather than a shortlist. This would bring consistency across all parts of the Bill that deal with judicial appointments. 68. Under my preferred option the Secretary of State will issue general guidance to the Supreme Court Appointment Commission (SCAC) relating to the specific vacancy that has arisen. For instance the Secretary of State may draw attention to the jurisdictional requirements of the Supreme Court or an area of law in which the Court lacks expertise. This guidance will not be binding but provides a safeguard that the SCAC will have the needs of the court at the forefront of it’s considerations. Once convened the SCAC would canvass eligible candidates from across the UK and draw up a shortlist from which they would ultimately select one name to forward to the Secretary of State, with reasons, along with details of other candidates considered. 69. As only one name will be put forward to the Secretary of State the SCAC will be responsible for applying both the merit and territoriality tests to eligible candidates rather than just the merit test as under my previous proposal. With the extra responsibility for considering the jurisdictional requirements of the court the President of the Supreme Court, acting in his capacity as Chair of the SCAC, will consult the First Minister 9674111001 Page Type [O] 28-06-04 20:11:49 Pag Table: LOENEW PPSysB Unit: PAG1

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1 April 2004 of Scotland, First Minister of Wales, the Secretary of State for Northern Ireland as well as the Secretary of State for Constitutional AVairs (representing the English viewpoint) alongside the senior judiciary in each of the jurisdictions (as long as they are not candidates for appointment) and the other Justices of the Supreme Court. I believe this has the additional advantage of involving the devolved administrations at an early stage in the selection process giving them meaningful input into the process. 70. On receiving a name from the SCAC the Secretary of State will himself consult the senior Judiciary in each jurisdiction and the Heads of the Devolved Administrations, providing a further chance for input into the final selection. As with the Judicial Appointments Commission model the Secretary of State will then have three options. He can accept the recommendation of the SCAC and forward the name to the Prime Minister, who would pass it on to Her Majesty. The Secretary of State can ask the SCAC to reconsider if he considers that the evidence submitted does not demonstrate that the recommended candidate meets the criteria or if the evidence suggests that the recommended candidate is not the strongest candidate. In this eventuality the SCAC can either put forward a new name or the same name with further evidence. The Secretary of State will then be obliged to make a choice between the original candidate and the alternative candidate (if one is put forward) or invoke his third option of rejection if he considers that the second candidate cannot be considered for appointment to the Supreme Court. If the Secretary of State rejects a name at this stage then the SCAC must provide an alternative candidate. The Secretary of State can then choose between the original name provided by the SCAC before reconsideration or the new candidate following rejection. 71. If the Secretary of State rejects the first name submitted to him, on the basis that he considers the candidate cannot be considered for appointment to the Supreme Court, the SCAC must provide a new name with evidence. The Secretary of State can either accept this name or ask for reconsideration if he considers that the evidence submitted does not demonstrate that the recommended candidate meets the criteria or if the evidence suggests that the recommended candidate is not the strongest candidate. If an alternative candidate is put forward the Secretary of State can choose between the first name following rejection or the new name following reconsideration. 72. Under this model where only one name rather than a shortlist of names is submitted, the executive discretion of the Secretary of State is circumscribed in a manner analogous to the Judicial Appointments Commission model. However, as with judicial appointments for England and Wales I consider it is still vital that the Secretary of State has a suYcient range of options at his disposal to protect ministerial accountability.

Governance 73. I now turn to arrangements for the governance of the Court. It is crucial that these arrangements reflect adequately the unique constitutional position of the court. The Government’s proposals aim to guarantee genuine independence and autonomy. 74. For the UK Supreme Court the Secretary of State for Constitutional AVairs will be under a statutory duty to provide funds for the Supreme Court’s eVective and eYcient administration. This provides a robust guarantee that the Court will receive adequate funding, but I should like to explain how the funding process will work in order to demonstrate the guarantees of practical independence it provides. 75. First, the Chief Executive OYcer and the President of the Supreme Court will consider the resources required for the Supreme Court in line with the Government expenditure planning timescales, and will forward their projections to the Secretary of State. The Secretary of State must satisfy himself that the bid is reasonable and aVordable: in all democratic systems there must be a mechanism for ensuring courts are not wasteful in their use of public funds. The Secretary of State will bid for resources to Her Majesty’s Treasury (HMT) in the context of the overall bid for the Department for Constitutional AVairs. When HMT allocates resources to the Department, the funds for the Supreme Court will be ringfenced by the Secretary of State as a separate block of funds within the Estimate, which is subject to Parliamentary scrutiny and approval. 76. This mechanism is a robust and secure method of protecting the funding of the Supreme Court. It cannot be altered without Parliamentary approval. The funds for the Supreme Court will be delegated to the Chief Executive, who will be the Accounting OYcer for the Court, and will have full authority for the financial running of the court. The Chief Executive will also be fully responsible for all aspects of staV management in the Supreme Court. At the end of the financial year the Chief Executive will make an Annual Report to Parliament, which will also be made available to the Scottish Parliament and Welsh Assembly. 77. I consider that the model outlined above compares favourably to international models, including the Australian Supreme Court. It has been suggested that the Australian High Court receives its funds from Parliament via the Department of Finance. That is not in fact the case. For the sake of executive government 9674111001 Page Type [E] 28-06-04 20:11:49 Pag Table: LOENEW PPSysB Unit: PAG1

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1 April 2004 administrative convenience, the annual parliamentary appropriation to the High Court is provided within the Attorney-General’s portfolio (the equivalent of the Department for Constitutional AVairs). Our finance model above provides an almost identical model and the same degree of independent resourcing. Furthermore, the Chief Executive of the UK Supreme Court will enjoy a high degree of financial autonomy and management responsibilities. As in Australia, an appropriate degree of ministerial accountability for the expenditure of public money will also be maintained. 78. Others have expressed concerns that, by being administered within the Department for Constitutional AVairs, the UK Supreme Court will be run as part of the Court Service for England and Wales, and not as a truly UK body. 79. The Government regards this criticism as being misconceived. The UK Supreme Court will be administered as a distinct body, completely separate from the England & Wales Court Service. Furthermore, the Department for Constitutional AVairs has wider responsibilities across the UK and is not just responsible for the operation of the Courts Service of England & Wales. It is therefore the appropriate Department to assume ultimate responsibility for the financial management of the UK Supreme Court.

Financing of the Court 80. The UK Supreme Court will be financed from two sources: a direct grant from monies voted by Parliament to the Department for Constitutional AVairs; and through court fees. In practice, there will be one grant from the Department for Constitutional AVairs to the Supreme Court. The Department will then recoup money in relation to the cost of the civil jurisdiction from court fees. 81. The direct financing by the Department for Constitutional AVairs will be in respect of the Criminal and Devolution jurisdiction of the court. The enforcement of the criminal law is a primary obligation of the State, and is financed through general taxation. Financing will come entirely from the Department for Constitutional AVairs, because the Supreme Court (like the Appellate Committee of the House of Lords) will have no jurisdiction to hear criminal appeals arising from Scotland. 82. The devolution jurisdiction of the UK Supreme Court will be the same as that of the Judicial Committee of the Privy Council, which exists to ensure the correct maintenance and interpretation of the devolution settlement. As the Department for Constitutional AVairs is responsible for the overall management of relations between the UK government and devolved administrations in Scotland, Wales and Northern Ireland, the financing for this function will be paid by the Department for Constitutional AVairs. 83. DiVerent considerations apply to the civil work of the Court. So far as England, Wales and Northern Ireland are concerned, Government policy was announced to the House of Lords by Lord Irvine of Lairg on 19 November 1998. This was that all the costs of administering the civil courts (including capital and judicial costs) should be recovered, through fees, from users of the civil courts. The justification for this policy is that services provided by the Government should be paid for by those who use them, rather than spread among the generality of taxpayers. Concerns about levying fees preventing access to justice are met by the system of exemptions, remissions and subsidies. In relation to the civil courts of England and Wales, this issue was extensively debated by the House of Lords in relation the Courts Bill on 18 February 2003 and 27 March 2003 and an amendment was carried against the Government excluding judicial costs from the calculation. But the Other Place disagreed, and asserted its right to legislate on areas concerning finance. This was accepted by this House when the Bill returned to the Commons on 12 November 2003. The policy is therefore settled in respect of all civil business arising in England, Wales and Northern Ireland, and will naturally apply to the civil work of the Supreme Court. 84. At present, 84 per cent of the total costs of the civil courts in England and Wales are covered through fees charged to litigants. During the next financial year, this figure will rise to 100 per cent (excluding those fees, which are remitted exempted or subsidised). But the Government recognises that it would not be equitable to charge the whole of the costs of the Appellate Courts to those who pursue appeals before it, since the benefits of their jurisprudence accrue not merely to the parties to the action itself, but generally to litigants, the legal profession and the Civil Justice system as a whole. In respect of the Supreme Court, the Government therefore proposes that the costs of its civil work should be met partly through its own fees (as at present), but also by adding a modest premium to fees charged to civil litigants at first instance. The amount of the premium, together with the overall fees structure, will be considered in detail once definitive figures are available for the overall budget of the Court. But current projections suggest a premium in the order of 1 per cent-2 per cent— well below a level which would aVect access to civil justice in courts of first instance. 9674111001 Page Type [O] 28-06-04 20:11:49 Pag Table: LOENEW PPSysB Unit: PAG1

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85. In respect of Scotland, the ﬁnancing of the Civil Justice system is a devolved matter under the Scotland Act. The Government is therefore in discussion with the Scottish Executive over the arrangements, which should apply to the funding of the Supreme Court in the UK in respect of that part of its workload attributable to civil appeals from Scotland.

Cost 86. The proposals for the creation of a Supreme Court carry with them a cost. But it is a cost that is merited, in Lord Bingham’s words, by “the importance which a liberal society attaches to the rule of law”.31 The Government is confident that arguments both of principle and practicality justify such a cost, and that the proposals will represent value for money. Once established, the court will allow tangible benefits to be realised. 87. There are two elements in the business case: accommodation and administration. These must be treated separately. In respect of the second, it will not be possible to produce definitive figures until the Government has taken a final decision upon the location of the new court, and the method by which any capital investment will be financed. The evaluation process is described below, and represents a complex task with a number of diVerent procurement avenues. For those options requiring capital investment (and not all do) the set up costs have been calculated as between £6 million and £32 million. For some options there may be additional consequential costs. But we must not be blind to the fact that there are costs associated with locating the Appellate Committee within the Palace of Westminster. Every Parliamentarian knows the premium, which attaches to each square foot of space within this building. As a result of the establishment of the Court, more space will be available to Parliament. There will also be potential for annual savings of around £400,000 per annum in accommodation and other costs to the Privy Council oYce should co-location occur. 88. As regards administrative costs, it is necessary to compare like with like. It is not entirely straightforward to separate the costs of the Appellate Committee from the generality of expenditure within the House of Lords, but, from discussions with the Judicial OYce, my oYcials have produced what we regard as a reasonably reliable apportionment. Existing expenditure on staV salaries and other administrative costs for 2002–03 in the Judicial OYce amounted to approximately £680,000. A further £180,000 can be attributed to the Judicial OYce for the cost of utilities, accommodation, overheads, telephones and postage. The Judicial OYce also benefits from the use of staV employed by the wider House of Lords (library services, security, catering, cleaning and so on)—a conservative estimate of the cost of which we have placed at around £250,000. To this must be added the costs of judicial remuneration—£2.1 million paid annually from the Consolidated Fund. 89. Altogether, this implies an approximate annual cost to the public purse of just over £3.2 million per annum in order to service the existing judicial work of the Appellate Committee of the House of the Lords. This figure compares with the estimated annual running costs of the Supreme Court (including judicial salaries) of approximately £6.6 million per annum (taking no account of any eYciency savings which may result from co- locating the judicial secretariat to the Privy Council with the Supreme Court). The breakdown of these costs is set out in the table below. In terms of administration, therefore, the Government is proposing to invest a figure of slightly over £3 million per annum in addition to that which is already spent on the judicial work of the House of Lords. The Government’s case is that this will be money well spent to deliver benefits in each of the areas identified by the Senior Law Lord as currently being unsatisfactory.

ESTIMATED SUPREME COURT ANNUAL RUNNING COSTS

Budget Head Estimated Costs Comment

Judicial Salaries £2,100,000 Unchanged StaV Salaries £1,000,000 £600k currently—the increase represents the additional staYng requirement of the Court, including the Chief Executive, additional research assistants and support services currently provided by the House (eg librarians, messengers etc) Library £250,000 £90,000 currently—although this represents the cost of maintaining the Judicial OYce library collection only; the Law Lords also enjoy access to the wider library of the House which would need replication, and maintenance, in part. 31 Lord Bingham, Constitution Unit Spring Lecture, 1 May 2003. 9674111001 Page Type [E] 28-06-04 20:11:49 Pag Table: LOENEW PPSysB Unit: PAG1

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Budget Head Estimated Costs Comment

General Admin £750,000 Covers utilities, telephones, postage, reprographics, soft services (cleaning, catering, security) etc Building costs £2,500,000 Annual building costs vary significantly between options and depending on procurement route. However, this figure represents a realistic estimate for a “conventionally” (ie non-PFI) procured solution. The figure includes maintenance, rent (where appropriate), rates/capital charge.

90. These costs need to be considered against the very real beneﬁts outlined in paragraphs 55–62.

Accommodation 91. The Supreme Court will sit at the apex of the judicial systems of England & Wales, Scotland and Northern Ireland and as such, it is appropriate that it should sit in the Nation’s Capital, just as the UK Parliament sits in London. This is the approach taken in many other countries where the Supreme Court is sited in the same city as the legislature and the centre of the executive. 92. The Judicial Committee of the Privy Council has agreed in principle to co-location with the Supreme Court, subject to a number of conditions, particularly the provision of suitable accommodation. Should this prove possible, as intimated above, this would lead to operational and financial eYciencies. 93. I have undertaken to provide an appropriate building that is suitably prestigious with first-class facilities, including hearing rooms, library and ancillary accommodation. I have agreed a Statement of Requirements with the Senior Law Lord. The headline requirements is for a building of approximately 3,600 square metres, including three hearing rooms, extensive library facilities, accommodation for the 12 Justices and visiting members of the Reserve Panel and improved facilities for staV, practitioners and public. 94. For something so important, it was clearly not appropriate to rely solely on inter-Departmental or informal market soundings in the search for potential locations. I therefore commissioned professional agents to conduct an extensive search for properties, of between 2,300 and 4,000 square metres, both commercial and on the Government estate. Their search involved: — Reviewing the DCA estate in London; — Considering any suitable properties on the Greater London Magistrates’ Court Authority (GLMCA) estate; — Obtaining from the OYce of Government Commerce (OGC) their known availability of property on the wider Government estate in London; — Contacting 17 Whitehall Departments to determine whether any of their buildings might become available within our initial timescales; and — Searching current commercially available property (within 1 mile of Charing Cross). 95. This initial search generated a long-list of 48 properties, four of which, after closer scrutiny against a number of criteria (size, operational eYciency, adaptability, suitability), merited further consideration. I then commissioned a further exercise, this time extending the net wider across London and asking the agents to explore the potential for new build sites. The overall result of these two searches brought the total of potential options to six. I commissioned an independent financial analysis of the options, based upon HM Treasury Green Book methodology and taking into account a number of potential procurement routes. The Net Present Value of these options was shown over a period of 20 years, to ensure a like for like comparison. 96. My oYcials, along with professional estates advisors, have undertaken a qualitative analysis of the relative merits and disadvantages of the options and assessed them against the following criteria: suitability; deliverability; prestige & location; and aVordability & value for money. Each of these criteria attracted 25 per cent of the overall markings. As a result of this evaluation, I rejected two of the options. The evaluation process included a presentation to the Law Lords on each of the options under consideration. 97. More work is currently underway, including a more detailed feasibility assessment of how current layouts could be adapted to meet the specific requirements of the Supreme Court. My oYcials are engaging with the relevant planning authorities as part of this process. In addition, my oYcials are also assessing the wider business impacts of the options and (through financial management consultants) evaluating and recommending the most suitable procurement strategy for provision of the new Court. 98. Substantial progress has been made, but some detailed points still need to be resolved. However, I am nearly in a position where I can make a final decision. This will be based on a number of factors: 9674111001 Page Type [O] 28-06-04 20:11:49 Pag Table: LOENEW PPSysB Unit: PAG1

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— Functional suitability; — Value for money and aVordability; — Prestige and location; — Deliverability (including planning considerations); — Further views from the Law Lords and other key stakeholders, including the devolved administrations. 99. Clearly, such a comprehensive search and evaluation of the options, with a clear audit trail, takes time. I appreciate that there has been considerable speculation regarding the venue of the Supreme Court, but, until the full process has been completed, I cannot disclose further details or commit to the timing of any public announcement as commercial negotiations may be necessary. 100. It is inevitable that, even once identiﬁed, it will take time to equip the building. While we would not wish to rule out any interim arrangements at this point, I can assure the Committee that there is no possibility that we will enact legislation on a Supreme Court without ultimately providing suitable accommodation. 101. The Government believes that the Constitutional Reform Bill presents an opportunity to create a UK Supreme Court that represents a real beacon of excellence, that enshrines clarity and independence in our constitutional arrangements, and that provides value for money.

Part Three

A Judicial Appointments Commission 102. The provisions in the Bill for the Judicial Appointments Commission reﬂect the Concordat I have agreed with the judiciary. They provide for a fully independent and expert Commission, responsible for the process of selecting candidates for appointment, with an appropriate—and carefully balanced—role for the executive and judiciary.

The need for a Commission 103. There can be no doubt that we are served by judges, tribunal members and magistrates of the very highest calibre, in many ways the envy of the world. But, equally, there can be no doubt that our method of selecting them is no longer acceptable. The selection process should not be entirely in the hands of a single Government Minister. The process should be independent and transparent. In its current form, it is neither. That the process has worked as eVectively as it has is a tribute to the integrity and probity of successive Lord Chancellors. But appointments have been as successful as they have despite the selection process, not because of it. It would take very little for confidence in the existing system to be eroded, and with it confidence in our judiciary. 104. There are aspects of the current system, which have not been successful. In its most recent Annual Report, the Commission for Judicial Appointments highlighted a number of serious weaknesses in the current system. The system of nominated consultees was found to be “not of suYcient value to justify the costs involved”,32 with automatic consultation giving undue weight to high visibility in the professions. In some areas, the Commission found poor record keeping, weaknesses in the style and conduct of interviews, and a lack of clear criteria. Despite this Government’s continuing work to improve the system, it is clear the current arrangements have run their course. 105. In addition to these general concerns, the proportion of women and ethnic minority judges in the senior ranks of the judiciary is very low. We have only this year appointed the first woman to our most senior Court. There are no ethnic minority judges in the High Court, the Court of Appeal, or the Appellate Committee of the House of Lords. There are many factors contributing to this, but a selection and appointments process that is seen by many to be closed to them clearly plays a part. This cannot continue. 106. The creation of a Judicial Appointments Commission provides us with the opportunity to make the system of judicial appointments both more open and more eYcient. It will remove from the executive the day- to-day responsibility for selecting candidates for appointment, and will significantly reduce Ministerial discretion, to the point where there is no possible scope for any consideration other than merit—independently 32 Commission for Judicial Appointments, Annual Report 2003. 9674111001 Page Type [E] 28-06-04 20:11:49 Pag Table: LOENEW PPSysB Unit: PAG1

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1 April 2004 assessed. It will ensure that recruitment expertise, and the expertise of the judiciary, can be combined to run a system that continues to deliver judges of the highest quality, and that can inspire public confidence. 107. One of the key areas in which the Commission must provide improvements is the diversity of the bench. By its very existence, a Judicial Appointments Commission will demonstrate for many potential applicants that the system for appointments is more open and more transparent. But it will need to do more. It will need to demonstrate best practice in recruitment, and will need to make every eVort to attract qualified candidates from those groups that are currently under-represented in the judiciary. The Commission will also be ideally placed to see what other changes could help attract a wider range of candidates, and will work in partnership with the Secretary of State to promote greater diversity. Indeed, one of the first responsibilities the Commission will be tasked with will be to provide the Secretary of State with advice on this issue. Experience in Canada, and particularly Ontario, shows just how eVective appointments commissions can be in promoting diversity.

A Recommending Commission

108. One of the key considerations has been the extent of the Commission’s role. The Government outlined the three options in our consultation paper Constitutional Reform: a new way of appointing judges33 in July. The options were: — a commission that recommends candidates for appointment by the Secretary of State for Constitutional AVairs (or, for the more senior judges, appointment by Her Majesty on the recommendation of the Secretary of State); — an appointing Commission that would make appointments or advise Her Majesty directly for the more senior appointments; and — a hybrid of the two, which would appoint the more junior judiciary, but make recommendations to the Secretary of State for the more senior appointments. 109. Consultation responses showed a majority in favour of an appointing Commission. There was some support for a hybrid Commission, including the Law Society and the current Commission for Judicial Appointments. We gave considerable thought to this issue in the light of consultation, and concluded that our original proposal—a recommending Commission—remained the best option. I have stated the reasons for this before: appointing judges is a central function of the State. Parliamentary accountability for the appointments system must therefore be retained, through the Secretary of State. It follows that a Secretary of State who is accountable for appointments should have a real, albeit carefully tempered, discretion in those appointments. Two crucial constraints will be that (i) the Secretary of State’s powers to reject or seek reconsideration of a recommendation will be exercisable only once in respect of a vacancy and (ii) no circumstances could possibly arise in which a candidate not recommended by the Commission could be appointed. To achieve these constraints, only one name will be put forward for each vacancy; the Secretary of State will have to give reasons for doing other than accept; the reasons for rejecting or seeking reconsideration will be set out in the Bill; and the Secretary of State’s use of the powers will be public knowledge through the Commission’s annual report. These are signiﬁcant and powerful fetters on the executive. I believe that they, along with other provisions on the relationship between the Commission and the Secretary of State, strike a proper and workable balance of independence and accountability. An appointing Commission would, quite simply, not be accountable to Parliament in the same way that a member of the Government is. The recommending model also preserves the Constitutional convention that The Queen acts solely on the advice of her Ministers. 110. Some have argued for a hybrid Commission on the grounds that the Secretary of State should have no involvement in more junior appointments. I disagree. The fundamental principle that appointments are a function of the State for Ministers to exercise remains just as true for these appointments, as does the need for accountability to Parliament. And I cannot accept the argument that there is a risk of political interference in these appointments. Constraints on ministerial discretion that are suYcient for appointments to the High Court and Court of Appeal must also be suYcient for more junior appointments, where, if anything, there must be less of a risk of a politician seeking to inﬂuence the process. 33 Department for Constitutional AVairs Consultation Paper 10/03. 9674111001 Page Type [O] 28-06-04 20:11:49 Pag Table: LOENEW PPSysB Unit: PAG1

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The Process 111. The process for appointments forms a central part of the agreement with the senior judiciary, and is described in detail in paragraphs 114-130 of the Concordat. It is set out in Chapter 2 of Part 3 of the Bill. The key features of the process are: — appointments must continue to be made solely on merit; — the Commission should be entirely responsible for assessing the merit of candidates and selecting candidates for appointment; — no candidate can be appointed unless recommended by the Commission; — the Commission should be required to consult the Lord Chief Justice, and another judge with relevant experience; and — the Secretary of State should have a role in the ﬁnal decision, but that role should be restricted so as to prevent any considerations other than merit playing a part in the appointment decision. 112. The power of the Secretary of State in relation to each appointment to reject a candidate once, or ask the Commission to reconsider once (giving his reasons for doing so), provides a careful set of checks and balances. It prevents the Commission from putting up a candidate patently unsuitable for a post, while ensuring that the Secretary of State can neither select a candidate of his own choosing, nor continue rejecting candidates until a favoured candidate is put forward. The Lord Chief Justice agrees that this arrangement represents a suitable balance between accountability and independence.

Membership 113. As the Committee will be aware, we originally proposed a 15 member Commission (including the Chairman) and, after careful consideration, we have concluded that this is the right number. There was general agreement from respondents to consultation that this was about right. The size of Commissions in other jurisdictions tends to vary considerably and while our Commission will be larger than the Scottish Judicial Appointments Board and the proposed Northern Ireland Judicial Appointment Commission, at ten and twelve members respectively, it will have a significantly higher workload than either of those bodies. To illustrate this, there were approximately 90034 appointments to posts that will be within the Commission’s remit in 2002/3 whereas the Scottish Judicial Appointments Board made recommendations on approximately 40 appointments in its first year of work. Clearly the workload of our Commission will be considerably greater, but it does not therefore follow that the Commission should be similarly larger. As was pointed out by some of our consultation respondents, 15 is about as large a body as one would want for eVective decision-making. A Commission of any greater size could be potentially unwieldy. 114. Critical to the success of the Commission is to ensure it has suYcient support. There are currently approximately 140 staV working on appointments and related work in my Department. I envisage that the Commission will have a similarly sized staV when it is established. It is also important in this respect that the Commission should have the freedom to organise its own work. This will ensure that it can perform its role in an eYcient and eVective way. 115. With regard to composition, our original proposal was for a three-way split between judicial, lay and legal members. We thought long and hard about the Commission’s composition, informed of course by the many helpful responses to consultation. Around 40 per cent of respondents supported the Government’s proposal with the remainder dividing between supporting a lay or judicial majority, or other permutations. Notably, only 2 per cent supported a majority of legal (non-judicial) members. 116. The position we have arrived at, and which reflects paragraphs 131-133 of the Concordat, provides a more substantial lay element than our original proposal. The six lay members, including the Chair, will be the largest single group. I envisage that they will be the people from which the Commission will draw on much needed expertise of modern human resources. This will help to invigorate the appointments process, something which is critical to achieving one of our key aims—to attract a more diverse pool of suitably qualified candidates. The lay members will also bring with them a breadth of qualifications and life experience that will complement the knowledge and expertise of the legal and judicial members and will help to demonstrate that this will be a truly independent Commission that is not about maintaining any vested interest. 34 This does not include magistrates appointments, which are also to be a part of the Commission’s remit in due course, and of which there were over 1700 in the year 2002–03. 9674111001 Page Type [E] 28-06-04 20:11:49 Pag Table: LOENEW PPSysB Unit: PAG1

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117. With regard to the Chair of the Commission, while I note that the Constitutional AVairs Select Committee Report came down on the side of a judicial Chair, and while I accept that there are good arguments for either a judicial chair or a lay Chair, I am firmly of the view that a lay chair is the right choice. Chairing the Commission will be a sizeable commitment—if not full-time, then certainly close to it. This would not allow a senior judge to devote to the Commission the attention it needs, and continue to sit as a judge. The judiciary agree this approach. 118. Our proposals for the judicial element of the Commission have also been arrived at following careful deliberations and consultation with the judiciary. A robust judicial presence on the Commission is vital. Moreover, the Commission’s remit will be broad and extensive and I believe the make up of its judicial element will need to reflect that. Consequently we have purposely opted for a judicial element that represents a cross section of the principal oYces in the judicial hierarchy. This will enable the Commission to draw on the very diVerent but equally valuable experience and knowledge from across the breadth of posts which comprise its remit. 119. Our decision to include a magistrate and a tribunal member will further enhance the breadth of knowledge and experience on the Commission and provide valuable knowledge in respect of a substantial part of its remit, the tribunals and magistracy. The magistrate and tribunal member will bring markedly diVerent perspectives and experience to the professional judges. For instance, magistrates are currently required to have a reasonable knowledge of and to broadly reflect the community of the area in which they serve. They bring a lay view and experience to the bench, which is intrinsic to the value of their role. Similarly, the tribunal member could very well be a non-legal tribunal member. 120. Finally, the legal members will be a vital component of the Commission, representing the pool from which candidates are drawn. However, respondents to consultation generally agreed that it was not necessary for the legal element of the Commission to be as great as either the lay or judicial elements. Indeed, the Bar Council advocated three legal members, while the Law Society advocated two—the number we have arrived at. 121. I appreciate that there will always be a wide range of diVering opinions on this issue. Nevertheless, the key aim is to provide a Commission that has the necessary breadth of knowledge, expertise and experience to perform what will be an important and demanding role. I believe that the carefully deliberated composition that we have derived in the light of the consultation exercise and our discussions with the judiciary achieves a workable and appropriate balance. Naturally, the quality of the people who fill these roles will also be critical.

The appointing panel 122. The 15 Commissioners will be formally appointed by Her Majesty on the recommendation of the Secretary of State for Constitutional AVairs, who for the majority of the appointments, will be advised by an independent appointing panel that will select members by open competition in accordance with Nolan principles. This will ensure that the selection process is seen as independent and transparent. 123. It is usual for such an appointing panel to be chaired by a member of the sponsoring Department, and we suggested as much in our consultation paper in July. This is entirely in line with the Public Appointments Code, and our initial proposal, set out in our consultation paper, was to have the Permanent Secretary of the Department for Constitutional AVairs chairing an appointing panel, together with a senior judge, a senior ﬁgure entirely removed from the Department and the judiciary, and an independent assessor. We have paid close attention to the views expressed in response to our consultation paper and have also taken into account the views of the judiciary. It is clear that the particular need for the Judicial Appointments Commission to be seen as independent and not at any risk of executive interference, means that the Permanent Secretary should not be on this panel. 124. Paragraph 138 of the Concordat, therefore provides that the chair of the appointing panel will be someone chosen by the Secretary of State for Constitutional AVairs and the Lord Chief Justice. The Chairman of the Commission will be a member of the appointing panel unless that post is vacant or that is the post to be ﬁlled. The Lord Chief Justice or his nominee will be the third member of the appointing panel unless there is no Lord Chief Justice, when it will be the next senior Head of Division. The fourth member of the panel will be someone selected by the chair of the appointing panel. 125. I have agreed with the Lord Chief Justice that for the initial appointments to the Commission, Dame Rennie Fritchie will chair the panel. The panel will make its recommendations for appointment in line with the Public Appointments Code. 9674111001 Page Type [O] 28-06-04 20:11:49 Pag Table: LOENEW PPSysB Unit: PAG1

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126. The three most senior judicial members of the Commission will be chosen by a slightly diVerent mechanism. As they will be selected from the Court of Appeal and High Court bench, their appointment and involvement as Commissioners will in eVect be a deployment issue for the Lord Chief Justice: this will be a part of their duties as senior judges. They will therefore be selected by the Judges’ Council, which will provide information to the Secretary of State for Constitutional AVairs on how those chosen have met the criteria for appointment. The Secretary of State for Constitutional AVairs will pass these selections to Her Majesty and will not have a veto on the selections made.

Merit 127. It is widely agreed that judicial appointments must continue to be made solely on the basis of merit. This is spelled out clearly in the Concordat (at paragraph 128), and the Bill provides for this. However, as drafted, the Constitutional Reform Bill currently places the responsibility for defining merit within the Secretary of State for Constitutional AVairs, subject to aYrmative resolution. Following further consideration and discussion with the Lord Chief Justice on behalf of the judiciary, I concluded that the definition of merit must be a responsibility of the Commission, and not Ministers. This point has also been made by the Constitutional AVairs Select Committee in their recent report, and, separately, by Sir Colin Campbell. I announced in the Second reading Debate on 8 March that we would introduce an amendment to that eVect. 128. The Bill will also provide that the Secretary of State, after consulting with the Lord Chief Justice, will have an order making power to give guidance relating to requirements as to process such as the expectation that the Commission will work to encourage a more diverse pool of potential candidates and will take account of the need for expert judicial knowledge in relation to particular posts. This power will be subject to Parliamentary scrutiny by aYrmative resolution. Again, I announced on 8 March that we would introduce an amendment to achieve this. 129. I am aware that some favour a full definition of merit on the face of the Bill. However, I believe that this would be a mistake. The Commission will be responsible for appointment to a very wide range of oYces, and while there are core qualities that any prospective candidate for judicial oYce should display in order to merit appointment (legal knowledge, for example) what constitutes a meritorious candidate for one type of post will not be exactly the same for another. In addition, we will look to the Commission to refine and improve our existing definitions of merit—that will be one of its key functions, and the involvement of recruitment experts and a range of judges means it will be uniquely well placed to do so. To constrain the Commission with a single definition of merit would be to fetter its freedom to work eVectively in selecting candidates for the great diversity of posts within its remit. I believe that the position we have arrived at in consultation with the Lord Chief Justice will enhance the ability of the Commission to do its work.

Status of the Judicial Appointments Commission 130. The Commission will be a Non-Departmental Public Body (NDBP), which is fully in line with the proposals in the consultation paper. It is widely accepted from responses to our consultation that it will need to be independent from Government and be responsible for recruiting and employing its own staV and organising its way of working, along with ensuring proper accountability to Parliament. The Commission will be sponsored by the Department for Constitutional AVairs which will provide its funding. As is normal for NDPBs it will be subject to the scrutiny of a Parliamentary Select Committee and will be required to submit an annual report, which will be placed before Parliament.

The Judicial Appointment and Conduct Ombudsman 131. The Government consulted on whether there should be a separate body with a reviewing and complaints function once the Judicial Appointments Commission has been established. The majority of the respondents were in favour of a body having such a role, whether it be an existing body or a new one. 132. The provisions in the Bill reﬂect the support expressed for such a body. We are creating an Ombudsman as part of a rigorous system for handling complaints from candidates unhappy with the handling of their application for judicial appointment. The Judicial Appointments and Conduct Ombudsman will deal with complaints from candidates for judicial oYce about the way in which their application was handled, and judicial appointments matters referred to him by me. He will also provide recourse to anyone who has complained about a judge (or the judge complained of) if they are unhappy with the handling of the complaint. 9674111001 Page Type [E] 28-06-04 20:11:49 Pag Table: LOENEW PPSysB Unit: PAG1

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133. Anyone unhappy with the way their application has been handled, and with how the Commission dealt with any complaint, has full recourse to this independent statutory oYce-holder. And the Commission, and indeed I in relation to how I handle the appointments process, will be fully aware of this. 134. Moreover, there is nothing to stop the National Audit OYce examining the Commission and conducting a Value For Money study of it, in the same way as it can examine Government departments, and other non- departmental public bodies, such as the Commission. And of course both the Commission and the Ombudsman will be required to produce Annual Reports, both of which will be laid before each House of Parliament. 135. The Judicial Appointments and Conduct Ombudsman will handle complaints from individuals. But he will not have a general audit function, such as that which the existing Commissioners for Judicial Appointments have performed. The existing Commission was set up to audit an appointments system that is an integral part of the structure of the executive, in the hands of a single Government Minister and which is seen as closed and opaque. However, we are seeking to put in place something very diVerent. A key ﬁrst- principle, grounding each aspect of our policy, has been recognition of the need to devise a signiﬁcantly more open and transparent system. I believe we have achieved that, not least in the provisions for the Commission’s independent status, the appointment and composition of its membership, and the freedom it will have to organise and run appointments. In addition to this, we will have the safeguards of a rigorous complaint handling system, backed up by an independent Ombudsman and, of course, I will remain accountable to Parliament for the appointments system as a whole. We see no need to have the additional layer of a separate auditing body, or to invest such a role in an existing body. 136. I have therefore agreed with the judiciary (paragraphs 100-102 of the Concordat) that the Ombudsman should deal with complaints, but not have an audit role. Conclusion 137. The Government proposals outlined in this document have been put forward following an extensive consultation during the summer and autumn of 2003, and following a series of detailed discussions with the senior judiciary. Taken together, they are a compelling and coherent programme of constitutional reform. They will bring greater clarity and transparency to our constitutional arrangements. 138. I welcome the opportunity for further consideration of the proposals, and for the opportunity to look for improvements. I therefore look forward to working constructively with the Committee to ensure the Constitutional Reform Bill is in the best possible shape when it is presented back to the House of Lords in June. March 2004

Examination of Witnesses Witnesses: Rt Hon Lord Falconer of Thoroton, QC, a Member of the House, Secretary of State for Constitutional Affairs and Lord Chancellor, Mr Edward Adams,Mr Jonathan Freeman and Mr Alastair Clegg, Department for Constitutional Affairs, examined.

Q1 Chairman: Lord Chancellor, thank you very much Q2 Chairman: Lord Chancellor, we are grateful to for giving evidence to us. I wonder whether you can do you for submitting a paper. I will not ask you to take two things before we start. One is, for the sake of the us through it, but I would ask you to speak to it and record, particularly the voice record, could you introduce perhaps enlighten us a little more than is in the paper yourself and your colleagues who are with you. on why it is that you want to abolish yourself. Lord Falconer of Thoroton: I am Lord Falconer of Lord Falconer of Thoroton: Certainly. Could I start by Thoroton and I am the Secretary of State for trying to describe what the job of Lord Chancellor Constitutional AVairs and the Lord Chancellor. I currently involves and why we think it needs to be will ask each oYcial to introduce himself and his changed, and then why the conclusion we reach is particular responsibilities. that it needs to be abolished? The Lord Chancellor Mr Adams: I am Edward Adams. I am leading the ﬁrst of all is a Minister, with responsibilities of the advice to Lord Falconer on the Supreme Court areas sort that other Ministers have. As the paper makes of the Constitutional Reform Bill. clear, his departmental responsibilities have Mr Freeman: I am Jonathan Freeman and I am increased dramatically since the mid-70s. The paper advising Lord Falconer on the judicial-related describes the sort of support that Lord Hailsham had aspects of the abolition of Lord Chancellor. when he was Lord Chancellor. That has been Mr Clegg: I am Alastair Clegg, and I am responsible transformed, primarily because of responsibilities for for advising Lord Falconer on policy on the Judicial the courts and Legal Aid, responsibility for a Appointments Commission. department with tens of thousands of employees, 9674111002 Page Type [O] 28-06-04 20:11:49 Pag Table: LOENEW PPSysB Unit: PAG1

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1 April 2004 Rt Hon Lord Falconer of Thoroton, QC, Mr Edward Adams, Mr Jonathan Freeman and Mr Alastair Clegg which involves expenditure of £3 billion or doing all of these things. Indeed, it is detrimental to thereabouts. It also involves being involved in a the performance of all of these things that they are whole series of issues as a Minister in the way that done by one person. I do not think it is sensible, for other Ministers are involved, and I give some example, for a Cabinet Minister to also appoint all examples in the paper of how you make the criminal the judges, not just because it is constitutionally justice system work eVectively, what your priorities inappropriate—that inappropriateness has been are in relation to Legal Aid, to quote just to take two there for quite some time—but because the nature of examples; what the relationship between Legal Aid appointing judges has changed over time. I make and the criminal just system should be—diYcult somewhere in the region of 900 professional judicial issues of policy that have to be resolved around the appointments a year as well as a significant number Cabinet table by Ministers. That is one of appointments to the magistracy. Increasingly, responsibility. Because of the role of Lord because of the size of that job, it has to be done in a Chancellor, the Prime Minister’s choice in relation to methodical and sensible way, which means you have the Minister who does that job is constrained by a to set up systems, you have to have interviewing number of factors: he must be in the House of Lords panels, you have to have proper sifts, people have to and he must be a senior lawyer. In addition, he also be confident that it is done on an objective and performs significant functions in relation to the consistent basis. An engaged Cabinet Minister—and judiciary, in particular appointments, deployment by “engaged” I mean with a moderately heavy and disciplining. That has two aspects to it. Those portfolio—is not the person to be doing that, both roles have to be performed in an entirely objective because that is not his prime job and because the way: you discipline judges, you deploy judges, you system should be run by a body or a person whose decide who is going to be a judge on an objective, full-time job in eVect is doing that. Again, I think non-political basis. In addition, you also have a there is a broad acceptance that the appointment of representative function on behalf of the judiciary. the judges should be taken out of the hands of a The role of being a representative of the judiciary in Cabinet Minister and put on a much more some respects, in particular in relation to appropriate basis. There is one function of the Lord government, means that you have a group of people Chancellor which I think one needs to address in who rightly look to you for support and protection. some detail, and that is his role as the defender of the Their views on policy may well, quite independence of the judges and the defender of the understandably, be diVerent from the views on policy rule of law. The Lord Chancellor sits at Cabinet as a that you as a Government Minister and your representative of the judges. Once you take away colleagues might take, the diVerences being perfectly from the Lord Chancellor his prime role in legitimate. So you have a ministerial role, which gives appointing judges, if you accept that he should not rise to the normal political considerations. The any longer be deploying and disciplining judges, if choice of that Minister is constrained, and the you accept as well that he should not sit as a judge— Minister has in a sense a conflict between his and I think most of those propositions are representative role on behalf of the judges and his accepted—then he no longer sits at the Cabinet table role as a normal Minister. In addition to that, until as the head of the judiciary. He therefore no longer 12 June 2003, another of the jobs of the Lord has part of the authority which made him the most Chancellor was being a judge. Subject to any views appropriate person to defend the rule of law in the that anybody may express, I do not think support for Cabinet. In eVect, by removing all those parts of his the Lord Chancellor sitting as a judge was very job which are judicial, he no longer has that special strong. Indeed, the sense that it was constitutionally position that the Lord Chancellor currently has. That inappropriate and also leads to a great clash in terms does not mean that the rule of law goes undefended. of time was such that I do not think there was much The rule of law is absolutely critical to the way that support in the judiciary or elsewhere for him to our society operates. It has two aspects to it: first, that continue to sit as a judge. He is also Speaker of the we live in accordance with defined laws, but it also House of Lords. Again, that is a role that is an means there are certain ill-defined things that we objective role, in the sense that you are performing a would think were in breach of the rule of law. function for the House of Lords. All of those Lawyers can spot that, but so too can politicians; it is functions are not just extremely time-consuming, but not the exclusive preserve of lawyers to identify those also require diVerent skills and put you in conflict things which go beyond the rule of law in the second with other bits of your job. In relation to what is best sense in which I have used it. If I could summarise, in terms of performance of the job, is it sensible to the Lord Chancellor is now a busy Cabinet Minister, have a normal Cabinet Minister also doing those nobody thinks he should sit as a judge any more, other things? What does one bring to the other? I do nobody thinks he should do the deployment, not think any more it is sensible for one person to be disciplining and appointing of judges any more, and 9674111002 Page Type [E] 28-06-04 20:11:49 Pag Table: LOENEW PPSysB Unit: PAG1

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1 April 2004 Rt Hon Lord Falconer of Thoroton, QC, Mr Edward Adams, Mr Jonathan Freeman and Mr Alastair Clegg his function as a judge or as a representative of the Lord Falconer of Thoroton: Your first question is judges has in eVect gone. To try and keep him in that basically saying over the last period of time—I think position is detrimental to the running of the judiciary you mean decades—has the Lord Chancellor or have and it is detrimental to his role as a Cabinet Minister. the various holders of the oYce in eVect fallen down The right thing to do therefore is to bring that role to in defending the rule of law. Have I put that wrongly? an end and recognise that the ministerial role should be performed by a normal Cabinet Minister and the judicial role should be performed by the person who Q4 Lord Maclennan of Rogart: I was simply is in practice the professional head of the judiciary in suggesting that perhaps if the public look to the Lord England and Wales, the Lord Chief Justice. Indeed, Chancellor to avoid abuse of power by the on that last point, that is the way that history had Government, then the development of the been moving. In the paper I refer to Lord Mackay’s jurisprudence in this field on the numbers of sensible decision to abrogate the Kilmuir Rules, occasions on which senior members of Cabinet have which in eVect led to judges not being able to criticise been struck down by the courts suggests that the the government without the permission of the Lord Lord Chancellors of the day have not been very Chancellor. That then led to the revival of the Judges’ successful. Council, chaired by the Lord Chief Justice, a Lord Falconer of Thoroton: I think that is a perception recognition in eVect that the judges needed their own point. It is extraordinarily unfair, I think, in this voice. That was then followed by very biting attacks respect, that the courts have developed judicial by the judiciary on the Government in 1989–90 on review, which is defining what the procedural the Access to Justice Bill, making it absolutely clear processes and fairnesses are that the executive has to that they had a voice which they would use and go through. Nobody would expect the Lord express, which I think represented the way that Chancellor of the day to be cross-examining all his history was moving, to mean that the judges, when Cabinet colleagues and saying, “Are you making they thought the rule of law was under threat, were decisions in your department in accordance with the able to express it. rules of natural justice?” The rule of law in that sense Chairman: Thank you very much. Can we perhaps is about the existing laws in the court. There is the very loosely structure the evidence you are giving us. other aspect of the rule of law, which is not just about If you thought it sensible, we will deal with the what the existing law is but whether there are certain V position of the Lord Chancellor first, and perhaps things which go so far that you would say they o end after we have questioned you on that, we could turn against the rule of law. You have seen the examples to the Supreme Court issue and finally come to the that have been given in the paper that I have Judicial Appointments Commission submitted, and I think the best example is about the appointment of Lawrence LJ as Lord Chief Justice in 1920, where he agrees to be Lord Chief Justice on the Q3 Lord Maclennan of Rogart: I want to ask you two basis he is given a signed letter of resignation to the related questions about the role of the Lord government which can be triggered at any moment Chancellor in respect of what has been seen as his by the government. It is hard to imagine anything representative capacity, representative of the that more undermines both the independence of the judiciary. Would you agree that, with the judiciary and the rule of law. The Lord Chancellor of development of judicial review over the last two the day said this was not a good thing, and then the decades, which has called into question executive Prime Minister of the day said, “Thank you but we action by the government, and at the highest level, the are just going to go ahead,” and the Lord Chancellor Lord Chancellor has not been seen to act as a check of the day stayed in oYce. These sorts of rule of law within the government machine on abuse of power? issues, I suspect, frequently—and I mean the second That relates to the perception that somehow the Lord type of rule of law issue—almost invariably turn into Chancellor secures the rule of law by his presence. issues about what people think politically. I do not Secondly, if the judiciary have valued the say that in a pejorative way, but these are decisions representation of their views through the that ultimately the Cabinet and the Prime Minister, intermediation of the Lord Chancellor, would it be with the Lord Chancellor taking a view, have to take, desirable and possible perhaps to provide in and they do boil down to issues of a much wider legislation that certain members of the judiciary be dimension than simply the law. I think the Lord empowered to speak for the judiciary, to, say, a joint Chancellor has played historically a very significant committee of the two Houses of Parliament, to role in expressing a particular view of these wider ensure that there is a transparent means of issues. Sometimes his views are accepted and communicating judicial anxieties, which would be sometimes they are not, but I do not think we should, recognised by Parliament and therefore by particularly as time has gone on, invest him as a Government? particularly magical figure in relation to those 9674111002 Page Type [O] 28-06-04 20:11:49 Pag Table: LOENEW PPSysB Unit: PAG1

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1 April 2004 Rt Hon Lord Falconer of Thoroton, QC, Mr Edward Adams, Mr Jonathan Freeman and Mr Alastair Clegg particular issues, as the examples I have given show. politician increasingly comes into conflict, and you As to the second point, I think it is very, very can see, in a sense, that with just one section of society important that an identifiable channel to being the one that you represent, whereas the Parliament—not by sitting in Parliament, but an Government tries to balance a whole range of identifiable channel to Parliament—be identified for interests, there is an obvious conflict in the role. That the representative voice of the professional judiciary role has got harder and harder as the departmental to be expressed. The Bill makes the Lord Chief responsibilities of the Lord Chancellor have become Justice of England and Wales in eVect the president greater and greater. Those departmental of all of the courts, including the magistrates’ courts, responsibilities have not become greater just because in England and Wales, which plainly makes him the prime ministers of the day have given them particular leading figure there. I think it is for Parliament to responsibilities; it is because, inevitably, the Lord decide what they think the best structure to allow that Chancellor is the person who is responsible for the voice to be expressed is. It could be a Select courts and for Legal Aid. Committee, it could be a Joint Committee, it might be other ways, and I am quite sure it is some structure Q6 Chairman: Can I interrupt and ask you like that rather than sitting as a normal legislator. specifically what sort of conflicts we are talking about? Q5 Lord Carter: I have always been puzzled about Lord Falconer of Thoroton: I do not want to go into too the balancing act that the Lord Chancellor has to much detail about particular issues in the last year or perform between his various duties. To coin a phrase, two, but I can identify some. For example, criminal all Lord Chancellors are political, but some are more procedure; what views do the judges take about what political than others. How does the Lord Chancellor changes you should make in relation to criminal manage to move from what might be a highly procedure? Indeed, you can see during the course of charged political discussion with the Prime Minister the debates in the Criminal Justice Bill that went or other colleagues, involving people or issues, an through our House during last year that, broadly, the equally charged and political discussion involving judges had a view that was the same as the Liberal V policy, then to be the head of the judiciary, an arm’s Democrats’ view in some respects, but was di erent length role, and then to be, as you say, an extremely from the view that the Government had in relation to busy departmental Minister? One thinks it would not it. These are not rule of law issues. They are need just Chinese walls but the Great Wall of China sometimes expressed as rule of law issues, but they at times to make sure that these roles are kept are not in truth rule of law issues. Another area is in separate. Externally, under successive Lord relation to how particular tribunals operate, another Chancellors, it always seems to have worked well, but area might be trial by jury—a whole range of political internally, what are the strains? Is it really feasible issues where, although sometimes it is expressed in that all these acts can be balanced? rule of law terms, more often it is policy Lord Falconer of Thoroton: In relation to, for example, disagreements. In a sense, the Secretary of State for the appointment of judges, in relation to, for Health, the Secretary of State for Education, have example, the deployment and disciplining of judges, relationships with teachers or doctors which are V it is absolutely clear that that is a role that has to be totally di erent from the relationship between the performed objectively, although there are incredible Lord Chancellor and the judges. time pressures in relation to it, although it may well be that a person in my position is not necessarily the Q7 Lord Howe of Aberavon: Can I start oV by best person to do it, it is absolutely straightforward to making my premise clear: we are discussing the future identify that those roles have to be performed position of the Lord Chancellor, and I am objectively, and although the decisions you have to questioning why the post has to be abolished. If it is take are very frequently diYcult, there is no diYculty, to survive, changes are obviously necessary. Sitting as I find, about keeping politics out of those decisions. I a judge, sitting in the Lords, are factors which may think the more diYcult tensions in the role are, as I well not continue, and the departmental was saying in my opening remarks, between your responsibilities may not be the same. I can close relationship with the judges, where you are, understand the pressure of work. What I am trying to quite understandably, discussing policy issues with find out is the reason for the apparently fundamental them which they are involved in, not rule of law position of the Government in such a short space of issues, not deployment or discipline issues, and they time. I have here extracts from the evidence going have a quite understandable view, not necessarily a back to March last year, debates on it in this House, common view,. As the role of Lord Chancellor has and the evidence given to the European Assembly in grown as a departmental Minister, that role as being November 2002, and the strongly expressed views part of the judges and the role of being a normal from the law lords’ initial response to the 9674111002 Page Type [E] 28-06-04 20:11:49 Pag Table: LOENEW PPSysB Unit: PAG1

26 constitutional reform bill [hl] committee: evidence

1 April 2004 Rt Hon Lord Falconer of Thoroton, QC, Mr Edward Adams, Mr Jonathan Freeman and Mr Alastair Clegg consultation paper, and the similar views expressed Q9 Lord Howe of Aberavon: No. Forgive me. I think by Lord Bingham even in his support for a Supreme it has been universally accepted—my wife served on Court. Finally, it can be summed up in one way. The the Committee under the chairmanship of Robert Commons Constitutional Committee: “There is a Stevens, one of our witnesses, years ago accepting the radical diVerence between on the one hand a Lord case for a Judicial Commission, but on the overseeing Chancellor, who as a judge is bound by judicial oath, role of the Lord Chancellor, and even his who has a special constitutional importance enjoyed relationship, in partnership with the Lord Chief by no other member of the Cabinet and who is Justice, in disciplining, the question is whether a new usually at the end of his career (and thus without arrangement can stimulate the credibility and the temptations associated with possible advancement) confidence that people have in existing arrangements. and on the other hand a Minister who is a full-time It is you who are seeking to replace yourself with politician, who is not bound by any judicial oath and something entirely diVerent. who may be a middle-ranking or junior member of Lord Falconer of Thoroton: Yes, but the essence of the the Cabinet with hopes of future promotion.” success of the constitutional arrangements has to be Lord Falconer of Thoroton: I accept that there is a the fact that the Lord Chancellor, in addition to distinction. The question is can you get to a position, being a Minister, however significant or not, is also in sensibly, where the current role of the Lord some real sense the head or representative of the Chancellor, for example, in relation to the rule of law judiciary. Once you take away the fact that he is a issues, can be preserved? The essence of my thesis is judge—because everybody agrees he should not sit as that it is not sensible for the current holder of the a judge—once you take away the driving role in oYce to go on being both Minister and judge, so he appointing judges, which again, everybody agrees should stop being a judge. It is not sensible for him that you should; once you take away his deployment to go on appointing judges; that should be done by a and disciplining role in relation to judges, you cannot Commission. So he does not appoint judges any ultimately say with any degree of conviction he is this more. He is not a judge, he is not an appointer of powerful judicial figure that historically he had been. judges, he should not deploy or discipline judges any more, and I think there is broad acceptance in Q10 Lord Howe of Aberavon: That is why your relation to that. So he cannot any more, whether he premise involves saying once you take away this, has ministerial functions or not, be the head of the once you take away that, once you take away the judiciary or a judge. other thing. Lord Falconer of Thoroton: Let us go through each of Q8 Lord Howe of Aberavon: Can I just put it the the stages. Do you think he should continue to sit as other way round? You ask whether the present a judge? I do not think anybody does. functions of the Lord Chancellor of that quality can be preserved. Lord Bingham in his talk at Ditchley Q11 Lord Howe of Aberavon: One can accept that, said, “We are very greatly concerned that the because in practice, the Lord Chancellor has scarcely important constitutional values which the oYce of sat as a judge. Diminuendo, and we are all content to Lord Chancellor has protected should continue to be see that disappear. There is no reason why he should objectively protected.” The status quo is that which not remain a senior figure. people are anxious to preserve, and we start from the Lord Falconer of Thoroton: Diminuendo—it is very fact that the credibility and reality of the status quo recently that he stopped sitting as a judge and a commands huge confidence in every organisation critical change occurs again in the mid Seventies, that has so far looked at it. when Lord Hailsham undertakes much wider Lord Falconer of Thoroton: Yes, but if you accept the ministerial responsibilities. analysis, namely, the person doing the ministerial job and the person doing the appointing of judges, being Q12 Lord Howe of Aberavon: I come back to the a judge, deploying and disciplining judges, if you central credibility point, the role of a senior legal have both those roles in one, neither role can be done figure, bound by a judicial oath, even if he does not as well as it could be if you had diVerent sit as Chairman of the Judicial Committee, is wholly arrangements. I think your premise is, putting it diVerent from the figure that you would become. In crudely, why not take away the ministerial your evidence to the Commons Constitutional responsibilities and leave the Lord Chancellor as, as Committee, you describe yourself thus: “My role as it were, the head of the judiciary? He would still be Secretary of State for Constitutional AVairs will be as this big figure in the Cabinet protecting the rule of the politician in the Government responsible for the law, but you cannot do that now. Nobody agrees, I constitution.” There is a huge gap between the think, that the Lord Chancellor should go on politician in the Government, even someone of your appointing the judges. maturity and distinction, and lack of ambition, and 9674111002 Page Type [O] 28-06-04 20:11:49 Pag Table: LOENEW PPSysB Unit: PAG1

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1 April 2004 Rt Hon Lord Falconer of Thoroton, QC, Mr Edward Adams, Mr Jonathan Freeman and Mr Alastair Clegg all the names you look at from Lord Simonds proposition to which the Lord Chancellor onwards for the last 40 years. That is the anxiety Department gave such a robust answer in November which I am asking you to address. 2002, contained this rather revealing paragraph. This Lord Falconer of Thoroton: I am trying to. What you is the Dutch socialist man speaking. “The unusual are positing, and I quite understand it, is you want a aspect of the Lord Chancellor’s position is widely big figure, who is not a greasy pole politician, who has recognised, both by opponents and partisans of the standing separate from the ordinary politicians, if current system. Its existence is due to the specific that is the right phrase, in the Cabinet. The way that conditions of the United Kingdom constitutional has happened in the past is because the Lord system, which has evolved over centuries without the Chancellor does genuinely have an important role as beneficial modernisation”—interesting word— a judge, as a member of the judiciary, as the head of “introduced by the French Revolution, the eVects of the judiciary in eVect. If the conclusion is reached which were disseminated in the rest of Europe by that he should not be a judge any more, he should not enlightened thinking and the conquests of have that role in relation to the judiciary. However Napoleon.” Is that not rather uncomfortable you describe it, Lord Howe, you cannot make him an company for you to be keeping? important judicial figure. Lord Falconer of Thoroton: Very uncomfortable. I have kept my head on my shoulders. Q13 Lord Howe of Aberavon: Can I postulate this: he could be, as it were, a non-executive judicial Q15 Lord Goodhart: One of the points you have chairman of the Ministry of Justice, with all the made is the problem with tensions between the role of qualifications and grandeur that your predecessors the Lord Chancellor as a Cabinet Minister and have all enjoyed. I am concerned about the rank. I member of the Government and his role as head of was enquiring of the Cabinet OYce how it comes the judiciary. Have those tensions altered over, say, about that you have dropped to the bottom of the the last 30 or 40 years? If so, why? For instance, it pecking order. You have now had young Mr Benn does seem that the courts have been much more come in just below you, but every previous Lord aggressive in their use of judicial review since the Chancellor has been in the top five since 1945. The 1960s. answer from the Cabinet OYce was “I have been Lord Falconer of Thoroton: I think they have altered advised by the Cabinet OYce that the ranking of over time. I think they have altered over time for a oYcers of state is within the purview of the Prime number of reasons. Two particular reasons come to Minister and that the post and seniority of the oYce mind. First of all, there has been a much greater should be taken into account.” Assuming you are separation, particularly in the last 40 years, of the junior because you have just arrived as a new minister lawyer and the politician. There is that very of state, there is still the seniority of the post. It is very interesting statistic that I think Professor Stevens disturbing to see as a first move, as a result of these gives in his evidence to the Select Committee in changes, that you go to the bottom of the pecking another place, which says that in 1960 something like order. Does that not worry you? Have you made 60 per cent—I would have to check the figure—of representations about it? members of the High Court and above had either Lord Falconer of Thoroton: I will not describe what been Members of Parliament or had stood in a happened internally. The role of Lord Chancellor is parliamentary election. Now, in 2004, there is not one plainly an incredibly important and significant oYce or virtually not one of the High Court or above in in the state, and it does bring with it very significant England and Wales who has ever stood for protections, for example, in relation to the rule of Parliament or has been a Member of Parliament. The law, but the premise on which you are starting, which judicial function and the political jobs have I share, is: how do you make sure that those completely separated. protections continue? I do not think you can do it by what you are in eVect proposing, which is that you Q16 Lord Goodhart: I think the last judge of the have a Lord Chancellor without departmental higher courts who sat who had been an MP was Lord responsibilities, what you described as the non- Simon of Glaisedale. executive chairman of the Ministry of Justice, who Lord Falconer of Thoroton: I thought it was Mr presumably is performing only the semi-judicial Justice Neill. functions. Q17 Lord Carlisle of Bucklow: What about Q14 Lord Howe of Aberavon: That is a matter for Donovan? debate hereafter. May I close with one question that Lord Falconer of Thoroton: Donovan was a Labour might amuse you? The case being advanced by the MP, yes. Anyway, there is a separation between law Council of Europe gentleman, Mr Eric Jurgens, a and politics. There is also, as you say, much greater 9674111002 Page Type [E] 28-06-04 20:11:49 Pag Table: LOENEW PPSysB Unit: PAG1

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1 April 2004 Rt Hon Lord Falconer of Thoroton, QC, Mr Edward Adams, Mr Jonathan Freeman and Mr Alastair Clegg activism, which I in no way criticise, by the courts special departmental responsibility, and you are part over the last 40 or 50 years in taking on executive of a Cabinet of secretaries of state with considerable action. Thirdly—I do not know whether this is a responsibility. If you did not have such cause or eVect—once the Kilmuir Rules were responsibility, I do not think a bar on you sitting abrogated, the judges became and have been much judicially, or indeed having a greater responsibility more willing to express their views publicly about for judicial aVairs, necessarily follows. The bar is issues where they disagree with the government. because you are a Secretary of State. Fourthly, as the judges have become more involved Lord Falconer of Thoroton: Yes, I accept that. in legal policy, judicial review, other areas as well, it makes them, quite understandably, much more Q21 Lord Craig of Radley: I am left with an uneasy willing to express views which are contrary to policy feeling that we are arguing ourselves into abolishing of a much wider sort. So the tensions inevitably the Lord Chancellor by giving you a number of become much greater. functions which belong to the judicial side but you are taking them with you as a Secretary of State. Q18 Lord Craig of Radley: Lord Chancellor, I think Lord Falconer of Thoroton: Take away all of the I track this way at the moment. Taking part 1 of the ministerial responsibilities of the Lord Chancellor, Bill, which is about arrangements to replace the oYce leave him in the way that you would want, which is of Lord Chancellor, you, as Lord Chancellor, have the point that Lord Howe has been making, as a this very big budget and really executive judge in the Cabinet, is it really appropriate for there responsibility as the Secretary of State. It falls more to be a judge in the Cabinet? Is it really appropriate naturally to the Secretary of State, therefore the for the government to appoint the head of the Secretary of State for Constitutional AVairs seems a judiciary? I do not think it is any more. I think the perfectly acceptable initial start to this argument, but right course, for all of the reasons as you go through it is presumably, as night follows day, a racing each of the stages, is to recognise that you cannot any certainty that your successor will not be a member of more have this fused figure. this House but will be a member of the other House. Lord Falconer of Thoroton: I do not know. Q22 Lord Craig of Radley: No, but if what you are looking for is an individual who is going to be Q19 Lord Craig of Radley: A racing certainty is not responsible for defending the independence of the a certainty. It is for the Prime Minister of the day. judiciary, we are still giving it to a Minister in the Lord Falconer of Thoroton: Exactly, and the Prime shape of your Secretary of State. So I am not sure that Minister of the day should have the ability, should he I track with your argument that it is wrong to say that think it appropriate, to appoint such a Secretary of a member of the Cabinet cannot have this State from either House. responsibility, even though he is not a Secretary of State. Q20 Lord Craig of Radley: As happens in any other Lord Falconer of Thoroton: We have thought very department. Putting that to one side, what intrigues carefully about this. The member of the Cabinet that me is that you, as the Secretary of State, are taking you posit with responsibilities to defend the with you quite a number of legal functions of one sort independence of the judiciary might well have the or another. By that I mean you must have regard to vestigial responsibilities in relation to appointment the need to defend the independence of the judiciary. that the Bill recognises, and might sit as a judge, but There is a very important responsibility, which has did nothing else. That, I think, is an implausible been with the Lord Chancellor but is now going to political figure, implausible for two reasons: one, it go, if we follow this Bill, with you. There are a would in eVect involve the prime minister of the day number of other aspects of what have been the Lord in appointing somebody to the Cabinet who was in Chancellor’s responsibilities, to do with the judiciary, eVect a judge, and two, it would involve appointing including final agreement of appointments and so on, somebody to have this special role without either the which still go with you as Secretary of State. I will not ministerial or status requirements that he would need labour the point. My point is that you, as Secretary in order to give eVect to that role. of State, are pulling with you a number of responsibilities on the legal side which lay with the Q23 Lord Craig of Radley: But the status comes Lord Chancellor, and therefore, as night follows day, from the type of individual as well as the that diminishes the responsibilities of the Lord responsibility that that individual may carry. It has Chancellor. When you were discussing with Lord been traditional, without trying to be in any way Howe you were saying it was inconceivable that objectionable, to find for Lord Chancellor those who today’s Lord Chancellor should sit as a judge. I agree have reached that stage in their career, and it seems it is inconceivable, because you are a Minister with to me that that option, unless you are going to argue 9674111002 Page Type [O] 28-06-04 20:11:49 Pag Table: LOENEW PPSysB Unit: PAG1

constitutional reform bill [hl] committee: evidence 29

1 April 2004 Rt Hon Lord Falconer of Thoroton, QC, Mr Edward Adams, Mr Jonathan Freeman and Mr Alastair Clegg that prime ministers today cannot find such Chairman: I think, with respect to both of you, the individuals, they do not have to be totally party argument is suYciently clear. I think points of view political, they do not have to have leanings, but they have been suYciently clearly maintained and do not have to be actively as party political as you expressed. I had hoped we could move on reasonably yourself clearly are. quickly to the Supreme Court, but others want to Lord Falconer of Thoroton: What you are saying is you speak. should put into the Cabinet a semi-judicial figure. Q28 Lord Lloyd of Berwick: I shall be very brief. In Q24 Lord Craig of Radley: Not necessarily. He can your speech on 12 February in the debate you made be a judicial figure, because he will be able to sit as what seemed to me to be an important point, that a judge. there must be a positive case for the abolition of the Lord Falconer of Thoroton: So you put a judge into the role of Lord Chancellor because it is such an Cabinet? important role, and not just what you call the theoretical reference to the separation of powers. I take it that that is still your view. Q25 Lord Craig of Radley: We have had a judge in Lord Falconer of Thoroton: Of course, yes. the Cabinet for a very long time. Lord Falconer of Thoroton: It is very, very unusual. If that is the proposal, I think that it is not a sensible Q29 Lord Lloyd of Berwick: I take it further that the idea to put into the Cabinet somebody who is in positive case which you have put forward so well reality a judge. I think that the Cabinet itself as a today and put forward in that same debate, and put group is just as committed to the rule of law as forward in your written evidence, really depends on lawyers are, and they should deal with those issues. I this conflict which you see in the dual role of the Lord do not think, if you take away from the figure you Chancellor as protector of the judges, protector of refer to his role as head of the judiciary, all the other the rule of law and so on, on one side, and as a roles that have to be taken away for the reasons that ministerial head of a very large department on the we have gone through, except that he sits as a judge, other. What I am not understanding is this. Under that he would be regarded as being a figure able to do the new scheme, section 1 would require the Secretary the thing that you would like him to do. of State to act in eVect as the protector of the judiciary, the protector of the rule of law—those are not the exact words, but that is the implication. How, Q26 Lord Craig of Radley: I think one has to therefore, are you going to get rid of this tension challenge each of those “if you take away, if you take which you say you feel, this conflict? Surely, if you are away.” Each one of those has to be justified, and the going to do your job under clause 1 of the new Bill, only justification so far is the fact that you, as Lord exactly the same tension is going to remain; you will Chancellor, carry ministerial responsibility, and not get rid of it by changing your name. therefore it is inappropriate—I begin to understand Lord Falconer of Thoroton: Can I just deal with the that argument, but it does not seem to me it is so premises that you put. I entirely agree it is for me to inappropriate if the individual is not carrying your make the case. It is not just the conflict; the essence of Secretary of State-type responsibility. my case is that in each of the roles that I perform, they Lord Falconer of Thoroton: Then you have a figure would be better performed if there were not the fused who is, as I understand your proposal, a judge, who oYce of Lord Chancellor. The ministerial job would has the role of appointing all the other judges. I do be performed better for the reasons I have indicated. not think you would say he could deploy and Assuming that were taken away, I do not think it is discipline the other judges if he is in the Cabinet. appropriate for a judge who is just a judge, and does the best two appointments that are left to the thing, Q27 Lord Craig of Radley: But he already has a role to sit in Cabinet. So it is not just the conflict; it is even under the new arrangements, under the looking at each individual part of the job the Lord concordat. The Secretary of State has a role, as you Chancellor does and saying those roles would be have known, in one or two areas which in my speech better performed in eVect by somebody else. In terms to the House I questioned. I do not track totally with of the independence of the judiciary, the obligation to the fact that the Secretary of State is not shedding defend the independence of the judiciary is, as the some judicial responsibility. statute makes clear, for everybody in government. Lord Falconer of Thoroton: Lord Craig, you are in a The particular importance of the Secretary of State sense saying let us invent a whole new constitutional for Constitutional AVairs is that under the new creature, not a Minister, as the Lord Chancellor in arrangements he would be running the courts and eVect has always been, but a judicial figure, who is Legal Aid. There is an especial responsibility on the only a judicial figure, who sits in the Cabinet. person running the courts to ensure the protection of 9674111002 Page Type [E] 28-06-04 20:11:49 Pag Table: LOENEW PPSysB Unit: PAG1

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1 April 2004 Rt Hon Lord Falconer of Thoroton, QC, Mr Edward Adams, Mr Jonathan Freeman and Mr Alastair Clegg the independence of the judiciary. That is a uphold the continued independence of the judiciary. completely diVerent role, in my view, from the role Is that not the duty of a minister of the crown at the the Lord Chancellor performs in relation to the moment? judiciary, because my responsibilities in relation to Lord Falconer of Thoroton: Yes. the judiciary are very, very deep-seated. They do not just involve defending the independence, which is one part of the role; it is deployment, discipline, Q34 Viscount Bledisloe: What about the rule of law? appointment, which is a totally diVerent role. Lord Falconer of Thoroton: Yes. All ministers have to uphold the rule of law. Q30 Lord Lloyd of Berwick: That leads me to my only other point, which concerns your current Q35 Viscount Bledisloe: Why does it not say they workload. Ninety per cent of that, as I read the uphold the rule of law as well? evidence, will be transferred to the new department Lord Falconer of Thoroton: I do not think it needs to, and to the Judicial Appointments Commission but I am happy to debate and discuss that issue. I do between them. They are going to take the bulk of the not dissent for one moment from your proposition work from the Lord Chancellor’s Department. I that all ministers have that responsibility. think you refer to it actually in one of your papers. Lord Falconer of Thoroton: I am slightly jibbing. If I think about my days, the percentage of time spent on Q36 Viscount Bledisloe: How is this duty enforced? the number of responsibilities, there is no correlation By judicial review? By prosecution? By what? between how many responsibilities go here and how Lord Falconer of Thoroton: I think the issues about the many responsibilities go there, and doing the rule of law and the independence of the judiciary are: judiciary-related functions takes up, quite how are they enforceable at the moment? The Lord legitimately, quite a long time, and sometimes it is Chancellor unquestionably has a role in relation to much more pressing then the departmental work. the independence of the judiciary. If any minister or public servant who separately sought to undermine Q31 Lord Lloyd of Berwick: That will go, as I the independence of the judiciary, how would that be understand it, or most of it, to the Judicial enforced? I think we would have to look at the facts Appointments Commission, which I am perfectly in each individual case. Lord Crickhowell, when I happy with. The remaining ten per cent of your gave an answer along those lines, described it as one current workload is the speakership, plus the other of the vacuous answers he had ever heard in the odd things that you do, which we all know about. whole of his life. Would a possible way ahead be for you to remain as Lord Chancellor in the House of Lords, running your Q37 Viscount Bledisloe: I have to say I share Lord department, from the point of view of judicial Crickhowell’s view. appointments, with the assistance of the Judicial Lord Falconer of Thoroton: When I asked just a second Appointments Commission, and get somebody else ago, Lord Bledisloe, how is it currently enforced, you to do the speakership? I know it would not be looked momentarily surprised by the question. We universally welcomed in the House of Lords, but that all know what is required. The question of how you would relieve you at least of one of the burdens which would enforce a signiﬁcant attack on the your oYce has to bear. independence of the judiciary would very much Lord Falconer of Thoroton: Yes. Thank you very much depend on the circumstances. I do not think, as it indeed for the suggestion. Yes, but I want to go happens, that judicial review is likely to be the right further than that. I want to separate the three strands completely, which is the ministerial role, the course. speakership role and the judicial-related role as well. Q38 Viscount Bledisloe: Have you ever seen a duty Q32 Lord Lloyd of Berwick: I am suggesting you do put on the face of a statute before which had no not absolutely need to separate the judicial role, as means of enforcing it? you call it, and the ministerial role. Lord Falconer of Thoroton: It states what the position Lord Falconer of Thoroton: I think, in order to get the is. How is it to be enforced? It might be political, it best in terms of appointments, disciplining and might be judicial; it would depend upon the facts. I deployment, and ministerial role, you do. am sorry not to be more precise in relation to it. We know these duties already exist. The fact that they are Q33 Viscount Bledisloe: I have two separate topics. not set down in a statute does not mean the very You are relying in section 1 on what is the situation questions you are asking about the statute do not also now, to provide that ministers of the crown must apply to the way that the law currently operates. 9674111002 Page Type [O] 28-06-04 20:11:49 Pag Table: LOENEW PPSysB Unit: PAG1

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1 April 2004 Rt Hon Lord Falconer of Thoroton, QC, Mr Edward Adams, Mr Jonathan Freeman and Mr Alastair Clegg

Q39 Viscount Bledisloe: My second topic is this. By the most controversial proposals in the Bill so far. the time the Lord Chief Justice has done all the things Would it not be possible to do that so that those two on the face of this Bill, will he ever get to sit as a bodies were in position, as it were, before the position judge? of the Lord Chancellor was finally taken a decision Lord Falconer of Thoroton: The Lord Chief Justice in on? practice performs quite a lot of these sorts of Lord Falconer of Thoroton: I think, in relation to the functions already. He is very involved, quite rightly, Judicial Appointments Commission and in relation in the serious disciplining of judges; he is constantly to the Supreme Court, setting them up will not avoid being consulted in relation to deployment; he is very all the issues that we have to address now. In time, in involved in the appointment of judges; he has a chronological terms, the Judicial Appointments significant representative role; he makes, quite Commission and the Supreme Court probably will be rightly, public speeches and pronouncements. I am set up before technically the Lord Chancellor is not sure that, in terms of his workload, although he abolished, but doing those two things does not, in a will need much more resources and support to sense, address the particular arguments that we are perform his job, that he is not quite far down the advancing to say the fused oYce currently does not road already. produce the best results in practical terms in each of the particular areas I have been talking about. So I Q40 Viscount Bledisloe: Do you think—leave aside think the right course is to face the issue head on in the present occupant—that either Lord Bingham or the Bill and argue our case for abolishing the role. Lord Taylor or Lord Lane, any of them, would have Chairman: Can I say, I have requests for three more taken on the job envisaged by this Bill? members of the Committee who wish to question the Lord Falconer of Thoroton: I think they would, yes. I Lord Chancellor. I really think we ought to move on think it is an incredibly important job and I think to the Supreme Court reasonably quickly. they would have taken it on with great enthusiasm. Q44 Lord Carlisle of Bucklow: First, with regard to Q41 Viscount Bledisloe: But they trained as lawyers, appointments, you did actually say that it was not the to decide legal points. They have deliberately avoided job of a Cabinet Minister to make appointments to by going to the bar, as you well know, the bench. Surely, accepting the case, as I do, for a administration, and surely they are not going to want Judicial Appointments Committee, for the reasons to become administrative oYcers rather than judges. set out, nevertheless, what this Committee is going to Lord Falconer of Thoroton: I am not sure that you do is then recommend to a Cabinet Minister, who will would find that that was necessarily the view of all have the right either to reject or accept or ask them to judges. think again. I cannot see what you mean when you say therefore the Cabinet Minister is no longer Q42 Viscount Bledisloe: I did not say of all judges; I involved. Following from that, surely, if I am right, it said of the distinguished judges who have held this is better that the man who is at the head of the post in the recent past. judiciary should be doing that rather than, with great Lord Falconer of Thoroton: I do not think you would respect, a junior member of the Cabinet who may, in find for one moment that there would be any your case, have had ambitions. diYculty in finding people to fill the oYce. I am quite Lord Falconer of Thoroton: Or not, as the case may be. sure all the people whose names you have given As to your first point, there is a world of diVerence would be happy to fulfil the function as it is. Indeed, between being responsible for a whole system of take Lord Lane, for example; he was the person who appointments. What the Lord Chancellor is doing at revived the Judges’ Council and took on a great the moment is determining how the panels are set up. burden of administration because of particular issues In relation to the High Court and above, there is no then engaged. interview.

Q43 Baroness Gibson of Market Rasen: I think my Q45 Lord Carlisle of Bucklow: I accept the case for question follows on, Lord Chancellor, from Lord the JAC. Why cannot he make recommendations to Lloyd’s point, and I hope it will not appear naı¨ve. I the Lord Chancellor? understand totally that you are trying to separate the Lord Falconer of Thoroton: He can make three strands but it seems to me that it would be recommendations to somebody. I am saying that possible—I am not saying better, but possible—to once you are no more than in receipt of appoint the Supreme Court and the Judicial recommendations, which is what we are proposing in Appointments Commission before considering the the Bill, you are doing a completely diVerent job in position of Lord Chancellor, and if it were done that relation to that from what you were doing when in way round, the Lord Chancellor, it seems, has been fact you were running the whole system, and indeed, 9674111002 Page Type [E] 28-06-04 20:11:49 Pag Table: LOENEW PPSysB Unit: PAG1

32 constitutional reform bill [hl] committee: evidence

1 April 2004 Rt Hon Lord Falconer of Thoroton, QC, Mr Edward Adams, Mr Jonathan Freeman and Mr Alastair Clegg are actually looking at all the evidence and choosing that independence. As Lord Bledisloe pointed out, between a whole variety of candidates. It is a diVerent there is no reference to the defence of the rule of law. sort of function. My real question is this. You referred earlier to the role of the normal Cabinet Minister, and I think you Q46 Lord Carlisle of Bucklow: You still have a see the Secretary of State for Constitutional aVairs as Cabinet Minister involved. a normal Cabinet Minister. Can a normal Cabinet Lord Falconer of Thoroton: You still have a Cabinet Minister defend the rule of law in the way that many Minister involved, but he is doing it in a diVerent witnesses believe the Lord Chancellor, for all the way. Many cabinet ministers make appointments, reasons that have been described, has been able to but after a very notarised process, when they are not defend the rule of law in the past? Are you in eVect in charge of the whole process. weakening? You may be able to defend the judicial independence but is an ordinary Cabinet Minister Q47 Lord Carlisle of Bucklow: You said that going to be in as strong a position as many Lord everybody agrees that the Lord Chancellor should Chancellors—no doubt there have been exceptions, not sit as a judge. Am I not right in saying that you and you have identified one or two—certainly the yourself are the first Lord Chancellor who has ever Lord Chancellor who was there in my time in expressed the view that he would not be able to sit as Cabinet, were able to do? a judge? Lord Falconer of Thoroton: The rule of law in the Lord Falconer of Thoroton: I am the first Lord questions that we are talking about is not has the Chancellor who has said I am not going to do it. Government complied with the law, which is the sort of question Lord Maclennan asked, we are talking Q48 Lord Carlisle of Bucklow: Have your about big constitutional issues which are identifiable predecessors up till now not sat from time to time? to all members of the Cabinet. The question boils Lord Falconer of Thoroton: I am putting it on the basis down very often to is it only a lawyer who can identify that I do not get any sense of there being a body of these sorts of rule of law issues? I do not believe it is, opinion which says the Lord Chancellor should I believe that all constitutional politicians can spot continue to sit actively in a judicial capacity, until I them. How they would respond in a particular case is V heard Lord Craig. I am putting it on the basis that adi erent question. Look at the examples given in there does not seem to be any body of opinion that the paper. They are not examples chosen to make or says he should continue to sit. break a particular case, they are, as it were, in the last 100 years great rule of law questions, and what those rule of law questions show, it seems to me, is that Q49 Lord Crickhowell: I am not going to come back sometimes the Lord Chancellor is against what the to enforcement and clause 1, on which I expressed government wants to do, and is very frequently myself strongly in the debate, but we will have to overruled, sometimes he is in favour of what the come back to it because it is a crucial question. government wants to do, even though people Lord Falconer of Thoroton: Just coming back to that, subsequently said it was against the rule of law. The I think we need to ask ourselves the question how is examples given in the paper are the pay cut in the it enforced now. 1930s and Sankey’s role in relation to that, Birkenhead’s role in relation to Lawrence, Lord Q50 Lord Crickhowell: That is not the issue I want to Mackay of Clashfern’s role in relation to what Lord ask a question about. I want to ask a question that Lane described as “creeping totalitarianism”, and Lord Bledisloe really began to approach. It is you may be able to help us more than I in relation to interesting, as the conversation goes on and as your this, Lord Crickhowell. That was put by the judge as evidence has gone on, the way in which one has a big rule of law issue and it was a policy being slipped quite easily from defending the judiciary or proposed by the Lord Chancellor of the day. representing the views of judges to the wider issue of Lord Windlesham: Can I take your hint, my Lord the defence of the rule of law. Even Lord Lloyd did Chairman, and move on to the Supreme Court. that in his question to you; he slipped from one to the other. But it seems to me, with the enormous weight of evidence that has been given over the last weeks and months, that we are talking about something very diVerent. Defending the independence of the judiciary is very important, but the defence of the rule Q51 Chairman: Sorry to interrupt you, but do we of law is a wider question and of even greater want to hear the Lord Chancellor on the Supreme importance. It does seem to me interesting that you Court before you ask your questions? I thought we give to the Secretary of State for Constitutional were going to give him a five minute introduction and AVairs a duty to have regard to the need to defend then we were going to ask questions. 9674111002 Page Type [O] 28-06-04 20:11:49 Pag Table: LOENEW PPSysB Unit: PAG1

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1 April 2004 Rt Hon Lord Falconer of Thoroton, QC, Mr Edward Adams, Mr Jonathan Freeman and Mr Alastair Clegg

Lord Falconer of Thoroton: I am happy, if the Q54 Lord Windlesham: And the cost, where will the Committee is happy, to stand by my 30 page money come from when you find the building? introduction in the document, as Lord Bledisloe was Lord Falconer of Thoroton: It has got to come from saying. If I have not managed to get it across there— within my budget in the Department for Constitutional AVairs. There are two aspects to that: Q52 Lord Windlesham: Thank you. With that the actual capital cost of putting it together, and the encouraging start, there are two issues here. There is figures are given, and then the extra running costs practicality and cost and there is the question of which cannot be fully identified until we know separation, physical separation, of the highest precisely how much the building will cost to run, as is judicial tribunal from the parliamentary building. I made clear in the written document. As far as the wonder how far we can draw you out on some of costs are concerned, of course they are significant but these issues. We are all aware that the senior Law they are sustainable. Although it is more, for Lord is in an extremely diYcult position. With Lord example, in relation to the running costs than the cost Woolf you have your positions known, it is fixed, it is to the Judicial Committee of the House of Lords it is clear, he has the power of the Judges’ Council behind not so expensive as not to be maintainable or him and speaks for the judges, sometimes sustainable. outspokenly, you may feel, but he does. However, in the Supreme Court that is not so. The Lords of Q55 Lord Windlesham: Will it be dependent on Appeal are currently divided and the senior Law court fees? Lord, we are led to believe, is in a minority. Here is a Lord Falconer of Thoroton: It will be funded in part, as very diYcult issue which is compounded by the likely the paper says, from court fees, yes. cost and finding of a building, which again, it would Y seem, is raising great di culties, a suitable public Q56 Lord Goodhart: Following on from that, would building, which Lord Bingham has put great store by. it not be desirable for the Supreme Court to have Can we draw you out on some of these issues? At the corporate and financial independence from the moment it looks as though it has stalled, is that a Department? I notice Professor Ian Scott in his wrong impression or is more going on below the response to the consultation paper on the Supreme surface? Court said: “As an organisation, the new Supreme Lord Falconer of Thoroton: Is the reference to “stalled” Court will be about the same size as a small firm of a reference to the building search or generally? solicitors or barristers’ chambers” perhaps medium sized rather than small, “as such it will be perfectly Q53 Lord Windlesham: The two could go together. capable of administering itself in an eYcient and Postponement might mean indefinite postponement, economical manner”. Would it not be right, which might be diVerent from implementation. therefore, to have the Supreme Court as an Lord Falconer of Thoroton: As far as the building independent public body obtaining its finance search, there is a long description in the written directly from agreement between itself and the document about what the search involves. It is, and I Treasury and being responsible for the appointment say this advisedly, making real progress and I will be of its own staV and not employing departmental in a position to say something about it in a month or staV? two, certainly before this Committee has stopped its Lord Falconer of Thoroton: The only diVerence deliberations. You would never make any progress in between that account of it and what we propose is looking for a building for a Supreme Court unless that the Secretary of State for Constitutional AVairs you were in the process of legislating to introduce a interposes between the Supreme Court and the Supreme Court because it is very diYcult to get to the Treasury. The arrangement that we envisage is that degree of definiteness that you need in order to have the Supreme Court prepares a budget, puts it to the a building unless there is some degree of definiteness Secretary of State for Constitutional AVairs who, about the fact that you are going to have a Supreme subject to him thinking it is reasonable, then bids to Court. So the two, which I think is implicit in your the Treasury, the Treasury then give money and that question, obviously go hand-in-hand. I would not money is handed over lock, stock and barrel to the accept that the building search process is stalled; I Supreme Court. It cannot be nibbled away at by the think the two have got to go together. You cannot minister for other functions, the chief executive make the progress with one unless you have got the determines how it is spent, reporting to the Justices of other. That goes both ways: you cannot make the Supreme Court. He takes on staV, enters into progress about the building without there being a contracts with them, he determines who the staV are. legislative process to create the Supreme Court and Because it is not a large body, in practice it may well you cannot get the Supreme Court up and running be that staV from other government departments are eVectively unless there is a building on its way. seconded in because if it such a small organisation 9674111002 Page Type [E] 28-06-04 20:11:49 Pag Table: LOENEW PPSysB Unit: PAG1

34 constitutional reform bill [hl] committee: evidence

1 April 2004 Rt Hon Lord Falconer of Thoroton, QC, Mr Edward Adams, Mr Jonathan Freeman and Mr Alastair Clegg there will be limited prospects for promotion if you too regret the Government feel it necessary to try to are just in that organisation. In essence, it will be a recover from the legal system, it seems to me the body with its own budget, with its own chief executive Supreme Court the court should have a greater and its own ability to determine how it spends the degree of autonomy in that. money assigned to it by the Treasury. Lord Falconer of Thoroton: As far as the first contingency, namely the fees, that is not a problem Q57 Lord Goodhart: If that is the reality then why remotely for the Supreme Court. The basis, as far as not recognise it by giving it full corporate the Supreme Court is concerned, is that it sets out independence? what it’s budget requirements are, it then puts it to Lord Falconer of Thoroton: Like in Australia, where the Secretary of State for Constitutional AVairs who the Attorney-General has got wider ministerial then puts it to the Treasury, the Treasury makes a responsibilities than our Attorney-General here and judgment about the reasonableness of the figures asks the Treasury for money, it is sensible that there being advanced to run the Supreme Court and it then should be ministerial accountability in some way for gives money, in eVect, through the Secretary of State, the expenditure of the money. to the Supreme Court. It is then for the Secretary of State for Constitutional AVairs to recoup the money Q58 Chairman: Is the thinking behind that that they from the fees, it is not a problem at all for the will do better if they have a minister negotiating with Supreme Court. There is no contingency in that the Treasury than if they negotiate, so to speak, respect as far as the Supreme Court is concerned. As outside the normal loops? to the second contingency, whether a minister Lord Falconer of Thoroton: You have been a minister intervenes or not, there is no mechanism that could yourself. DiVerent judgments can be made about the be devised where any body that was dependent upon extent to which having a minister batting on your Treasury funding did not have to persuade the behalf or being an independent body produces more Treasury to give it money, and whether it succeeded money. No, it is for accountability reasons rather or not in getting its whole bid would depend in part than on the basis that a minister could get more for on the quality of its bid but also prevailing economic you than doing it yourself. circumstances. That applies just as much to the National Audit OYce as it does to the Ministry of Defence or the Home OYce. I choose the National Q59 Lord Holme of Cheltenham: If I may follow on Audit OYce because I believe it is an organisation this point, my Lord Chairman. So the finances of the that does not have to go through a minister to bid to Supreme Court are in a sort of double contingency the Treasury for its money. relationship, first of all some of them have to be raised from court fees, although I note that you pay the total cost, or the Secretary of State for Q61 Lord Holme of Cheltenham: Can I just ask one Constitutional AVairs pays the total cost, and then point of clarification. Does the Supreme Court have fees are clawed back to recover part of that cost. to convince you of the reasonableness of their bid and Lord Falconer of Thoroton: Yes. you in turn have to convince the Treasury, or would you accept what the Supreme Court set as the budget Q60 Lord Holme of Cheltenham: Is it not possible, it needed? given what you have just described as the bidding Lord Falconer of Thoroton: It does have to convince V process, that this is like any other departmental the Secretary of State for Constitutional A airs of its expenditure, like Defence or the Home OYce, and in reasonableness. a given bidding year the Chancellor may say: “I would really like you to recover more of the costs Q62 Lord Howe of Aberavon: I want to oVer you from court fees this year because things are a bit tight perhaps a better solution. The machinery you and that is your contribution, but I would like to see describe of bids being made to the Secretary of State you recover some more”? What I am worried about and on to the Treasury simulates, for example, the is in the annual basis of normative bidding in that way in which the British Council and the BBC World bargaining process that goes on with the Financial Service has to be financed within the Foreign OYce Secretary you will find what should be, as my noble vote. Those two issues have taken me, both as friend says, an independent and clearly Chancellor and as Foreign Secretary, to Number 10 independently funded body gets itself into a to get an extra half a million pounds, so to speak. I contingent relationship with Whitehall from year to am anxious to suggest a way you can get round that. year in which one of two outcomes are possible. One When I was Chancellor I endeavoured to persuade is that there is less money for it than you believe it Joel Barnett and others on the House of Commons’ requires and the other is that more of that money has committee to accept the principle of cash limits on to be recovered from court fees which, incidentally, I House of Commons’ expenditure. They refused and 9674111002 Page Type [O] 28-06-04 20:11:49 Pag Table: LOENEW PPSysB Unit: PAG1

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1 April 2004 Rt Hon Lord Falconer of Thoroton, QC, Mr Edward Adams, Mr Jonathan Freeman and Mr Alastair Clegg the House of Commons remains free to endorse an Lord Howe of Aberavon: It is there alright, but only estimate, ﬁnancing itself without reference to the just. Treasury. When I became Leader of the House of Lord Crickhowell: I am greatly relieved to hear what Commons I took advantage of that the other way Lord Howe has been saying. I reacted with some round. The House of Lords is not in a position to vote alarm to what was said earlier, if only from bitter in its own supply, but the House of Lords experience of a far less important body than the nevertheless is run on the same principle. I spoke to Supreme Court, but having been chairman of a very the accountant about it this morning. The House of large quango and having to do the kind of Lords pushes the estimate of its own costs over to the negotiations via a department that you have Commons and the Commons happily obliges. One of described, I have to say it is not a happy scene. Then the Law Lords, I forget which one it is now, has an we have got to have ministerial responsibility and it instinctive appreciation of that because the present does enter a factor which means that the minister of funding of the Judicial Committee of the Law Lords the department has got to take a pretty questioning is under that means and there is no cash limit on the role about the amount that is being bid for if only expenditure on the judicial side of the House of Lords because they know they are going to have to appear as long as you can persuade the House of Commons before the National Audit OYce and the Public it is okay. In other words, in this rare area Accounts Committee. I think this is a very tricky area responsibility for its independence is transferred for a Supreme Court. All I would say, based on my from the executive to the legislature. That would be experience, is that if I was responsible for the continued if the funding of an entirely separate Supreme Court I would want to move to a better Supreme Court came through that route. I do not solution than that. I do think that the suggestion believe that you have got an alternative answer by made by Lord Howe for some alternative does need simply making it a corporation. Many people have to be looked at pretty seriously. said “Let us turn the NHS into a corporation” but that does not solve anything, it still has to go through the wretched Treasury. Do you not think that you Q66 Viscount Bledisloe: Firstly, two brief questions could simulate the present arrangements for the Law about accommodation. In paragraph 93 of your Lords giving them complete detachment and evidence you say that you have agreed a Statement of benevolent protection from the legislature? Requirements for the accommodation with Lord Lord Falconer of Thoroton: I can see the force of what Bingham. Does that include an absolute commitment you are saying. When you were Chancellor, how did to hearing rooms laid out like this rather than like a you react to the BBC and the House of Commons’ conventional court? position? Lord Falconer of Thoroton: I know that Lord Bingham is very, very keen for it to be a seminar room rather Q63 Lord Howe of Aberavon: As Chancellor, I than, as he would say, raked up to the ceiling. I fought to keep them within the limits until the cannot tell you whether the speciﬁc requirements bidding process took place. The only place where I actually say that. had no control over it was the House of Commons Mr Adams: We are in close discussion with the Lords and the House of Lords through other means. of Appeal over the accommodation requirements. Lord Falconer of Thoroton: I do not say this in an On the various options they have had presentations impertinent way, I can see very much the force of of what they would involve and actually seen the what you are saying, but did you try to— various buildings.

Q64 Lord Howe of Aberavon: I did try to change Q67 Viscount Bledisloe: It says: “I have agreed a them. Statement of Requirements with the Senior Law Lord Falconer of Thoroton: As Chancellor? Lord”. You cannot have agreed a Statement of Requirements with him unless you have agreed to Q65 Lord Howe of Aberavon: Yes, but de facto in the that because he would not agree to anything else. real world a gentlemen’s agreement exists but it is not Mr Adams: The words mean what they say. The inhibited by the whole ghastly star chamber bidding Statement of Requirements as to what the Court process and you are going to get a much more ﬂexible requires has been agreed with them. response from the legislature than you are anything in the executive. Lord Falconer of Thoroton: I utterly see the force of Q68 Viscount Bledisloe: What you are saying is that that. What is the built-in accountability? There needs your department has not accepted that those are to be some. absolute requirements. 9674111002 Page Type [E] 28-06-04 20:11:49 Pag Table: LOENEW PPSysB Unit: PAG1

36 constitutional reform bill [hl] committee: evidence

1 April 2004 Rt Hon Lord Falconer of Thoroton, QC, Mr Edward Adams, Mr Jonathan Freeman and Mr Alastair Clegg

Mr Adams: I think in any building search removing and correcting that public perception requirement there are some things which are rather than embarking on this complete new change? absolutely fundamental and must-haves and some Lord Falconer of Thoroton: The argument in favour of things which are desirable. the Supreme Court is the argument that Lord Bingham has put so eVectively time and time again. Q69 Viscount Bledisloe: Are you accepting that this Our constitutional arrangements involve people who requirement is a fundamental? are appointed to the final Court of Appeal being Lord Falconer of Thoroton: Lord Bingham and other appointed legislators. He says it is far more sensible Law Lords have been round with members of my that what happens should be reflected in the Department and ministers from my Department constitutional arrangements and we, as a looking at the various sites. The issue that you are Government, agree with that. Whether you call it a raising has been raised time and time again. We fully perceived problem— accept that if what the Law Lords want is a seminar approach rather than a raked approach then that will happen. Q76 Viscount Bledisloe: That I call the theoretical principle. I thought there was also a strand in your Q70 Viscount Bledisloe: I quite accept that you evidence, at least a very strong one, that there was cannot find a building until this Act is at least on its some critical perception that the Appellate way, but are you intending to write into the Bill that Committee was not wholly independent or that it the Supreme Court shall not come into eVect until lacks stature. (a) is there that perception and (b) there is a building in place? could it not be corrected quite easily? Lord Falconer of Thoroton: No. Lord Falconer of Thoroton: I do not think that there is any perception that it lacks stature in any shape or Q71 Viscount Bledisloe: Where do you contemplate form. If you have a Supreme Court then I think you them sitting here until then? have something that is very clearly the final Court of Lord Falconer of Thoroton: During the Second Appeal and I think that is good for our constitutional Reading and on other occasions you have sought to arrangements. I also think it is very, very good for draw me in relation to that. Does that not depend English, Scottish and Northern Irish law. upon where we are in relation to the building issue? Q77 Lord Lloyd of Berwick: Certainly my reading of Q72 Viscount Bledisloe: No. the original paper that was put out by the Lord Falconer of Thoroton: The issue is whether or not Department was that the basic reason for the you say you can only start once there is a new Supreme Court was the existence of this public building. If you know precisely when it is going to be perception that the Law Lords were not truly and transitional arrangements can be made, they independent and in some way they were under the might be sensible. shadow of the legislature and that their decisions were politically motivated. Am I right in saying that Q73 Viscount Bledisloe: Where do you contemplate was the original reason put forward, the positive they might sit in the interim? reason? Lord Falconer of Thoroton: I think it would be very, Lord Falconer of Thoroton: That is one of the reasons. very unlikely that they would go from here to one In addition was the reason of what Christopher place and then to a permanent Supreme Court described as the theoretical constitutional position, building. which I think is important, namely have a court separate from Parliament if it is the final Court of Q74 Viscount Bledisloe: In the House of Lords Appeal. where would they fit in? Lord Falconer of Thoroton: I think we would have to see where we had got to in relation to the building. Q78 Lord Lloyd of Berwick: In relation to the Lord Chancellor, you said you must have a positive reason Q75 Viscount Bledisloe: As I understand it, you for the abolition of the oYce of the Lord Chancellor, accept that the present system, in fact, works do you not have to have a positive reason, apart from perfectly well and that the Supreme Court is founded theoretical reference to the separation of the (1) on a perceived constitutional principle and (2) on Supreme Court? public perception. Have you any evidence that there Lord Falconer of Thoroton: Most certainly, yes. I am is a public perception that the Appellate Committee saying make our constitutional arrangements is not independent and, if so, could you not very consistent with what actually happens. That is good much better spend a quarter of this money on for clarity and it is good for law, I think. 9674111002 Page Type [O] 28-06-04 20:11:49 Pag Table: LOENEW PPSysB Unit: PAG1

constitutional reform bill [hl] committee: evidence 37

1 April 2004 Rt Hon Lord Falconer of Thoroton, QC, Mr Edward Adams, Mr Jonathan Freeman and Mr Alastair Clegg

Q79 Lord Lloyd of Berwick: Also on the building, we who sit judicially and I am not clear whether the all understand the diYculty of the cart and the horse Bingham doctrine applies to them or not. We also between the legislation and the building, that is have the position where a certain Law Lord recently obviously a problem. We all know Somerset House voted on an extremely contentious issue. To me, as a has been one of the suggestions and Middlesex Guild non-lawyer, seems to be a good reason why Law Hall, but take Middlesex Guild Hall by way of an Lords should be removed from the House of Lords. example: suppose your Bill goes through in March of If we go forward to arrangements in the Supreme next year, how soon after that do you see Middlesex Court, in paragraph 63 you say: “There is no current Guild Hall becoming available? What is the rough reason to increase the number of judges”. I am not timescale? quite sure whether, in fact, there will be the Lord Falconer of Thoroton: I cannot give you a precise equivalent of a Reserve Panel of retired Law Lords date in relation to that. I do not want to start, as it who can still sit judicially between 70 and 75 but will were, speculating about how long it would take but it not be Members of the House of Lords. would be longer than a matter of months after Lord Falconer of Thoroton: If you have been made a March, obviously. Supreme Court Justice and you choose to go on sitting after retirement date on a Reserve Panel, to Q80 Lord Lloyd of Berwick: It would be a matter of use your phrase, then you would not go into the years, would it not? You would have to move the House of Lords, you would cease to sit altogether. existing courts from the Guild Hall to wherever they are likely to go. Q86 Lord Carter: I see. Would it not be easier to Lord Falconer of Thoroton: Yes. increase the number of judges in the Supreme Court to 16 or something and all retire at 70 and then come Q81 Lord Lloyd of Berwick: Have you any idea to the House of Lords? where they might go? Lord Falconer of Thoroton: I think the right course is Lord Falconer of Thoroton: I do, yes. to keep the number moderately small so that the quality and the elite nature of the members of the Q82 Lord Lloyd of Berwick: Where? Supreme Court remains. From time to time it will be Lord Falconer of Thoroton: I do not want to talk about necessary to ask other people to sit but generally that the detail of that. should be the exception rather than the rule.

Q83 Lord Lloyd of Berwick: Why not? Q87 Lord Carlisle of Bucklow: Can I ask you this Lord Falconer of Thoroton: Because if it does not ﬁrst of all. Do you envisage any change in jurisdiction happen then I do not want to have speculated about between the Supreme Court, the present Judicial what will have happened in relation to that. Committee and the Appellate Committee in the House of Lords? Q84 Lord Lloyd of Berwick: Why on earth not? The Lord Falconer of Thoroton: The only change would be Guild Hall is part of the system, why can we not the devolution issues currently dealt with by the Privy know, if the Guild Hall it is to be, how soon the Guild Council will be dealt with by the Supreme Court. Hall would become available for the Supreme Court? Lord Falconer of Thoroton: If the Guild Hall it is to be Q88 Lord Carlisle of Bucklow: In eVect you are not then you would know, I would tell you, of course. making any change in jurisdiction by creating a What I do not want to do at the moment when there Supreme Court? is more than one runner is to start speculating about Lord Falconer of Thoroton: We are not, exactly. what the particular position in relation to a number of competitive choices is. Q89 Lord Carlisle of Bucklow: Secondly, is it right that you are intending that the membership of that Q85 Lord Carter: My question arises from the ﬁrst Supreme Court should be the existing 12 Law Lords? point Lord Lloyd made, which is the position of the Lord Falconer of Thoroton: Yes. existing Law Lords and the future arrangement of the Supreme Court. I must say as a non-lawyer but a Q90 Lord Carlisle of Bucklow: Is it also right that, in practising politician, I always thought the position of fact, you are intending if your building does not come the Law Lords in this House was anomalous. Since forward in time that they will probably continue to sit the Bingham statement in June 2000 regarding in their present situation in this House? involvement in political matters and in legislation, Lord Falconer of Thoroton: In answer to Lord some Law Lords have not spoken at all, one has Bledisloe’s question in that respect I have said let us spoken on a number of occasions and there also wait and see as to where we are in relation to the seems to be the odd position of retired Law Lords building. 9674111002 Page Type [E] 28-06-04 20:11:49 Pag Table: LOENEW PPSysB Unit: PAG1

38 constitutional reform bill [hl] committee: evidence

1 April 2004 Rt Hon Lord Falconer of Thoroton, QC, Mr Edward Adams, Mr Jonathan Freeman and Mr Alastair Clegg

Q91 Lord Carlisle of Bucklow: I think at one time Q97 Lord Carlisle of Bucklow: But you have quality. you suggested that they might start their life in this Lord Falconer of Thoroton: Yes. building, did you not? Lord Falconer of Thoroton: Let us see where we are in Q98 Lord Carlisle of Bucklow: You have clarity. relation to the building. The building is bound not to Lord Falconer of Thoroton: We do not have clarity in be ready by March 2005, assume that is the date that our constitutional arrangements in that respect. the Bill passes. There would then be a choice about whether or not one waited until the building was Q99 Lord Carlisle of Bucklow: In the judicial system. ready or one made some transitional arrangement. I Lord Falconer of Thoroton: We do not have clarity. also said in answer to what Lord Bledisloe said that The way our final Court of Appeal works is as a it is extraordinarily unlikely that, as it were, we would committee of the House. move out of here into a temporary building and then into a final building. Q100 Lord Carlisle of Bucklow: I am not saying one should not do it, what I am saying is that you have got Q92 Lord Carlisle of Bucklow: So we have got the to weigh it against the cost. situation that the Supreme Court, if created, would Lord Falconer of Thoroton: I accept that. have the same judges as at present, the same jurisdiction and possibly in the same building. Q101 Lord Carlisle of Bucklow: With what the Law Lord Falconer of Thoroton: Lord Carlisle, in relation Lords themselves agree they lose by no longer being to the last point, that might be for a short period of Members of this House. time. The vision is of a Supreme Court in a properly Lord Falconer of Thoroton: The costs are set out on appointed building entirely separate from page 33 in relation to the running costs. One has got Parliament. to ask oneself the question is it worthwhile spending that extra money every year—it is about two or three Q93 Lord Carlisle of Bucklow: But the reason for the million more every year—to get a properly appointed change is, therefore, is it not, perception rather than Supreme Court building separate from Parliament, any dissatisfaction with the present system? there being a physical reflection of our constitutional Lord Falconer of Thoroton: There is absolutely no arrangements with better facilities and easier access dissatisfaction whatsoever with the quality of justice for the public. and judgments given by the House of Lords but, and it is not just perception, it must be sensible to have Q102 Lord Kingsland: In answering questions from constitutional arrangements that reflect the reality. both Lord Bledisloe and Lord Crickhowell you Take the judges out of the legislature, make it clear emphasised the importance both of the doctrine of that they are judges, have a beacon of legal excellence the separation of powers and the perception that that is the Supreme Court of the United Kingdom. judges ought to be separate from the legislature. Do Everybody can then see how our system works. you not think that you ought to have applied the same logic to the judges who sit in the Privy Council? Q94 Lord Carlisle of Bucklow: Do you accept at the The Privy Council is, after all, an executive body, the moment that the House of Lords, as a body, has a Privy Council is taking executive decisions by making high regard throughout the world as a final Court Orders in Council, yet the judges also sit in the Privy of Appeal? Council making judgments. Why should the same Lord Falconer of Thoroton: As a judicial body, yes, I logic not equally apply? do. Lord Falconer of Thoroton: In practice, the Privy Council’s only judicial role now is in relation to Q95 Lord Carlisle of Bucklow: Is not the real issue in hearing appeals from other countries, in eVect Crown the end whether the change for what you describe as Dependencies. Its devolution function will be theoretical principle— transferred to the Supreme Court and its dental and Lord Falconer of Thoroton: No, Lord Bledisloe medical functions have eVectively been transferred to described it as theoretical principle. other bodies. It is not for us in our legislature to change the arrangements that apply, for example, to Q96 Lord Carlisle of Bucklow: I suggested it is various Caribbean states, it is for them to decide if merely a question of perception. Is the cost of moving they want to stop sending appeals to the Privy justified? Council. If they want to continue to do it, we will Lord Falconer of Thoroton: I think most certainly it is. continue to provide that service for them. It is not for It is justified because you end up with clarity, quality us to say we are not going to call it the Privy Council. and everybody understanding how our system Plainly they could not come to the Supreme Court of works. the United Kingdom for that. 9674111002 Page Type [O] 28-06-04 20:11:49 Pag Table: LOENEW PPSysB Unit: PAG1

constitutional reform bill [hl] committee: evidence 39

1 April 2004 Rt Hon Lord Falconer of Thoroton, QC, Mr Edward Adams, Mr Jonathan Freeman and Mr Alastair Clegg

Q103 Lord Kingsland: It would not in any way aVect Q109 Lord Howe of Aberavon: Yes, specifically the the jurisdiction of the Privy Council if we were, judicial functions of the Lords, specifically our unilaterally, to make that change; the Crown conclusions of a year ago. The year before that the dependencies would still be perfectly entitled to come Commons Public Administration Committee had the to the Privy Council or to whatever you replace the same intellectual appraisal and said: “ . . . we Privy Council with on appeal. recommend that the Law Lords should leave the Lord Falconer of Thoroton: Many of their second chamber at the next General Election but one. constitutions refer to an appeal to the Privy Council That should allow plenty of time to think through the and it does not seem either sensible or necessary to try consequences for the legal system, and to make the any change that is much more a matter for them than necessary provision for an independent, properly for us. constituted Supreme Court.” That was almost two years ago and you are now addressing the question, as it were, for the first time. My first question is, Q104 Lord Kingsland: So the perception that there would that not be a sensible course, granted the might be some contamination between the executive diYculty that you have had shaking one building and the judges is not one that worries you? from your clothes, as you set about the task of Lord Falconer of Thoroton: The Privy Council is not at constructing another? all a part of the legislature. Lord Falconer of Thoroton: In relation to your first quote, the White Paper, Completing the Reforms, Q105 Lord Kingsland: No, but the doctrine of saying deal with the Law Lords separately, we are separation of powers applies equally to the executive dealing with the Law Lords separately, we are and the judges as it does to the legislature and the following that guidance. Secondly, your Public judges, does it not? Administration quote is saying take enough time to Lord Falconer of Thoroton: The Privy Council, whilst work out the detail in relation to it. The a very, very important body, was more important as announcement was made in June and there has been an executive body in years gone by. a Select Committee in the Commons, there is now a Select Committee up here, I think there is enough time to go through the detail in relation to it. We may Q106 Lord Kingsland: Do ministers not make many, not be following the precise timetable. many decisions every week, or every other week, by Order in Council—domestically as well as internationally? Q110 Lord Howe of Aberavon: The fact is the Public Lord Falconer of Thoroton: Yes, they do. I had Administration Committee two years ago took a forgotten that is true. rather pragmatic and sensible view and said why not postpone the actual removal of the Law Lords from Q107 Lord Howe of Aberavon: I want to ask two this place until the General Election after next and V questions. First of all, in the document of evidence I the Commons’ Constitutional A airs Committee have circulated as a recap, in December 2001 when much more recently, a few months ago, again said, the Government discussed completing the reforms— with much the same thing in mind, that the Lord Lord Falconer of Thoroton: The House of Lords? Chancellor should be maintained in existence until all these things have been done. They are suggesting a measured timescale which I think ought still to be Q108 Lord Howe of Aberavon: The House of Lords. considered. In the supporting documents there the Government Lord Falconer of Thoroton: However we have got said: “The introduction of a separate Supreme Court there, we have now got to a point where we are giving would be a major change in its own right, and would it the consideration that it requires. It is taking a deserve separate, dedicated consideration.” Last sensible amount of time and we do have the benefit of summer the Joint Committee, of which there are four this Committee. Members here, expressed the view: “The judicial function of the Lords is a uniquely important area of its own. There is still the need for a full, public Q111 Lord Howe of Aberavon: But not within the discussion about whether there should be a separate kind of timescale suggested. Supreme Court and that might best arise from the Lord Falconer of Thoroton: It must be implicit in what work of an independent inquiry which can call on the Public Administration Committee was saying expert advice and evidence . . . . This is a separate that if they are going to remove the Law Lords at the matter that needs an inquiry of its own.” Election after next that there is going to be a Bill Lord Falconer of Thoroton: Is that a reference to the passed before that, and that is what is happening Supreme Court? now. 9674111002 Page Type [E] 28-06-04 20:11:49 Pag Table: LOENEW PPSysB Unit: PAG1

40 constitutional reform bill [hl] committee: evidence

1 April 2004 Rt Hon Lord Falconer of Thoroton, QC, Mr Edward Adams, Mr Jonathan Freeman and Mr Alastair Clegg

Q112 Lord Howe of Aberavon: But the operative be a reason, and there usually will be a reason. I think date is postponed. you are about to say that in the case of people Lord Falconer of Thoroton: All of the considerations involved in the military it is sometimes, but it is never that they were talking about have to take place now stated what the reason is. because the Bill has to be worked out. Q117 Lord Craig of Radley: If you appear at the top Q113 Lord Howe of Aberavon: My second question of the Armed Forces honours’ list it is fairly clear, I is this: apparently, certainly since spring last year, the think. Government were robustly defending the status quo Lord Falconer of Thoroton: Yes, I apologise, you are with enthusiasm and with vigour, and then on June absolutely right on that. 12 last year we were surprised by the announcement of the intention to abolish your oYce and I think Q118 Lord Craig of Radley: Putting that to one side, after that the plans to proceed with the other changes the half yearly Queen’s birthday and New Year’s to the judicial position and the removal of the Honour Lists have gone on for a long time. There Supreme Court. My question is on how many have been a number of routes for honouring occasions was each one of those three propositions individuals with a peerage and my question is considered (a) by Cabinet, and if so when, (b) by any whether these members of the Supreme Court when Cabinet Committee, and if so when, and, subordinate they cease to sit are going to be honoured with a to that, when did you first hear personally of the peerage or is it going to be seen that they are expected abolition of the oYce of Lord Chancellor? When did to be parliamentarians? that intelligence first reach you? Lord Falconer of Thoroton: I think it will be entirely a Lord Falconer of Thoroton: In relation to the first matter for them as to what they do. There will be no question, when was it considered by the Cabinet, I do sense of not complying with any obligation if they did not know before 12 June, it has been considered by not take part in Parliament. the Cabinet subsequent to 12 June. Has it been considered by a Cabinet Committee? No, it has not. Q119 Lord Craig of Radley: So you see it as an When did I first hear about the proposal to abolish honour? the oYce of Lord Chancellor? 12 June. Lord Falconer of Thoroton: If that is what follows from saying there will be no obligation, yes, I do. Q114 Lord Howe of Aberavon: None of those proposals had been considered by Cabinet or Cabinet Q120 Lord Windlesham: Will their peerages be given Committee before that date? in the biannual Honours’ Lists? Lord Falconer of Thoroton: I was not in the Cabinet Lord Falconer of Thoroton: It would not be done in an before that date, so I do not know the answer. Honours’ List. The way we envisage it would be done is it would automatically follow from ceasing to be an Q115 Lord Howe of Aberavon: Perhaps you can active Law Lord. confirm your suspicion. Lord Falconer of Thoroton: I can find out, yes. Q121 Lord Windlesham: I was not thinking of the Chairman: I think that is the sort of issue we need Law Lords so much. Following Lord Craig’s line of direct evidence of. If ever there was one, it is that. questioning I put it to you would the award of peerage still appear in the Honours’ List, would it be Q116 Lord Craig of Radley: You mentioned that the quite unaVected by the changes which are pending at members of the Supreme Court when they cease to be the moment? practising as judges would be granted peerages. Lord Falconer of Thoroton: None of the changes that I Would those peerages be granted as an honour or am referring to here in this room have any eVect on not? I think there is some confusion still. As you appointments to the Lords, save to the limited extent know, I and a number of others were granted that Lord Craig has referred to. You are trying to peerages with absolutely no obligation to attend draw me into a completely new area, I think, which Parliament, it was purely an honour. My question is has absolutely nothing to do with what we are talking are you looking upon the granting of peerages to about, so I am resisting if you do not mind. these legislators at the end of their time with the Supreme Court as an honour? Q122 Lord Carter: Can we go back to the question Lord Falconer of Thoroton: I had not addressed that of the transitional arrangements. If it seems, as is issue in my own mind. Indeed, it came up in another possible, that there will have to be a period of not too context quite recently and it was said when people are long a length between the Bill passing and then the appointed peers no reasons are ever given in relation new building being available, it seems to me that to why people are appointed peers. There might well there could be a perfectly reasonable transitional 9674111002 Page Type [O] 28-06-04 20:11:49 Pag Table: LOENEW PPSysB Unit: PAG1

constitutional reform bill [hl] committee: evidence 41

1 April 2004 Rt Hon Lord Falconer of Thoroton, QC, Mr Edward Adams, Mr Jonathan Freeman and Mr Alastair Clegg arrangement by which the serving Law Lords and here that that was in itself a political judgment. Do retired Law Lords still entitled to sit judicially have a you think it was to some extent underpinned by the self-denying ordnance, a convention, that they did Human Rights Act considerations which you drew not speak or vote in the House. If judgments were not attention to in your own paper? then given in the chamber, did not act as a sitting of Lord Falconer of Thoroton: I think what underlies all the House with the mace on the woolsack, if they the human rights conventions and what Lord were given a suitable room in the House of Lords. Bingham said in his statement of June 2000 plainly That would start to make the public perception that had the same source, namely it is obviously sensible the Law Lords were leaving the House, they were not that judges are, and are seen to be, entirely separate active Members of the House, judgments were not from political controversy. given in the chamber. It seems to me if that had to last for a year or 18 months that would be perfectly Q128 Lord Maclennan of Rogart: Is it not the case practicable. that since then judges have not separated themselves Lord Falconer of Thoroton: One can think of a number in the way that Lord Bingham suggested and that of practical solutions but it would all depend in eVect even in the debate which we had on this Bill, which on the House of Lords being agreeable to that and I was discussed in this House in a highly party political do not know what their attitude would be in that sense, although there were some cross-party moves, a respect. judge not only spoke but voted and, therefore, it does on the face of it seem that the Bingham rubric is not Q123 Viscount Bledisloe: Two follow-up questions. being followed in eVect, at least not absolutely Do you intend to follow your logic to the extreme and followed? ban all Members of this House and the House from Lord Falconer of Thoroton: You state the facts the other place from sitting as circuit judges or as accurately. I do not want to comment on that, I think recorders or as magistrates? it is for this Committee to judge what conclusions Lord Falconer of Thoroton: No, I do not. they draw on this.

Q124 Viscount Bledisloe: So your logic only goes as Q129 Lord Maclennan of Rogart: If that is the far as you want it to and does not go to the logical preferred route of the judiciary, they may require extreme? statutory underpinning to ensure that the position Lord Falconer of Thoroton: I do not think it would be that they outline is supported and sustained. sensible or necessary to do it. The reason why the Lord Falconer of Thoroton: I would simply put it this Law Lords come out of Parliament in my argument way: there would be total clarity about what the is that they are appointed to Parliament whereas the position would be if there was a Supreme Court along fact that you are a recorder should not be a reason the lines that we have suggested in our Bill. that in any way aVects you acting as a Member of Chairman: I think we should move on now to the Parliament. Judicial Appointments Commission. We have had a good run over your own abolition and, indeed, the Q125 Viscount Bledisloe: The other one follows Supreme Court. Who wants to raise the issue of the Lord Howe’s various points. Could you explain why Judicial Appointments Commission? Lady Gibson? the Government saw ﬁt to ignore the recommendations of the Commons that there should Q130 Baroness Gibson of Market Rasen: Thank you, be proper time and the Bill should be subject to pre- my Lord Chairman. I want to raise the issue of the legislative scrutiny? selection process because on a number of occasions Lord Falconer of Thoroton: Because we thought, and when we have debated in the House I have heard you think, that the processes available give enough time mention the lack of women and ethnic minority for scrutiny, and happily they have been extended in judges in the senior ranks of the judiciary and you say one sense. in a number of parts of your evidence that this cannot continue. I wonder, could you expand a little on the Q126 Viscount Bledisloe: I do not think you would ideas that you have for stopping this because I am say “happily” very well aware of the diYculties over a time of being Lord Falconer of Thoroton: Happily for this able to get more women and ethnic minorities into Committee. positions like that. Lord Falconer of Thoroton: I think it is no one Q127 Lord Maclennan of Rogart: Some people individual thing. It is important to start with the might have taken the view when a senior Law Lord in proposition that merit has got to be the guiding June 2000 indicated the view that Law Lords would principle, and that is reﬂected in the Bill. Merit being not participate in matters of political controversy the guiding principle does not prevent steps being 9674111002 Page Type [E] 28-06-04 20:11:49 Pag Table: LOENEW PPSysB Unit: PAG1

42 constitutional reform bill [hl] committee: evidence

1 April 2004 Rt Hon Lord Falconer of Thoroton, QC, Mr Edward Adams, Mr Jonathan Freeman and Mr Alastair Clegg taken to increase the pool from which judges are Q133 Lord Carlisle of Bucklow: Exactly. If 90 are selected. Increasing the pool, I believe, will increase interviewed and you have got three vacancies, you the diversity of the bench. I think the pool can be have three filled by the vacancies, perhaps to 40 of the increased in a number of ways and I have just other 90 saying “you did not get that job but you are identified three. The setting up of a Judicial certainly appointable”, as I understand it. Are all Appointments Commission makes the process more those names going to be sent to a minister and, if open and more comprehensible to everybody to so, why? encourage people more to apply. Secondly, it can Lord Falconer of Thoroton: The JAC will provide the provide an opportunity where being more flexible names of those applicants, the JAC will provide about the sorts of opportunities judges are given— papers on those applicants to the Secretary of State. part-time working as full-time judges, if that is not a That will allow them to see the basis upon which the contradiction in terms, letting people become judges choices have been made. younger and progress up the judicial scale—that sort of flexibility will encourage more judges. Thirdly, a process of talking to the professions and talking Q134 Lord Carlisle of Bucklow: The individual, yes, about both legal education and legal training which but why have all the others who were considered could help increase the pool. I do not think it is any appointable but not appointed on this occasion? one issue, I think it is a combination of particular Lord Falconer of Thoroton: Because one of the aspects things. On top of it all there has got to be the political of appointment is bound to be the relative merit of will to try and increase diversity but without the individual by reference to others. diluting merit. Lord Howe of Aberavon: I have no questions of suYcient magnitude to trouble the Lord Chancellor, Q135 Lord Lloyd of Berwick: It is judicial although we will want to return to the Commission in appointments but going back briefly to the Supreme more detail at a later stage, but I simply want to Court. If I may say so, your new suggestions are excuse my departure at this time. I am merely infinitely better than your earlier suggestions but still encouraging the performance of the welfare you are insisting on the right to choose, the minister symphony! himself has got the right to choose between the two. Why is that? Lord Falconer of Thoroton: Can you refer me to the Q131 Lord Carlisle of Bucklow: Lord Chancellor, relevant paragraph number? obviously there are many detailed points about the Judicial Appointments Commission but they are ones that will come up at a later stage. Can I just ask Q136 Lord Lloyd of Berwick: Paragraph 72, just one and that is this: I was amazed to see on page 30 of looking at that sentence: “ . . . I consider it is still vital the Lord Chancellor’s judicial related functions and that the Secretary of State has a suYcient range of proposals that, if I understand it correctly, the options at his disposal to protect ministerial Judicial Appointments Commission is to refer a accountability.” name and reasons to the judge for appointment. It Lord Falconer of Thoroton: “Under this model where also says that the judge will recommend one name, only one name rather than a shortlist of names is the JAC will also submit their reasons for submitted, the executive discretion of the Secretary of recommending, the JAC will provide supporting State is circumscribed in a manner analogous to the papers on that candidate and other candidates and Judicial Appointments Commission model.” It may the JAC will provide the names of those applicants well be that the last sentence is misleading but the whom the JAC considers appropriate. I understand proposal is, and it is for debate, it is not the final— this week that you have probably been making a fair number of new county court circuit judges and I gather that there were 90 or so applicants for that Q137 Lord Lloyd of Berwick: You invite our views. post. Lord Falconer of Thoroton: Exactly. It is basically Lord Falconer of Thoroton: There might have been assimilating the Supreme Court’s appointment more but there were a lot of applicants. process to, in eVect, the same as that that you propose for England and Wales. Edward is saying that “options” means the option of accepting, rejecting or Q132 Lord Carlisle of Bucklow: Is it really being reconsidering. suggested that the forms of all those people should go to the minister and, if so, for what purpose? Lord Falconer of Thoroton: Only those who are Q138 Lord Lloyd of Berwick: That in the end gives appointable. you a choice, as I understand it, between two people. 9674111002 Page Type [O] 28-06-04 20:11:49 Pag Table: LOENEW PPSysB Unit: PAG1

constitutional reform bill [hl] committee: evidence 43

1 April 2004 Rt Hon Lord Falconer of Thoroton, QC, Mr Edward Adams, Mr Jonathan Freeman and Mr Alastair Clegg

Lord Falconer of Thoroton: Yes. Q145 Lord Kingsland: Lord Chancellor, the relationship between the Judicial Appointments Commission and the executive is one of the very few Q139 Lord Lloyd of Berwick: Why? areas, perhaps the only area, with which I disagree Lord Falconer of Thoroton: For all the reasons given with the noble Lord, Lord Lloyd of Berwick. I think both in relation to England and Wales and in relation it is right that the executive should have a margin of to the Supreme Court, I think it is right that there be discretion, it is Parliament who ultimately fires judges a stake that the executive has in the appointment of and therefore I think it only right that Parliament judges, not in making the choice in the way that I do, hires judges. The logic, it seems to me, is a very as it were, but being there able to approve the final powerful one. I have two questions arising out of choice. that. The first one is as the noble learned Lord, the Lord Chancellor, has accepted on the floor of your Q140 Lord Lloyd of Berwick: That is something Lordship’s House, the degree of discretion the very new. executive has in relation to the selection of Supreme Lord Falconer of Thoroton: No, that has always Court judges is considerably larger than the degree of been— discretion the executive has in relation to other judges. I do not know whether at the moment the Lord Chancellor has had time to reflect on that Q141 Lord Lloyd of Berwick: That the minister further or whether there is some distinct logic? should have a power to choose between two people Lord Falconer of Thoroton: You are absolutely right, recommended for the new Supreme Court. on the face of the Bill the discretion that we were Lord Falconer of Thoroton: No, it is not new, I think. proposing then was vastly wider than it is in relation As in relation to the Judicial Appointments to England and Wales. There has been a lot of debate Commission in England and Wales, all that the about that. It has not found favour in many quarters, minister can do is say no once, in eVect. If then so what I am proposing in the written evidence I have somebody else is produced he is, in eVect, obliged to submitted to this Committee, subject again to debate, accept it. is that in eVect we make the system for the appointment of Supreme Court judges similar in Q142 Lord Goodhart: How is it envisaged that the substance to the appointments system we have got for the England and Wales Appointments Judicial Appointments Commission will actually V work? Given the large number of appointments that Commission, so in e ect I am agreeing with your have to be made it is clear that the Appointments point. Commission itself cannot carry out all of the interviews. Will this be delegated to panels? Q146 Lord Goodhart: So you will narrow the Lord Falconer of Thoroton: Yes. discretion of the executive? Lord Falconer of Thoroton: Yes, exactly. We propose, although it is for consultation again, that we do Q143 Lord Goodhart: If so, who will be the members narrow it to a similar limited discretion available in of those panels? relation to England and Wales Appointments Lord Falconer of Thoroton: It will be delegated to Commission. panels. It is a matter for the Appointments Commission to determine who makes up the panels. In some cases it may not be panels that would be Q147 Lord Goodhart: My second question, which is appropriate rather than some sort of assessment related but distinct is since the executive is going to centre approach, for example, as was taken recently continue to play a role in judicial selection, what in relation to a round of appointments of deputy measures do you envisage putting in place for the district judges. Ultimately it is for the Judicial parliamentary accountability of the Secretary of V Appointments Commission to decide how it runs the State for Constitutional A airs? selection system. Lord Falconer of Thoroton: Obviously there will be normal accountability. He would be subject to questions whatever House of Parliament he was in. Q144 Lord Goodhart: Would it be desirable, for The extent to which Parliament itself wanted to set up instance, to put on the Bill something that said, for additional monitoring arrangements with a select example, that a panel carrying out interviews must committee, a joint committee, I think would have to always include, let us say, a lay member and a judicial be decided by Parliament. It might connect in with member? whatever arrangements Parliament thought it Lord Falconer of Thoroton: As part of the amendment, wanted to make in relation to the ability of the Lord yes, that is a good idea. Chief Justice and other senior members of the 9674111002 Page Type [E] 28-06-04 20:11:49 Pag Table: LOENEW PPSysB Unit: PAG1

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1 April 2004 Rt Hon Lord Falconer of Thoroton, QC, Mr Edward Adams, Mr Jonathan Freeman and Mr Alastair Clegg judiciary coming to speak to address views to Lord Falconer of Thoroton: On the Supreme Court? Parliament. Apart from the normal methods by which a minister is accountable, the committee issue Q149 Lord Carter: Yes. would have to be addressed, and that is for Lord Falconer of Thoroton: Yes. I would envisage that Parliament. if the Committee agreed on the proposal we could put it in by amendment. Chairman: Lord Chancellor, thank you very much Q148 Lord Carter: The proposal that you are now indeed for giving us your evidence in such an making which you refer to, would you wish to bring expansive and comprehensive and enjoyable way. that to the Committee as an amendment? Thank you very much.

Supplementary memorandum by the Secretary of State for Constitutional Affairs and Lord Chancellor

PROPOSALS IN RELATION TO NORTHERN IRELAND

Introduction This document provides further written evidence from the Secretary of State for Constitutional AVairs and Lord Chancellor to the House of Lords Select Committee on the Constitutional Reform Bill. In earlier written evidence to the Committee, I outlined the rationale for, and principles underpinning, the abolition of the oYce of Lord Chancellor and the Government’s proposals for the future handling of the Lord Chancellor’s functions in England and Wales. This evidence outlines my proposals for the future handling of the Lord Chancellor’s functions in Northern Ireland, following abolition of that oYce. These proposals have been agreed with the Lord Chief Justice of Northern Ireland.

Overview This paper sets out the background to, and details of, my proposals in the following main areas: — Independence of the judiciary — Role of the Lord Chief Justice of Northern Ireland — Judicial Appointments and discipline — Judicial Deployment and other court-related functions

Historical Background The paper sets out the current functions of the Lord Chancellor in Northern Ireland and highlights recent developments arising from the Belfast Agreement which are relevant to the proposed future handling of the Lord Chancellor’s functions in Northern Ireland. In particular, it refers to the Justice (Northern Ireland) Act 2002 which provides for, amongst other things, the transfer of certain of the Lord Chancellor’s functions in the context of the devolution of responsibility for justice matters to the Northern Ireland Assembly.

Independence of the Judiciary This section outlines my proposals to ensure the continued independence of the Northern Ireland judiciary.

Role of the Lord Chief Justice of Northern Ireland This section describes the provision already made by the Justice (Northern Ireland) Act 2002 to designate the Lord Chief Justice of Northern Ireland as President of the courts of Northern Ireland and how this provision will be augmented by a statutory statement of the responsibilities of the Secretary of State for Constitutional AVairs and of the Lord Chief Justice. 9674111003 Page Type [O] 28-06-04 20:11:49 Pag Table: LOENEW PPSysB Unit: PAG1

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Judicial Appointments and Discipline

This section details the provision already made by the Justice (Northern Ireland) Act 2002, in relation to: — the establishment of a Judicial Appointments Commission for Northern Ireland; and — complaints against, and removal of, members of the judiciary. These provisions were framed in anticipation of the devolution of justice to the Northern Ireland Assembly. The Justice (Northern Ireland) Bill, presently before Parliament, amends the Justice Act to provide for the establishment of the Judicial Appointments Commission pre-devolution. This section outlines my proposals for handling of my appointment and removal functions following the abolition of the oYce of Lord Chancellor but before devolution of justice functions.

Judicial Deployment and other court-related functions

This section of the paper describes the provision already made by the Justice (Northern Ireland) Act 2002 for the transfer of many of the Lord Chancellor’s court-related functions to the Lord Chief Justice of Northern Ireland, in his capacity as President of the courts of Northern Ireland and outlines my proposals for the future handling of these and analogous functions.

Background

The Lord Chancellor’s responsibilities in Northern Ireland

1. Although the position does not have statutory form, the Lord Chancellor has traditionally been regarded as the head of the Northern Ireland judiciary. The Lord Chancellor, unlike in England and Wales, holds no judicial oYce speciﬁc to Northern Ireland. The Lord Chief Justice of Northern Ireland is the President of the Supreme Court of Judicature of Northern Ireland (ie the Court of Appeal, the High Court, and the Crown Court in Northern Ireland). 2. The Lord Chancellor has a range of statutory and non-statutory responsibilities similar to those in England and Wales. These include: — Making or recommending various judicial appointments; — Complaints against, and removal of members of the judiciary; — Deciding on the number of judiciary at the several tiers; — Legal aid policy and funding; — Central Authority for child abduction matters; — Recommending appointment of Queen’s Counsel; — Administration of the Supreme Court, county courts, magistrates’ courts and coroners’ courts and the OYce of the Social Security Commissioners and the Child Support Commissioners. This includes the power: — to ﬁx fees, — set jurisdictional limits, — give directions as to sittings and the allocation of judiciary; — make, or concur in the making of, court rules; and, — Administration of the enforcement of judgments through the Enforcement of Judgments OYce. 3. The Lord Chancellor discharges his functions in Northern Ireland through the Northern Ireland Court Service (established under section 69 of the Judicature (Northern Ireland) Act 1978), which is a distinct civil service of the Crown. The Department employs approximately 750 staV and has an annual budget of £118,000,000. 9674111003 Page Type [E] 28-06-04 20:11:49 Pag Table: LOENEW PPSysB Unit: PAG1

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Recent Developments 4. As part of the Belfast Agreement, a Criminal Justice Review Group was established to review the structure, management and resourcing of the criminal justice system in Northern Ireland and to bring forward proposals for future criminal justice arrangements. The Review considered, inter alia, those arrangements which might apply following devolution of responsibility for policing and justice to the Northern Ireland Assembly. 5. The Criminal Justice Review reported in March 2000. The Government has broadly accepted the Review’s recommendations, a number of which are given legislative eVect in the Justice (Northern Ireland) Act 2002. The Act, which is framed in the context of the anticipated devolution of justice, makes provision in relation to: — judicial independence; — judicial appointments; — the creation of an independent Judicial Appointments Commission for Northern Ireland; — the transfer of the Lord Chancellor’s judicial appointment functions to the First Minister and the deputy First Minister; — complaints against, and removal of, members of the judiciary; — judicial structures, including designation of the Lord Chief Justice of Northern Ireland as President of the courts of Northern Ireland; — arrangements for the co-ordination and management of court business; and — the abolition of the Northern Ireland Court Service. 6. As it was intended that these provisions would be brought into operation on devolution of justice, the majority of the provisions of the Justice Act have not yet been commenced. The Government, however, in its revised Criminal Justice Review Implementation Plan, undertook to bring forward legislation to allow the Judicial Appointments Commission for Northern Ireland to be established before devolution. The Justice (Northern Ireland) Bill, which is currently before Parliament, will amend the Justice (Northern Ireland) Act 2002 to transfer the functions of the First Minister and the deputy First Minister in relation to the Judicial Appointments Commission to the Lord Chancellor. It is intended that the Commission will be established in the Spring of 2005.

Proposals 7. During Second Reading, I indicated that the Bill did not yet include provision to deal with the future handling of the Lord Chancellor’s functions in relation to the Northern Ireland judiciary. The policy for Northern Ireland was being developed taking account of the provision already made for that jurisdiction by the Justice (Northern Ireland) Act 2002 and in light of the proposals for England and Wales, which were of course informed by the Concordat. I also wished to take account of the views of the Lord Chief Justice of Northern Ireland. 8. The proposals outlined below have been agreed with Sir Brian Kerr, the Lord Chief Justice of Northern Ireland. His agreement is, of course, conditional upon Parliament’s approval.

9. The rationale for the abolition of the oYce of the Lord Chancellor, as set out in my earlier written evidence, applies equally in Northern Ireland. So too do the key principles underpinning the proposals for reform, that is, the need to secure continued judicial independence and good working relationships between the Executive and the judiciary. The Bill already contains speciﬁc provision designed to give practical eVect to these principles in England and Wales.

Independence of the Judiciary 10. As indicated in my earlier written evidence, the Bill will create speciﬁc statutory duties regarding the continued independence of the judiciary. 11. Section 1 of the Justice (Northern Ireland) Act 2002 (as yet uncommenced) already provides that “those with responsibility for the administration of justice must uphold the continued independence of the judiciary”. The ambit of the general duty proposed for England and Wales by clause 1 of the Bill is wider than that which will apply in Northern Ireland under section 1 of the Justice Act. I consider that, following abolition of the oYce of Lord Chancellor, it would be appropriate to make provision to widen the ambit of the statutory duty 9674111003 Page Type [O] 28-06-04 20:11:49 Pag Table: LOENEW PPSysB Unit: PAG1

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1 April 2004 under section 1 of the Justice Act to embrace all Ministers and not only those with responsibility for the administration of justice. 12. I also consider that, as in England and Wales, it would be appropriate to make provision to place the Secretary of State for Constitutional AVairs under a speciﬁc duty to have regard to the need to defend the continued independence of the Northern Ireland judiciary.

Role of the Lord Chief Justice of Northern Ireland 13. Section 12 of the Justice (Northern Ireland) Act 2002 makes provision designating the Lord Chief Justice of Northern Ireland President of the Court of Appeal, the High Court, the Crown Court, the county courts, and the magistrates’ courts and head of the judges and magistrates who sit in them. The Act also gives the Lord Chief Justice power to appoint a Presiding judge for speciﬁed court tiers and to delegate his functions, in relation to that tier, to that judge. He is not required to consult before exercising these powers. 14. It was intended to commence these provisions on devolution of justice to the Northern Ireland Assembly. I believe it would now be appropriate to commence them on the abolition of the oYce of Lord Chancellor. The Lord Chancellor will therefore cease to be head of the judiciary in Northern Ireland at the same time as he ceases to be head of the judiciary in England and Wales. 15. It is important that the Northern Ireland Court Service and the Lord Chief Justice continue their successful partnership after the abolition of the oYce of the Lord Chancellor. Both the Lord Chief Justice and I recognise that, in order to maintain this partnership, it is important that our responsibilities are both clear and transparent. We, therefore, agree that as in England and Wales, there should be a statutory statement of our respective responsibilities. 16. With regard to the Secretary of State for Constitutional AVairs, we propose that he will be under a duty to have regard to the need: — to defend continued judicial independence; — to support the judiciary in enabling them to exercise their functions; — for the public interest, in matters relating to the judiciary or the administration of justice, to be properly represented in decisions aVecting those matters. 17. We also propose that, in carrying out his responsibilities in relation to the courts, the Secretary of State for Constitutional AVairs will have a duty to ensure that there is an eYcient and eVective system to support the conduct of the business of the courts and that appropriate services are provided for those courts. This corresponds to the duty of the Lord Chancellor in relation to the courts in England and Wales under section 1 of the Courts Act 2003 (and which will transfer to the Secretary of State in the Bill). We consider that it is appropriate to make similar provision for Northern Ireland in the interests of enhanced clarity of responsibilities. 18. We propose that the Lord Chief Justice of Northern Ireland will be responsible for: — representing the views of the Northern Ireland judiciary to Parliament, to the Minister and to Ministers of the Crown generally. He will also have responsibility for representing these views to the Northern Ireland Assembly and to Ministers of the devolved administration in Northern Ireland, once devolution is restored; — the maintenance of appropriate arrangements for the welfare, training and guidance of the Northern Ireland judiciary within resources made available by the Minister; — the maintenance of appropriate arrangements for the deployment of the Northern Ireland judiciary and the allocation of work within courts.

Judicial Appointments

Northern Ireland Judicial Appointments Commission 19. Provision for a Northern Ireland Judicial Appointments Commission is already contained in section 3 of the Justice (Northern Ireland) Act 2002. The Commission will be chaired by the Lord Chief Justice of Northern Ireland, have 5 judicial members (nominated by the Lord Chief Justice of Northern Ireland), 2 legal members (one from the Bar of Northern Ireland and one from the Law Society of Northern Ireland) and 5 lay members. 9674111003 Page Type [E] 28-06-04 20:11:49 Pag Table: LOENEW PPSysB Unit: PAG1

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20. Under the Justice Act the members of the Commission are to be appointed by, and make recommendations to, the First Minister and the deputy First Minister. The Justice Bill provides for these functions to transfer to the Lord Chancellor. The Constitutional Reform Bill will provide for the further transfer of these functions to the Secretary of State for Constitutional AVairs. On devolution of justice, provision will be made for the functions to revert to the First Minister and the deputy First Minister. In the meantime, on the abolition of the oYce of Lord Chancellor, it is proposed that the Commission will be appointed by, and make recommendations to, the Secretary of State for Constitutional AVairs who will also discharge other ancillary functions relating to the Commission, such as making grants and approving staYng.

Appointment of Lord Chief Justice and Lord Justices of Appeal in Northern Ireland 21. The Lord Chief Justice of Northern Ireland and the Lord Justices of Appeal are at present appointed by Her Majesty The Queen under section 12 of the Judicature (Northern Ireland) Act 1978. In making these appointments, Her Majesty acts upon the recommendation of the Lord Chancellor who will have consulted the Lord Chief Justice of Northern Ireland and the Prime Minister. 22. I propose to continue this arrangement, save that the recommendation to Her Majesty will be made by the Secretary of State for Constitutional AVairs and, as at present, only after he has consulted with the Lord Chief Justice of Northern Ireland and the Prime Minister. Any recommendation in respect of these most senior judicial appointments will therefore continue to be fully informed by the advice of the Lord Chief Justice. 23. I am also considering with the Lord Chief Justice whether, in advance of devolution, there should be an advisory role for the Judicial Appointments Commission on the process of making such appointments.

Appointment of High Court Judges and other listed judicial ofﬁces 24. The powers to appoint or recommend appointment to the judicial oYces listed in Schedule 1 to the Justice (Northern Ireland) Act 2002 will be transferred from the Lord Chancellor to the Secretary of State for Constitutional AVairs. Appointments will be made following the recommendation of the Northern Ireland Judicial Appointments Commission.

Judicial Appointments Ombudsman 25. A Northern Ireland Judicial Appointments Ombudsman will be appointed. An applicant for judicial appointment who has complained to the Judicial Appointments Commission about the handling of his application, and who remains dissatisﬁed after the Commission has considered his complaint, will be able to refer his complaint to the Ombudsman who will be required to report on any complaint he has investigated. The Judicial Appointments Ombudsman will report annually to Parliament.

Judicial discipline 26. The Justice (Northern Ireland) Act 2002 provides for complaints about the judiciary and the removal of a member of the judiciary. Although the provisions were framed in anticipation of the devolution of justice, they also serve as a reference for the pre-devolution arrangements following the abolition of the oYce of Lord Chancellor.

Complaints 27. Section 16 of the Justice Act makes provision in relation to the handling of complaints against a member of the judiciary. It provides for a code of practice to be prepared and published by the Lord Chief Justice of Northern Ireland. The Code will include provision for any complaints which appear to the Lord Chief Justice to be suYciently serious to be referred to a Complaints Tribunal to advise on the steps which should be taken to deal with the complaint. It is intended to commence section 16 on the abolition of the oYce of Lord Chancellor. 9674111003 Page Type [O] 28-06-04 20:11:49 Pag Table: LOENEW PPSysB Unit: PAG1

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Removal 28. Sections 6 to 8 of the Justice Act make provision in relation to the removal of judges from oYce following devolution of justice. These provisions will not be commenced before devolution although it is proposed that similar arrangements will be made to ensure judicial independence following abolition of the oYce of Lord Chancellor. This will include provision for the establishment of a removal tribunal. 29. The removal from oYce of a member of the judiciary will operate as detailed below.

Removal of the Lord Chief Justice, Lord Justices of Appeal and High Court Judges 30. Pending devolution, the removal of the Lord Chief Justice of Northern Ireland, Lord Justices of Appeal and High Court Judges will continue to be by Her Majesty following an address to both Houses of Parliament. An address would only be possible if a removal tribunal had made such a recommendation to the Secretary of State for Constitutional AVairs. 31. The arrangements for convening a tribunal to consider the removal of a senior member of the Northern Ireland judiciary will be as follows: — a tribunal to consider the removal of the Lord Chief Justice may be convened by the Secretary of State for Constitutional AVairs after consulting the Prime Minister; — a tribunal to consider the removal of a Lord Justice of Appeal may be convened by the Secretary of State for Constitutional AVairs or by the Lord Chief Justice after consulting the other and the Prime Minister; and — a tribunal to consider the removal of a High Court Judge may be convened by the Secretary of State for Constitutional AVairs or by the Lord Chief Justice after consulting the other. 32. In each such case the tribunal would have two judicial members who would hold high judicial oYce and would be appointed by the Secretary of State for Constitutional AVairs after consultation with the Lord Chief Justice of Northern Ireland, the President of the Supreme Court of United Kingdom, the Lord Chief Justice of England and Wales and the Lord President of the Court of Session. The Secretary of State for Constitutional AVairs will also appoint a lay member to the tribunal.

Removal from other judicial ofﬁces 33. The removal from judicial oYces below the level of High Court Judge (for example, County Court Judge, Resident Magistrate and Lay Magistrates) will be by the Secretary of State for Constitutional AVairs following the recommendation of a removal tribunal and after consultation with the Lord Chief Justice of Northern Ireland. 34. The tribunal would be convened by the Secretary of State or by the Lord Chief Justice of Northern Ireland after consulting the other. The tribunal will comprise two senior judicial members appointed by the Lord Chief Justice and a lay member appointed by the Secretary of State for Constitutional AVairs.

Judicial Deployment and other court-related functions 35. As in England and Wales, it is proposed that responsibility for setting the organisational framework of the court system will be exercised by the Secretary of State for Constitutional AVairs, in consultation with the Lord Chief Justice of Northern Ireland. 36. Schedule 5 to the Justice (Northern Ireland) Act 2002 already makes provision for the transfer of many of the Lord Chancellor’s court-related functions to the Lord Chief Justice, in his capacity as President of the courts of Northern Ireland. I do not propose to disturb these arrangements and consider that it would be appropriate to commence the relevant provisions on abolition of the oYce of Lord Chancellor. I also propose to transfer from the Lord Chancellor to the Lord Chief Justice any other functions which are analogous to those to be transferred to him under Schedule 5 to the Justice Act. 37. The details of how these proposals will apply to: — the co-ordination and management of court business is set out at Annex A to this paper; — appointment to rules committees is set out at Annex B. 9674111003 Page Type [E] 28-06-04 20:11:49 Pag Table: LOENEW PPSysB Unit: PAG1

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38. With regard to the responsibility for making court rules, it is proposed, in general, to follow the approach adopted in England and Wales, taking into account any modiﬁcations required in light of current arrangements in Northern Ireland and the views of the Lord Chief Justice. Details of how these proposals will apply to each of the Northern Ireland Rules Committees are set out in Annex C. 39. The Northern Ireland Court Service is working closely with oYcials in the Lord Chief Justice’s OYce to develop any necessary arrangements to enable the Lord Chief Justice to discharge his new functions.

Conclusion 40. The proposals outlined in this paper have been the subject of consultation with the Lord Chief Justice of Northern Ireland. A number of issues have still to be ﬁnalised and agreed (for example, future arrangements where the Lord Chancellor currently exercises a function on a UK wide basis). The Lord Chief Justice and I do not anticipate any areas of disagreement and are conﬁdent that we shall be able to resolve any other issues which might arise. 41. I propose to table at the Committee of the Whole House the amendments necessary to give eVect to the proposals outlined in this paper.

Annex A

DEPLOYMENT

Organisational Framework Functions in relation to the Organisational Framework of the courts to be transferred to the Secretary of State for Constitutional AVairs after consultation with the Lord Chief Justice of Northern Ireland. — Remove departments or entries from Schedule 2 (OYcer of the Supreme Court). Judicature (Northern Ireland) Act 1978 (c. 23) section 68(5). — Establish a branch oYce of Probate and Matrimonial OYce Judicature (Northern Ireland) Act 1978 (c. 23) section 68(3) Schedule 6 paragraph 9. — Specify County Court divisions. County Courts (Northern Ireland) Order 1980 (SI 1980/397) (NI 3) Article 3. — Specify the petty session districts into which Northern Ireland should be divided. Magistrates’ Courts (Northern Ireland) Order 1981 (SI 1981/1675) (NI 26) Article 11(2). — Designate a place having facilities to receive evidence through a live link for the purpose of receiving evidence in the Magistrates’ Courts. Police and Criminal Evidence (Northern Ireland) Order (SI 1989/1341) (NI 12) Articles 80A(6), 81(8) and Criminal Evidence (Northern Ireland) Order 1999 (SI 1999/2789) (NI 8). — Make regulations to designate areas in which juvenile courts are to exercise jurisdiction. Children and Young Persons Act (Northern Ireland) 1968 (c. 34) Schedule 2 paragraph 8(b). — Amalgamate districts on death, resignation or removal of coroner. Coroners Act (Northern Ireland) 1959 (c. 15) section 3. — Numbers of coroners. Coroners Act (Northern Ireland) 1959 (c. 15) section 2(1).

Sittings and Places of Sittings Functions in relation to sittings of courts and times and places of sittings to be transferred to Lord Chief Justice of Northern Ireland (under Schedule 5 of Justice Act). — Determine places at which High Court and Court of Appeal can sit outside the Royal Courts of Justice. Judicature (Northern Ireland) Act 1978 (c. 23) section 58(2) (Schedule 5). — Give directions on sittings of the Crown Court [also assignment]. Judicature (Northern Ireland) Act 1978 (c. 23) section 47(3) (Schedule 5). 9674111003 Page Type [O] 28-06-04 20:11:49 Pag Table: LOENEW PPSysB Unit: PAG1

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— Judge of High Court and county court to sit in Crown Court in accordance with directions on classes of cases suitable for allocation to High/County Court judge. Judicature (Northern Ireland) Act 1978 (c. 23) section 47(2) (also allocation, assignment, distribution of business) (Schedule 5). — Trial on indictment of a scheduled oVence shall be held at Crown Court sitting at Belfast unless (a) Lord Chancellor after consultation with Lord Chief Justice directs, or (b) Lord Chief Justice directs. Terrorism Act 2000 (c.11) section 74 (Analogous). — Give directions specifying sittings of the county court otherwise than in courthouse. County Courts (Northern Ireland) Order 1980 (SI 1980/397) (NI 3) Article 5 (Schedule 5). — Give directions as to holding of county courts including places at which courts are to be held, number of ordinary sittings and cancellation of any court. County Courts (Northern Ireland) Order 1980 (SI 1980/397) (NI 3) Article 4 (Schedule 5). — Appoint days for ordinary sittings of the county court. County Courts (Northern Ireland) Order 1980 (SI 1980/397) (NI 3) Article 6 (Schedule 5). — Give directions for the holding of additional sittings of the county court. County Courts (Northern Ireland) Order 1980 (SI 1980/397) (NI 3) Article 7(1) (Schedule 5). — A judge may sit at such times as he thinks necessary subject to directions for additional sittings given by Lord Chancellor under Article 7(1). County Courts (Northern Ireland) Order 1980 (SI 1980/397) (NI 3) Article 7(2) (Schedule 5). — Give directions concerning county court sittings [also assignment]. County Court Act (Northern Ireland) 1959 (c. 25) section 102(2) (Schedule 5). — Unless Lord Chancellor directs petty sessions to be held in courthouse. Magistrates’ Courts (Northern Ireland) Order 1981 (SI 1981/1675) (NI 26) Article 12(a) (Schedule 5). — Give directions in respect of Magistrates’ Courts committing a person for trial. Judicature (Northern Ireland) Act 1978 (c. 23) section 48(1)(c) (Schedule 5). — Give directions as to the places at which petty sessions are to be held regularly for a petty sessions district. (Analogous). Magistrates’ Courts (Northern Ireland) Order 1981 (SI 1981/1675) (NI 26) Article 11(3). — National Security Certiﬁcate Appeal Tribunal to sit at times and places as he sees ﬁt. Northern Ireland Act 1998 (c. 47) Schedule 11, paragraph 5 (Analogous).

Assignment of Judges Lord Chief Justice will be responsible for assignment of individual judges. — Judge may, in accordance with Lord Chancellor directions, sit in any division. County Courts Act (Northern Ireland) 1959 (c. 25) section 102(3) (Schedule 5). — Assign judges to Divisions and vary such assignment. County Courts Act (Northern Ireland) 1959 (c. 25) section 102(4) (Schedule 5). — Give directions concerning Resident Magistrate’s sittings. Magistrates’ Courts Act (Northern Ireland) 1964 (c. 21) section 9(3) (Schedule 5). — Assign Resident Magistrates and vary assignment to petty session district. Magistrates’ Courts Act (Northern Ireland) 1964 (c. 21) section 9(5) (Schedule 5).

Authorisation of Judge to Sit at Certain Level Lord Chief Justice of Northern Ireland will be responsible, for the authorisation of individual members of the judiciary to sit in particular levels of court. — Request to serving or retired law lord or retired judge of Court of Appeal or High Court to sit as judge of Court of Appeal or High Court. Judicature (Northern Ireland) Act 1978 (c. 23) section 7(1) (Schedule 5). — Request a county court judge to sit as judge of the High Court. Judicature (Northern Ireland) Act 1978 (c. 23) section 7(2) (Schedule 5). 9674111003 Page Type [E] 28-06-04 20:11:49 Pag Table: LOENEW PPSysB Unit: PAG1

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— Give direction in relation to cases or classes of cases suitable for allocation to judge of High Court and County Court sitting in the County Court. Judicature (Northern Ireland) Act 1978 (c. 23) section 47(2) (Schedule 5).

Distribution of Business and Conferring of Jurisdiction Lord Chief Justice of Northern Ireland will generally be responsible for the distribution of business within the same level. — Give directions on the business to be assigned to each department of the Supreme Court. Judicature (Northern Ireland) Act 1978 (c. 23) section 68(2)(b) (Schedule 5). — Give directions relating to distribution of Crown Court business. Judicature (Northern Ireland) Act 1978 (c.23) section 47(2) (Schedule 5). — Give directions to statutory oYcers in relation to the discharge of their functions. Judicature (Northern Ireland) Act 1978 (c. 23) section 68(4) (Schedule 5). — Give directions conferring or imposing functions on the OYcial Solicitor. Judicature (Northern Ireland) Act 1978 (c. 23) section 75(2)(b) (Schedule 5). — Assigning the taxation of costs to a statutory oYcer other than the Taxing Master. Judicature (Northern Ireland) Act 1978 (c. 23) section 60(1) (Schedule 5). — Direct that all original wills and other speciﬁed documents to be kept in probate and Matrimonial OYce or other place as directed. Administration of Estates (Northern Ireland) Order 1979 (SI 1979/1575) (NI 14) Article 23(1) (Analogous). — Direct where original will is to be kept where representation of a will has been granted in a branch oYce of Probate and Matrimonial. Administration of Estates (Northern Ireland) Order 1979 (SI 1979/1575) (NI 14) Article 23(2) (Analogous). — Direct format and contents of records to be kept by Probate and Matrimonial OYce. Administration of Estates (Northern Ireland) Order 1979 (SI 1979/1575) (NI 14) Article 24(2) (Analogous). — Lord Chancellor shall direct that the Probate and Matrimonial OYce shall supply the Commissioners with copies of wills and letters of administration, subject to arrangements which may be made by the Lord Chancellor and Commissioners of Inland Revenue. Administration of Estates (Northern Ireland) Order 1979 (SI 1979/1575) (NI 14) Article 26(1) (Analogous). — May assign matters to juvenile courts after consultation with Rules Committee. Magistrates’ Courts (Northern Ireland) Order 1981 (SI 1981/1675) (NI 26) Article 15(2) (Schedule 5).

Destination,Allocation of Proceedings Secretary of State for Constitutional AVairs will, after consultation with the Lord Chief Justice of Northern Ireland, have order-making power regarding the destination of appeals and where classes of proceedings should be commenced. — Provision for the Lord Chancellor to make orders, principally with respect to the jurisdiction of the courts in proceedings under this order, shall have eVect. Children (Northern Ireland) Order 1995 (SI 1995/755) (NI 2) Article 164(5), Schedule 7. — Specify proceedings which may be commenced in a particular level or class of court. Children (Northern Ireland) Order 1995 (SI 1995/755) (NI 2) Schedule 7, paragraph 1(1). — Specify circumstances in which proceedings may be commenced in a particular level or class of court. Children (Northern Ireland) Order 1995 (SI 1995/755) (NI 2) Schedule 7, paragraph 1(2). — Make provision for commencement of connected proceedings. Children (Northern Ireland) Order 1995 (SI 1995/755) (NI 2) Schedule 7, paragraph 1(4). — Provide for the transfer of proceedings to a speciﬁed level or class of court. Children (Northern Ireland) Order 1995 (SI 1995/755) (NI 2) Schedule 7, paragraph 1(4). 9674111003 Page Type [O] 28-06-04 20:11:49 Pag Table: LOENEW PPSysB Unit: PAG1

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— Provide for the exclusion of certain proceedings from being transferred. Children (Northern Ireland) Order 1995 (SI 1995/755) (NI 2) Schedule 7, paragraph 2(5). — Specify the circumstances in which the jurisdiction of a court of summary jurisdiction to make an emergency protection order may be otherwise exercised. Children (Northern Ireland) Order 1995 (SI 1995/755) (NI 2) Schedule 7, paragraph 3. — Specify county courts for the purposes of appeal from family proceedings courts. Children (Northern Ireland) Order 1995 (SI 1995/755) (NI 2) Schedule 7, paragraph 4(4). — Orders under Sch 7 may make consequential, transitional or incidental provision, as the Lord Chancellor considers necessary. Children (Northern Ireland) Order 1995 (SI 1995/755) (NI 2) Schedule 7, paragraph 4(6). — Jurisdiction of any specified county court to be exercised throughout Northern Ireland except where ordered by Lord Chancellor. Children (Northern Ireland) Order 1995 (SI 1995/755) (NI 2) Schedule 7, paragraph 4(7). — Specify proceedings which may be commenced or transferred to a specific court. Family Homes & Domestic Violence (Northern Ireland) Order 1998 (SI 1998/1071) (NI 6) Articles 34(4), (5), (7), (9). — Specify by order the county court to which an appeal from the family proceedings court lies. Family Homes & Domestic Violence (Northern Ireland) Order 1998 (SI 1998/1071) (NI 6) Article 39(4). — References to “the court” include reference to an order made by the Lord Chancellor designating a county court as a divorce county court. Matrimonial Causes (Northern Ireland) Order 1978 (SI 1978/1045) (NI 15) Article 48(1)(b). — Specify increase in jurisdiction of county court. County Courts (Northern Ireland) Order 1980 (SI 1980/397) (NI 3) Article 22. — Fix the amount of lump sum to be paid by an order for financial provision to parties to a marriage and children. Domestic Proceedings (Northern Ireland) Order 1980 (SI 1980/563) (NI 5) Article 4(3), (4). — Fix the amount of lump sum to be paid by order of court in respect of expenses incurred in relation to the birth or maintenance of a child. Children (Northern Ireland) Order 1995 (SI 1995/755) (NI 2) Schedule 1, paragraph 6(2).

Nominations

Lord Chief Justice of Northern Ireland, after consultation with Secretary of State for Constitutional AVairs, to nominate to various posts, both permanent and temporary, which are similar to deployment issues. — Direct any Coroner or other qualiﬁed person to act in event of Coroner for a district being unable to discharge his duties. Coroners Act (Northern Ireland) 1959 (c. 15) section 6(2).

Miscellaneous Functions

Practice Directions

Current Position — In Northern Ireland there is no statutory provision relating to Practice Directions. A court has an inherent jurisdiction to issue local practice directions to regulate its own procedures provided such directions are not inconsistent with the rules of court or other statutory provision. 9674111003 Page Type [E] 28-06-04 20:11:49 Pag Table: LOENEW PPSysB Unit: PAG1

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Proposals — It is not intended to change the current position.

Court Records — It is intended that the Lord Chancellor’s functions in relation to court records be transferred to the Secretary of State for Constitutional AVairs after consultation with the Lord Chief Justice of Northern Ireland.

Appointments to Committees and Boards — The Lord Chief Justice of Northern Ireland will remain responsible for determining which judges should be appointed to certain non statutory committees, such as the Chairman of the Judicial Studies Board of Northern Ireland and the Children Order Advisory Committee.

Annex B

RULES COMMITTEE APPOINTMENTS — Schedule 5 to the Justice Act already provides for the post devolution transfer of the Lord Chancellor’s functions in relation to appointments to Rules Committees.

Proposals — We do not propose to depart from the arrangements set out in Schedule 5 to the Justice Act. These provisions (except paragraph graph 17 of Schedule 5 which amends section 73 of the Justice Act) will be commenced to coincide with abolition of the oYce of the Lord Chancellor and will be amended to transfer the functions of the Lord Chancellor to the Secretary of State for Constitutional AVairs or to the Lord Chief Justice. Broadly the appointment or nomination of judicial members will transfer to the Lord Chief Justice and the appointment or nomination of others to the Secretary of State for Constitutional AVairs. — In summary this would mean that post commencement of Schedule 5 to the Justice (Northern Ireland) Act 2002 and amendment by the Constitutional Reform Bill, membership of Rules Committees in Northern Ireland will be as follows:

Supreme Court Rules Committee — Lord Chief Justice (Chairman); — four judges of the High Court or Court of Appeal nominated by the Lord Chief Justice; — one practising barrister nominated by the Secretary of State; — one practising barrister nominated by the General Council of the Bar; — the President of the Law Society or his nominee; and — one practising solicitor nominated by the Law Society Council. — The Secretary of State for Constitutional AVairs will designate one of the secretaries to the Committee.

Crown Court Rules Committee — Lord Chief Justice (Chairman); — two judges of the High Court or Court of Appeal nominated by the Lord Chief Justice; — two county court judges nominated by the Lord Chief Justice; — a resident magistrate nominated by the Lord Chief Justice; — the Master Queen’s Bench and Appeals; — a practising member of the Bar of Northern Ireland nominated by the Secretary of State; 9674111003 Page Type [O] 28-06-04 20:11:49 Pag Table: LOENEW PPSysB Unit: PAG1

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— a barrister nominated by the Bar Council; — the President of the Law Society or his nominee; and — a practising solicitor nominated by the Law Society Council. — The Secretary of State will designate one of the joint secretaries to the Committee.

County Court Rules Committee The Committee will be appointed by the Lord Chief Justice and consist of: — three county court judges; — one district judge; — two barristers; — two solicitors; — one chief clerk; and — one other person. — The Lord Chief Justice will consult the Secretary of State for Constitutional AVairs before appointing the non-judicial members of the Committee. — The Lord Chief Justice will designate the Chairman of the Rules Committee and the Secretary of State will designate the secretary to the Committee.

Magistrates’ Courts Rules Committee The Committee shall consist of at least nine members appointed by the Lord Chief Justice including at least: — two resident magistrates; — one barrister; and — one solicitor. — The Lord Chief Justice will designate the Chairman of the Committee and the Secretary of State for Constitutional AVairs will designate the secretary to the Committee.

Family Proceedings Rules Committee — Lord Chief Justice (Chairman); — two judges of the High Court or Court of Appeal nominated by the Lord Chief Justice; — two county court judges nominated by the Lord Chief Justice; — the Master (Probate and Matrimonial); — the Master (Care and Protection); — a district judge nominated by the Lord Chief Justice; — a member of the Bar nominated by the Secretary of State; — a member of the Bar nominated by the Bar Council; — the President of the Law Society or his nominee; and — a practising solicitor nominated by the Law Society Council. — The Secretary of State for Constitutional AVairs will nominate one of the joint secretaries to the Committee.

Insolvency Rules Committee The Committee shall be appointed by the Lord Chief Justice and shall consist of: — the Chancery Judge (by custom the Chairman); — the Master (Bankruptcy); — a practising barrister; 9674111003 Page Type [E] 28-06-04 20:11:49 Pag Table: LOENEW PPSysB Unit: PAG1

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— a practising solicitor; — a practising accountant; and — such additional persons as appear to the Lord Chief Justice to have knowledge and experience as would be of value to the Committee.

Annex C

THE MAKING OF RULES OF COURT

Supreme Court Rules,Crown Court Rules,Family Proceedings Rules

Current Position — Supreme Court Rules, Crown Court Rules, Family Proceedings Rules in Northern Ireland are made by the Supreme Court Rules Committee, the Crown Court Rules Committee and the Family Proceedings Rules Committees respectively, each with the concurrence of the Lord Chancellor. The Lord Chancellor does not have a speciﬁc power to allow, disallow or alter the Rules. The Lord Chief Justice chairs each of these Committees.

Proposals It is intended that: — the Rules will continue to be made by the relevant Rules Committee; — the Secretary of State for Constitutional AVairs will be empowered to allow or disallow the rules (instead of concurring); — where the Secretary of State for Constitutional AVairs disallows Rules, he must give reasons; — the Secretary of State for Constitutional AVairs be given a power to require the Committee to make rules to achieve a speciﬁc outcome.

County Court Rules

Current Position — County Court Rules in Northern Ireland are made by the County Court Rules Committee and are submitted to the Lord Chancellor who, after consultation with the Lord Chief Justice of Northern Ireland, may allow, disallow or alter the rules.

Proposals It is intended to: — provide that where the Secretary of State for Constitutional AVairs disallows Rules he must give reasons; — repeal the power to alter the rules; — provide the Secretary of State for Constitutional AVairs with a power to require the Committee to make rules to achieve a speciﬁc outcome; — the requirement to consult the Lord Chief Justice of Northern Ireland should be retained.

Magistrates’Courts

Current Position — Magistrates’ Courts Rules in Northern Ireland are made by the Lord Chancellor on the advice of, or after consultation with, the Magistrates’ Courts Rules Committee and after consultation with the Lord Chief Justice of Northern Ireland. 9674111003 Page Type [O] 28-06-04 20:11:49 Pag Table: LOENEW PPSysB Unit: PAG1

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Proposal It is intended that; — the Committee will make the rules with the concurrence of the Lord Chief Justice, and after consultation with the Secretary of State for Constitutional AVairs; — the Secretary of State for Constitutional AVairs be given a power to require the Committee to make rules to achieve a speciﬁc outcome.

Insolvency Rules

Current Position — Insolvency Rules in Northern Ireland are made by the Lord Chancellor, with the concurrence of the Department of Enterprise Trade and Industry for Northern Ireland, and after consultation with the Insolvency Rules Committee.

Proposals It is intended to: — transfer the power to make insolvency rules from the Lord Chancellor to the Secretary of State for Constitutional AVairs; — add a requirement that where the rules aVect court procedures the Secretary of State for Constitutional AVairs shall consult the Lord Chief Justice; — other consultation requirements would remain unchanged. 9674042001 Page Type [SE] 28-06-04 20:13:58 Pag Table: LOENEW PPSysB Unit: PAG1

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TUESDAY 6 APRIL 2004

Present Bledisloe, V Gibson of Market Rason, B Carlisle of Bucklow, L Goodhart, L Carter, L Howe of Aberavon, L Craig of Radley, L Kingsland, L Crickhowell, L Lloyd of Berwick, L Elder, L Richard, L (Chairman) Falconer of Thoroton, L Windlesham, L

Memorandum by Dr Kate Malleson, LSE

1. Supreme Court Appointments Commission Clarity needed on rationale for the use of a list of names. Option of giving discretion to the SCAC to determine number of names put forward.

2. Judicial Appointments Commission for England and Wales Clariﬁcation on whether the reasons for the Secretary of State rejecting a candidate will be made public and, if so, how to balance the requirements of transparency with the need for conﬁdentiality.

3. Merit Deﬁnition of merit should be left to the Commission.

4. Diversity Statute should require Commission to take account of the need for the judiciary broadly to reﬂect society at large.

5. Audit of Judicial Appointments Process Need to ensure that the oversight role of the current Commission for Judicial Appointments is continued.

6. Membership of Commission Danger of judicial/legal dominance leading to self-replication and limited innovation in recruitment processes.

7. Involvement of Parliament Accountability vacuum will become more pressing as the role of the Supreme Court expands. April 2004 9674042002 Page Type [O] 28-06-04 20:13:58 Pag Table: LOENEW PPSysB Unit: PAG1

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Examination of Witnesses Witnesses: Professor Robert Stevens and Professor Robert Hazell, Constitution Unit, University College London, and Dr Kate Malleson, London School of Economics, examined.

Q150 Chairman: Good morning. May I thank you It has put the Government on a back foot in their for coming to help us with this inquiry. First of all, subsequent discussions with the judiciary about could I ask you to introduce yourselves for the judicial appointments. In my view the Government purposes of the record so we have it on paper and have now conceded rather too much to the judiciary, then I understand that the three of you would like to especially over the length of the shortlist to be put up make opening statements, after which we will, if we by the Judicial Appointments Commission and, as may, pursue any issues that we think appropriate you will know, that has now shrunk to a shortlist of from what you have said. one. I strongly believe that ministers should continue Professor Hazell: Thank you, my Lord Chairman. I to be involved in judicial appointments and have a am Professor Robert Hazell, Director of the bigger say than is now proposed, and so should Constitution Unit at University College London. Parliament in its classic scrutiny role. On the Dr Malleson: Dr Kate Malleson, Department of Law, executive having a choice, it is very important for the London School of Economics. executive to retain a role in senior judicial Professor Stevens: Robert Stevens, the Constitution appointments primarily so that the Government Unit. itself should retain trust and confidence in the judges. If the Government is excluded from judicial Q151 Chairman: Thank you. appointments it will be less inclined to respect the Professor Hazell: My Lord Chairman, I think I have judiciary or to defend them when they come under been asked to go first. May I briefly congratulate you attack. It is now proposed the Judicial Appointments on your report of last week which was a huge Commission should submit a single name, but, as I achievement and a great service to the people of have suggested, I would like them to provide a Wales. I am not surprised you have been pressed so shortlist. To present ministers with a single name in quickly back into public service in this inquiry. my view assumes too simplistic a notion of merit and we can come on to that, if we may, in our discussion. I quite understand the concern that if ministers are left Q152 Chairman: Thank you very much. with a choice, as they have now, they might allow Professor Hazell: I wanted, if I may, to speak for five political bias to creep into their decisions. To guard minutes and to make three points: the first is that I against that I would like to propose that judicial think there was no need to abolish the oYce of Lord appointments should be subject to scrutiny by Chancellor; the second is to argue that the executive should continue to have the final say in appointing Parliament, with very senior judicial appointees, the judges and should be given a real choice, and the proposed justices of the new Supreme Court and the third is to propose that the executive’s choices should four heads of division being invited to a scrutiny be subject to scrutiny by Parliament. On the abolition hearing. Please do not misunderstand me, I am not of the Lord Chancellor, I agree with the Government proposing a confirmation hearing of the kind that that it was increasingly untenable for the Lord takes place in the United States because in our Chancellor to go on wearing his three hats. The real parliamentary system such a committee would have mischief was the Lord Chancellor sitting as a judge in no power of veto. The main purpose of the hearing the Appellate Committee of this House and the lesser would be to introduce the new appointee to mischief was the Lord Chancellor, a government Parliament and to give the committee the minister, also presiding as Speaker in the House of opportunity to develop a dialogue with the most Lords. Once those two other hats have been removed, senior judges on constitutional, legal and judicial I do not understand why the Government wanted policy, as happened when the Select Committee in also to throw away his first hat and abolish the title another place last year was holding its inquiry into for the function as a Cabinet Minister. No convincing the Government’s consultation papers and heard reason was advanced in the consultation paper and I from several of the senior judges. I sought myself to am not sure that any has been subsequently. It argue this point in a submission to that committee seemed almost as if the Government was casting and I think the submission may have been circulated down the title of Lord Chancellor in an act of to this committee. The committee rejected the mindless modernisation and it certainly put the principle, but in their report they seemed to buy the judiciary in a fright. It raised unnecessary fears that nub of the idea in practice and, if I may, I will just the independence of the judiciary was under threat read two paragraphs from the Committee’s Report. and that in casting aside the oYce the Government They said, this is in paragraph 85: “We agree with the were also casting aside the values which the Lord Government’s view that confirmation hearings with Chancellor upheld as the constitutional conscience of judges would not be desirable. 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6 April 2004 Professor Robert Stevens, Professor Robert Hazell and Dr Kate Malleson formal opportunities to meet justices of the Supreme issue is the details and getting the details right and I Court, including recently appointed ones. This think that is absolutely vital to how successful they Committee has done so. Following discussions with are in achieving their aims. I very much welcome, the Lord Chief Justice we have been able to hold therefore, this Committee having the opportunity to evidence sessions with members of the judiciary from think through a few of the details. I was going to almost every tier, including the Law Lords and the highlight some that I think are of particular Lord Chief Justice. We found these sessions very importance, starting with the Supreme Court fruitful and we all believe they were welcomed by the Appointments Commission that Robert Hazell has judiciary.” The Committee went on to recommend, talked about. There is clearly and rightly an “While we had no convincing evidence to indicate important debate to be had about whether there that confirmation hearings would improve the should be a list of names or just one name put process of appointing senior judges, we recognise the forward. My comment on that would be that I am not potential benefits to public understanding of the role sure why it has to be one or the other. There is a lot to of the new Supreme Court if a practice were to be be said for leaving the Commission itself to determine adopted of inviting judges, including recently whether it should put forward one name, two, three, appointed ones, to appear before an appropriate four or ten names. It may well be that sometimes committee from time to time.” Lastly, in closing may there is one outstanding candidate and the I briefly outline a little bit more about the benefits Commission should be able to say we think this which might flow from a parliamentary committee person is so far above anyone else, this is the name we holding such meetings with the senior judges. It is a want to put forward. There may be other times when sad fact but true that Parliament nowadays has little there are two or three or four equally excellent contact with the judges. Now that there are so few candidates and the Commission may say we think practising barristers in the House of Commons the any of these would be appointable, but they have senior judges are largely unknown to members of the diVerent backgrounds and characteristics which the other place, and Supreme Court justices will be Secretary of State might want to take into account. I unknown to this House once the Law Lords have would second Robert Hazell’s comment that there is departed. There is, in my view, value in a formal a democratic accountability strong argument for presentation of the senior judges to Parliament to having some political involvement in that choice. So foster a continuing dialogue between the judiciary my preference would be to leave it for the and the legislature. Both sides stand to gain from Commission to determine the exact number of names better dialogue between the judiciary and legislature. to be put forward. My second point concerns the For government to work properly requires trust and main Judicial Appointments Commission for confidence between all three branches of government England and Wales and generally I think those and that requires a three-way conversation, not just provisions are well thought through. My one concern discussion and occasional tension between the two concerns the question of when the Secretary of State branches of the executive and the judiciary. In my rejects a candidate put forward by the Commission, view Parliament potentially has a very important and when will that be made public. I am not clear from the constructive and central part to play in that dialogue Bill as it stands what the provisions will be. There are as well. Thank you. clearly strong transparency arguments for saying that we should know as much as possible about the Q153 Chairman: The three of you want to deal with process by which the Secretary of State might reject a the Lord Chancellor first and then come on to the name, but there are clear counter confidentiality Supreme Court. Do you want to do it in three requirements that candidates may be put oV if they patches? are concerned that it would become public Professor Hazell: No, I have said my bit. Thank you. knowledge that their name has been rejected. I think Dr Malleson: I was simply going to highlight some of that needs to be thought through more carefully and the issues right across the Bill that I think need to be explicitly at this stage and not left to develop as and thought about right across the board and I was when any rejections take place. The third point I particularly going to talk about the Lord Chancellor. think has probably been resolved, which is as the Bill Professor Stevens: I was going to talk about the stands the definition of merit the Secretary of State Supreme Court and why we need one and the role of was going to be involved with. My understanding is Law Lords as legislatures. that the Lord Chancellor has now made clear that that would be left to the Commission and I welcome Q154 Chairman: Thank you very much. that, I think that is an important and appropriate Dr Malleson: I will focus my comments on the judicial change. What the Bill does not have is any statutory appointments process. I would like to say that I think requirement that the Commission should take the proposals in this Bill for reforming the judicial account of diversity and I think there should be one. appointments process are to be welcomed. A key I think it is a mistake to think that because merit is the 9674042002 Page Type [O] 28-06-04 20:13:58 Pag Table: LOENEW PPSysB Unit: PAG1

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6 April 2004 Professor Robert Stevens, Professor Robert Hazell and Dr Kate Malleson only criterion and everyone is in agreement it should imperial Court of Appeal very much as our current be the only criterion there cannot be a statutory Lord Chancellor is proposing. On this occasion, requirement in general terms that the Commission however, Lord Chancellor Cairns reported to should take account of the need broadly for the Disraeli at the judges’ breakfast that “all the judges judiciary to reflect the population it serves. This consider the Bill I have introduced ‘the perfection of would leave it out of sync with both the Scottish human wisdom’.” Unfortunately it did not appeal to Judicial Appointments Board and the new the right wing of the Conservative Party and, Lord arrangements that are being set up for Northern Salisbury in particular said, “Well, the judges make Ireland. It is common in most commissions around law as judges. We had better have them in the the world for there to be some statutory requirement House.” He also believed very strongly that in the re diversity; indeed, in South Africa it is a disposal of the highest legal appointments “you constitutional requirement. The next point concerns cannot ignore the party system as you do in the audit of the appointments process. As I understand it choice of a general or an archbishop. It would be a the Ombudsman for Judicial Appointments is not to breach of the tacit convention where politicians and be given an audit role; I think this is a mistake. The lawyers have worked the constitution together for the current Commission for Judicial Appointments has last 200 years”. He added, “Within certain limits of done a superb job over the last two years highlighting intelligence, honesty and knowledge of the law one problems and deficiencies and I am concerned that man would make as good a judge as another”, and a the new system will be set up and there will be no Tory mentality was “ipso facto more trustworthy continuing mechanism for scrutinising whether or than a Liberal one”. In a sense it was really the right not it is achieving what we are hoping it will achieve wing of the Conservative Party that sabotaged and that the work done by the current Commission Cairns’ Bill, which was supported by Selborne and will be lost. I can see it needs to be scaled down, but Cairns, and it brought the judges back into the Lords. I think there should be some mechanism for ensuring It does seem to me that the time has come and as the that there is the possibility of auditing is it actually senior Law Lord has put it a Supreme Court is an doing what we want it to do. My last point would be integral part of a modern democratic state. Lord to echo what Robert Hazell has said about Bingham suggested that as he went around the world parliamentary scrutiny. I know that there is such a he found real confusion on the Pinochet case as to long shadow cast over us by the US confirmation whether it had been decided by the legislature or hearings there is a tendency to think that thejudiciary. I think as you look at modern parliamentary involvement in the process is legislation and at the European Convention on potentially politically dangerous, but I would Human Rights it moves towards some modest absolutely agree with what Robert Hazell has said, separation of powers. Even in the United States there there can and should be a role for parliamentary are checks and balances, but a Supreme Court seems involvement and indeed, as some of you may know, almost inevitable. Certainly, if any part of the House in Canada the Prime Minister has just announced of Lords is elected, it would seem inconceivable that that the two Supreme Court vacancies will be chosen you could then have judges sitting as part of that using some parliamentary involvement. In fact, I am House. My hope is there would be a Supreme Court. going before the Justice Committee of Parliament in I am concerned about some of the statements in the Ottawa next week where they are trying to work consultation document. I think inevitably the through and think about what form that may take Supreme Court is going to be making policy choices. and that is all being done rather on-the-hoof. I I am not speaking as a Realist but inevitably in the suspect that where Canada leads in these sorts of final Court of Appeal judges do make important respects we often tend to follow ten or 15 years later decisions which are in the general area of policy. It is and I think it would be better for us to think about therefore important to have regard to the inarticulate that now and set up some sort of parliamentary premises of those judges. One needs a very wide range involvement at this stage rather than doing it in ten of appointments and I think I would echo what has years’ time. been said earlier, that for that reason one needs, in making that decision, to leave the final decision to the Q155 Chairman: Thank you. executive who should be given a wide range of names. Professor Stevens: My Lord Chairman, if I might talk The other point I would like to deal with is the Law a little about the Supreme Court and I come at it Lords as legislator. I admit that it is obviously true partly as an historian. In 1873 the Judicature Act that the Law Lords at the moment perform many foresaw the abolition of the House of Lords as a useful purposes, they do play a very important part judicial body and that was the end of the Gladstone for instance in reviewing European legislation, but administration. In 1874, at the beginning of the appearances in this day and age have become much Disraeli administration, Cairns became the Lord more significant. Just as we may ultimately have to Chancellor and he brought in a Bill to establish an get rid of judges from certain functions, it may be the 9674042002 Page Type [E] 28-06-04 20:13:58 Pag Table: LOENEW PPSysB Unit: PAG1

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6 April 2004 Professor Robert Stevens, Professor Robert Hazell and Dr Kate Malleson time has come to re-think whether judges should be Professor Hazell: It is not so much the detail of the used so broadly for commissions and committees of functions, the functions would be broadly those inquiry. For instance, before 1832 the judges chaired proposed, but retaining the title I think was an all the parliamentary committees, there would be a important comfort to the judiciary. This is all damage judge chairing this committee, but after 1832 that was now done, I have no remedy for it. It was not the not thought appropriate, although the judges were doing of Lord Falconer. At the time he took up oYce still invited to the opening of Parliament. Until 1898 he was told that the oYce was to be abolished. But I the High Court judges were still invited to address the think in his discussions in the last six to nine months Lords on which way a case should be decided, for with the judiciary it has added to his diYculties example the famous case of Allen v Flood, but we no because, as I suggested, it put the judges in a fright to longer do that. We certainly should not make think that in casting aside the oYce the Government dramatic moves. However useful the Law Lords are, was possibly casting aside some of the values which appearances do matter and the time has come to take the oYce was understood also to uphold. the Law Lords out of the legislature. I am not suggesting they have done harm. I have Q157 Chairman: If you kept the name would you talked about their usefulness. We have left the days still have him sitting as Speaker in the House of of Sumner. You will remember that it was Hamilton, Lords? Lord Justice who came down to the Lords and Professor Hazell: No. defended General Dyer for shooting a crowd of Indians in Amritsar. That was thought to be an Q158 Chairman: So that comes out? entirely appropriate thing in the 1920s. Carson Professor Hazell: Yes, and sitting as a judge. allowed himself to speak on behalf of Ulster while a Law Lord. If you look at the history in the Forties, Q159 Chairman: His judicial function goes? Fifties and Sixties, the divorce Law Lords held up the Professor Hazell: Yes. reform of divorce in this country, which I would argue was inappropriate. The views of Goddard and Q160 Chairman: And he is left with the job of of his immediate successor held up the serious administrating all the courts and doing really what he discussion of the hanging debate and discussions of is doing now except with a diVerent title? ﬂogging. In a way legal decisions like that are too Professor Hazell: Yes. important to be left to the judges and inevitably when Law Lords speak there tends to be considerable Q161 Lord Crickhowell: We have heard you say that deference. I would suggest that it was not appropriate he would no longer sit as a judge and he would not in a way for Lord Bingham and Lord Taylor to lobby be the Speaker, but the Lord Chancellor has gathered so hard in favour of the European Convention on together over the last two decades a very substantial Human Rights, although I happen to support that. additional raft of responsibilities. Are there any Similarly, I would not have thought it appropriate others that you would shed? Do you think there that Lord Scott should have spoken on the hunting needs to be any shedding of other responsibilities or debate, nor for Lord HoVmann to have voted on the would you be content simply to leave it like that? recent vote that established this group. Professor Hazell: I am not an expert on the detail of I would urge you to consider the establishment of the things like church appointments and the other bits of Supreme Court as a logical evolution of the British the Lord Chancellor’s role. constitution and I would urge you to implement the legislation of 1873 and 1874 and bring the Law Lords Q162 Lord Crickhowell: Those are the bits he has as legislatures to an end. had for a very long time. Professor Hazell: I do not think they matter very much either way and I would, if the Lord Chancellor had retained his ancient title, have left him with the Q156 Chairman: Thank you very much. May I residue of those ancient functions. I do not think they thank all three of you for your opening statements. I matter in the scheme of things which this Committee do not think it is possible to structure this discussion is discussing. in any real meaningful way, but perhaps I can abuse my position and start with what Professor Hazell was Q163 Lord Howe of Aberavon: One of the questions saying about the Lord Chancellor. It did strike me that are suggested to us is how would a Secretary of that all you really argued for was a change of name State for Constitutional AVairs, who may have no and that he should no longer be Secretary of State for legal qualiﬁcations, be able to assess whether a Constitutional AVairs but you should go on calling candidate is unsuitable for appointment, how would him Lord Chancellor with a seat in the Cabinet. What the non-lawyer be able to assess whether or not a additional functions would he have? judicial appointee was appropriate or not. That is too 9674042002 Page Type [O] 28-06-04 20:13:58 Pag Table: LOENEW PPSysB Unit: PAG1

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6 April 2004 Professor Robert Stevens, Professor Robert Hazell and Dr Kate Malleson narrow a way of posing the question. Would it not be matters of that kind which do not involve an advantageous if the post of Lord Chancellor was still enormous spending department? held by a lawyer of some seniority, because the whole Professor Hazell: I hope my colleagues will also help of his engagement is in managing legal questions? to answer. I am not an expert in this. I would leave all This does not mean that the NHS should be run by a the functions under a single ministry. I do think that doctor, but the special reason for Lord Chancellor is they are interconnected. One cannot hive oV the that it is not just his title but his responsibility for administration of the courts because they relate to judicial independence that would be enhanced if he law reform etcetera. were to be a senior lawyer of a judicial kind. Professor Stevens: I would certainly support the idea Professor Hazell: For me the importance of the oYce of maintaining the title. I think it may well be a lawyer is that it stood for certain very important who does this. I do think it is possible, as the constitutional or legal values which I have Campbell Committee has shown, which is exclusively summarised in shorthand to be the constitutional composed of non-practising lawyers— conscience of the Government, to uphold the rule of law and to defend and protect the independence of Q166 Lord Goodhart: Non-lawyers? the judiciary. I think your question is whether to Professor Stevens: Non-lawyers or non-practising Y uphold those values the holder of the o ce needs to lawyers. That has shown that you really can do an be a lawyer. I am not myself sure. In other common excellent job in handling issues of judicial law countries there is generally a position in the appointment without that. I would hope that the title Government with the title Minister of Justice or some Lord Chancellor would be kept, but I think already such and in those other common law countries—I there has been very useful progress in pushing back hesitate because I am not certain—I do not think it is the situation as to how it was before 1880 when necessary for the Minister of Justice to be a senior originally the three chief justices where basically the lawyer. point persons with the politicians and were responsible for judicial discipline and various other Q164 Lord Howe of Aberavon: But what I am really things. That is established and if you maintained the asking is, given that the chap who does this job has oYce of Lord Chancellor I would hope very much been Lord Chancellor and for much of the time but that that would not be lost. I think it would be not forever he has been a lawyer and given that the perfectly doable even at this late stage to maintain a Attorney General at least still has to be a lawyer, I am Secretary for Constitutional AVairs who was also not sure that that is embodied in the Statute, the Lord Chancellor or even just call the person Lord Solicitor General does not always fall into it. Would Chancellor. it not be an advantage not to discard the title and not to discard the fact and reality that it should normally Q167 Lord Carlisle of Bucklow: Professor Hazell, be held by a lawyer? Is the ship not so wrecked that whilst accepting the case for a Judicial Appointments those two elements cannot be restored? Committee, you lay great stress on the fact that it Professor Hazell: I think I come half-way with you, should be executive responsibility for the but I am not certain in my own mind whether it is appointment of judges and you were critical of the necessary, in order to uphold those values, for the idea of only one name going and it should be more post always to be held by a lawyer. names from which the Executive could then choose. Is it not far easier to achieve that end with the Q165 Viscount Bledisloe: Firstly, is the distinction existence of a senior lawyer as Lord Chancellor not merely one of names but the distinction between responsible for making the ﬁnal decision rather than a senior person for whom the oYce is the pinnacle of a junior member of the Cabinet who may have had no his political career and the enormous totality of legal experience at all? politicians who hope to rise to yet greater oYce? If Professor Hazell: I think Dr Malleson may help me you think that that is a real distinction, does the answer this because she is one of the great experts on mischief not initially stem from the enormous judicial appointments in overseas countries. The aggregation of the role of the Lord Chancellor and argument for allowing the executive to have a wider the enormous budget he now has because of the choice, as I put it, is that that is generally the system Courts Act, and did we not go wrong in 1872 when in common law countries. These are very important the Lord Chancellor was put in charge of the political decisions particularly for the senior administration of the courts? Is not the right answer judiciary. I feel very uncomfortable at allowing such to reverse that and have a Secretary of State an important political decision to be made eVectively administering this enormous budget and then the by the Judicial Appointments Commission with no Lord Chancellor as the pinnacle of judicial real element of discretion for the Government. I can responsibility though not a judge himself and in only repeat what Dr Malleson has said, which is that charge of law reform procedure and uncontroversial it is very important for the democratic legitimacy of 9674042002 Page Type [E] 28-06-04 20:13:58 Pag Table: LOENEW PPSysB Unit: PAG1

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6 April 2004 Professor Robert Stevens, Professor Robert Hazell and Dr Kate Malleson the judges that the executive is involved in their Q170 Lord Goodhart: Is he not faced with an appointment and is involved in a real way and not in impossible situation if, for instance, he is told that he a formal rubber-stamping way. has to cut legal aid and the judges come to him and say, “This is a real problem with access to justice”? Is Q168 Lord Carlisle of Bucklow: Does that not there not therefore really a conflict that he really strengthen the argument for the retention of the Lord cannot resolve? Chancellor as a person and probably a senior lawyer, Professor Hazell: But, if the function were divided making it easier to achieve that end? between two ministers, it is still a conflict that would Professor Hazell: Yes, but in the new scheme of have to be resolved within the Government. things, the Lord Chancellor’s discretion would be significantly fettered because of the role of the new Q171 Lord Goodhart: Is it not a case for saying that Judicial Appointments Commission. That is a big you want to in fact prelate, as I think consecutively change compared with now and, in my scheme of this Bill would do in England and Wales, that you the things, if it were accepted, it would be subject to role of defender of the judiciary goes to the Lord scrutiny by Parliament, so that if, on looking at the Chief Justice and not to the Lord Chancellor, that it dangerous side as it were, this non-senior lawyer, a needs to be someone outside the Cabinet? member of the Government possibly with future Professor Hazell: The Lord Chief Justice will be the ambitions, were to make an appointment which was professional head of the judiciary, yes, and a very regarded as contentious, Parliament is there as a very important new function for him will be to be a much important safety net with its scrutiny role to try to more public head of the judiciary and public face and prevent that kind of risk or that kind of political bias. spokesman for the judiciary. I still think it is So, I think there are other checks and balances that important for there to be within the executive would ensure that the appointment process was not someone who is also charged with being a protector abused. and defender of the independence of the judiciary Dr Malleson: I would second that. when they come under fire. I mentioned this episode in Australia where again I am not master of the detail and maybe my colleagues are, but the judiciary came Q169 Lord Goodhart: Going back to Professor under serious fire from the press and it was very Hazell once again, the role of the Lord Chancellor regrettable that no senior minister in the Australian has in fact changed enormously over the last 30 years Government at the time came out to defend them. It or so as Professor Stevens has shown in his history, was the subject of much comment in Australia that and, in particular, is there not now a serious conflict no one did come out. between the role of the Lord Chancellor or the Secretary of State in running a major government department that is spending £3 billion a year and the Q172 Lord Goodhart: Would you expect a Lord role as protector of the judiciary? For example, we Chancellor to do that? have had great battles between Lord Mackay and the Professor Hazell: Yes. judiciary over the Courts and Legal Services Act 1990 over issues like legal aid. Q173 Lord Goodhart: As a Member of the Cabinet, Professor Hazell: Yes. I do think it is terribly his collective responsibility? important for the good working of government for Professor Hazell: Yes. all three branches of government to have mutual respect and trust in each other and it is seriously Q174 Lord Craig of Radley: If I could turn to the damaging to the good working of government and to Supreme Court and perhaps ask a question of democracy when one branch of government loses Professor Stevens. One of the problems with all of trust or allows badmouthing of another branch of this discussion is that the foundation stone, the government. These are not artificial risks. In Second Chamber, is itself not entirely or has not been Australia, we have seen some of that against the fixed. At various stages, we have talked about a judges in recent years. So, I think it is important that hybrid or even a fully elected and we are now working the Government have someone who sees one of his on the presumption of a fully appointed House and I roles as being to uphold the independence of the think it is important to see whatever we are talking judiciary and to protect the judiciary when they come about against that background. The court is going to under fire. I do not myself quite follow why it is be extremely expensive. You feel it is important, for harder for that to be done by a minister because he is presentational reasons and for moving with the right the head of a relatively big spending department. If steps of history as it were, that there should be this he still has that as an important part of his role, it change. The kernel of the problem, as I understand it, does not matter to me whether his budget is £100 is that the Lord of Appeal may sit and vote and million or £3 billion, it is an important part of his debate in the House and the 1876 Act gives him that role. right. Have you considered whether an amendment 9674042002 Page Type [O] 28-06-04 20:13:58 Pag Table: LOENEW PPSysB Unit: PAG1

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6 April 2004 Professor Robert Stevens, Professor Robert Hazell and Dr Kate Malleson to that Act, which by statute prevented him doing argument Professor Hazell has put forward is the so- that, he is not just relying on some undertaking by the called tension or conflict which Lord Goodhart has law lords that they would not do so, would provide been addressing. Are you aware of any other suYcient public protection and perception that they argument which has been put forward for the were not part of the legislature and that they abolition of Lord Chancellor? therefore continue to act as they presently do as an Professor Hazell: In the Government’s own appellate court. consultation paper—and I would need to check it Professor Stevens: My Lord, I think you have raised a again—the main arguments advanced were the number of issues there. Of course, it is slightly easier increasing incompatibility particularly under the to keep them if you have an all appointed House. It European Convention of the Lord Chancellor sitting seems to me once you have any kind of elected as a judge as well as being a minister and in relation element, they have to go. I am not certain about to his role as Speaker of the House. I forget the detail saying they are members of the Lords but they are not of the argument but the latter is a time consuming allowed to vote or speak. That seems to me a rather role, even now it is shared with other Members of this messy compromise. I do think it is very important for House, and I am strongly in favour of the Lord perception, as we are now committed to the Chancellor giving up both those additional hats as I European Convention on Human Rights, and while hope I made clear. Where I feel slightly lost in what that might not ultimately strike down the laws, it the Government have proposed is why, having doVed certainly points in the direction of having a modest hats number two and three as it were, they also felt it separation of powers and there is not a modest necessary to cast aside hat number one. separation of powers at the moment. I think the discussion of the cost of a supreme cost is commendable and, as one looks at the cost of Q176 Lord Lloyd of Berwick: On the second buildings like the legislatures in Wales and Scotland, argument, the so-called tension or conflict which I can understand the nervousness of legislators on exists in the role of Lord Chancellor, as I understand this very issue. On the other hand, if you take the it, you are saying that that conflict is going to exist judges seriously and you think they are important somewhere in Government—and, by conflict, I mean and you think the judiciary is important and we have the conflict between upholding judicial independence talked about the independence of the judiciary since and the rule of law on one hand and, on the other the Act of Settlement in 1701, it would seem to me hand, running a large department—and am I right in that the very least one can do is to put some money thinking that your view is that that conflict, if you call into the judiciary and to provide them with a home it such, should best be resolved in an individual rather for a supreme court. I think it would be really quite than by having two separate individuals fighting it sad considering what we spend on legal aid if there out between yourselves? were not enough money to convert some building in Professor Hazell: I think that is my view. The London to a reasonably elegant, but not countries I know best amongst what you might call ostentatious, building appropriate to a Supreme our close constitutional cousins are Australia, Court of the United Kingdom. Certainly as Canada and New Zealand. In Australia, they have a devolution bites and it becomes clearer that we are minister who is called the Attorney General but, to all much more like a federal state, it is immensely intents and purposes, he is the Minister of Justice important that we have institutions like a Supreme and, in New Zealand and Canada, he is called the Court of the United Kingdom that would hold the Minister of Justice and performs essentially the same diVerent parts of the nation together. set of functions, give or take a bit, as the Lord Chancellor here. Amongst those functions, I think he Q175 Lord Lloyd of Berwick: Can I go back to the is expected to have day-to-day working relations with question of the abolition of the role of Lord the judiciary and, when necessary, to uphold the Chancellor which is primarily Professor Hazell’s independence of the judiciary. As I said, in Australia point but I would very much like to know to what recently, that convention has broken down. You did extent Professor Stevens and Dr Malleson actually ask my colleagues to reply too. agree with Professor Hazell on what he said in that respect. As I understand it, really two arguments so far have been put forward for the abolition of the Q177 Lord Lloyd of Berwick: Before your colleagues Lord Chancellor. The first is the workload and am I come in, my final question is, if the oYce of the Lord right that Professor Hazell’s view is that that could be Chancellor is abolished and if he is currently fulfilling solved, or at least to some extent solved, by a hiving a valuable function in resolving this tension, how do oV the role of Speaker in the House of Lords and also you look on Clause 1 of the new Bill? Do you think of course the additional help he is going to get from that will, as it were, do the job as well or do you the Judicial Appointments Commission? The second have doubts? 9674042002 Page Type [E] 28-06-04 20:13:58 Pag Table: LOENEW PPSysB Unit: PAG1

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Professor Hazell: Clause 1 is the statutory duty? Professor Hazell: Briefly, no. In answer to the last part of the question, I do believe strongly—and perhaps I Q178 Lord Lloyd of Berwick: Yes. can partly answer Lord Windlesham’s question Professor Hazell: It will have to do the job if the oYce about modernisation—here in the case for a new goes and the implicit values that the oYce held. As I Supreme Court and therefore in the law lords leaving say, the damage may well have been done, so I do not this House and being in a proper court and I also want to press this point too hard. The Government believe in the case for the Judicial Appointments having decided to abolish the oYce in a way have Commission. In answer to your question, Lord broken the vase and it may be too late to put the Carter, I do not have a strong view about the need for pieces together again. a Secretary of State to be a Commons or a Lords minister. I do think this House has a particularly important role to play as a guardian of the Q179 Lord Windlesham: Could I ask whichever constitution. That was recognised in the report of the member of the panel of witnesses would like to take Royal Commission chaired by Lord Wakeham and I up this general question which relates to the concept think has been endorsed in subsequent White Papers of modernisation which lies behind a great deal of and comment and debate about the role of this these wide spread and largely unexpected changes. House, however composed. If, as I have suggested, Do you accept that the ideal of modernisation should one important function of the Lord Chancellor or have played such a dominant role in restructuring the Secretary of State is to be a guardian of the institutions of justice? I address this question to the constitution, then, in that respect, it is entirely witnesses and not to my fellow members of the Select appropriate for that minister to be a Member of Committee sitting on the Chairman’s right! this House. Professor Stevens: A highly philosophical question to ask mere lawyers! I am always sceptical when people talk about progress as the reason for change and Q181 Lord Carter: So, the convention would arise modernisation, I suspect, fills me with some of the that that job would always go to a Member of the feelings of scepticism. I think it was a messy situation. House of Lords? I think it was right for the Government to address Professor Hazell: It does not trouble me at all, in fact I some of the issues there. I chaired a committee in the rather welcome it, if that function rests in this House. mid 1990s for Justice on Judicial Selection and we recommended a system of a judicial appointments Q182 Lord Kingsland: Professor Hazell, my question committee which would be advisory, leaving the really flows from a series of questions that you have executive power in the hands of the Lord Chancellor. been asked about the role of the Lord Chancellor, in I think there were very good reasons for some of the which House he should sit and as to whether or not changes but I think that when you adopt a broad he should be a lawyer. Setting aside those issues, you, generic mantra like modernisation, you do run the in your opening remarks, said that the Lord danger of doing unnecessary damage even though I Chancellor had an important role in defending the readily admit that some important evolution was rule of law. Would you accept that that, from time to necessary. time, might bring him into conflict with a senior member of the Cabinet like the Home Secretary? If Q180 Lord Carter: I am still a little confused as to you would accept that, would you further accept that how you see the role of the Lord Chancellor, whether to stand up for rule of law in the Cabinet against a it is just the title or the function that you are political figure who would be as authoritative as the concerned with. If it just the title and just as an Home Secretary, the Lord Chancellor, or the historical use, of course there are other examples in Secretary of State for Constitutional AVairs, would government now, the Lord President of the Council/ have to wield equivalent authority in Cabinet? He Chancellor of the Duchy of Lancaster which you can would have to be, in other words, fearless in tack on to other ministers, as it were. If it is a non- protecting the rule of law against all comers. Would lawyer, presumably it is almost certain that the role you agree with that proposition? would be in the House of Commons, that the person Professor Hazell: Yes, but, if I may, I would like to who would fulfil the role, I would think it is seen as a generalise it a bit rather than personalise it even political job in that sense. If, on the other hand, one between those oYces because what you have accepts the argument that it should be a senior described is a tension which is universal between the lawyer, as we have heard, then presumably that values of justice on the one hand and the values of would almost certainly have to be a Member of the order on the other. Post 11 September 2001, the House of Lords to get the seniority which you would conflict between those two values has become really wish. Would it then be rather odd if that happens to acute and very diYcult I think for all advanced have the law lords excluded from the House of Lords democracies and all governments are wrestling with but the Lord Chancellor still sitting there? how to resolve the tension between those two values 9674042002 Page Type [O] 28-06-04 20:13:58 Pag Table: LOENEW PPSysB Unit: PAG1

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6 April 2004 Professor Robert Stevens, Professor Robert Hazell and Dr Kate Malleson and coming down at diVerent points on the spectrum. think that one thing that has not been discussed that So, this tension is universal, all governments have to ought to be discussed is the very, very important address it and generally in most governments there is concordat that has been devised between the Lord one figure, call him the Minister of the Interior or Chancellor and the Lord Chief Justice which I think whatever, who upholds the values of order and there is an incredibly important document and tries to set is another figure, often called the Minister of Justice, out in detail quite rightly what the new arrangements who upholds the values of justice. They will always will be to ensure that the judiciary itself can really clash. carve out a new role, a role that it has not played in the past, in defending itself and, for example, the role of the Judges’ Council which has been relatively Q183 Lord Kingsland: I accept that. My question unimportant in the past but will clearly be very was rather to the relative strengths of the two figures important in the future. That needs to be thought in Cabinet. If there is to be a conflict between order about a lot more and I do not think that enough and justice in the Cabinet, would you agree that the attention has been paid to that side of the equation person representing justice ought, in principle at any and, certainly looking at what goes on in other rate, to be a political figure, whether or not a lawyer, common law countries, it is clear that that is the way of equivalent political weight to the Home Secretary? in which we are moving and that more time and Professor Hazell: Ideally, yes, and, in most attention needs to be played to that part of this governments, the Minister of the Interior is a change. relatively senior minister. Interestingly, in governments which have introduced an enforceable Bill of Rights, the Minister of Justice has become a Q184 Lord Kingsland: My second question is about much more important figure politically. In Canada, Dr Malleson’s remark about merit. Dr Malleson, I that has been strongly remarked upon. They have was very glad to hear that you think merit should had an enforceable Bill of Rights for 20 years since remain the sole criterion as a basis upon which judges the introduction of the Canadian Charter of should be selected; and you went on to draw our Fundamental Rights and Freedoms in 1982. We did attention to the Scottish and Northern Ireland rules. some research on that and one of the things I had not I am not as familiar with the Scottish ones as I should expected in interviewing both in provincial be; but I do know a little about the Northern Ireland. governments, which were aVected by the legislation, There, the rule is, as I understand it, that merit is the as well as the federal government was that some of sole criterion but that eVorts should be made over our interviewees, including civil servants, said, “One time by the Judicial Appointments Commission to of the unexpected eVects has been that the Minister of choose a judiciary which is more reflective of Justice is now much more important in the Northern Ireland society; and the tool by which this Government” and some even went so far as to say objective is to be achieved is an open-ended that he was equivalent in weight to the Minister of programme to widen the net of possible candidates so Finance. Our own Human Rights Act is less than five that, ultimately, the Bench might be more reflective years old in terms of its coming into force and I think of Northern Ireland society. Is that the sort of we have yet to see the full knock-on eVects of that approach that you envisage for our own judicial very, very big constitutional change and I do think appointments system? that our own Minister of Justice figure is going to be Dr Malleson: Absolutely. My comment would be that an increasingly important member of the there is no magic wand that is going to solve this Government. problem. It is a problem which requires detailed Dr Malleson: Could I just follow on from that just to thought and care probably over a number of years raise an issue which I do not think has yet been but it also requires positive action, it requires this discussed. While I certainly agree with what Robert issue to be prioritised, and why I think it is important said, I think the bottom line is that, whatever the for this to be clearly stated in the statue is that the details are that are finally settled on, the new issue of diversity must not slip oV the agenda in the Secretary of State or even if he is called the Lord years ahead and there is always a danger of that Chancellor is not going to have the power and happening when what is required is, as you say, a authority in Cabinet that the old oYce of Lord careful programme that has to be instituted over a Chancellor had. That is simply past, that is the reality number of years. of the position. Therefore, when thinking about the Lord Kingsland: Thank you. kind of inevitable tensions that we have talked about, Professor Stevens: May I comment very briefly on one important question is to how ask how the judges merit too. I have spent much of the last 25 years themselves are now going to defend their trying to run universities and colleges. I have no idea independence because the bottom line is increasingly how judges are chosen but if you look for a professor that the judiciary itself is going to have to be prepared and you recruit nationally, you will come to a more publicly to defend judicial independence and I shortlist of four or five people, all of whom meet a 9674042002 Page Type [E] 28-06-04 20:13:58 Pag Table: LOENEW PPSysB Unit: PAG1

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6 April 2004 Professor Robert Stevens, Professor Robert Hazell and Dr Kate Malleson very high criteria of merit, and you will find one that that is a priority, so that when the Commission person in Harvard and one in Edinburgh and in goes about doing its work, those who are really diVerent places and you may well say that they have thinking along those lines can remind others perhaps particular characteristics: one may be a woman, one on the Commission that this is one of their jobs, that may have a particular speciality in something or their first and paramount job is to appoint the best other. What makes me a little nervous is merit is so possible judges that they can, but their equally often assumed for one person, who may look important job is to do that while encouraging greater surprisingly like the current incumbent who will diversity in the judiciary. automatically be chosen. It does seem to me that, as the Chief Justice of Canada said, “Merit is in the eye Q186 Viscount Bledisloe: My question follows on of the beholder”. I think one needs to realise that from what Professor Stevens was just saying and there may be more than one person. Merit is not what you said earlier about the ministerial and the synonymous with, there is only one possible parliamentary selection of government. I can see that candidate and, if you really want to make a more ministers and perhaps even Parliament should be diverse bench, then it is not impossible to make a able to distinguish between various types of more diverse bench without retreating from the candidate and say, “Could I not have somebody who notion of merit. has come from the circuit bench because I want to encourage that career rather than get another Q185 Baroness Gibson of Market Rasen: I too want commercial highly-paid barrister?” or “could I not to ask a question about merit and the tension have an academic?” or “is there no qualified between it and taking into account diversity. One woman?” I can quite see that that is a suitable topic interesting thing is when Dr Malleson said something for a minister to pronounce on. However, if you have almost in passing when she used the phrase “positive two candidates of the same category, two commercial action” and I would like her to talk about that a little silk practitioners, and the Commission thinks that more in this context. The other point is, should there one is more qualified than the other but that one is, be anything on the face of the Bill in relation to this let us say, Lord Donaldson at a time when he had or should it be, as you seem to be indicating, been sitting on industrial VAT, when the minister something that evolves over time? My worry about rejects one candidate in favour of another similar that is that, if it is not on the face of the Bill, it may one, perhaps because he has a political history to him be forgotten. which the party in power does not like, is that not Dr Malleson: My answer is that I would not want to undesirable and should not the ministerial choice be be prescriptive for the Commission. I think the restricted to choosing between the category of person Commission is going to have to do this by itself; it is they want? Dr Malleson: going to have to roll up its sleeves and say, “What are Are you talking specifically about we going to do? What other areas are we going to Supreme Court appointments here? look at?” That is why the lay members are absolutely vital in this Commission. We have seen that in Q187 Viscount Bledisloe: I am talking about all relation to the current Commission for Judicial judicial appointments. Appointments which is eVectively all lay people and Dr Malleson: In relation to all judicial appointments, why they have done, in my view, such a good job is the current proposals on the Bill for the Commission that they have brought an enormous range of for England and Wales— expertise of other human resources application processes in both public and private life and they Q188 Viscount Bledisloe: You were putting a theory have been able to look at the judicial appointments that there should be a longer list. process through a lens and say, “This is most Dr Malleson: I was talking in relation to the Supreme peculiar. Why is this done this way? Could this be Court because I would certainly agree with both better done that way?” It is that kind of thinking, that Robert Hazell and Robert Stevens that Supreme kind of innovative developmental thinking, which Court judges do do a diYcult job and they are has to be done. It also has to be done hand in hand increasingly going to be doing a diYcult job and with the legal profession: the Law Society, the Bar indeed an element of democratic accountability there Council, chambers, firms, they all have to start to which is much more pressing and much more think and be forced to think about their systems and important and is going to become more important, any way in which they might be indirectly but my proposal was that I would be quite happy to discriminatory etc. How they can widen the leave to the Commission whether they put forward recruitment call to bring in the talent that is there that one or five names. One of my concerns, which I think might not be coming forward. So, I would not want perhaps Robert Stevens shares, about having a list is necessarily to specify on the statute how that has to that one danger is that you can sometimes end up be done. 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6 April 2004 Professor Robert Stevens, Professor Robert Hazell and Dr Kate Malleson outstanding candidate who is perhaps more of an Q192 Lord Goodhart: A very short question, individualistic possible appointment and a slightly Professor Hazell in response to a question from Lord blander one, it may be that the Secretary of State will Kingsland you were talking about the relative tick the blander, safer appointment, and so it might standing of ministers of interior and ministers of be in that circumstance that the Commission might justice in some overseas countries and saying that a say, “We would like to just put forward one name, we minister of justice was equal to that of a ministers of do not want to put forward two names” and I would interior, in order to achieve that in this country would be quite happy with that. the Secretary of State or the Lord Chancellor have to be a proper minister of justice and therefore have responsibility for criminal justice and criminal Q189 Viscount Bledisloe: The other level, you are procedure as well as for court administration and content with one name going forward and the civil justice? minister’s power merely to be to say, “Can you not Professor Hazell: Yes. In my view he is a minister of V find us something di erent?” and they either do or justice already in all but name. A minister of justice do not. and, I am delighted to say, constitutional aVairs as Dr Malleson: Yes. Raising the issue I did about the well. I am pleased that at last responsibility for the mechanism by which the minister does that which I constitution has been brought together in the justice do think we yet have plans about. The minister portfolio, which is again where you find clearly has to give reasons. We are not even yet clear responsibility for the constitution in the other what are legitimate and illegitimate reasons. Is, for Commonwealth countries which I have already example, diversity a legitimate reasons? I think there mentioned. If you map out the detailed list of needs to be a debate and a discussion about that and functions of those other ministers of justice you do clarification on that and is that going to be made not get any standard list and, yes, responsibility for public? the criminal law should probably move across to sit alongside responsibility for the civil law. I do not think that is hugely important by comparison with Q190 Viscount Bledisloe: Do you accept that the other dimensions of the argument. certainly for initial appointments from the bar or from a profession of any kind it would be absolutely disastrous if there was any reason why the reasons or Q193 Lord Howe of Aberavon: I think the answer to the fact of being rejected came out, unless you this is very straightforward, Professor Hazell, in your yourself choose to challenge the decision, because it written evidence to the Commons committee you could be enormously damaging to the career you will made it clear that the proposed scrutiny of judicial have to stay with when you have been rejected? Do appointees would take place after they had been you accept it should be open only to the individual to appointed, with no power to veto, exactly as say “you rejected me for bad reasons and I am happened with the Monetary Policy Committee. challenging you”, and therefore it will come out, but Professor Hazell: Yes. otherwise it will remain entirely private. Dr Malleson: Probably the solution to this, and I Q194 Lord Howe of Aberavon: Are you still standing would be interested in other people’s views on this, is by that set of proposals? for the reason to be given to the Commission and for Professor Hazell: Yes. If I can briefly remark on that, the Commission to have an obligation in its annual people talk in shorthand about confirmation report to provide a very general statement about the hearings when any suggestion of Parliamentary basis on which candidates were rejected or sent back, scrutiny and judicial appointment is proposed and if any were. I think it is important that we clearly with an immediate shudder because of the way that known how often there are rejections and in broad they sometimes take place in the US Senate. I am not terms why but without it being possible to identify the proposing confirmation hearings in the literal sense, individual. that the committee would have a power of veto. In our parliamentary system parliamentary committees do not have that power in relation to any executive Q191 Viscount Bledisloe: There would be very function, but they do have the power of scrutiny. intense speculation as to who the characters in the Parliament has the power to scrutinise all acts of the room other than them self are. Executive. Senior judicial appointments are an Dr Malleson: Luckily we do make so many important act of the Executive and in my view should appointments every year, it is such a big system, that be subject to parliamentary scrutiny. Since you that helps, it is not like Scotland where they are really mentioned the Monetary Policy Committee, this has only making a handful of appointments, we are been a working example for the last five years or so. making up to 900 a year. These are new appointees on that Committee Chairman: Lord Goodhart. appointed by the Chancellor of the Exchequer, and 9674042002 Page Type [E] 28-06-04 20:13:58 Pag Table: LOENEW PPSysB Unit: PAG1

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6 April 2004 Professor Robert Stevens, Professor Robert Hazell and Dr Kate Malleson the Treasury Select Committee hold a brief scrutiny the senior judges, they have never met them. There is hearing and have a discussion with them about their for me some real value, it may be purely symbolic but views on interest rates, monetary policy and I think there is some underlying substance in the exchange rates, and the like, and it is that kind of senior judges being introduced to Parliament, model which I have in mind. preferably to meet a joint committee because they need to be introduced to both Houses of Parliament, Q195 Lord Howe of Aberavon: You are really saying after all it is both Houses of Parliament which that you hope the Committee will have the confidence ultimately have the power to dismiss a judge. to come. Professor Stevens: I would just add my Lord Professor Hazell: The point I am trying to make is it Chairman that I think they are likely to be very does not need to be in the Bill and it does not need the diVerent from a hearing before the Judiciary Government to agree to this, it is entirely a matter for Committee and the Senate. While I do not entirely Parliament. If you accept any of the argument that agree from a philosophical point of view with what the legislature has a role to play then it would be for the Lord Chancellor has said in his consultation the legislature to decide to do this. paper on the Supreme Court I would agree in general terms that the judges play such a diVerent role in the English constitution from the American constitution Q196 Lord Howe of Aberavon: That is very that you are not liable to be able to have hearings like reassuring clarification. Dr Malleson, you may have the Baulk hearing on people’s personal philosophies. noticed apropos the composition of the Wakeham I would strongly support my colleague Professor Commission, the Government’s White Paper, the Hazell. report of the Public Administration Committee and the report of the joint committee in both Houses emphasises the diversity alongside the implication of Q198 Lord Howe of Aberavon: I have heard stories merit, that was not regard as an oVence against the far more terrifying than Baulk from the scrutiny Holy Ghost! judicial appointees in South Africa, who reassured Dr Malleson: I am pleased to hear that. me they are nothing like at bad as they are in Nigeria. I wonder whether in each of those jurisdictions they Q197 Chairman: Can I ask before Professor Hazell are pre-appointments or true confirmatory leaves the point for confirmation. In eVect in the investigations? V hearings before Parliament if the putative judge was Dr Malleson: In South Africa it is a di erent interview cross-examined it would be a confirmation hearing, because it is an interview before the Judicial although there would be no right to veto. Appointments Commission itself. I have actually sat Nevertheless one has seen in America possible in on some of those and I have to say my experience Supreme Court judges being grilled for a day about was they were extremely sensitive and well handled, their background and about the political that was two years ago and it may be that things have implications of X, Y and Z. Surely one would go changed. That Commission has Members of through the same process though without Parliament on it, it is a very large body of 25, I do not parliamentary veto, or maybe Parliament should think it is analogist with the situation here. I would have a say in it if it is going to go very deeply into just add in relation to what Robert Hazell proposes, some of that direction? which I would absolutely support, I suspect that the Professor Hazell: I think both Parliament and the judges themselves if this is introduced will come to judges will be on their best behaviour. For me there appreciate the opportunity of putting forward their are arguments of substance, which I will not rehearse broad views. Having sat in on the evidence given by V again, about why these hearings might take place. senior judges to the Constitutional A airs There are also presentational arguments which are Committee I was very impressed with the openness of almost arguments of protocol. There is a principle in the judiciary’s willingness to express its view and how international law—the lawyers here will know it— informative and interesting those individual views called “comity” which translated into English I were. Lady Hale talked about here vision of what the understand to mean “mutual respect”. What I fear is new Supreme Court would look like, the kind of cases that if judicial appointments become largely the it would take, what changes might be involved and I responsibility of the Judicial Appointments think that was absolutely fascinating and very Commission and the Executive has little more than a informative for the public and for Parliament. rubber-stamping role then the other two branches of government, the Executive and legislature, will be Q199 Lord Lloyd of Berwick: I have a question for increasingly distanced from this whole process. As I Professor Steven’s on the Supreme Court, the said in my opening remarks, nowadays Parliament positive case put forward in favour of a Supreme has little contact with the judges. 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6 April 2004 Professor Robert Stevens, Professor Robert Hazell and Dr Kate Malleson throughout a belief that the public really not only do Professor Hazell: Yes. not understand what role the Law Lords play but actually believe that the Law Lords are in some way Q205 Lord Falconer of Thoroton: In answer to a biased, that their decisions are political decisions question Lord Carlisle put to you you do not think made for reasons which are not judicial at all. That is that role should be restricted to a lawyer, the Prime the case which is put forward, as I understand it, has Minister should be entitled to appoint whomsoever there ever been any research done on whether that he or she thinks fit? perception does exist amongst the public? Professor Hazell: Yes. My answer to that question Professor Stevens: I have no idea, I was actually was hesitant because it is not something that I have quoting Lord Bingham who says this is the ever thought about. Being forced to think about it perception. I think he was referring to his travels today on my feet I do not think it need necessarily be round the world, particularly in respect of the confined in future to being a lawyer. As I said in Pinochet case, this was thought to be a decision of answer to previous questions, the reason why I am Parliament in the minds’ of many people he had still attached to the title is because of the values which spoken to. I am not certain that there is really any that title was seen to represent and to uphold. public opinion. The Times commented in 1874 when the right of the Conservative Party was trying to Q206 Lord Falconer of Thoroton: Why do you think sabotage the Imperial Court of Appeal and they the three roles are untenable now? claimed that public opinion was opposed to it and Professor Hazell: In relation to sitting as a judge I do The Times commented in 1874 “there is no public not think we would disagree. It is first the risk of opinion on this subject any more than there is on the challenge under Article 6 of the ECHR. As members transit of Venus”. I suspect not much has changed of the Committee may be aware the Law Lords since 1874. themselves, my understanding is, quite strongly disliked it when the Lord Chancellor did sit as a Q200 Lord Lloyd of Berwick: Even now there is no judge. That is not a comment on any individual Lord more public opinion than on the transit of Venus. If Chancellor— the basis of the case for a Supreme Court is public perception ought we not to find out whether it exists Q207 Lord Falconer of Thoroton: I agree with that. or not? Professor Hazell:—it goes back several Lord Professor Stevens: I am delighted that your Lordship Chancellors that the Law Lords have disliked it. has been converted to the wonders of social science but I suspect it would be a long, ten year process and Q208 Lord Falconer of Thoroton: If there is no probably not justified. longer a head of the judiciary it means there is no longer a disciplining judge to do it, do you agree Q201 Lord Lloyd of Berwick: We just have to take with that? what the Government says is the public perception. Professor Hazell: Again I have not thought Y Professor Stevens: I think we have elected su ciently about this to give you confident answers representatives who will tell us what the public about the role in disciplining members of the perception is. judiciary. I was very intrigued to see in the Concordat which Dr Malleson mentioned between yourself and the Lord Chief Justice that the role of discipline Q202 Lord Falconer of Thoroton: This is for seems to be shared all of the way down the line. I Professor Hazell—I know Professor Steven’s has defer to my colleagues on that. done a lot of work in the OYce of the Lord Dr Malleson: My own general view is I think that is a very Chancellor—it is clear that you accept the sensible attempt to solve this problem. It will be very proposition that it is now untenable for the Lord diYcult but only time will tell whether that is going to Chancellor to continue as a Cabinet Minister, work. I was very pleased to see that. It comes back to Speaker of the House of Lords and a judge? what I was saying earlier, which was a recognition of the Professor Hazell: Yes. importance of shifting a lot of the responsibilities to the Lord Chief Justice yet recognising that there needs to be an accountability element. The Concordat is a very Q203 Lord Falconer of Thoroton: You said not just a important start in that process that is why I was urging judge but also as head of the judiciary. that I think more attention needs to be paid to that. I am Professor Hazell: Yes. slightly worried that the Concordat which really sets out some fundamental and important constitutional changes Q204 Lord Falconer of Thoroton: Do you think he has been slightly sidelined and many people do not seem should only perform one role which is as a Cabinet to have studied it in as much detail. I would like much Minister? more debate and discussion about that. 9674042002 Page Type [E] 28-06-04 20:13:58 Pag Table: LOENEW PPSysB Unit: PAG1

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6 April 2004 Professor Robert Stevens, Professor Robert Hazell and Dr Kate Malleson

Q209 Lord Falconer of Thoroton: Accepting what I Judicial Appointments Commission and in think is your premise that he should be a Cabinet particular the very key question of whether it should Minister, he should be viewed with the values of the put up just one name. rule of law and independence of the judiciary, you want a big ﬁgure in the Cabinet who is a protector of Q215 Lord Falconer of Thoroton: In the discussion the constitution, who protects the independence of we just had it sounds like the diVerence between us— judges but is essentially a member of the Cabinet but we both accept that the oYce has to change, do you not other things as well? agree with that—is the title? Professor Hazell: Yes. Professor Hazell: Yes. Q210 Lord Falconer of Thoroton: Do you think that person could be appointed by the Prime Minister Q216 Lord Falconer of Thoroton: Moving on to from the Commons? judicial appointments I was not clear from what Dr Professor Hazell: Yes. My preference, as I have Malleson said, do you agree with the way we are indicated—and again I was hesitant about this doing it in relation to England and Wales? because I have not thought sharply about it—is for Dr Malleson: Yes. this person to continue to be in the Lords because of the wider role of the House of Lords in being a Q217 Lord Falconer of Thoroton: I think you are guardian of the constitution. saying it will be more appropriate for more names to be given. Q211 Lord Falconer of Thoroton: This role, which is Dr Malleson: It would be appropriate to leave the very important, will obviously depend to a very large choice of however many names to the Commission Y extent on the personality of the holder of the o ce - itself so they can put forward one if they went or ten. Professor Hazell: Yes.

Q212 Lord Falconer of Thoroton:—and his standing. Q218 Lord Falconer of Thoroton: What is the reason His standing will come on the basis of your premise for your distinction between the two? from his political standing? Dr Malleson: I think the role of the Supreme Court is V Professor Hazell: Yes but in particular in relation, as fundamentally di erent and it is going to become V you know, to the OYce of the Lord Chancellor, Lord increasingly di erent, particularly one which is used Chancellors have come from an extraordinary range in a Supreme Court set up. of backgrounds, some very non-political in terms of their previous career but once in the oYce with the Q219 Lord Falconer of Thoroton: You would like authority of the oYce they have performed a very that the public should ﬁnd out more about the legal important role in the government. I would not myself views of those in the Supreme Court? pin too much on the personality of the oYce holder. Dr Malleson: Yes.

Q213 Lord Falconer of Thoroton: I accept that. Q220 Lord Falconer of Thoroton: You see the Taking your approach to call this person, who in V terms of functions he is no longer the head of the Supreme Court as being di erent in respect to any judiciary or a judge, do you accept that in the future other court, you see it as a constitutional court. he might come from the Commons? Dr Malleson: Ido Professor Hazell: Yes. I may have made too much in my opening remarks about my regret about the Q221 Lord Falconer of Thoroton: Do you not think abolition of the oYce. As I said later on I think the there is a grave danger in starting an inquiry that damage may now be done and it is too late to put the conﬁdence in the judiciary would be undermined? pieces back together again. Dr Malleson: I think if anything the opposite will happen. It clearly depends on how the hearings are Q214 Viscount Bledisloe: Why? held and what the nature of the questions are. I would Professor Hazell: That is a matter of political be clearly very much against any inappropriate judgment. The Committee is far better placed to oVer personalisation of those hearings, they have to be a view rather than me. I enlarged upon it a bit because done in broad terms. I come back to the example I I thought it provided a bit of explanation for the gave of Lady Hale’s evidence before the tensions which have undoubtedly existed and the Constitutional AVairs Committee, where she was fears on the part of the judiciary in the last six to nine asked about in general terms the court, the legal months, and also provided a possible explanation as system, the justice system and for a Supreme Court to why the Government has conceded, as I indicated judge to give that evidence actually enhances I think too much, to the judiciary in relation to the conﬁdence. 9674042002 Page Type [O] 28-06-04 20:13:58 Pag Table: LOENEW PPSysB Unit: PAG1

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6 April 2004 Professor Robert Stevens, Professor Robert Hazell and Dr Kate Malleson

Q222 Lord Falconer of Thoroton: There is no Q226 Lord Howe of Aberavon: It would positively be problem with judges giving evidence about general an advantage if he was, an even better advantage if he issues, do you think it would be appropriate to ask was a senior lawyer. a perspective Supreme Court justice what they Professor Hazell: Yes. would like to see in the development of case law in Article 6? Q227 Lord Howe of Aberavon: If he is a man who is Dr Malleson: I would not want to ask them specific going to be taking part in disciplining the judiciary it details which related to case law, cases which they would not he wholly inappropriate to expect him to had sat on, cases which might come up in front of take the judicial oath? them. The kind of areas that I had in mind would be Professor Hazell: Yes. about things like the justice system and things like the court system. Q228 Viscount Bledisloe: Yes it would or yes it would not? Professor Hazell: I have not thought about this. OV the Q223 Lord Falconer of Thoroton: You are not for cuV it would not be inappropriate. May I say one more one moment suggesting there should be any hearing thing about short lists, I would extend the desirability of with a judge which would involve an inquiry into having a short list rather than a single name to judicial what sort of decision they might take? appointments for the High Court and above. Dr Malleson: Absolutely not. Professor Stevens: So would I. Professor Hazell: It troubles me that the Government has conceded in relation to that level of appointment Q224 Lord Falconer of Thoroton: It would not be that the Commission should put up only a single like anything at all to do with America. It would be name. My reasons briefly are I think there is a greater no diVerent from a select committee in the other place risk there of the Commission, which is a Committee, calling witnesses before them and talking about putting up a compromise candidate as the single general issues after the event. name. I would like them to put up a short list. They Dr Malleson: Indeed. may, as Dr Malleson has suggested, have a discretion about how long that short list might be and leave ministers to choose. Q225 Lord Howe of Aberavon: Following on from Lord Carlisle of Bucklow: A stronger case for the what the Lord Chancellor has been asking you and minister being a lawyer. thinking again about this great figure who is going to Chairman: Can I thank the three of you for coming this have to play such an important role it would not be a morning. I speak on behalf of the whole Committee, we disadvantage if was lawyer have learned a great deal and you have exposed a Professor Hazell: No. number of arguments and we are very grateful.

Examination of Witness Witness: Lord Rees-Mogg, a Member of the House, examined.

Q229 Chairman: Lord Rees-Mogg, may I welcome because the Supreme Court is thought to have been you to the committee formally. Could you identify probably a good thing for the United States, and that yourself for the sake of the record? is putting it in its broadest terms. However, there are Lord Rees-Mogg: I am Lord Rees-Mogg and I sit as criticisms of the Supreme Court which are really very an independent peer. I want to confine myself to widespread in the literature and would have been talking about the Supreme Court, not about the taken by many of the greatest Presidents of the other issues, and to one particular point about the United States. Abraham Lincoln, Woodrow Wilson, Supreme Court. It is my view that the Supreme Court Theodore Roosevelt and Franklin Roosevelt would has been very strongly influenced by the experience of all have shared a fairly critical view of the way that the Supreme Court of the United States. Much of the the Supreme Court had actually functioned during discussion, including the discussion obviously about their time. There are two core criticisms. The first is separation of powers, has in fact been based on that the Supreme Court, because there is no point of American experience. We have heard, surprisingly, appeal beyond it and because it is given the power of little discussion about what the actual American the separation of powers in the American experience is. It is a general perception, quite constitution, has in fact been drawn into legislation justified, that the Supreme Court is a highly respected and into overruling Congress—which is after all body and it is a body with very substantial power. democratically elected, and the Supreme Court is an That has led, I think, to an impression that it is appointed body—and also the president. The probably a good thing to have a Supreme Court separation of powers has in fact in this case led to 9674042002 Page Type [E] 28-06-04 20:13:58 Pag Table: LOENEW PPSysB Unit: PAG1

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6 April 2004 Lord Rees-Mogg what could be regarded as a seizure of legislative himself a Southerner from a slave-owning state, power by the senior part of the judicial branch at the Chief Justice Tanney, and he found that a slave expense of the legislature and the Executive. I think owner’s property could not be taken from him. He if one looks at the process by which this occurred one found further, and this I quote, “negroes were not sees that there has been a continuous process in which entitled to be included under the word ’citizens’ in the the Supreme Court’s area of judicial eVectiveness, constitution”. That was, in his view, because they whether they were getting things right or not, has belonged to an inferior order. Finally to give the most spread historically over a considerable period of chilling part, I think, of his three hour judgment he time; this has been an evolutionary process which said “The negro may be justly bought and sold and there was no way to stop. Therefore this is the danger, treated as an ordinary article of merchandise and as I see it, of creating a Supreme Court in this traYc whenever a profit may be made from him”. country. Simply because it is separate from That was the finding of the Supreme Court in 1857, Parliament, and feels more separate, it will naturally the election of Lincoln occurred in 1860 and the Civil tend to follow the line of gradually expanding its own War started almost immediately after the election. area of authority and gradually taking over what are There is one significant fact about it—I am also properly speaking democratic and legislative trying to trace the development of the politicisation decisions. I think the simplest way to look at this is to of the Supreme Court,—that is that it was a judgment go briefly, if I may, through the history of the by 5/4, the five judges in the majority all came from Supreme Court. It was founded in 1787 at the slave States, so you had a complete political Philadelphia Convention and the framing of the polarisation inside that Supreme Court which is constitution of the United States, that is where it remembered for Dred Scott. If one goes on, in 1885 starts. In 1803 there is the absolutely crucial case, Woodrow Wilson wrote his brilliant young man’s from which everything else descends, of Marbury v book on the American Constitution and Madison when Chief Justice Marshall first laid down Congressional Government. He is concerned that in the doctrine that the Supreme Court could strike out the balance of the three orders of the American properly passed legislation which Congress had constitution, it is Congress which has acquired too approved. At the time there was some surprise at this much power. He is also concerned about the Supreme decision and people asked themselves, not Court and takes the view that the Supreme Court has unreasonably, whether anything could be done about become party politicised, so it is natural to analyse it it. They found nothing could be because a Supreme in terms of the party balance inside the Supreme Court is the Supreme Court and there is no appeal Court. I think one can show that that has remained beyond that point. The largest failure of the Supreme an issue from that day to this or indeed from 1857 to Court, which does illustrate, I think, some of the the present day. There have always been people who hazards in a very extreme form, arose over the period looked at the Supreme Court and said there are so when America was moving towards the Civil War. At many Democrats and so many Republicans on the that time the predominant party in Congress, which Supreme Court that it is going to eVect their decision. happened to be the Democrats, believed that it would It has always been possible to show that the party be possible to reach a compromise solution which split has in fact aVected their decisions. Beyond that would avoid a war taking place. However, a case was one gets to a very active judicial period at the brought in 1857 to the Supreme Court, the Dred beginning of the 20th century, you get the Lochner Scott case. This is not only the worst decision the US case in which the Supreme Court again substantially Supreme Court ever made, but it is also the most expanded its ability to intervene in legislation passed important, and it encapsulates the dangers which by Congress or indeed by the States. In 1908 the exist if a Supreme Court goes oV on its own or if it striking down of Theodore Roosevelt’s very tries to solve political problems because it is significant Employers’ Liability Act, which dissatisfied with the solution which is being reached, substantially deprived workers of equal protection or which is being attempted, by Congress or which Theodore Roosevelt’s act had given them, Parliament and by the President or Prime Minister. Roosevelt’s act having been passed successfully Dred Scott himself was a slave and the Supreme through Congress. You get a similar opposition Court decided that he should be returned to slavery between a reforming president and a Supreme Court after he had acquired his freedom for a while by going of an old-fashioned kind arising, again, in the New to a non—slave State. If I may go through the points Deal. We have all read about the stage of the New in the Supreme Court’s decision: the first was that the Deal when the Supreme Court dug their heels in and Missouri compromise was unconstitutional—the struck down a whole series of New Deal acts. The Missouri Compromise was the basis on which the New Deal was Franklin Roosevelt’s answer to a very politicians, both in Congress and the Whitehouse, critical economic situation—the biggest economic had been endeavouring to avoid what they otherwise crisis in the whole of the history of the United States saw as an inevitable civil war. The Chief Justice was and a worldwide crisis. It was the view of the 9674042002 Page Type [O] 28-06-04 20:13:58 Pag Table: LOENEW PPSysB Unit: PAG1

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6 April 2004 Lord Rees-Mogg

President, it was the view of the Congress and it was think, that the earlier cases still have valid lessons for the view of the people, beyond any question, that us, which is Roe v Wade in 1973. Roe v Wade is the massive government intervention—the New Deal abortion case, and it was decided by the Supreme programme—was necessary in order to protect the Court at a time when a number of states either United States from the eVects of the crisis. That was recently had passed or were considering passing not the view of the Supreme Court; the party balance abortion law reform of the kind that we adopted in of the Supreme Court had been inherited from a this country and the great majority of other period of predominantly Republican majority. They European countries have adopted. The Supreme had been appointed mainly by the Presidents from Court decided, and many lawyers who sympathise Harding to Hoover—that is to say, between 1921 and with the judgment think wrongly, that this was a 1932—they were people, as was said of them, who matter for the Supreme Court and not a matter for thought that Adam Smith formed part of the the individual states or for Congress. They took it constitution. In a series of decisions, they struck out, in other words, of the democratic arena and they down the New Deal acts, Roosevelt responded by a put it into the legal arena. They came to the Supreme Court packing attempt (he attempted to conclusion that there was an absolute right to enlarge the Supreme Court so he could appoint a raft abortion, that the mother had that absolute right, of judges), which was blocked in Congress and that it was derived from a right to privacy which itself received a very unfavourable public response. could only with diYculty be brought back into the Fortunately, Roosevelt won the 1936 presidential constitution which they were interpreting. There are election over Landon, some of the Supreme Court considerable diYculties, as I understand it, in judges then died and he was able to appoint the American law in defending the Roe v Wade judgment beginners of a new Supreme Court which was the on a legal basis. So regardless of the merits of the Roosevelt Supreme Court, by the 1940s there was a case, should they have taken the abortion law reform majority of Rooseveltian reformers on the Supreme question away from the democratically elected Court and the president was able to get through the Congress and states of Congresses? That was one Supreme Court any legislation, more or less, that he question. Secondly, was the argument which they chose to carry. This reforming court, though actually derived from a right of privacy, which itself was a under a Republican president, Eisenhower, then had comparatively late development in American the opportunity to perform what is the greatest constitutional law, a good argument in law? There service that the Supreme Court has ever performed in are problems there. However, its eVects, apart from the United States, which was carried by the Warren the eVect, obviously, of allowing abortion, were to Court. Warren himself was a liberal Republican who make abortion an unfinished issue, an issue that has had been the running mate of an earlier Democratic not been closed in American political life from that campaign, and he was Chief Justice. The Warren day to this. It also strongly politicised further the Court set about the task of bringing to an end legal Supreme Court itself. We have a series of Senate segregation in the United States and, in particular, in hearings in which the Chairman of the Senate the case of Brown v Board of Education, striking out Judiciary Committee, Senator Edward Kennedy, the proposition widely held in the South that equal tries to block or succeeds in blocking justices but separate education educational provision nominated, particularly by the Reagan presidency, complied with the requirements of the constitution. whom he thinks will take a diVerent view from that of So you got a complete legal reform of what had the Democratic party on the merits of the Roe v Wade previously been a segregated system of education, case at law. The Court shifts until it is, as at the and there were similar reforms in other areas. The present time, a five to four court in terms of the interesting thing about the Warren Court was that it political aYliations of the justices, with five on the was largely an inherited court and it was inherited Republican side and four on the Democrat side. You from the Roosevelt period. What one can see, if one then get the most recent case, the question of the looks at the history of the Supreme Court, is that Florida vote in the presidential election of the year because it has this very substantial legislative power, 2000. Here you see, I think, complete politicisation of because it actually in many cases takes the final the Court. The question that really arises is who is the decisions, politicians attach very great importance to court going to make President? The form it takes is the political attitudes of the people who are what sort of recount you have in Florida. There was appointed to the Supreme Court. Presidents pick out strong reason to believe that a complete recount people who are either, broadly speaking, liberal or, would, in fact, have elected the Democrat, and that broadly speaking, conservative in line with the a local recount would elect the Republican. The five president’s own views. The Senate then, which has to Republicans voted for the recount that would elect a consent to these appointments, takes a highly Republican President and the four Democrats voted, political view, and this becomes more intense after and they were in the minority, for the recount that the next case which one needs to look at, showing, I would have elected the Democrat. So the evidence is 9674042002 Page Type [E] 28-06-04 20:13:58 Pag Table: LOENEW PPSysB Unit: PAG1

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6 April 2004 Lord Rees-Mogg that although sometimes—and really the only strong Lords out of the legislature into a separate building case is the Warren Court—the Supreme Court is able and giving them exactly the same powers in the new to break the political logjam in a way that advances building that they have got up here, at the moment, the well being of the American community, the with the same pressures in relation to the Human Supreme Court is always a little out-of-date; that it Rights Act and the same pressures in relation to other tends actually to be a conservative force which makes issues, that movement should suddenly turn them it diYcult for reforming presidents of either party to into a constitutional court, when they have not got carry through their reforms; that it has always been the powers to do what it is that you do not like the highly politicised and that when it comes to the Supreme Court doing. point—and what can be a clearer point than deciding Lord Rees-Mogg: There are a number of answers to who is going to be the next President—it votes on that. I think it is something of a myth, myself, that we party lines. So I think we have great reason to feel do not have a constitution. What we do not have is a that our present system is, at any rate, more constitution in a single document, but we have a satisfactory than the Supreme Court of the United whole series of diVerent bits— States. I know that the Lord Chancellor himself Chairman: There is no judicial body to decide the wants to avoid moving into a situation in which the constitutionality or otherwise of an Act of new Supreme Court legislates in the way that the Parliament. United States has been brought down. I think this Y will be di cult to achieve because, inevitably, by Q231 Lord Falconer of Thoroton: Before you answer adopting the principle of separation of powers one that—and this is the critical point—there is a adopts a principle in which the Supreme Court is, in constitution in the United States of America that is fact, responsible only to itself. I think it is also made explicitly superior to Congress. There is no such Y more di cult by the developing position of the document in our constitutional arrangement that is European Courts. We have got, as I understand it, superior to Parliamentary prerogative. although this is outside my real knowledge, Lord Rees-Mogg: Let me take that point, if I may. Y considerable di culties in the way that the European You have to ask yourself what can be done if you Court of Justice is approaching problems of tax in have a separate Supreme Court and it starts to individual states. We have adopted, in 1998, the enlarge its own power. That is to say, if you have got Human Rights Act. The Human Rights Act, really, it the Human Rights Act, the Human Rights Act gives seems to me, is a fragment of a written constitution. limited powers to declare that legislation is contrary Indeed, if one looks at the bases on which the to the Human Rights Act but it cannot actually strike Supreme Court has developed its huge power to it down. Yet a declaration by the Supreme Court that develop law it has usually been on human rights of something falls outside the Human Rights Act one sort or another, particularly the right of property would, undoubtedly, have a very considerable impact in the case of slaves. Inevitably, I think, the Human and a very considerable impact on all future Rights Act will develop a large and growing area in judgments by British courts—perhaps also by other V which it makes laws which are, in e ect, new laws. I courts. You have a capacity, without at any stage would like to propose, if I could, some way of moving formally stepping outside the principle that it cannot to a Supreme Court without running into these strike down acts of Parliament, to enlarge steadily its Y di culties, because that would be a helpful thing to jurisdictional power, and you have this reinforced by do, but I do not think, in fact, I can. the Human Rights Act. Also, if we do not have a constitution we are, at least so far as the present Q230 Chairman: Can I tell you what seems to me to government is concerned, about to get a European be the most signiﬁcant diVerence between the constitution—a European constitution which itself is American Supreme Court and the one proposed in going to put very considerable powers and, indeed, the Bill? The American Supreme Court acts within ultimate primacy of power, into the hands of the the constitution. In relation to the American European Court of Justice. My view is we already Constitution certain states have certain rights and the have a constitution; certainly we have, in the Human centre has certain rights. One of the objects of the Rights Act, a very powerful instrument in the Supreme Court, particularly after they have passed development of judicial spread—if one calls it that— the Bill of Rights amendments, is to decide whether and we are about to have a European constitution an act or the action of a state is constitutional. We do which will create exactly the same situation in Europe not have a written constitution. I hear what you say as this in the United States. about the American Supreme Court with some sympathy, if I may say so because it has gone up and Q232 Lord Carter: I think, Lord Rees-Mogg, you down and round and about over the centuries in seem to imply that an accretion of power to the some astonishing ways, but for the life of me I do not Supreme Court is inevitable and it would eventually see how, if what you are doing is moving the Law have the power to strike down legislation. As you 9674042002 Page Type [O] 28-06-04 20:13:58 Pag Table: LOENEW PPSysB Unit: PAG1

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6 April 2004 Lord Rees-Mogg know, our Supreme Court (and perhaps the words Q234 Lord Falconer of Thoroton: What is the themselves may lead to some misunderstanding) European Supreme Court? When you say the itself will be bound by an Act of Parliament. It would “European Supreme Court” what are you referring require a conscious decision by both Houses of to? Parliament to relinquish sovereignty over time to the Lord Rees-Mogg: The European Court of Justice. I Supreme Court. Do you really think that is a realistic am sorry, I was asked for parallel supreme courts and proposition? That is the first point. The second one is I think that the European Court of Justice is a on the Human Rights Act. I do not know if you parallel supreme court. However, that is mainly an noticed but actually today, on the Order Paper in the anxiety for the future, that people believe that the House of Lords, we have the Human Rights Act European Court of Justice will end up fulfilling the 1998, the Making of Remedial Orders Amendment role of determining the legality, under the terms of Bill. In fact, if there is an issue in the Human Rights the European constitution, if it is adopted, of the Act which needs amendment it has to come back to decisions of individual parliaments in Europe. That, Parliament to be amended; the judges cannot alter of course, is the crucial power. I think the evidence is, the Act, it has to come back to Parliament. So the but I do not have suYcient knowledge, that supreme sovereignty of Parliament is enshrined, actually courts tend to claim increasing powers over time. I today, on the Order Paper. have seen that stated but I do not know in detail the Lord Rees-Mogg: The way in which the Human situation in Australia, Canada and so on. Rights Act, in my view, is likely to go is not in a series of critical decisions which mean a formal change in Q235 Viscount Bledisloe: Lord Rees-Mogg you the law, but by the creation of precedents which, in asked, I think, rhetorically, what could be done if the fact, develop and change the law in the evolutionary Supreme Court started to usurp the function of the way in which British law has consistently been legislature in the way it has happened in America. Is developed. However, this will be cumulative and, not the answer extremely simple: first, Parliament therefore, we shall in fact find (my expectation) that could pass a Bill reversing the decision of the the Human Rights Act has been a very fundamental Supreme Court and, secondly, if the Supreme Court change in our legal system. I think that we shall find did not learn its lesson it could simply abolish the that there is a much greater tendency for judges to Supreme Court? maximise their independence if they are taken out of Lord Rees-Mogg: People become attached to supreme the present system, which has in fact contained the courts and the reason that President Roosevelt was development of judicial creep surprisingly not able to achieve his objective was that the Supreme successfully though not completely, and that there Court itself at that time was extremely reactionary will be a greater tendency to feel “We are the Supreme and although the President was extremely popular Court and, therefore, we shall function as a Supreme and the public pressure and public feeling of outrage Court”. As there is no point of appeal beyond that at the idea of anybody behaving in this way to the and it is extremely diYcult for Parliament or Supreme Court was such that he was not able to. I ministers to enforce their will against the courts if think that if you envisaged as a possibility direct they disagree on the law with the courts, it seems to conflict between a parliament which wanted to do me that we shall be accelerating the process which we something which the Supreme Court said it could not want to avoid. do, so that you had this conflict, it would depend on the circumstances of the case whether the Supreme Court or, basically, the House of Commons was able Q233 Lord Craig of Radley: As I understand it, your to win the battle. I do not think there is, by any argument is that because of the experience with the means, a certainty that it would be open to a prime American Supreme Court there are disadvantages for minister or to parliament to exercise its theoretical us to have a Supreme Court compared with what we powers. have at the present time. The American Supreme Court is based on a triple situation where the Q236 Lord Lloyd of Berwick: It seems to me that executive, the legislature and the judiciary are Lord Rees-Mogg has actually developed what is not entirely separate. Have you looked at other Supreme perhaps now but could become a very important Courts around the world? Do you draw similar point indeed. What is, perhaps, not appreciated by concerns about the way they function, as you have those who are not judges or lawyers around us is that done over the American Supreme Court? In other the Law Lords have already struck down an Act of words, can we widen the examples to show that what Parliament, a piece of primary legislation, on the we have got is still better? simple ground that it was inconsistent with the Lord Rees-Mogg: I think there is certainly an anxiety Treaty of Rome and inconsistent with the law as about the development of the European Supreme developed by the Court of Justice. That has Court. happened already in one case, but for the moment the 9674042002 Page Type [E] 28-06-04 20:13:58 Pag Table: LOENEW PPSysB Unit: PAG1

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6 April 2004 Lord Rees-Mogg

field within which competence has been given to the any way the powers of the present court. You have Court of Justice and Brussels is relatively narrow. explained your concerns that they may develop new With the constitution, if it comes into eVect, it will be powers as a Supreme Court. How much rests in the much, much wider and, therefore, there will be many name? If you called it the Final Court of Appeal more opportunities for the Law Lords to do what rather than the Supreme Court are the same concerns they have already done once and say “Sorry, this new there or would the pressures be less? act of parliament is inconsistent with the Lord Rees-Mogg: I think it is probably the separation constitution”. That is the first point. I do not know that matters, though the name is probably important, whether Lord Rees-Mogg would, as it were, too. I must say I believe that the House of Lords is comment on that. My second point is a much better for having the Law Lords in it, that is clear, but narrower one. The basis on which the Supreme Court I also believe that the Law Lords are better for being has been put forward—or one of the bases—is that in the House of Lords; that this creates something less there is confusion in the public mind as to what the than the complete separation of powers, which I Law Lords really do. Does the Lord Rees-Mogg regard as undesirable. think that, perhaps, the confusion might be increased if we call this body a Supreme Court, because many Q238 Lord Falconer of Thoroton: Can I just be clear people will immediately think of it, especially if it is on what you are saying, Lord Rees-Mogg? You are put in some grand new building, as a Supreme Court saying it is because it is in Parliament that it will not on the lines of the American Supreme Court? I know be as active judicially? it is not the intention but that is what may be thought. Lord Rees-Mogg: Because it is in Parliament it has a Lord Rees-Mogg: I would entirely agree with both feeling for and an understanding of Parliament; it those points. One of the diYculties of this Bill is that knows that Parliament is really the decisive factor we know approximately the terms of the proposed and it is itself a part of one of the Houses of European Constitution—it will either be ratified or Parliament. not ratified in this and other countries—but in the event that it is ratified by all the participants we shall Q239 Lord Falconer of Thoroton: And when it goes then have a wholly diVerent situation, as Lord Lloyd to a Supreme Court building it will forget that? said, that the area in which it will be open to the Lord Rees-Mogg: Very consistently the argument in Supreme Court to strike down UK legislation will favour of the Supreme Court is that it is in accord become considerably wider, and we do not yet know with the theory of the separation of powers. I think if precisely the terms of the constitution and we do not we send the Law Lords out into some new place with know whether it is going to get through the various pillars in front that they will think that the separation hurdles it has to get through. It seems to me that of powers is the basis on which we have done it and probably it would have been wiser to wait until after that, therefore, they have got their powers. I think it we did know that before making a change in our is inevitable that there should be a tendency in that arrangements which would have to relate necessarily direction, and I regard it as an undesirable tendency. to the outcome of the European constitutional negotiations. I agree entirely with the second point, if Q240 Lord Falconer of Thoroton: How have we you call something a Supreme Court it is going to trusted the Court of Appeal all these years, which is think it is a Supreme Court and that the attitude of called part of the Supreme Court, all that way over in judges towards their task can be aVected, just as any the Strand? of the rest of us can be aVected by the names that are Lord Rees-Mogg: My Lord, it was not the senior court given to the institutions they serve. in this country and people knew it. Chairman: Can I thank you very much indeed. Your Q237 Lord Carlisle of Bucklow: Very briefly, and historical view of the American Supreme Court I arising out of that, Lord Falconer told me when he found fascinating, as always. I cannot say I agree gave evidence that he had no intention of changing in with you, but thank you very much. 9674042003 Page Type [SO] 28-06-04 23:17:23 Pag Table: LOENEW PPSysB Unit: PAG2

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TUESDAY 20 APRIL 2004

Present Bledisloe, V Goodhart, L Carlisle of Bucklow, L Holme of Cheltenham, L Carter, L Howe of Aberavon, L Craig of Radley, L Kingsland, L Crickhowell, L Lloyd of Berwick, L Elder, L MacLennan of Rogart, L Falconer of Thoroton, L Richard, L (Chairman) Gibson of Market Rasen, B

Memorandum by Lord Mackay of Clashfern By way of preliminary, I am sad that an Office which has lasted in one form or another since before the Norman Conquest should be abolished rather than modified and that it was done in such a summary manner without a clear understanding on the part of those who took the decision in June 2003 of the consequences increases that feeling. In my experience, until June 2003, those who were appointed to the Office of Lord Chancellor counted it as an honour. Now it seems to be regarded as an Office which the Office holder desires not to mention unless he has to and prefers to call himself The Secretary of State for Constitutional Affairs. This I think a dramatic change of attitude to the appointment has come about as a result of what took place in June 2003 when the noble and learned lord, Lord Irvine of Lairg left the Government. Until that event the Government’s position was one strongly upholding the Office and its functions. Sofar as the separation of the Judicial from the Legislative functions of the House of Lords is concerned it is clear that there is no unanimity among the present serving Lords of Appeal in Ordinary and I am sure the Committee will wish to give very full consideration to both opinions on that matter. At present I am a supporter of the views expressed by Lord Nichols of Birkenhead who is the longest serving of the present Lords of Appeal in Ordinary. I found his speech on 12 February 2004 highly persuasive. I comment briefly on the clauses of the Bill that seem to me specially worthy of consideration and the most important is clause 1. I question whether clause 1 fully measures up to the terms of the agreement between the Lord Chancellor and the Lord Chief Justice but in any event I consider that it is a very weak clause to describe as “a guarantee”. The recent Government proposal to exclude any form of supervision by the ordinary courts of the proceedings and decisions of the Immigration Tribunal underlines a vital omission from clause 1. There is nothing in clause 1 protecting the jurisdiction of the High Court and above and indeed nothing protecting the jurisdiction of the courts at all. It is significant that the existence of the Office of Lord Chancellor up until June 2003 on the evidence available would have prevented the Government from putting forward this proposal since both Lord Irvine of Lairg and myself have opposed it strongly and on principle. Indeed so strong was Lord Irvine of Lairg’s opposition that he succeeded in changing the Government’s view without actually having to speak. I consider that the existence of the Office of Lord Chancellor and the presence of the Appellate Committee of the House of Lords in the House were powerful factors in the earlier arrangements protective of the jurisdiction of the courts. On the remaining clauses in part 1 of the Bill, I wonder whether it is right that the Lord Chief Justice should be the head of Criminal Justice. My appreciation is that the Lord Chief Justice should be in a sense the head of the whole justice system and that the idea that he should have special connection with Criminal Justice is not wise. As a subsidiary point, the relative position of the various heads of division in seniority I think requires to be dealt with. I had some correspondence with the Lord Chancellor about his precedence since he described himself in his Paper on the proposals for dealing with subsidiary aspects of his present duties as “a senior Secretary of State” whereas in the list of cabinet members that prefaced Hansard at that time he was in fact the most junior Secretary of State of all with the Office of Lord Chancellor for this first time in my experience being at the very bottom of the Cabinet list. In response the Lord Chancellor indicated that he expected to be regarded as a senior Secretary of State because of his responsibilities in relation to the Great Seal and the Judiciary. I wonder if it necessary to abolish the Office of Keeper of the Great Seal. The French Minister of Justice has the title of “Garde de Seau” and if the new Secretary of State’s position in the Cabinet and in Government generally is to depend to any extent on his functions in relation to the Great Seal one would have thought there was no particular reason for discarding this title. 9674042003 Page Type [E] 28-06-04 23:17:23 Pag Table: LOENEW PPSysB Unit: PAG2

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20 April 2004

I have already indicated my general view with regard to the proposals for a Supreme Court. The costs involved in this proposal are considerable and I very much question whether these additional costs on litigants, not only in the Supreme Court itself, but also in all the other civil courts of the United Kingdom is justified by the benefit claimed for the proposal. I think it unfortunate that the title of Supreme Court is used since it is not in fact a Supreme Court of Scotland in relation to criminal matters and since there are established Supreme Courts both in Scotland and in England and Wales already. I am not aware of precisely what is proposed in relation to the Supreme Courts of Scotland but these are matters which require to be attended to. Sofar as holders of Judicial Office are concerned I see no reason why they should be deprived by statute of their right to sit and vote in the House of Lords when they are Peers. As I already indicated, I think the judicial voice in the House of Lords is a useful protection for the rule of law in our Constitution and the practical current experience of the senior judges is in my opinion vitally important in enabling the House of Lords to come to wise decisions on matters affecting justice in our country. Sofar as judicial appointments and discipline are concerned I consider it essential that the Judicial Appointments Commission should recommend only one person to the Minister responsible for advising Her Majesty. If the work of the Commission is to be as transparent and public as is claimed one can imagine the embarrassment of a serving judge who has been recommended as a candidate for promotion by the Judicial Appointment Commission and who is turned down for an actual appointment by a Minister who is to be much more overtly political than the Lord Chancellor has been. I find it particularly hard to understand how the proposals presently in the Bill, particularly with regard to the Supreme Court, ever found their way into the Bill. One subsidiary point I would like to make in relation to this is that hitherto senior members of the profession have sometimes required gentle persuasion in order to undertake judicial office. This was sometimes from humility and sometimes from other causes but I wonder whether this facility will be lost under the new proposals and if so whether the result may be that outstandingly able practitioners will not apply for judicial office. April 2004

Examination of Witness Witness: Rt Hon Lord Mackay of Clashfern, KT, a Member of the House, formerly Lord Chancellor, examined.

Q238 Chairman: Good morning. Thank you for possible to modify the Lord Chancellor’s Office in coming. I apologise for keeping you waiting but we such a way as to preserve it in a modified form, I had one or two housekeeping matters. I wonder, think that would be preferable to abolition. The Lord purely for the sake of the record, if you could identify Chancellorship has been recognised not only in this yourself, and then I would be grateful if you could country but throughout the world, and particularly open up the discussion, as you see it, and then we can the Commonwealth, as the Office of the Senior Judge pursue the other points which we feel might be in the Commonwealth. That can change, of course; necessary. anything can be changed. The question is, whether it Lord Mackay of Clashfern: I am Lord Mackay of is necessarily a wise or a good thing to do. I Clashfern. I was the Lord Chancellor from 1987 to personally think that the Lord Chancellor’s Office is 1997. I prepared, at possibly short notice, a short really, in its essence, concerned with the Courts. paper which you may or may not have, in which I Insofar as the Lord Chancellor’s Department has summarised some of the issues that seem to me to be suffered accretions over the last number of years it of importance. First of all, I am sad that an Office, has derogated from that central role. I think the Lord which has in one form or another existed in our Chancellor’s Department, as a Department country since before the Norman Conquest, should concerned with the courts and with the be abolished, as it were, overnight. That, as it turned administration of tribunals (because that has become out, could not happen but that is the way it was quite a big operation), is a very good function for the intended to happen when it was announced; and, Lord Chancellor and his Office, and I cannot see at therefore, there was no question of any modifications the moment why that should not continue. There is of the Office being considered, or anything of that no doubt that questions of supply are matters for the sort. I feel rather sad about this. I think this nation House of Commons; but the House of Commons can does have a history, and I do not think modernisation deal with supply across the board. The Lord in relation to justice is a particularly valuable Chancellor and his officials, of course, have been criterion to use for considering change. If it were giving evidence over the years to the Public Accounts 9674042004 Page Type [O] 28-06-04 23:17:23 Pag Table: LOENEW PPSysB Unit: PAG2

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20 April 2004 Rt Hon Lord Mackay of Clashfern, KT

Committee in the House of Commons. The first big system had reached that person sufficiently to enable accretion to the Lord Chancellor’s Office in recent him to see what was happening. There is a risk in years was the decision of the government of the day, calling this new body the Supreme Court of the following the recommendation of the Royal United Kingdom. First of all, as I have pointed out Commission, to put Legal Aid into the Lord more than once, it is not the Supreme Court of Chancellor’s Department. For my part, when I was in Scotland so far as criminal matters are concerned. that Office, I would have been extremely glad to see Secondly, I doubt whether it is wise to have it dealing that particular responsibility to somebody else, but with human rights issues arising in the criminal field. there was no-one particularly offering to take it on. The wise decision, taken when the Scotland Act was Now that the Secretary of State for Constitutional put through Parliament, was that that should go to Affairs has come on the scene, I think it would be a the Judicial Committee of the Privy Council and, for very good thing for him to have! Leave the Lord my part, I cannot see why that should not remain. Chancellor (if he can separate himself out by not too The main point seems to me that, as famously painful an operation) without that particular recorded in the interview with Dr Kelly, this is the responsibility. I think there is scope for continuing High Court of Parliament. If you set up as a separate the Office of the Lord Chancellor as a member of the group a Supreme Court, the question is: what is the House of Lords; because I think it is the House of relationship between that court and the High Court Lords that has been recognised as the House with of Parliament? I personally would prefer to see some particular concern for the Constitution, without the other name than the Supreme Court, and a name that other responsibilities. Whether or not he was Speaker would be more accurate in its context than that of the of the House of Lords is a matter that is under Supreme Court. There is just one matter I would like discussion. I think it would still be possible for that. to mention in that connection, because it was The great objection seems to be him or her sitting as illustrated recently in the business about appeals a judge. I do not personally share that to the same from the Immigration Appeal Tribunal. The point it extent as others; but I recognise that a lot of people this: if Parliament passed an Act prohibiting the High think that and, therefore, it might be wise to enshrine Court of Justice from intervening to correct a that in the arrangements. I think he could still be the manifest injustice, Lord Goodhart figured that the person responsible for the judicial administration of Court might be faced with a very difficult decision; the courts, because a lot of the work that is done by and it might indeed reach what he described as a members of the staff now—assuming that the “nuclear option”, by which I think he meant (and he statutory order, moving these responsibilities to the will be able to correct me if I am wrong) that the Secretary of State for Constitutional Affairs, is judges might decline to give effect to the Act of effective—is of a judicial character. Listing, for Parliament and might feel that justice should example: Lord Falconer provides the Listing Officers prevail—a doctrine of the supremacy of Parliament is to the courts. The Listing Officers are performing a a doctrine of the courts, effectively, in this country. judicial function, undoubtedly. I think there is a lot Therefore, the extent to which that doctrine is applied to be said for that being under the control of a person may be a matter of concern and degree. As has been who is very much attuned to the rule of law and to the pointed out already, of course, our courts—following judicial spirit, and has taken the judicial oath—as, of the decisions of the European Court of Justice in course, Lord Falconer has done. I am not completely Luxembourg—have in fact ruled that an Act of clear to what extent he is being able to discharge that Parliament was unlawful under the European Treaty. particular oath, but I know he has taken it most The concerns that Lord Rees-Mogg expressed about solemnly in the Royal Courts of Justice—although the Supreme Court, and that perhaps the use of the not of course at that time in full regalia of the Office. name may be influential in this connection, I think The second point is the one about the Supreme have to be taken quite seriously. These are the general Court. I have left it on the basis I found the speech of matters I want to raise. There are one or two matters Lord Nichols of Birkenhead, who is the longest that appear on the provisions of the Bill itself which serving of the present Law Lords, very persuasive on I have drawn attention to. For example, clause 1 of that matter. Obviously this is an issue that has quite the Bill, which is a very fundamental clause to my a long history. I think there is a question as to mind, is referred to as a “guarantee of continued whether the name “Supreme Court” is a wise name to judicial independence”. If I was asked for a bank attribute to the new Tribunal. I am assuming for this guarantee of somebody’s debt and I said I would purpose that the provisions go ahead in substance. I have regard to the need that he should repay it, I remember hearing on the radio just shortly after the doubt if the bank would be very satisfied with that as Government announcement an American saying, a guarantee. The Keeper of the Great Seal is another “Of course we have a Supreme Court in the United little matter that I want to mention. When I became States and England is going to have one soon”! I concerned about these matters—and particularly the assume from that the Government’s information way in which the Lord Chancellorship was 9674042004 Page Type [E] 28-06-04 23:17:23 Pag Table: LOENEW PPSysB Unit: PAG2

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20 April 2004 Rt Hon Lord Mackay of Clashfern, KT developing in the interim period with Lord Falconer the Lord Chief Justice of England and Wales should having both Office of Secretary of State for be the Head of Criminal Justice; the Master of the Constitutional Affairs and Lord Chancellor—I Rolls to be Head of Civil Justice. The Lord Chief became a bit anxious about the precedents. In my Justice in these proposals is no longer to be the Head experience until then the Lord Chancellor, of the Queen’s Bench Division. There is to be another notwithstanding how junior he might be in the Head of Division put in there. I do not know exactly Cabinet in terms of service, was always regarded as a what it is to be called but a new Head of Division is pretty senior member of the Cabinet. When I came going in there. I feel strongly that the Lord Chief into the Cabinet in 1987 I was quite high up in the Justice of England and Wales should be the Head of Cabinet list, notwithstanding that I was a very, very Justice of all of the Justices. He is there right across new arrival. When Lord Falconer became Lord the whole system. Surely the Head of Criminal Chancellor suddenly and sadly, (and he was not in Justice should be the Head of the Queen’s Bench the Cabinet until then), the title of Lord Chancellor Division; the Head of Civil Justice, the Master of the was dropped severely from the middle or thereabouts Rolls; and then the Lord Chief Justice as the Lord (Lord Irvine of Lairg was a good bit higher than the Chief Justice overall. This is a practical matter in a middle) to the very bottom. The very last name on the way because when a vacancy occurred in the Office of list of the Cabinet was the Lord Chancellor— Lord Chief Justice during my time in Office there was Secretary of State for Constitutional Affairs and a strong feeling in certain quarters that the Lord Lord Chancellor. I was rather concerned about Chief Justice should be someone who came from a this—maybe unduly concerned—but I wrote to Lord really criminal background—and I do not mean a Falconer about this and wondered about the criminal background in any sense except the legal precedent; because in his paper about the other practice he had was in the field of criminal law. I functions or residuary functions of a Lord strongly took the view that the Lord Chief Justice Chancellor he had been described in his own paper as should be the person who seemed to be the most a “senior Secretary of State”. I found it quite hard to commanding figure at that level in the whole of the know how a senior Secretary of State was at the very court structure. It did not matter whether he had bottom of the Cabinet list. I was concerned in case particular experience in criminal justice or elsewhere. nobody recognised him as a senior Secretary of State I knew if a person of that calibre was appointed he except himself. He has now of course been promoted would not take long to familiarise himself, and a little, because the Secretary of State for perhaps might bring a refreshing air into the cloisters International Development, Mr Hilary Benn, has of the criminal law. I personally feel that to describe come underneath, but he is still pretty near the the Lord Chief Justice as the Head of Criminal bottom. In answer to this conundrum, Lord Falconer Justice is a slight imbalance in the system. I make kindly wrote to me, after considerable deliberation I some point about the costs of the Supreme Court, have to say (it took some two months, but it was a and these are very considerable. As I understand the very kindly letter), and explained he was a senior calculations, and they are not exactly transparent in Secretary of State because of his responsibility for the the explanatory memorandum, the fees in the Great Seal, and because of his responsibility in Supreme Court will be 10 times higher than the relation to judicial matters. I am very happy with corresponding fees in the House of Lords. What is that, except I would be glad if somebody else, apart more, every civil court in the country will bear some from himself, were to recognise that fact. If this is so, proportion of these costs in addition to that ten times surely to keep the title of Keeper of the Great Seal enlarged fee. Finally, I think the Judicial would be a good thing to do. Why throw out history Appointments Commission is a perfectly reasonable wantonly, just like vandals? There is no harm in being development in the appointments system. During my Keeper of the Great Seal. If it does some good in time as Lord Chancellor, which extended over quite a keeping the Secretary of State’s seniority, surely he period, we made changes in the system for appointing should do so. It is interesting to see, if you have a look judges, but gradually. I think it is quite necessary to at the provisions of the Bill, the Keeper of the Great be reasonably paced in reform. I think if changes Seal seems to be in brackets for some reason, as if it occur too quickly people tend to become was incidentally kicked out. If we are going to disorientated. There are fixed structures with which modernise we look round to see what other people people are familiar. If you move these too quickly I do. In France the Minister of Justice is the Keeper of think you may prejudice the ultimate success of the the Seal. That is often the way in which he is operation. I certainly felt that the Judicial described. Why we need to throw out all the history Appointments Commission a perfectly reasonable in order to secure reform I just question. I mention development. So far as I am concerned, I think I have one or two other matters. There is one very general written this to the Lord Chancellor (and I have not matter I would like to mention, and that is the yet heard from him) I thought he could proceed with proposal, which I think is part of the concordat, that the Judicial Appointments Commission on an 9674042004 Page Type [O] 28-06-04 23:17:23 Pag Table: LOENEW PPSysB Unit: PAG2

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20 April 2004 Rt Hon Lord Mackay of Clashfern, KT informal basis without statutory authority at the the Executive works, because all of these documents moment, because it is just an advisory system to the of any consequence are passed under the Great Seal. Lord Chancellor in the appointment of judges; and It is quite a heavy piece of equipment. I think I am judges have to be appointed just now. In Scotland I right in saying when the Lord Chancellor took Office think I am right in saying that the Judicial he was handed it—I do not know whether with a Appointments Commission is non-statutory as yet. warning that it was heavy. Indeed, one might learn a bit from the non-statutory Lord Falconer of Thoroton: Yes, exactly right! experience before then incorporating it in statute. I was concerned, I must say, that this system had to get Q242 Chairman: I remember when I became Leader up and get going. I was concerned that if this of the House of Lords, The Lord Privy Seal, I was particular Bill was held up too long then that might handed the Seal on the express undertaking that I be damaging. Having thought it over, the Lord would immediately give it back; and thereafter I did Chancellor could in fact proceed with that aspect not see it because somebody else was keeping the without further authority as part of the structure that Great Seal! he himself would use for the appointment of judges. Lord Mackay of Clashfern: The Privy Seal is not so In the end, it would be right to have it as a statutory much in use. The Great Seal is used all the time. authority. The only other point I want to make about that is, at present, on certain occasions a degree of Q243 Chairman: I do not think it was used at all in gentle persuasion has to be used to get some senior my time! I wonder if we could come back to the people to take office as High Court Judges. I think I position of the Lord Chancellor, as such. You made am right in saying that the Scottish Judicial a plea for modification rather than abolition. Can I Appointments Commission has expressed some press you a little as to precisely how we could modify, desire or concern as to whether they could do that. I and what role you see the Lord Chancellor, modified think that is something which has to be considered. upon your lines, actually fulfilling? If the Lord Chancellor approaches somebody he has Lord Mackay of Clashfern: I would see the Lord authority to offer him the appointment. It is a bit Chancellor as a senior member of the legal profession difficult to use any of that kind of persuasion unless with a position in the House of Lords; a Minister, in you have that authority. It is a little difficult to see the sense that he or she is appointed by the Prime how you can fit that into a fairly rigid structure. That Minister, with responsibility for the administration is one of the things I thought could possibly be tested of the courts and for judicial appointments— out in an informal type of Judicial Appointments recommending judicial appointments at all levels to Commission before legislation was enacted. Her Majesty The Queen. I see no reason why that person should not also be the Speaker of the House Q239 Chairman: Thank you very much indeed. of Lords; but, on the other hand, it is not at all Before I ask you what I want to ask about the essential to my view that he or she should be. I think position of Lord Chancellor, what does the Keeper of there is a question about whether that person could the Great Seal do, apart from keeping it? be the President of the Supreme Court. The phrase Lord Mackay of Clashfern: Use it. “Head of the Judiciary” is used sometimes; I do not think that is a statutory phrase but I may be wrong. Q240 Chairman: His Office actually does the The headship of the judiciary comes from the pressing? presidency of the Supreme Court. I think the Lord Lord Mackay of Clashfern: Yes. The Lord Chancellor Chancellor could be President of the Supreme Court has to authorise the use of the Great Seal on every without sitting in it, because in fact the Lord occasion when Letters Patent or any other document Chancellor has not for years sat in the Supreme requiring the Great Seal is used requiring the Seal. It Court. He has sat if at all, and all Lord Chancellors is in the Lord Chancellor’s Office. in recent times have sat until Lord Falconer came on the scene, in the House of Lords. Q241 Lord Falconer of Thoroton: It is kept in my Office; and historically it is the means by which the Q244 Chairman: You would see the President of the Executive prove that this particular document is a Supreme Court as having a seat in the Cabinet? genuinely authorised Order, or whatever, of the Lord Mackay of Clashfern: Yes. Executive. Lord Mackay of Clashfern: The Lord Chancellor signs Q245 Chairman: Therefore, his Office would be at on every document that passes the Great Seal, the disposal of the Prime Minister? because he is the Keeper of it, giving his authority for Lord Mackay of Clashfern: Yes. the use of it as authorities by the Executive. It is an extremely important document, and an exceedingly Q246 Lord Falconer of Thoroton: You see a more important Office. It is foundational really to the way judicial figure than a political one? 9674042004 Page Type [E] 28-06-04 23:17:23 Pag Table: LOENEW PPSysB Unit: PAG2

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Lord Mackay of Clashfern: Yes. I was a judge when I one comes back to this rather unsatisfactory section was appointed Lord Chancellor and I see that as one. You have already said that you do not regard it quite an important place, and I do not see any as being very powerfully worded. A point you made objection to it. It does not matter much to me earlier in one of the debates was that seemed to have whether he is President of the Supreme Court or not, no mode of being enforced. Whether worded like this so long as he is responsible for the administration of or more like a guarantee, how do you see this section the Supreme Court, which is what the Secretary of being enforced, if at all, and how would you like to State for Constitutional Affairs has taken on as a see it being enforceable? result of the transfer orders, as I understand it. Lord Mackay of Clashfern: One of the problems I have is with the need for this section. Who is going to Q247 Lord Falconer of Thoroton: I think you are enforce it? There is only one ultimate holder of saying you would envisage this role, the role you are enforcement powers, and that is the judiciary. The describing, as being in charge of administration of all judiciary are the only holders in this country of of the courts, not just the Supreme Court, whether it executive compulsion. If it is going to be effective I be the current one or any new one? think it has to be like that. I have asked the Lord Lord Mackay of Clashfern: Yes. The Crown Court is Chancellor once or twice how this was going to part of the Supreme Court at the moment, but happen and I am awaiting his response. He said it was administration of the magistrates’ court has changed a good question, or the right question to ask, but so under Lord Irvine’s administration, and we changed far he has not produced the answer! It may be too it somewhat; we took the role of policy for it but left early. We need to see the final form of this to know. the administration local; now the administration has For one thing, I think a duty to support the judges, to become part of the court service. have the support necessary to enable them to exercise their functions, should be a responsibility on Q248 Chairman: How do you see this Cabinet role? Parliament. I think there is a good deal to be said for Lord Mackay of Clashfern: He is the only member of the view that, just as the legislature is supported the Cabinet with that responsibility to see that the directly to its needs without the ordinary system Cabinet is acting in accordance with the law of the operating, then the judicial could be on a somewhat country, and if any question arises that proper legal similar basis. At the moment these are unsatisfactory; advice is taken—a very important role, and not one but if they can be enforced (and I assume they are that requires to be expressed very often but it can intended to be enforced) then it is the judiciary who occur and when it does occur usually attention is paid have to enforce them. to it. If the Lord Chancellor opens his mouth in that area he is usually attended to. Q251 Lord Howe of Aberavon: If I could make plain that my premise is that the changes in Parts II and III Q249 Chairman: Do you see the converse as being of the Bill would be better accomplished if Part I was applicable, namely that sometimes it is the duty of the not there, in other words if the Chancellor’s Office in Lord Chancellor in Cabinet, as a Cabinet member, to substance remained. I have taken the premise of that try and explain to the judiciary what it is that the from a couple of sentences in the document: Government wants to do? reformers cannot afford to ignore the wisdom Lord Mackay of Clashfern: Yes, sure. There are embedded in the way things are presently done and problems between the Executive and the judiciary have to build on existing structures rather than tear from time to time. Indeed to some extent, I have them down. From that premise the first question: heard it said that a degree of tension is appropriate. firstly, Schedules 1 and 2 of the Bill are amongst the Explanation both ways is important. The Lord provisions which seek to disaggregate the authority Chancellor has a role in explaining to the judges what of the Lord Chancellor and transfer them in large the Government is seeking to achieve, particularly in part to the Lord Chief Justice. I have examined the the justice area. There may be other areas as well, but first 40 of the 86 pages of Schedule 1; and in those first particularly in the justice area because the 40 pages there are some 80 provisions requiring the administration of justice is part of Government, just Lord Chancellor, the Secretary of State, and the Lord as much as the Executive is. Separation of powers is Chief Justice to consult with, concur with and agree all very well but if they are too separate government with each other. There are some 54 provisions will disintegrate. enabling the Lord Chief Justice to nominate other judges to perform these duties on his behalf. That is Q250 Viscount Bledisloe: You have just explained only half the schedules; one assumes it is larger than very impressively that you could solve all this that. In addition to that, the evidence we have problem by passing back some of the duties that have received from JUSTICE, paragraph 11, says that the accrued to the Lord Chancellor, more recently; but Bill contains nothing like enough in the way of assume for the moment that that is not what happens, transfer of authority to the Lord Chief Justice. 9674042004 Page Type [O] 28-06-04 23:17:23 Pag Table: LOENEW PPSysB Unit: PAG2

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Paragraph 11 then cites eight additional provisions Q253 Lord Howe of Aberavon: The second part is that need to be shunted across to the Lord Chief under Part III of the Bill—responsibility for the Justice. A kind of concordat and all the other discipline of the judiciary, and that is dealt with in the documents say nothing at all about any additional Schedule to that. Schedule 12 identifies 26 different manpower for the Lord Chief Justice, nor office categories of judicial office holder in respect of whom space to provide for the consultation process which the disciplinary powers will be shared between the has to take place on these 150 matters and so on. All Secretary of State and the Lord Chief Justice. that is designed to distribute part of the powers Currently they are exercised by the Lord Chancellor exercised by the Lord Chancellor very largely under as Head of the Judiciary. The Bill provides that the the prerogative of certain statutory powers. Will that Lord Chief Justice may exercise those powers but work? Would it not be far better to maintain the only with the agreement of the minister and only after existing structure rather than to embark upon this complying with prescribed procedures. So he is going huge draught of legislation which places an to require concurrence of the Secretary of State enormous burden on the Lord Chief Justice? before he gives a) advice, b) a warning and c) a formal Lord Mackay of Clashfern: All I can say about that is, reprimand in respect of any judicial misbehaviour. If during my time, my experience was that the Lord one looks at paragraph 24 of the evidence given by Chancellor’s job was pretty full-time; there was not a JUSTICE they express substantial concern and lot of spare time floating about. Certainly I considerable doubts about the approach taken in the endeavoured to keep myself to the responsibilities of Bill. They conclude that the practice is justifiable so my own Department, so there was plenty to do. If a far only because the Lord Chancellor is Head of the substantial amount of these are transferred to the Judiciary. Can you visualise it actually working in Lord Chief Justice his responsibility becomes practice, with the Secretary of State and the Lord extremely heavy in administration. I think there is Chief Justice fulfilling all these consultative room for a judge who has responsibility for arrangements in relation to disciplining a whole administration, and that is what I think the Lord range of judicial appointments? Chancellor could be in the future: but if it is not so, Lord Mackay of Clashfern: I think it is one of the and the whole of that is transferred to the Lord Chief problems of formalisation. I must say, I said earlier Justice, it is a huge job. During my time I did that I would have moved gradually, if I lived long experience quite a lot of resistance on the part of the enough, to a Judicial Appointments Commission. judiciary to being involved in too much One of the problems of a Judicial Appointments administration. It depends a bit on the individuals. I Commission, I think, and it was something I was remember a quite senior resident judge in the north- thinking about quite a lot, is that ultimately there east of England saying to me that when he was comes a question of discipline. If you have appointed appointed a judge he thought it was to do with the wrong people how is it going to come back on judging. He thought that, in fact, a lot of his time was you? One of the responsibilities you have or should being taken up with administration. It is important have if you are appointing people is to have some that judges do the administration; but I think it is concern with their discipline. Once you get into that something that has to be recognised as quite a heavy situation you are immediately in a certain conflict responsibility if it is to be done properly. Certainly, if with the independence of the judiciary. The Lord the Lord Chief Justice is taking on the whole of the Chancellor in the previous system had the ultimate responsibility in relation to the magistrates, and the responsibility for appointing all the judges—whether magistrates appoint with the help of the local nominating to the Queen or appointing directly— committees, it is quite an important and time- including the magistrates. He had a responsibility in consuming business. I spent quite a lot of time one appointment and, therefore, very properly a way or another trying to deal with matters of that responsibility in discipline. Even if the Judicial sort. I think it is a very full-time job, and I wonder Appointments Commission recommends, so long as whether we will be appointing Lord Chief Justices in the Minister, the Lord Chancellor (if that is the way the future for their judgements or for their it was still to be) has responsibility for nominating to administration. the Queen or appointing, depending on the level of the judicial officer, then I think it would be Q252 Lord Howe of Aberavon: It would be far better appropriate that that person should have to leave the present arrangements in place? responsibility for discipline. I find it very, very Lord Mackay of Clashfern: I think the Lord difficult indeed to share this discipline business. So Chancellor is appointed primarily to administer. much depends on what the judge (or whoever it is) Certainly so far as the Supreme Court is concerned says when you get to talk to him. With many of these that was all he did—and when I say “all” I do not things, if you get at it soon enough it is just moving mean it was a little, but he did not do judging in the off some rather unwise path. It does not usually Supreme Court. require anything very heavy. For example, people 9674042004 Page Type [E] 28-06-04 23:17:23 Pag Table: LOENEW PPSysB Unit: PAG2

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20 April 2004 Rt Hon Lord Mackay of Clashfern, KT taking time to deliver a judgment. I had one or two courts need running, and they need running by problems in that area. A good thing to do is to try and somebody who has some considerable knowledge of get them going. You have to ask the Secretary of them—and the present Lord Chancellor of course State or somebody else before you decide you are has—and who is willing to go and spend a lot of time going to do something about that. Normally it was in them. I spent a lot of time going round the courts, the Head of Division who spoke first, but sometimes and very interesting it was. You found out then what that did not work. This is an example of what can a lot of the difficulties were. I managed to get a happen: there is a feeling sometimes that there is certificate for being able to use the computer system nothing you can do about it; if there is something in the Northampton Centre on one of my visits. I do wrong there is nothing you can do about it. I have to not know how valid the certificate was, but there is a say, I think the Lord Chancellor is able to be lot to be seen and done. People in the back rooms of somewhat stronger than that. If nothing happens in the courts feel very neglected sometimes. The Listing the way of improvement then something rather Officers, for example, are extremely important in the unpleasant may happen. You can put that over efficiency of any court, and of course they are without being too nasty about it and usually it works knocked about by people, and have senior counsel quite well. There was very little difficulty in judicial ringing up and saying, “I can’t come that day, you’ll discipline when I had responsibility. We had one very have to move it”, They are comparatively junior public case which was running a good vehicle before people and for the Lord Chancellor to come round I came and the person in question has written a book and actually see them and encourage them and find in which he has given a pretty full account of how I out what is happening and so on is valuable. Also the dealt with the situation, and ultimately he retired. He judges—judging is a lonely business and they did not retired quite early—not because I had done anything have too many personnel officers and people unpleasant to him at all, but just eased him to the way working, and for the Lord Chancellor to come round in which he ultimately went. I think discipline is a to see them and spend some time with them was, I difficult area. Of course, you have to have some think, valuable. I do not think, if you have the whole structure once you do this kind of operation range of responsibilities that the Secretary of State overnight. You have to have some structure to deal for Constitutional Affairs and the Lord Chancellor with it but it is very difficult to formalise it in this has at the moment, it is difficult to do that. Lord way. Falconer will know better than I how often he has managed to get round the courts—it is time- consuming, but valuable. Q254 Lord Howe of Aberavon: Much better kept as it is. Last question on law and order. I would guess that in any administration those two things are Q255 Baroness Gibson of Market Rasen: You have coupled together and have some tension in relation to shared with us this morning your concerns about the each other and that somebody like the Minister for status of the Lord Chancellor. I wonder if you would the Interior is responsible for order, and somebody share with us your view of the future position of the like the Minister for Justice is responsible for law. Secretary of State for Constitutional Affairs, Does that represent a picture of the role the Lord particularly in relation to whether he or she would be Chancellor has played, does play and would play in a lawyer and in which House he or she would sit? an administration, representing the law to secure the Lord Mackay of Clashfern: Assuming that a Lord right balance? Chancellorship continues, I think the Secretary of Lord Mackay of Clashfern: The law, I think, is State for Constitutional Affairs would not require to extremely important. If there was a Secretary of State be a lawyer and could be in either House of for Constitutional Affairs as well, I would think that Parliament. I think there would be an important might be quite reasonable. The Lord Chancellor gave cross-connection between the Office of Secretary of a list of them more or less off-the-cuff in one of the State for Constitutional Affairs and the Lord debates we had, about the number of extra things the Chancellor, but I do very sincerely believe that there Lord Chancellor has to do and they are very is work enough for both. The Secretary of State for considerable. If you take all these things together it is Constitutional Affairs is much more flexible in the quite a substantial portfolio of things like the Data way in which it could be. I think that the Lord Protection Act and the effects of that and police Chancellor requires to be somebody who has been inquiries and all the rest of it. There is plenty of work really thoroughly imbued with the background of the in that area. I think there is quite a lot to be said for law and the justice system, because that is part of having a Constitutional Affairs Secretary who might government. Justice is part of government, just as be in the House of Commons or the House of Lords, much as the executive and the legislature. The judicial and a Lord Chancellor. The Lord Chancellor’s job, I arm is an important part. It is a weak arm in the sense think, would be quite substantially on the lines I have that, Parliament being supreme, the judges are under said, which effectively is running the courts. The the authority of Parliament to that extent at present; 9674042004 Page Type [O] 28-06-04 23:17:23 Pag Table: LOENEW PPSysB Unit: PAG2

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20 April 2004 Rt Hon Lord Mackay of Clashfern, KT but I think there is plenty of scope for a Secretary of did not do it in a way that in any way damaged what State for Constitutional Affairs. I am sure Lord we were discussing; it was always perceptive and Falconer will be able to tell us that it takes up a lot of extremely helpful. Of course, the Law Lords have time with the Data Protection Act which I have never formed the majority of the House of Lords. mentioned already, but there are a lot of other areas; There may have been other groups that came close to and the arrangements regarding Legal Aid are that, but not the Law Lords. They have always been gradually changing and it is a big job too. There are there to say what they had to say, and what they said plenty of others: the independent territories, and the depended a bit on the extent to which they affected Human Rights Act etc, so there is plenty of work. the votes of the House, sometimes negatively and sometimes positively. You will be aware, of course, Q256 Baroness Gibson of Market Rasen: Would you that there are in this House, and also in the House of feel strongly about which House? Commons, people who sit part-time judicially, Lord Mackay of Clashfern: Not particularly strongly. recorders, and I do not think this Bill proposes to Obviously I think this House, as some of the alter that, if I am not mistaken. The Lord Chancellor academics have said, has been regarded as the House gives me that confirmation. A degree of interaction with a particular responsibility in relation to the between the judiciary and Parliament strikes me as a Constitution. As you know, the future of this House good thing. Indeed, if I have understood correctly is still a matter of some debate. I would hope that it some of the evidence the academics from the would continue to have that responsibility. If so, Constitutional Unit gave the other day, they think there is a lot to be said for the Secretary of State for that Parliament does not know the judges as well as Constitutional Affairs being in this House also. perhaps they might; and that there should be some other mechanism for them to become more familiar with one another. If that is desirable, and I can see Q257 Lord Carter: I wonder if you could say they gave quite a good argument for saying it is something which you did not say in your opening desirable, it seems a little odd to kick out the people remarks but it is in your paper and also in the who are presently in who play that part to some speeches you have made about the Law Lords extent. I am not conscious that any harm has been remaining in the House of Lords. I wonder if you done. Apart from anything else, a judge is not going would agree that since the statement by Lord to be a person without opinions. Any person who has Bingham in June 2000 the position is, in a sense, no opinions at all is unlikely to be of sufficient calibre anomalous; that we have serving Law Lords most of to be a judge. You have people with opinions, but the whom have not spoken in the House or have voted judge’s capacity, I think, is to listen to the argument since that statement; others actually have spoken on in the individual case and come to a view in controversial issues and voted on controversial issues accordance with his oath in the light of that, whatever and have moved amendments on Bills; then there is his previous opinion was. I often found myself in a the other situation of retired Law Lords who still sit case coming to a view which was not the one I had judicially. To the layman if you sit as a judge and you when I came into the room. I think that we must be a deliver some judgments as a judge then you are a bit robust about that. In the United States they judge; and yet we have a situation with retired Law examine people in confirmation hearings about their Lords where some do not speak at all and some speak views, because they think these views are going to be extensively on political matters. Would it not be the views they are going to perpetuate as judges; clearer now in the new situation if the Law Lords whereas I think we feel (and I am sure this is part of were not in that role? Also you make a point about our ethos) that judges are people who, although they the work they do in the House in terms of committees have opinions, when they come to a case they do so and so forth; but the one thing this House is not short with a mind which is willing to listen to the argument of is lawyers. I am sure that it would be possible if the and come to a conclusion in light of the arguments in serving and retired Law Lords were not acting that the case about what is the right judgment. I do not see there would be the legal personnel to fulfil their any reason why they should not be allowed to functions? participate in Parliament. Lord Mackay of Clashfern: The question of whether you split the two off altogether is quite a difficult question. I have simply left that on the basis that I Q258 Lord Carter: If that is the case, why did we thought Lord Nichols’ speech was very persuasive. need the statement by Lord Bingham in June 2000? As I say, he is the longest serving Law Lord. During Lord Mackay of Clashfern: They decided that they the time that I have been in the House, which is now wanted to make that clear—the present law lords getting on a bit, the Law Lords have been taking part. decided to do that. It is not absolutely blanket; there Lord Wilberforce, for example, now deceased, one of are some reservations but that was the view of the law the brightest stars in the judicial firmament of the lords at the time. The law lords change from time to 20th century, spoke quite a lot in the Lords, but he time and different views have been expressed. As I 9674042004 Page Type [E] 28-06-04 23:17:23 Pag Table: LOENEW PPSysB Unit: PAG2

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20 April 2004 Rt Hon Lord Mackay of Clashfern, KT say, Lord Wilberforce, as an active law lord spoke a judiciary—I had that experience from time to time— great deal, and some others did too, but I just take and on another occasion the judiciary think he is too him as an example because although he was much in favour of the executive. There is the old thing persuasive he was very gentle—there was no about the lawyer saying he is inured as a politician sledgehammer about it—and there was no harm and the politician saying he is inured as a lawyer (?). done at all. I think the deliberations of the House That is the sort of position the Lord Chancellor has. I were all the better for it, and I think the House would think it is better that that should be resolved by some be all the better for some contributions from some of responsible person in that kind of office than it the present law lords too, although it is up to them should be resolved formally. This Bill is going for a whether they want to do it. formal method of resolution of some kind, and I can see there is a lot to be said for it in some ways but I can see quite a lot against it from a purely practical Q259 Lord Crickhowell: My Lord Chairman, can I point of view. take Lord Mackay back to Clause 1 and the issues raised by Lord Bledisloe at the very start? I, perhaps, rather roughly dealt with the Lord Chancellor’s Q260 Lord Crickhowell: Can I ask a follow-up answer to the point you had made in the second question? If it is lex imperfecta as at present drafted reading debate about giving an adequate answer to do you envisage that one could produce, say, Clause the enforceability issue, and you have commented 1 with the same objectives which had fewer about that this morning. Professor Jolowicz in his drawbacks than the one we have identified so far. evidence says that the clause creates what is a fine Lord Mackay of Clashfern: example of lex imperfect. Or is it envisaged that I think it would be Clause 1 should open the door to an application for possible, certainly, to make it more perfect than it is judicial review? That conjures up a vision to delight at the moment. At the moment, certainly, it is headed the enthusiastic lawyer, but it may not be entirely up as a guarantee rather than a failure. I think a bank sensible. You, in your response, earlier said that the would be pretty loath to accept a guarantee as only people who could interpret it and enforce it was qualified as that. I must say I doubt whether it is quite the judiciary. Does that not then, almost inevitably, in the terms of the concordat—although the Lord take us down the road to a full supreme court that Chancellor may have different views to me about you in your earlier comments suggested we probably that—but so far as I can see it does not quite measure do not want to move to? If we have this clause and it up to the concordat. The enforcement question is was enforced by the judiciary are we not moving very certainly an important one and I would be loath to dangerously to a form of supreme court which goes see any kind of judicial action, judicial review, rather beyond what is envisaged here to—perhaps I involved in this kind of area, but it might have to might call it—a Rees-Mogg type supreme court happen. which he commented on in his evidence. Lord Mackay of Clashfern: I think that there are two ways of trying to resolve conflict, and an amount of Q261 Lord Goodhart: Lord Mackay, you suggested tension between the judiciary and the executive is that there was a role for both the Lord Chancellor always on the cards quite likely. As I say, some people and a Secretary of State possibly. The main role of think that unless there is some tension there is the Lord Chancellor, at present, and certainly the something wrong. We have two ways of resolving great majority of the spending of the Lord that conflict; one is to resolve it within the Chancellor’s Department is on court administration. Government, and perhaps within an individual—he Is it not? has to resolve it within himself to decide which is the Lord Mackay of Clashfern: I do not know about that right way to do it. The other way is to have some necessarily. formal way of resolving conflict. When I was in Canada at the Commonwealth Law Conference in 1996 (I think it was) there were a number of actions Q262 Lord Falconer of Thoroton: It is divided throughout the states of the Canada by the judiciary between court administration and Legal Aid. against the executive in respect of judicial salaries. I Lord Mackay of Clashfern: Legal Aid is certainly an remember quite a number of judges commenting to important one and much the most contentious one, me on how much better our arrangements were than by far. The administration of courts is certainly part that. I think there is an important point here, that the of the Lord Chancellor’s responsibilities, but that is a Lord Chancellor—Lord Falconer described the very appropriate one, I feel. tensions in a way which I would wish to take, perhaps, some issue with—has to try to balance these in himself when it comes to the balance; it may be the Q263 Lord Goodhart: You would envisage that executive may feel he is too much on the side of the being retained? 9674042004 Page Type [O] 28-06-04 23:17:23 Pag Table: LOENEW PPSysB Unit: PAG2

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Lord Mackay of Clashfern: That is right. encompassed in the total budget, or is there some way it should be dealt with separately? Q264 Lord Goodhart: If you retain that in the Lord Lord Mackay of Clashfern: I think for constitutional Chancellor’s Department, would the Secretary of reasons it needs to be dealt with separately from the State have enough to do to justify a separate system for England and Wales because it is a United Cabinet office? Kingdom organisation, and the Scots would Lord Mackay of Clashfern: I am sure he would. There certainly say something about that. I rather think is plenty to do, and there are things hanging about. that that has been accepted, if I am not mistaken. So that some degree of separation from the ordinary system of the court service in England is required. Q265 Lord Goodhart: There is electoral law, and There is one point about that which I should have data protection. mentioned. In this Bill the Lord Chancellor or the Lord Mackay of Clashfern: Electoral law is a pretty Secretary of State is required to consult various important law. These are issues that the Lord people about the fees. In Section 130, I think it is, of Chancellor has that are not judicial administration the Supreme Courts’ Act the Lord Chancellor was are all very important issues, there is no question. He bound to secure the concurrence in civil fees on three is responsible for human rights and responsible for out of the four heads of division (no doubt on the constitutional affairs, and he is busy trying to tell us view that one of them might be absent for some what to do about that. That is a fairly time- reason) and the Lord Chancellor on criminal cases. consuming job and, so far, it is not quite finished. You have to get their consent. It is purely consultation that is here, so I think the judiciary Q266 Lord Goodhart: What would your view be should have a pretty lock-in role in relation to the fees about the Lord Chancellor taking over the to be charged—although, of course, they have to responsibility for making criminal law and rules of think about the maintenance of their situation as criminal procedure? well. The cost of the Supreme Court is certainly an Lord Mackay of Clashfern: I think there is quite a lot important issue, and as I say I think multiplying the to be said for dealing with the rules of procedure, and fees by ten (which seems to be what is going to in fact the Lord Chancellor does that now. Criminal happen) is quite a high price to pay for securing a law has always been with the Home Office and I principle which, on the whole, I think is open to suspect—though I may be wrong—that they would some question. be rather reluctant to give that up. Q269 Lord Lloyd of Berwick: Two short questions Q267 Lord Goodhart: Would it be a good idea if they on our judicial appointments. You say in your paper did in principle? that you regard it as essential that the Commission Lord Mackay of Clashfern: I am rather keen on trying should recommend only on person— to keep the Lord Chancellor’s office out of the areas Lord Mackay of Clashfern: Assuming that the minister that are too contentious. That is part of the non- responsible for advising the Queen, who is the political character of the Lord Chancellor’s political Secretary of State for Constitutional Affairs, is appointment. I think it was well expressed to me by a overtly political. colleague that the Lord Chancellor should not be concerned with the nitty gritty of party politics. He is Q270 Lord Lloyd of Berwick: I follow that. Can you appointed by the Prime Minister but, generally explain a little more why you take that view? speaking, he is less politically motivated than other Lord Mackay of Clashfern: I tried to say that at the ministers might be expected to be. Therefore, I am senior level there will be serving judges. I assume that inclined to try to protect him from taking on unduly this Judicial Appointments Commission is going to contentious areas of the law. Certainly it would be a be pretty transparent. That is one of the areas which consideration—I accept that immediately. is said to be wrong of the Lord Chancellor’s methods; that they were too much in secrecy, and all the rest of Q268 Lord Craig of Radley: Following up a little bit it. So this will be open. You have a serving judge who from that last line of questioning, and acknowledging is nominated by the Judicial Appointments your reluctance, as expressed, about a supreme court, Commission for, let us say, the Court of Appeal and I wonder whether you have got any views about how the political minister says “No, I am not going to best to resource a supreme court? The Bill lays down, have him, I am going to have somebody else”. He in a number of clauses, how it should be done, and would be continuing as purely a judge but he has been basically the responsibility is almost entirely on the turned down by somebody overtly political, and I do Secretary of State for Constitutional Affairs. Bearing not honestly think that improves the image of our in mind its other responsibilities, do you think it is system because I do believe and claim that at the reasonable that the Supreme Court should be moment it is very, very difficult to assign political 9674042004 Page Type [E] 28-06-04 23:17:23 Pag Table: LOENEW PPSysB Unit: PAG2

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20 April 2004 Rt Hon Lord Mackay of Clashfern, KT labels to our judges, or any of them. That is a I may, close the list with the four I have got and ask precious inheritance which they do not have in the them to be reasonably brief. United States, with all its separation of power. Our Lord Kingsland: My Lord Chairman, both my judges have a status which I think is a good deal more questions have been asked and answered. than the level that the judges are looked upon in Chairman: Admirable! many other countries of the continent, where they are very much regarded as civil servants because of the Q272 Lord Holme of Cheltenham: My Lord way in which their career system is structured. I think Chairman, two quick points of clarification on your these are precious things and, certainly as far as I am evidence, Lord Mackay. The first is, when you gave concerned, I never inquire into the political the responsibility of the slimmed down Lord affiliation of anybody on appointment to the bench. Chancellor that you envisage, you made reference to Sometimes I discover later, to my surprise, some making sure that the Government acted within the political affiliation that I had not thought of at all. law. Is that not—I speak as a non-lawyer—the role of the Attorney General? How do you see, in your construct, the relative responsibilities of those two Q271 Lord Lloyd of Berwick: Under the Bill as I officers? May I ask the other question? understand it there is one procedure for appointing Lord Mackay of Clashfern: Yes, of course. judges to the Court of Appeal and another one which may be rather similar for the supreme Court, but a different procedure for High Court judges, who are Q273 Lord Holme of Cheltenham: You have included under Schedule 12 with circuit judges, expressed a preference for the term High Court of the district judges and what I call the sort of inferior United Kingdom as opposed to Supreme Court in judiciary (?). Would there be something to be said for what you have said. including High Court judges in the arrangements for Lord Mackay of Clashfern: I expressed a preference the Court of Appeal—the same arrangements which for something other than a Supreme Court. I do not apply to the Court of Appeal—rather than the much think I expressed any very concluded opinion. more burdensome arrangement for circuit judges, district judges and so on? Q274 Lord Holme of Cheltenham: Maybe it is in Lord Mackay of Clashfern: When I was Lord your speech. Chancellor I introduced advertisements for judges up Lord Mackay of Clashfern: I have used that to the High Court but not including the High Court expression, yes. because I felt, and my judicial colleagues had particular concerns about this, proper Q275 Lord Holme of Cheltenham: Assuming that advertisements were quite expensive and so far as the you prefer it to Supreme Court. High Court was concerned the number of eligible Lord Mackay of Clashfern: Certainly I prefer people was fairly small. Even in the circuit judges something other than Supreme Court, and I am cases, there were not a lot of new people that came happy to consider— into the field as a result of advertisements—there were some occasionally but not very many. Now, of Q276 Lord Holme of Cheltenham: Given that the course, it has gone up and there may be something to only preference you have articulated is that particular be said for that, subject to the point I am making one, is it because it sounds similar to High Court and about some people, out of genuine humility, not Parliament? Is that what you were saying earlier? wishing to put themselves forward as judges; Lord Mackay of Clashfern: That is part of it. It is used although they would be more than capable they have in Australia, for example, as the top court in the to make an application. I think the system should be Commonwealth. I think it is more accurate in the pretty well the same all the way up, really, now. I do meaning that it has in respect of Scotland. I think it think that the arrangements for the Supreme Court in is also just slightly better from the point of view of the Bill are quite remarkable, and I do not fancy them encouraging the new court to start telling Parliament at all, I must say. I think they could be considerably what to do, just slightly. improved, and I think the Judicial Appointments Commission, a special one for that level, of course, Q277 Lord Holme of Cheltenham: Although the because it is for England and Wales and it ought to High Court of the United Kingdom does imply a have a responsibility on selecting the people. If the specific reference to the inclusion of Scotland where minister recommending the appointment to the you have, because of criminal law, some doubts Queen is to be an overtly political minister, as the about devolution even coming under the new High Secretary of State claims himself to be. Court. Chairman: I have four Members of the Committee Lord Mackay of Clashfern: It would be the High who have asked to ask questions. Lord Mackay has Court. The Supreme Court suggested is the area to been very generous with his time but I think I will, if which you can go, whereas the High Court does not 9674042004 Page Type [O] 28-06-04 23:17:23 Pag Table: LOENEW PPSysB Unit: PAG2

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20 April 2004 Rt Hon Lord Mackay of Clashfern, KT specify in anything like the same fullness the Q280 Lord Elder: Indeed, but it is not a wide group. jurisdiction of the court. To answer your first Lord Mackay of Clashfern: Comparatively few in question, which is a very important one, the Lord Scotland. That is why they all come here! The answer Chancellor is, I think, in the Cabinet and in the is that devolution issues may include issues in the Cabinet his job is to ensure that the Cabinet decides criminal law. In fact, in practical experience since the and takes executive action in accordance with the Human Rights Act and the Scotland Act most of the law, but he is not the legal adviser. I think there have devolution issues that have come to the Privy Council been mistakes in the past when the Lord Chancellor from Scotland have been in the area of the criminal has assumed the task of advising the Government law. Certainly one of the reasons why it was not put about the law. That is not the Lord Chancellor’s into the House of Lords, as it could well have been, function; the Lord Chancellor is a judge and it would in the Scotland Act, was in order to avoid that be improper for him, in fact, to act as legal adviser in particular point. That is the only reason, as far as I that sense. The legal adviser is the Attorney General, am concerned, but it is quite a powerful reason all the but the Lord Chancellor’s job is to see that if an issue same. If it was good in 1999 it is good still. arises which requires legal advice is taken, because often non-lawyers do not appreciate—naturally enough, because they are not lawyers—there is a legal Q281 Lord Carlisle of Bucklow: In answer to Lord question involved. Carter you reminded us that many people probably around this table have sat both as recorders and been Members either of the House of Commons or the Q278 Lord Holme of Cheltenham: It is the difference House of Lords. Therefore, the principle of being between generic advice that the Government is part of the legislature and part of the judiciary has generally acting or not within the law, and specific been broken in that way. What is your own view advice on specific issues. about whether the Lord Chancellor should be Lord Mackay of Clashfern: It is really a responsibility allowed to sit himself in future? Do you envisage him to see, if the law is unclear in an area, that it is sitting, or do you say that because he is in the Cabinet clarified by advice before the Cabinet proceeds. If the the distinction is different? law is clear then the Lord Chancellor will note that Lord Mackay of Clashfern: I concede that it is not situation. He is the best qualified to realise whether or essential for the role to be a good role for him to sit not there is a risk in what the Cabinet are proposing (?). If it is thought to be necessary that he should not from the point of view of the law, and to see that the sit as a judge, so be it. I think, myself, it is not a minister, whoever it is, that is making the proposal necessary requirement but on the other hand other takes the appropriate legal advice. people do. I do not think the rise or the fall of the proposal should depend on that.

Q279 Lord Elder: I just want to follow up the issue of devolution. I understand why there is a huge Q282 Lord Falconer of Thoroton: You described, sensitivity about anything to do with criminal very eloquently I thought, the difference between a matters escaping from Scotland. What is more judge and a politician, in answer I think to Lord puzzling to me—and I would like, if you would Carter’s questions. I think the essence of what you are please, some clarification on some of the things you saying—you tell me if this is wrong—is you think the have said in the debate—is why, on devolution issues Lord Chancellor’s role should continue with all where there is perhaps a disagreement between the politics removed, in effect, to the Secretary of State UK Parliament and the administration in Scotland for constitutional Affairs, and the Lord Chancellor, and Wales as to where powers lie, it would be in effect, being the senior judge responsible for the inappropriate for a Supreme Court, however it is care of the judiciary and the running of the courts? described, to take that on and why, as I understand Lord Mackay of Clashfern: Yes. Of course, the it, you still prefer the Judicial Committee Privy distinction between a politician and the senior judge Council? I have always reservations about the is quite important one. I think it is a different role. I Judicial Committee Privy Council because I suspect think because the Lord Chancellor is in the Cabinet that although this body would be very different the and in daily contact with Cabinet business and with number of people within Scotland who could begin to other colleagues and responsibilities, there is a tell what the Judicial Committee Privy Council is sensitivity that the Lord Chancellor has to politics would be fairly few. That seems to me to be a problem and to the needs of the nation generally in a way that about transparency. the judges, as a whole, even the most senior and most Lord Mackay of Clashfern: I think the Scottish lawyers talented judges, just do not have, in my experience. would know. Of course, it can vary from one to another. 9674042004 Page Type [E] 28-06-04 23:17:23 Pag Table: LOENEW PPSysB Unit: PAG2

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Q283 Lord Falconer of Thoroton: Am I right in of transitional role between the two, which is the best saying that your proposal, in effect, is strip away the situation in which to try to resolve these conflicts. contentious—ignore the word “political”—bits of the job, strip away the bits that get into politics and Q286 Lord Falconer of Thoroton: Finally, the make the new Lord Chancellor, in your proposal, a independence of the judiciary. We readily accept that senior judge sensitive t the concerns and needs of the the Lord Chancellor has an obligation to ensure, as executive, a member of the Cabinet but put right to far as he can, the independence of the judiciary. We one side, as far as contentious issues are concerned— know from history that from time to time that Lord Mackay of Clashfern: So far as possible. Even independence might be undermined. The best court issues can be contentious. For example, example we have had so far, I think, is the Lord Chief questions about closure—you must have had some Justice being appointed in the 1920s signing a letter experience of that already. in blank for his resignation, which the Prime Minister could activate at any time. How is the obligation Q284 Lord Falconer of Thoroton: Closure of which the Lord Chancellor has to ensure the magistrates’ courts? independence of the judiciary to be enforced now? Lord Mackay of Clashfern: Yes. These are contentious Lord Mackay of Clashfern: I think it is enforced by his issues. So it is difficult to use words which are responsibility. I think it is much better that the person completely descriptive. These are contentious issues chosen by the Prime Minister for that job should be which the Lord Chancellor has to face, and quite the person that the country can trust to do the job, difficult they are. In the place between the two, he has rather than have some kind of enforcement a sensitivity to that which, I think, often, even the procedure with the courts deciding whether this most senior judges, do not quite have. I am not trying guarantee that has been breached by Mr X in his to decry their responsibility, it is just a different capacity of Minister of Health, or something— responsibility. Q287 Lord Falconer of Thoroton: It depends upon the personality of the holder of the office. Q285 Lord Falconer of Thoroton: I was interested in Lord Mackay of Clashfern: Most jobs in government your rule of law point. It should more than simply do, to some extent. I think that the nature of the check that the proper advice has been taken. office should determine, to a degree—obviously Lord Mackay of Clashfern: It is making sure that the personalities can be different within it—its proper advice is taken. I would not substitute my own responsibility. As I said, until very recently it was view for the advice taken. It is the responsibility of the thought to be an honour to be the Lord Chancellor. advice of the Attorney General. It is very interesting Lord Falconer of Thoroton: It still is. that this Government since 1997 has had an Attorney General in the House of Lords—the first time ever, I Q288 Chairman: Lord Mackay, thank you very think, but very easily accepted. I have not heard any much indeed for coming. It has been a fascinating complaint about that. That is why I think it is quite session. You have exposed us to a number of issues important that the Lord Chancellor should be a and I am very grateful to you. I am sure the member of the House of Lords, in my view. It is a very Committee has found it extremely helpful. important role, and the mere fact that a degree of Lord Mackay of Clashfern: It is a privilege to be here. contentiousnessistakenoutofitjustmakesitthesort Thank you.

Memorandum by JUSTICE

1. In general, JUSTICE welcomes the core reforms introduced by the Constitutional Reform Bill. We also welcome its consideration by the Select Committee. 2. Before passing to other matters, we should express our concern as to resources. We share the widely expressed fear that the Supreme Court will be established before its premises are operational. The importance of a new building is both practical and symbolic. We hope that the Select Committee will advise that the court should only be established when appropriate premises are ready. 3. We also note with concern the indication in the Explanatory Notes to the Bill that it is intended that the Judicial Appointments Commission will be located “within existing Department of Constitutional Affairs estate in the early part of its life”, then being only partially relocated. Minimisation of the commission’s cost is clearly important but its physical location should symbolise its independence from its sponsoring department. 9674042005 Page Type [O] 28-06-04 23:17:23 Pag Table: LOENEW PPSysB Unit: PAG2

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4. This submission concentrates on the key safeguards that are necessary in the relationship of ministers with the judiciary; new roles for the Lord Chief Justice, the Judges Council and a new Parliamentary Joint Committee; and matters relating to judges of the Supreme Court. 5. The House of Commons Constitutional Affairs Committee stated: 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] on the other hand a minister who is a full-time politician. 6. The transformation of the Lord Chancellor into Secretary of State for Constitutional Affairs dilutes the protection of justice within the government process. The Lord Chancellor’s role as a guarantor of the independence of the judiciary within government has been removed. Clause 1(4) of the Bill merely gives the Secretary of State a duty to “have regard to . . . the need to defend [judicial] independence”. Further, the Department for Constitutional Affairs has taken a number of miscellaneous responsibilities outside the justice system from the Home Office, leaving it with a somewhat confused orientation. 7. As a consequence, the Secretary of State will no longer perform the function of the Lord Chancellor as a “hinge” between the judiciary and the executive. This is of particular concern at a time when radical changes are proposed for the appellate system and the appointment of judges. Constitutional provisions for the protection of justice must be at least as robust as we have had until now. 8. The proposed duty on the Secretary of State does not go far enough. It should be expressed in stronger language, such as “the Secretary of State shall defend judicial independence”. The duty might be expressed in even wider terms along the lines of that in the South African constitution: Organs of state, through legislative and other measures, must assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts. Statutory provisions could, of course, never fully replace the strength of existing unwritten conventions but they can help to re-enforce them. 9. Clause 1(3) would impose on all Ministers of the Crown a duty “not [to] seek to influence particular judicial decisions through any special access to the judiciary”. They should not seek to influence decisions by any means. There should certainly be no attempts to use the media to influence decisions of particular concern to the government eg challenges by way of judicial review, sentencing or general decisions such as those in relation to asylum-seekers. This should be a clearly understood constitutional convention. It could find statutory expression in a duty on all ministers in the same broad terms that apply in South Africa. 10. A provision is required in the Bill that extends the current understanding that ministers will not criticise the judiciary in Parliament or the media. It is entirely inappropriate for a minister to attack a particular judge in public, not least because the judge cannot respond, particularly in a case where the Government has been a party. The proper course is to appeal or obey the judgement. 11. The loss of the Lord Chancellor as a protector of the judiciary must be counterbalanced by greater powers to the Lord Chief Justice (LCJ) whose office should be expanded. This requires: (a) adequate financial resources; (b) an express duty on the Lord Chief Justice to monitor judicial independence; (c) a duty to make a public report annually or on particular issues from time to time; (d) a forum to receive the publication and with which the Lord Chief Justice can raise issues of concern (see the proposal below for a Parliamentary Joint Committee); (e) a clear duty in relation to judicial discipline; (f) a power to make procedural rules without the requirement of the consent of the Secretary of State proposed in Paragraph 2, Schedule 2; (g) a duty to raise any concerns in relation to judicial independence with ministers; and (h) a statutory duty on the Lord Chief Justice to consult with a representative body of the judiciary such as the current Judges’ Council. 12. A Parliamentary Joint Committee on the Judiciary should be established along the lines of the very successful Committee on Human Rights. Its duty should be to consider and report upon the independence, impartiality, dignity, accessibility and effectiveness of the courts. It should receive appropriate reports, annual and otherwise, from the Secretary of State and the Lord Chief Justice. This would involve both houses of the legislature in the preservation of judicial independence and give the judiciary access to Parliament to raise any issues of concern. 9674042005 Page Type [E] 28-06-04 23:17:23 Pag Table: LOENEW PPSysB Unit: PAG2

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13. JUSTICE accepts the composition of the Judicial Appointments Commission set out in the Bill (Schedule 10, paragraph 2) though we originally proposed a slightly different composition with less domination by the judiciary. The six lay members might beneficially contain a leading legal academic capable of evaluating the legal ability of senior applicants. 14. We regret that the proposed mechanism for appointing members of the commission (Schedule 10, para 5) does not correspond with the provisions of the concordat with the Lord Chief Justice. The panel should have an appointing role. We note that the Secretary of State has promised clarifying amendments on this subject though it is not quite clear that they will be broad enough. 15. Clause 51(3) requires appointment of the judiciary “on merit” but leaves the definition to the Secretary of State. The Scottish commission has a duty “to make . . . recommendations on merit, but in addition to consider ways of recruiting a Judiciary which is as representative as possible of the communities which [it] serve[s]”. We note that the Secretary of State has promised amendments to leave the definition of ‘merit’ to the commission. 16. JUSTICE supports the idea of a Supreme Court. We accept the arguments that have been cogently advanced by Lords Steyn and Bingham. We have, however, the following concerns: — The court should not be established before premises are ready for it; — The government should not seek to finance the court through higher litigation fees; — The membership of the court is too small—with the result that there is likely to be too much use of acting and supplementary members. 17. The Bill provides (clause 17(3)) for an initial membership of the Supreme Court of 12. This is the same number as presently for Lords of Appeal in Ordinary. Clause 29 provides for acting judges and Clause 30 for a supplementary panel of Supreme Court justices for 5 years after retirement or until they reach the age of 75. Clause 32(1) requires the Supreme Court to sit in uneven numbers, with a minimum of three judges but with only one who must be a permanent member of the court. 18. JUSTICE considers that there should be initial appointment of 15 Supreme Court justices. We note that the current Law Lords profess themselves content with the existing number of 12 plus a supplementary panel, saying that “it is important to the quality of the Court’s work and the consistency of its decision-making that the numbers of members should be relatively small”. We agree with this principle but consider that 15 full-time members will assist that consistency by removing those who only sit occasionally. Part-time or occasional members of the court raise difficulties though they have the obvious advantage of flexibility and reduced cost. They will impede the concept of a small cadre of very senior judges with the role of developing the law in the UK. 19. JUSTICE considers that part-time or supplemental judges should be kept to a minimum. In any event, a majority of any bench of the Supreme Court should be constituted by permanent justices of the court. A further point should be made about acting justices. A qualification “to have held high judicial office” or be a member of the Privy Council (clause 29) is too wide, at least if the custom of appointing all judges of the Court of Appeal to the Privy Council continues. The panel should be limited to retired law lords/Supreme Court justices and the present or past holders of the following offices: Lord Chief Justice of England and Wales, Master of the Rolls, Lord President of the Court of Session, Lord Justice Clerk, Lord Chief Justice of Northern Ireland. Retired law lords, Supreme Court justices and office holders should only remain on the panel for two years after their retirement. 20. JUSTICE supports the Bill’s basic mechanism for the appointment of Supreme Court justices: a commission composed generally of the President and Deputy President of the court and one member each of the appointment commissions for England and Wales, Scotland and Northern Ireland (clause 20(2)). However, we are concerned at the power of the commission to nominate between two and five names. This may well be intended to give a sufficient flexibility in the final appointment to meet all the necessary requirements eg for a person familiar with the law of Scotland. However, an alternative would be for the commission to prepare a brief for the post after consultation with all relevant parties, including the Prime Minister, and then to make a recommendation. If more than one recommendation is to be made, then the commission should rank the candidates. 21. In view of the importance of appointment, we think it appropriate that the role of the Prime Minister be more than as a “postbox” for the Secretary of State. The proposed roles for both should be collapsed into a Prime Ministerial responsibility and clause 21(5) and 22 modified accordingly. 9674042005 Page Type [O] 28-06-04 23:17:23 Pag Table: LOENEW PPSysB Unit: PAG2

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22. The Supreme Court will exercise powers of developing the law beyond those of any other courts. However, it will not, unlike the US Supreme Court, sit as a collegiate body of all its members in every case. This makes the role of the President of the Court a sensitive one, since it will be for the President to assign the justices that will hear particular appeals. By clause 17(6), Her Majesty may appoint one of the judges to be President and one to be Deputy President of the Court. Since the Queen may not exercise a personal discretion in this matter, she will necessarily look to the Prime Minister for advice as to who to select from among the justices of the Supreme Court. We do not consider that it is consistent with other provisions in the Bill that this power should be vested in the Prime Minister. Other machinery for making these appointments should be created. There are two possibilities. The consultation paper preceding the Bill raised the possibility that such appointments be made on the recommendation of a specially appointed commission. Alternatively, the House of Commons’ Constitutional Affairs Committee suggested that the Court might elect its own President and Deputy. 23. The Explanatory Memorandum indicates that capital costs will “be split over three years” and, together with the running costs, will largely be met from an increase court fees, estimated at between 0.8-1 per cent, by all litigants. This sounds relatively little but it will impact most on small claims litigants in person. However, the essential function of the Supreme Court is the extension of the public interest in orderly development of the law not the settlement of private disputes. This is represented in the de facto contribution made to the running cost of the existing arrangements by the legislature in the form of the subsidy provided by the House of Lords. It is inappropriate to raise the proposed level of the cost from litigants for such an institution. 24. Chapter 3 of Part 3 of the Bill makes entirely new provision for the discipline of those who hold judicial office. JUSTICE believes that the making of new disciplinary provision for the judiciary is justifiable but we have considerable doubts about the approach taken in the Bill, whereby the new disciplinary powers may be exercised by the LCJ only with the agreement of the Secretary of State for Constitutional Affairs. In particular, we believe it wrong that the LCJ should be able to give advice, warning or a formal reprimand to a judge only with the agreement of the Secretary of State. This would mean the injection of an inappropriate bureaucratic relationship into matters of judicial conduct that should in principle be entrusted to the LCJ, working in accordance with procedures approved by the Judges Council. In so far as provision in the Bill may derive from present practice within the Lord Chancellor’s Department, that practice is justifiable only because the Lord Chancellor is head of the judiciary. 25. The House of Commons’ Constitutional Affairs Committee stated: Any new system of discipline will need to be firmly within the control of the judiciary in individual cases and we believe that the Lord Chief Justice should be the person primarily responsible for it. “We agree.” 7 April 2004

Examination of Witness Witness: Mr Roger Smith, Director, JUSTICE, examined.

Lord Goodhart: My Lord Chairman, before we start you may have observed this morning, the Committee could I just add to my declaration. I am the current is not exactly reticent about following up matters it is advice Chairman of the Council of Justice. I had a interested in. hand in drafting the original submission of Justice in Mr Smith: Thank you. My name is Roger Smith, I response to a consultation paper but I make it clear I am the Director of Justice and I am very grateful for have had no part in drafting the current briefing from the opportunity to be here and to speak to you. We Justice to this Committee. welcome the Bill and we welcome the Government’s conversion to the core policies in the Bill. We called Q289 Chairman: Thank you very much. Mr Smith, for a degree of pre-legislative scrutiny but I do not can I welcome you? Thank you very much for think we necessarily imagined it would be a Select coming. We will be very interested indeed in hearing Committee of this kind, but we welcome the scrutiny what you have to say. I wonder whether you could that you are able to give to the Bill. The Bill broadly adopt the same procedures broadly we used with the covers three areas: judicial appointments, the other witnesses, which is that, first of all, you Supreme Court and the role of the Lord Chancellor. formally name yourself for the purposes of the record In relation to the Judicial Appointments and then, secondly, would you speak to your paper Commission, we are relatively happy with the and open up the discussion for us, and then we can position as set out in the Bill, and as modified by the perhaps follow up the issues that we find helpful. As written evidence of the Lord Chancellor, which clears 9674042006 Page Type [E] 28-06-04 23:17:23 Pag Table: LOENEW PPSysB Unit: PAG2

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20 April 2004 Mr Roger Smith up a number of issues with which we were unhappy. concerned rather than by the courts. I think there has There may be points of detail to which we return but to be some ringing declaration of the independence of we are broadly happy with the Judicial the judiciary and the courts, and there are examples Appointments Commission. In relation to the of that in constitutions around d the world and in our Supreme Court, again bearing in mind Lord evidence we quote from the South African Falconer’s written evidence, we are broadly happy constitution and we think the Bill would be improved with the position. We do argue, and we might or by some more ringing declaration of the might not wish to go down this road, that there independence of the judiciary rather than measly should be no use or very little use of supplementary words requiring a Secretary of State to have regard to justices, and it would be better to bite the bullet and judicial independence. Similarly, there is a duty (I have a slightly larger number of justices than is think it is clause 1(3)) on ministers of the Crown not currently the case. I am aware that the submission to influence particularly judicial decisions or any from the Law Lords says 12 is a happy number, I am special access to the judiciary. It seems to me almost aware that the Government shows no interest in otiose; it would be outrageous for a Secretary of State extending the number beyond 12, which no doubt to seek to interfere in relation to any individual case, will have financial consequences, but we think it and I would have thought myself the grounds for the would be better to have 15 because then you would resignation of that minister if they were to be have a permanent core of justices at the very top of discovered. I do think that some wider statement the system. In a way that is a relatively minor point. needs to be incorporated in the Bill and there should The most difficult point in the Bill is the consequence be some ringing declaration in relation to the of the Judicial Appointments Commission and the independence of the courts. It may well be, if we are Supreme Court, and also the increasing politicisation in the business that I think we now are of having to of areas of policy that have been the responsibility of write down constitutional conventions which one the Lord chancellor, particularly Legal Aid (perhaps might quite understandably say are better less than court administration) which is the demise of understood than expressed, that one has to say the Lord Chancellor’s Office. If one is to abolish the something about relationships with ministers with office then, it seems to us, there are a range of media and the courts and judges. It may be time to provisions that you have to make, almost all of which say something explicit in relation to that point. Then are really quite difficult to puzzle through and get we come to the point which Lord Howe made. The absolutely right. We do think that the Bill and the new structure will put enormous weight on the office Government could go further in relation to the of the Lord Chief Justice, and it does seems to us that protections that are required, because there is clearly that has to be recognised. The Lord Chief Justice will a saying with which you are all familiar which can be be carrying some of the weight now carried by the summed-up as “if it ain’t broke don’t fix it”. There is Lord Chancellor. It is not quite clear how big an a sense in which the role of the Lord Chancellor has office it is expected they should have but it will served us well and has certain advantages, and we do certainly have to be of a reasonable size to carry out have, as Lord Howe has just said, a judiciary which all the duties that they have. We think that the office could reasonably be the envy of the world. One should be free from some of the necessity to get would not want to disturb that, but if we are to consent of the Secretary of State, which is an issue maintain the position that we have now then a series which has been previously referred to. We think that of safeguards have to be put in place, and they the Lord Chief Justice should have an express duty to probably have to be advanced from those which are protect judicial independence, and the mechanism by in the Bill. The first point is that which has been which that might be assisted would be the creation of a Parliamentary Joint Committee which would give mentioned by Lord Mackay, which is the duty on the the Lord Chief Justice a venue and a forum to which Lord Chancellor as stated in Clause 1(4) of the Bill, he or she could report—and should report annually, the need to have regard to and the need to defend perhaps—from to time on matters relating to the judicial independence, and it is weakly stated. It judiciary. By say of those mechanisms one might would really be our view that that has to be stated in recreate the necessary balance which will have been stronger language. It is quite difficult to know what lost the demise of the Lord Chancellor. Indeed, if kind of language and there is the issue here of what these provisions could be introduced one would end are we doing? What we are doing here is seeking to up with something which was relatively satisfactory. put into writing a constitutional convention which should be understood by all the parties and never the subject of recourse to a court to enforce it. That is Q290 Chairman: Thank you very much indeed. Can difficult because, in a way, it is unavoidable. In this I follow on slightly the points that you were making exercise of replacing the Lord Chancellor we have to on the increased weight that would be put upon the write down some things which we have to hope will Lord Chief Justice? I suppose there is an argument be enforced by the internalisation of them by those that says that what you are, in effect, doing is turning 9674042006 Page Type [O] 28-06-04 23:17:23 Pag Table: LOENEW PPSysB Unit: PAG2

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20 April 2004 Mr Roger Smith the Lord Chief Justice from being a judge into Q293 Lord Carlisle of Bucklow: So far as the Judicial becoming an administrator. The danger is that he Appointments Commission is concerned, which will, so to speak, extract himself somewhat from the Justice supports, why should not the judicial process. Do you see any danger in that? recommendations of that Commission go through Mr Smith: I see difficulty which could I suppose the Lord Chancellor rather than through a political extend to danger. One of the problems is you will minister in the House of Commons? have someone whose career is essentially that of a Mr Smith: They could do but if you accept the end of judge who is then, at a late stage, having to change the judicial role of the Lord Chancellor as no longer perhaps not so much to an administrator but the head of the judiciary, that is a major arm of the certainly a leader, and I think there is quite an post. It is a major source of its prestige. I assume in interesting issue about judicial leadership. How do your suggestion you are agreeing that the Lord we develop the skills set to allow someone who, if Chancellor will no longer be a judge. they follow a conventional career, would have been an advocate for a time, would have been a High Q294 Lord Carlisle of Bucklow: I am contemplating Court judge for a time, a Court of Appeal judge to the role put to him by Lord Mackay. become a paragon of tact and leadership. That would Mr Smith: Then I think there is a problem because be an issue. I think it is possible and we are lucky that you would have a judge within the Cabinet and you there are examples that both the current Lord Chief have a conflict. At the moment, there is an inherent, Justice and the previous holders of that office— in principle, conflict between the roles of the Lord Master of the Rolls, Lord Chief Justice—have done Chancellor. That, in a sense, is A level politics. We it. I think it is an issue that would have to be borne in manage it because of the prestige of the office and the mind in terms of the Judicial Appointments prestige of those who have held the office and the Commission. unwritten constraints which have operated on the office, certainly since the 1920s. We manage it well. Q291 Chairman: Can I put the other one to you, However, once you disturb it and once you say, in which is, so to speak, the mirror image of this? Do principle, you cannot have a judge in a Cabinet—and you think that the Secretary of State for in principle you cannot, that must be wrong— Constitutional Affairs should be a lawyer? Mr Smith: I think the structure that the Bill sets up Q295 Lord Carlisle of Bucklow: I am sorry, in would allow the Secretary of State not to be a lawyer. principle you cannot? It certainly has to be someone who understands the Mr Smith: You cannot have a member of the constitution, so you could say “Why could it not be a judiciary who is a member of the executive. In political scientist? Why could it not be someone from principle that must be wrong. If you saw that in the another background?” I would have no problem in constitution of another state you would raise an the short term and it would assure those people eyebrow, at least. concerned with the current bidders (?) if there was a provision that the Secretary of State was to be a Q296 Lord Carlisle of Bucklow: How many years has lawyer, but it seems to me in principle the position it existed? which is being set up is this is a Secretary of State like Mr Smith: It has existed for a thousand years, and it any other. works in this jurisdiction. There is no question about it, it works in this jurisdiction—with anomalies in the 1920s but for the last 30 or 40 years it has worked. Q292 Lord Carlisle of Bucklow: In the first However, in principle, it is wrong. paragraph of your evidence to us you say “In general, JUSTICE welcomes the core reforms introduced by the Constitutional Reform Bill. We also welcome its Q297 Lord Lloyd of Berwick: What is the principle? consideration by the Select Committee.” Am I right Mr Smith: The principle is, essentially, one of in gathering from what you have that you believe that separation of powers. those reforms which Justice wish to see could be achieved without abolishing the office of the Lord Q298 Viscount Bledisloe: There should be no Chancellor? members of the executive in the legislature. Mr Smith: I think it is actually extremely difficult to Mr Smith: I agree, in the full sense of the separation see the implementation of the Judicial Appointments of powers, that would be the consequence. In fact, it Commission, the Supreme Court, the severance of surely is not right that a judge should be a member of the judicial role of the Lord Chancellor, the inherent the Government. Not in principle. I say this all from political nature of decisions, particularly in relation the position that it exists and it has worked well, but to Legal Aid—I think that makes the position of the it has got a point, it seems to me now, where it is Lord Chancellor very difficult to sustain. not sustainable. 9674042006 Page Type [E] 28-06-04 23:17:23 Pag Table: LOENEW PPSysB Unit: PAG2

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Q299 Lord Carlisle of Bucklow: Is not that role Mr Smith: They work but I think (a) they work rather envisaged to be taken by the Secretary of State for against the odds— Constitutional Affairs or as a member of the Cabinet? Q305 Lord Howe of Aberavon: But they do work. Mr Smith: What the Bill sets out, as modified by Mr Smith: They work against the odds. It is Lord Falconer’s later written evidence, is a carefully interesting coming after Lord Mackay because I structured process in which the Secretary of State has followed his position as Lord Chancellor very a relatively limited role, which is— closely from a position where I was concerned with Legal Aid and it seemed to me that his time Q300 Lord Carlisle of Bucklow: The appointment as Lord chancellor was the transitional role. Prior of judges? to him Legal Aid was a relatively uncontentious Mr Smith: It is close to fixing the Great Seal on the issue. During his period it became contentious— end of the process but with a minor ability to obviously on the legal profession it became influence the process. That is acceptable, it seems to contentious. Court closures were a minor area of me. To go beyond that, to actually argue that there contention. During his period of office it became should be a senior judge, the head of the judiciary, in clear that the Lord chancellor was an active the Cabinet of the executive, must in principle— politician and could not avoid it. I think Lord Mackay and, to an extent, Lord Irvine held on Q301 Chairman: And dismissible by the Prime with all the authority of a thousand years of Minister. history to a post which was dissolving under their Mr Smith: Indeed. feet, and only, in a way, the exceptional nature of the people involved has held it together, and the Q302 Viscount Bledisloe: You elide (?) being a judge weight of history and convention of history held with being the head of the judiciary. It is perfectly on to something which actually was becoming possible for this person, the Lord Chancellor, not to unsustainable. The Lord Chancellor—Lord do any judging while he is Lord Chancellor, but that Falconer—cannot avoid making political does not prevent him being head of the judiciary in decisions. the sense that he is the hinge between the judiciary and the Cabinet; puts forward (does not necessarily Q306 Lord Howe of Aberavon: That is inevitable agree with) the views expressed by the judiciary, in almost every job at some point, but one comes protects that independence and the rule of law and back again to your evidence. You describe the explains to them what is going on. That is not being position of the Lord Chancellor as the hinge a judge, but there is no reason why you should not be between the judiciary and the executive. That role head of the judiciary. has got to be played somehow. Mr Smith: I think there is a level at which I could Mr Smith: The phrase “hinge” which has been used accept that , the level at which it is rather odd to have in the Committee earlier this morning, I think (I am the head of a judiciary a defining characteristic of not sure quite where it originates from), is an old which is he or she never sits as a judge. description of the relationship of the Lord Viscount Bledisloe: The Head of the Admiralty, the Chancellor and the judiciary and is usually applied to First Sea Lord does not sit— how the role worked in the 1950s and 1960s. I agree with you. The thesis in which I agree with the Q303 Chairman: Gilbert will have a lot to say Government is that that hinge no longer works; it about that! creaks, it is rusty, it is broken. So I accept the other Mr Smith: It does seem to me you have got to a part of the logic of that is we have to recreate that position where you are stretching the shell of the post hinge, absolutely. just too far and you actually then have to make the dramatic kinds of moves which are made in the Bill, Q307 Lord Howe of Aberavon: Forgive me, but you or something close to them. say it no longer works but that is directly contrary to what you said before. You have been at pains to Q304 Lord Howe of Aberavon: If we start from your emphasise that the complaint is related only to the premise that the present system works, has worked principle; we have a system which works and has well since the 1920s so that we have got a functioning worked. If I come on to another proposition, you say system that works well, and because in your evidence “Statutory provisions could . . . never fully replace at the end of paragraph 7 you say “Constitutional the strength of existing unwritten conventions.” One provisions for the protection of justice must be at of those conventions is that the job should be held by least as robust as we have had until now”, the best a senior lawyer acting as this crucial hinge between way of ensuring that is to leave them as we have had the executive and the judiciary. How can that be them until now. improved by replacing a deeply complicated 9674042006 Page Type [O] 28-06-04 23:17:23 Pag Table: LOENEW PPSysB Unit: PAG2

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20 April 2004 Mr Roger Smith structure shared between a Secretary of State, the wants to make these changes, but it seems to me there politician in Cabinet (as the Lord Chancellor has are a number of reasons. One, there are issues of described him) and the Lord Chief Justice? How can principle and they are brought to a head by the you possibly justify this attempt to fully replace the European Convention and the need for an obviously strength of existing conventions to ensure provisions impartial and independent judiciary. Second, there are at least as robust as we have had until now other are issues of symbolism, that actually the creation of than by preserving those conventions? a Supreme Court, the creation of a Judicial Mr Smith: I think the problem is that time has moved Appointments Commission seem to me to have a on. The things that have worked for us in the 1950s, symbolic value which will resonate down through the 1960s and, possibly, through the 1970s and indeed into constitution and will have changes in there to follow. the 1980s no longer do. We now have the European Thirdly, we should look for some immediate Convention that insists on an impartial tribunal and an improvement, particularly in relation to judicial independent judiciary. We have Legal Aid which is now appointments. It would be better to put that to an £2 billion of Lord Falconer’s £3 billion budget. We independent Commission. Fourthly, there is an have, I think, exposed some problems in relation to the international role. We are a beacon jurisdiction, appointment more of QCs than judges but I think the particularly throughout Europe. We of all Commission that has existed has rather shown that jurisdictions should have a constitution which is there have been problems in the way we have made robust and complies with principles of the judicial appointments. European Convention.

Q308 Lord Howe of Aberavon: That is a case for the Q310 Lord Howe of Aberavon: Is not one of the Judicial Commission. That is quite separate. elements of that robustness its longstanding Mr Smith: Hence the case for a level of reform from durability? If there is a symbolic significance from where we are now. There has to be some change. I having a Judicial Appointments Commission—and agree with the Government that actually we have got up to a point there is—and in having a separate to a point now where it is no longer sustainable in any Supreme Court, is there not a huge symbolic meaningful way that the Lord Chancellor is the head tradition and significance in maintaining the of the judiciary. There should be a Supreme Court, conventions and aspects of the Office of Lord there should be a Judicial Appointments Chancellor, which, as you say in your earlier Commission and there should be a Secretary of State. paragraphs, would be jeopardised by destroying the office? Should one not conduct these other two changes within the framework and on the foundation Q309 Lord Howe of Aberavon: Can I come to your of the benefits conferred by that historic office last point—“no longer acceptable that he should be revered, as Lord Mackay said, around the world? head of the judiciary”? In paragraph 24 of your Mr Smith: There are many who argue that you can evidence you criticise the arrangements there made establish an Office of Lord Chancellor which makes because it would mean the injection of an sense. inappropriate bureaucratic relationship into matters of judicial conduct. “The present practice is Q311 Lord Howe of Aberavon: Not “establish”. justifiable” (and I would say it is still justifiable) Mr Smith: Recreate. “. . . because the Lord Chancellor is head of the judiciary.” If the Lord Chancellor is a senior lawyer Q312 Lord Howe of Aberavon: It has not been having the same qualifications as Lord Mackay, is destroyed yet. It is a Bill. the judge of the judges, at least in that respect he is the Mr Smith: Right; then you can maintain. I think that supreme figure in the entire system. Why not preserve you have got to the position where you have to bite the structure we have got in order to maintain that the bullet; the change is coming. The really hard rather than introducing a bureaucratic relationship thing—and it is hard—is to acknowledge the strength which is inappropriate? of what we have got at the moment and not just Mr Smith: I think we are close to each other. The knock it down but recreate the protections which are defining point of difference is I do not think you can now unspoken and unwritten, and in a rather un- have a head of the judiciary who is not a serving English way and in a rather un-Scottish way too I judge, and I think, therefore, there has to be change. think we are going to have to, in a rather unreticent What we are saying in paragraph 24 is the Lord Chief way, spell out some of the guarantees in this Bill. Justice has to take up that role in relation to Chairman: Thank you very much. Thank you for discipline, and the Secretary of State/Lord being so clear; thank you also for being so short and Chancellor has to bow out of it. Lord Falconer will thank you for answering our questions in the way be more eloquent than me on why the Government that you have. 9674042007 Page Type [E] 28-06-04 23:17:23 Pag Table: LOENEW PPSysB Unit: PAG2

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Memorandum by Lord Ackner

Having been offered the privilege of appearing before the Special Committee, an offer which I gratefully accept I did not think that any prior statement of my views beyond what is to be found in the debate on the Second Reading of the Constitutional Reform Bill (see Hansard 8 March 2004 col 1080–1082) was necessary. However I was told that it would be desirable for me to make some statement in writing. What I now append is a statement in summary form having received the generous gesture of my former secretary to take a short dictation.

Clause 1 This only seeks to uphold the independence of the judiciary. This is but a part of the overall obligation on the government to uphold the rule of law. Towards the end of the debate on the Bill this seemed to be acceptable to the Lord Chancellor. Indeed, it was astonishing to find a Lord Chancellor being prepared to support the ouster clauses in the Asylum and Immigration Law Bill (clause 14). Such support would have been automatically ruled out, as indeed it should have been, if the obligation in clause 1 was to relate to the rule of law. Under clause 1.4 of the Bill “the Secretary of State for Constitutional Affairs (‘the Minister’) must have regard to ...”. That phrase imposes only the obligation to consider; it does not impose the obligation to act. I relied quite substantially on the memorandum put in by Justice and in particular the terms of the South African constitution which seemed to me to be much more appropriate. This reads: “Organs of state through legislative and other measures, must consist and protect thecourts to ensure the independence, partiality, dignity, accessibility and effectivenessof the courts.” In view of the Government’s expressed desire: “To protect and indeed enhance the judicial independence—” (See Hansard 12 Feb col 1213). It is difficult to see how these words can be faulted.

The Judges’Council This body has no statutory recognition. It contains the heads of the organs of the judicial arm of the state. The personalities are set out in detail in an annexure to their report on the proposed constitutional reforms. The advantage of giving statutory recognition would be that to impose upon the Lord Chief Justice an obligation to consult the Council and to receive from the Council annual reports of what they have considered during the year and what they have achieved. It has been proposed by the Bar Council that there should be a parliamentary joint committee to consider and report on the independence and partiality, etc. of the courts. The Council and the Committee should work in tandem.

Discipline It is clearly wrong that the Secretary of State should have to agree to any disciplinary action which the Lord Chief Justice thought was appropriate. Disciplinary action should be a function of the judiciary alone. There would be no harm in obliging the Lord Chief Justice to inform the Secretary of State of important disciplinary decisions but nothing beyond this should be necessary.

Circuit The manner in which judges are dispersed throughout the country is part of the judicial function. This inevitably follows from the acceptance that listing is a judicial function. This is a matter of some importance since there was a threat well publicised in correspondence in The Times some months ago to take Hampshire away from the Western Circuit and tack it on to the South Eastern Circuit. There was strong objection from the Circuit, from past and present Presiding Judges and from the Lord Chief Justice himself. Eventually the Government gave way.

The Lord Chief Justice and the Master of the Rolls These two most senior of judges should continue to enjoy membership of the House of Lords in order that they should be able to address the House on any matters relative to the administration of justice which they deem to be appropriate. The House would thus have the benefit enjoyed at present of criticism or support or the initiation of legislation relative to the administration of justice. 9674042007 Page Type [O] 28-06-04 23:17:23 Pag Table: LOENEW PPSysB Unit: PAG2

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The Supreme Court According to the Lord Chief Justice in the debate of the 12th February (see Hansard col 1293) that as far as the judiciary know, not one penny of new money is available for the reforms proposed. In his view, without new money the reforms will detract from the administration of justice generally. We have not been told who is to pay for the new building and its general maintenance—surely not the litigant, since the function of the court is to develop the law and not to be concerned with the inter-parties dispute. There will be cases in which the judges will refuse to be bound by earlier decisions of the House and the need to get such amendments usually to the common law is not a matter upon which the parties should be required financially to contribute. Why has no provision been made in the Bill suspending the operation of the Supreme Court until the appropriate accommodation has been found? Lastly, why has no cost-benefit analysis been made? 14 April 2004

Examination of Witness Witness: Rt Hon Lord Ackner, a Member of the House, formerly a Lord of Appeal in Ordinary, examined.

Q313 Chairman: Lord Ackner, thank you very much threatened intervention, of a past Lord Chancellor, a for coming. We have had your paper. I wonder if you fortiori if it had been the present Lord Chancellor. could do what we have asked everybody else to do: The willingness of our reluctant current Lord identify yourself for the purposes of the record and Chancellor and his insistence as Secretary of State for then be kind enough to open the discussion on the Consitutional Affairs that this ouster clause should basis of your paper and we can then pursue the points come into existence and be supported shows how that we would like to. necessary it is to find some support equivalent to that Lord Ackner: My name is Desmond James Ackner. I which was given by the former Lord Chancellor to am a retired Lord of Appeal in Ordinary and I very deal with such a situation. This reinforces my view foolishly volunteered to give evidence here, running that clause1 must in terms say that there is an the great risk that many would think that this was an obligation upon ministers to maintain and support act of rigor mortis but, having embarked upon it, I the rule of law. If that had existed the ouster clause will take advantage of your kindness. I did not realise would have had no breath of life and the intervention when I did volunteer that a paper would be required of a retired Lord Chancellor would not have been as well as one’s presence so, having been told it was necessary. It also demonstrates the weakness of the pretty necessary, I got out a pre´cis of what were the proposed obligation because if it had any strength points I thought were particularly important. I one would have expected the current Lord started with clause 1 and this, I think, is the most Chancellor to have said, “Hey: this is contrary to the important point I make. This clause seeks only to whole spirit of the situation”. I have also taken the uphold the independence of the judiciary. This is but phrase in clause 1.4, “must have regard to”, as being a part of the overall obligation on the government to pretty meaningless. You have regard to it if you uphold the rule of law. The independence of the consider it but, having considered it, you are perfectly judiciary is a very important pillar but it is not the within your entitlement to reject it. I have said that I same thing. Towards the end of the debate on the Bill think there is substance in the point made by Justice it sounded as if the Lord Chancellor was of the same in its memorandum to expand the phrase quite view. I found it subsequently astonishing to find a considerably in order the better to express what is Lord Chancellor being prepared to support the needed. I think it should be borne in mind that the ouster clauses in the Asylum and Immigration Law phrase “independence of the judiciary” can be in any Bill and I have been rather surprised that those who event open to doubt as to what it means. The matter have sought to uphold the continuance of the Lord is referred to specifically in the memorandum of the Chancellor’s office have not immediately pointed to Council of Judges and I was reminded of a debate the fact that, but for Derry Irvine breaking his vow, which some of you may recall which was entitled apparently, of silence and deciding to put his name “Judiciary: Independence”, and it is reported in down to speak in relation to clause 14 of the Asylum Hansard, 27 April 1994. It arose out of a debate, Bill, we never would have got the government to initiated by Lord Irvine when he was the Shadow agree to the ouster clause being modified. We have Lord Chancellor, criticising Lord Mackay, the then not yet seen what is going to be done but the promise Lord Chancellor, for having told a High Court judge, was quite clear, that the ouster clause could not be Mr Justice Wood, who was then the President of the supported. Why the reluctance of the government to Employments Appeal Tribunal, that if he did not continue to do what it so firmly had decided to do? follow what he, the Lord Chancellor, thought was the That was because of the intervention, or the right way of dealing with an interlocutory issue he 9674042008 Page Type [E] 28-06-04 23:17:23 Pag Table: LOENEW PPSysB Unit: PAG2

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20 April 2004 Rt Hon Lord Ackner should “consider his position”. This is what Lord important disciplinary proceedings and decisions but Oliver of Aylmerton said at column 779. He cites nothing beyond that should be necessary. The next what Lord Justice Denning said in the Holdsworth point I take is on the question of circuits. There was Club in 1950 about independence, and he says he a very long decision in the Canadian Supreme Court would have hoped that what Lord Denning said was in about 1990, judgment given by their Chief Justice so well entrenched that it could not be challenged. Lamer, in which he said that under the heading of Then he goes on to say, “Recent pronouncements in judicial independence there should be administrative this House have seemed to indicate that the noble and independence. That is accepted in this country to a learned Lord the Lord Chancellor and his limited extent. It is accepted that composing the list department interpret the principle of judicial of cases to be tried is clearly an administrative independence in a very much more restricted sense function but it is a judicial administrative function. and as meaning simply this: that judicial One can think of a decision by the Lord Chief Justice independence is infringed only if an attempt is made that there should be two judges going to the Bristol to dictate or influence the decision in a particular lodgings to do the list rather than one, or the other individual case”. He continues, “I hope very much way round. I take the view that the actual that I am wrong about that because one has only to deployment of judges out on circuit is an think about it to see where the logical train then leads. administrative function which is a judicial one. Some On that analysis, a direction in the 1930s by the of your Lordships may have seen the correspondence German Ministry of Justice that judges were not to in The Times. The main letter from the one-time decide disputes in favour of members of the Jewish presiding judges was drafted by myself and all the faith or against party members would have been no one-time presiding judges on the Western Circuit infringement of their judicial independence—and signed it, contesting what was proposed by the that, of course, is palpably absurd”. That is a further current Lord Chancellor that there should be lopped criticism of clause 1. I now go to the next point which off from the Western Circuit the county of I seek to make and that is the Judges’ Council. I Hampshire. We pointed out, and we were strongly believe, but I have not had time to check, that there supported by the Lord Chief Justice, that this would was a Judges’ Council which, since it was not resorted take the whole life, the whole heart, out of the to, or resorted to with any significance, was abolished Western Circuit. It would give rise to all sorts of by statute. Now, of course, the position is entirely complications. Just to give you the flavour of it, I different. You have in the annex to the statement by quote from the letter which is dated August 21 of last the Judges’ Council and their reasons a whole list of year: “The proposed change effectively tears the personalities and positions that are at the head of heart out of the existing circuit. Removing every aspect of judicial activity. I would have thought Hampshire from the Western Circuit would, we are it highly desirable—and the Lord Chief Justice, to informed, reduce the number of circuit judges from whom I have spoken about this (and incidentally, I 56 to 37, the number of district judges from 46 to also spoke to him about the rule of law point which I 30 . . . Amputating Hampshire would threaten the viability of the entire Western Circuit and result in a have just made) backed both points—that the significant reduction in the quality of service offered Council should be given statutory authority. You can to the public.” It ends by saying, “The proposal then impose an obligation on the Lord Chief Justice sacrifices administrative efficiency and delivery of to consult with the Council, you can require the effective justice on the altar of bureaucratic tidiness. Council to produce annual reports and you can It is unnecessary, harmful and destructive.” We were require the Council to act in tandem, so to speak, concerned to say in the letter at an early stage that our with the Parliamentary Joint Committee so recently concerns were not based on sentiment, tradition or referred to by the Director of Justice. I do think this out of resistance to necessary change. I should pay is very important because the Council is now being due deference to the Lord Chancellor for having resorted to for its views and I think the excellent ultimately agreed that the whole decision could be paper which they put together giving the Council’s put back for the next five or seven or eight years and views on these proposed changes is a very good so the position stands, but I do not see why it is indication of how important they are and can necessary for the Secretary of State to hang on to this continue to be. My next point is on discipline. I think particular power. One finds that throughout the Civil this is essentially a judicial function and a matter for Service. There is an inbuilt resistance to surrender the Lord Chief Justice. I do not think the Secretary of any power. We have seen that quite recently when it State should be able to say that he does not agree to came to the Home Secretary being required no longer any disciplinary action which the Lord Chief Justice to play a part in deciding how long a murderer should has proposed or that the Lord Chief Justice should spend in prison. obtain from the Secretary of State his concurrence. On the question of the Supreme Court, I was There would be no harm in obliging the Lord Chief concerned, as was Lord Nicholls, with whose speech I Justice to keep the Secretary of State informed of agree, that not one penny of new money is available 9674042008 Page Type [O] 28-06-04 23:17:23 Pag Table: LOENEW PPSysB Unit: PAG2

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20 April 2004 Rt Hon Lord Ackner for the reforms proposed. Without new money the Q315 Chairman: This is where it gets interesting, as Lord Chief Justice considers that the reforms will far as I am concerned anyway. Your vision is of a detract from the administration of justice generally Lord Chancellor who does not sit, is not head of the and there is a reference in Lord Hoffman’s speech to judiciary, is basically responsible for the the scandal of the state of the Commercial Court which administration of the courts, sits in the Cabinet and requires money to be spent on it, so the priorities are therefore is dismissible at the whim of the Prime all wrong in this regard. There has been no cost- Minister, so that what has been called the hinge, if benefit analysis. There will be cases in which judges you like, between the judiciary and the executive will refuse to be bound by earlier decisions of the could not be performed by the Lord Chancellor with House of Lords, that is, House of Lords’ judges, and that role. the need for such amendments (usually to the common Lord Ackner: Why not? law) should not be a matter upon which parties should be required financially to contribute. The present Q316 Chairman: Why? He is not the senior judge. attitude that even the cream for the office cat must be There will be another senior judge there, the Lord paid for by the litigants is quite absurd when the case Chief Justice. Presumably it will have to be done is heard by the House of Lords or the Supreme Court. through him. Those are all the observations I wish to make. Lord Ackner: The Lord Chief Justice is not going to be in the Cabinet.

Q314 Chairman: Thank you very much indeed. I Q317 Chairman: Precisely. noticed that you were listening to Lord Mackay this Lord Ackner: What you keep in the Cabinet is a very morning when he was giving his evidence in front of senior lawyer responsible for the administration of this committee. I wonder if I could tempt you down the courts who can say, “Look here: I would not the road of speculating on what sort of Lord proceed with that ouster clause because you will be in Chancellor you would like to see and what roles for a tremendous problem ultimately with the should he play? Do you think there should be any judiciary”. change? Should he go on sitting, for example, as a judge or become a glorified administrator, or what? Lord Ackner: I was not all that attracted to the Q318 Chairman: Why should you not then call in the suggestion that he should continue as he is now. My Secretary of State for Constitutional Affairs? views have changed to some extent because of the Lord Ackner: Because I do not think he can do it. He ouster clause. Quite clearly, unless something more is has not done it. The proof of the pudding is in the done, maybe to clause 1 of the Bill, protection is eating. needed to ensure that the sort of ouster clause activity never takes place again. However, I am attracted to Q319 Lord Falconer of Thoroton: Perhaps I can take Lord Mackay’s suggestion, as I understood it, that up your historical reference to Lord Mackay. You the Lord Chancellor should exist for the purpose of have read the bit from Lord Oliver of Aylmerton. seeing that the courts are properly run. I do not think You have referred to the Green Papers in 1988 and he should sit as a judge; I never have thought that. I 1989, which you describe as being prepared behind do not think he can therefore be the head of the Lord Hailsham’s back and then produced by Lord judiciary if he does not sit as a judge. It is a pretty Mackay. You were, I think, a sitting Law Lord at the meaningless description. We have got a Lord Chief time; is that right? Justice, but I do think that there is a great deal to be Lord Ackner: That is right. done in the administering of the courts and I always had a rather cynical view that the Lord Chancellor’s Department consisted of work which one man, the Q320 Lord Falconer of Thoroton: The Judges’ Lord Chancellor, could not possibly supervise Council met and discussed it, is that right, presided properly, and this was to allow the senior civil over by Lord Lane? He re-invigorated the Judges’ servants in the Department to go off on frolics of Council. It was not a statutory body. He gathered their own or produce proposals or decisions which, if together a meeting of the judges and then Lord Lane described the document as “one of the most sinister the Lord Chancellor had been watching, would not documents ever to emanate from government”. Do have occurred. This was made clear when Lord you remember that description? Hailsham observed that behind his back a whole new Lord Ackner: I do indeed. rewriting of the position of the judiciary had taken place and thus we got the Green Papers from Lord Mackay with no proper consultation and without Q321 Lord Falconer of Thoroton: Did you agree his knowledge. with it? 9674042008 Page Type [E] 28-06-04 23:17:23 Pag Table: LOENEW PPSysB Unit: PAG2

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Lord Ackner: Absolutely. Lord Ackner: No, no. He ceases to be a judge and he ceases to be head of the judiciary. He is responsible Q322 Lord Falconer of Thoroton: And the reason he for the administration of the courts. thought it was “one of the most sinister documents ever to emanate from government” was that it Q330 Chairman: Yes, but he has got to be a very allowed solicitors to appear in the High Court. senior lawyer, in your words, has he not, in the Lord Ackner: Oh, no, no. Cabinet? Lord Ackner: Why should he not be a very senior Q323 Lord Falconer of Thoroton: What other lawyer? things? Lord Ackner: It went far beyond that. Q331 Chairman: I thought that was what you said, that he had to be. Q324 Lord Falconer of Thoroton: Give me an Lord Ackner: Yes, I accept that. example of what made it “the most sinister document ever to emanate from government”. Q332 Lord Falconer of Thoroton: Does he have to be Lord Ackner: I would have to have Hansard here in the House of Lords? because I made a speech covering a whole variety of Lord Ackner: Yes, I think that is the proper place things. I supported what Lord Lane had said and for him. when Lord Lane was criticised on the basis that he had merely referred to someone without a moustache Q333 Lord Carter: You are entirely happy also for being responsible for tyranny and so on, I made the him to take over a party political role on a number point in terms. That was not the sole point made by of issues? Lord Lane. There was a whole number of them. Lord Ackner: Yes.

Q325 Lord Falconer of Thoroton: I draw attention to Q334 Lord Goodhart: Lord Ackner, is it your view that because from time to time the judges have in that as a result of what happened on June 12 last year their view, quite legitimately, heavily criticised Lord and the subsequent failure to deal with the ouster Chancellors in the past for not agreeing with their clause that the conventions as to the role of the Lord view on where the rule of law lies. Chancellor have been broken? Lord Ackner: Yes. Why should they not? Lord Ackner: Yes.

Q326 Lord Falconer of Thoroton: I quite agree that Q335 Lord Goodhart: If you think that, are not these their disagreement is legitimate. the kinds of conventions that, if they have been Lord Ackner: It is perfectly permissible. After all, the broken, would be extremely difficult to put back Bar took Lord Hailsham to court and he received a together again? pretty implied rebuke from Lord Lane when the Lord Ackner: No, I do not think so. They were put proceedings came up before him. back together. The ouster clause has been withdrawn as a result of the intervention of a previous Lord Q327 Lord Falconer of Thoroton: If the judges take, Chancellor. as they obviously do from time to time, quite rightly, very different views about where the rule of law lies, Q336 Lord Goodhart: Yes, but although he may where the line should be drawn, should they not have been a previous Lord Chancellor he was no express them? longer the holder of that office at the time. Lord Ackner: The judges should express them. They Lord Ackner: That is right. did in the debates and I was “number one troublemaker”. Q337 Lord Goodhart: Your view of what happened is something that could happen again under any Q328 Lord Carter: Lord Ackner, in the role you future holder of the office of Lord Chancellor. foresee for the Lord Chancellor would you have any Lord Ackner: No, it could not, because clause 1 would problem if the Lord Chancellor took an overtly say, “You have an obligation to uphold and maintain political stance on a number of issues, for example, the rule of law”. helping to draft part of the election manifesto? Lord Ackner: No, I would not. He is a politician. Q338 Lord Goodhart: But in the absence of clause 1 it is your view that the same thing could happen Q329 Lord Carter: So you are quite happy for him to again? be in the Cabinet acting as a party politician and also Lord Ackner: Yes. That is why I want clause 1 head of the judiciary? amended. 9674042008 Page Type [O] 28-06-04 23:17:23 Pag Table: LOENEW PPSysB Unit: PAG2

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Q339 Lord Goodhart: But certainly as matters stand Lord Ackner: No, no, it has got nothing to do with at present the effectiveness of the Lord Chancellor South Africa at all. It is just adding on “and the rule upholding his traditional role is entirely dependent, is of law”. it not, on the personality first of the Lord Chancellor and then of the Prime Minister who appoints and can Q343 Chairman: Do you think that would be a remove the Lord Chancellor? sufficient safeguard? Again, it is a reversion. Lord Ackner: Yes, I accept all that. Lord Ackner: There is no other safeguard. Whether it is sufficient depends upon your method of enforceability, which Lord Mackay dealt with. If you Q340 Lord Howe of Aberavon: Do you think it is had that I do not see the problem about wise to reach a judgment of that importance on the enforceability on the basis that it is too vague. future role of the Lord Chancellor on the strength of Everybody knew, for instance, that the ouster clause one failure by the present reluctant holder of the was a failure to comply with the rule of law. It is a office? Should that one ouster, which was corrected negation of the rule of law. That was what made it so by the previous Lord Chancellor, be allowed to have startling that a Lord Chancellor would support it. so precise an influence? Lord Ackner: Yes, I do, because we have history Q344 Lord Kingsland: Lord Ackner, do you think it previous to the last 40 years when there were a would help if your amendment to clause 1 of the Bill number of very unsatisfactory Lord Chancellors and were supplemented by the removal of responsibilities I think the strength of the executive is such that you for criminal procedure and criminal evidence from could have that situation in the future. the Home Office? Lord Ackner: Oh yes. I think it would be a marvellous idea. I think the Home Office as ruled at the moment Q341 Chairman: I am not sure where that takes us. does not really understand many of the basic tenets If you could have that situation again in the future of the rule of law and the sooner one does something what do you do to safeguard against it? about it the better. Lord Ackner: Clause 1, as amended by me. Chairman: Lord Ackner, thank you very much indeed. It is very refreshing after my past experience Q342 Chairman: As amended by you in the South at the Bar to find myself on this side of it. I hope I African— gave you an easier time than you used to give me! 967404PAG3 Page Type [SE] 28-06-04 20:19:13 Pag Table: LOENEW PPSysB Unit: PAG3

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THURSDAY 22 APRIL 2004

Present Bledisloe, V Goodhart, L Carlisle of Bucklow, L Howe of Aberavon, L Carter, L Kingsland, L Craig of Radley, L Lloyd of Berwick, L Crickhowell, L MacLennan of Rogart, L Elder, L Richard, L Falconer of Thoroton, L Windlesham, L Gibson of Market Rasen, B.

Memorandum by Professor Diana Woodhouse, Oxford Brookes University

1. Introduction The Constitutional Reform Bill reaYrms the importance of judicial independence and introduces modernising measures which should help to increase public conﬁdence in the judiciary and thus in the system of justice.

2. The abolition of the office of Lord Chancellor 2.1. The abolition of the oYce or Lord Chancellor is necessary for a number of inter-related reasons; — It increases the appearance of separation between judges and the government The Human Rights Act 1998 has resulted in an increase in the challenges to government decisions heard by the courts and makes it imperative that greater adherence is paid to the separation of powers. The multi-functional role of the Lord Chancellor infringes any notion of this doctrine and it is time to bring it to an end. — To ensure compatibility with the Article 6 ECHR. There is a possibility that even with the relinquishment of his judicial role, the Lord Chancellor’s current role in appointments, his position as head of the judiciary and his role as “Speaker” in the House of Lords might be seen to infringe the appearance of judicial independence required by the European Court of Human Rights. — To ensure public confidence in the judiciary. The growth in the Lord Chancellor’s Department from a small oYce to a major government department has changed the balance of the Lord Chancellor’s multi-functional role. He is now seen primarily as head of a large spending department and a member of the government. This does nothing to ensure public confidence in his ability to protect the independence of the judiciary. Appearances matter and to the lay-person they so not look good. — Modernisation While it may be true that the oYce of Lord Chancellor has operated well for centuries (although this argument can be overstated), the time has come to look forward rather than back. If citizens are to have confidence in our constitutional arrangements, they need to accord with the requirements of the twenty first century and be clear and understandable. 2.2.1. The provisions in the Bill provide adequately for the abolition of the oYce of Lord Chancellor and the transfer of his powers elsewhere. In particular: — The transfer of the role of head of judiciary along with associated functions to the Lord Chief Justice, as provided by Clause 2, is to be welcomed. It ends the confusion, both actual and perceived, caused by this role being undertaken by a member of Cabinet. Moreover, it suggests that, in future, the dialogue between judges and the government will be more open than has previously been the case. — The division of functions regarding the organisation of the courts (Clause 3) between the SOS and the Lord Chief Justice is a sensible one and suggests an increased sense of institutional, or collective, judicial independence which has been lacking in the British system. 9674042009 Page Type [O] 28-06-04 20:19:13 Pag Table: LOENEW PPSysB Unit: PAG3

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However: — The statutory duty of ministers in general, and the Secretary of State for Constitutional AVairs in particular, to uphold judicial independence raises questions of deﬁnition, other than by reference to the duties outlined in Clause 1, for there is no settled, agreed deﬁnition of the concept and its requirements. Moreover, whether the Secretary of State should have this role is debatable. Not only is there uncertainty as to what defending judicial independence requires, but there is also uncertainty as to how it can be defended by a Cabinet minister. He, like his Cabinet colleagues, is bound by the convention of collective responsibility which makes it extremely diYcult for him to publicly criticise another minister. However, defending judicial independence in private would not seem to accord with the transparency of executive/judicial relations the reforms are meant to achieve. It also suggests continued judicial reliance on a member of the executive which could undermine perceptions of judicial independence. I am of the view that the judiciary is quite capable of defending itself—either through the Lord Chief Justice or an improved Judiges Council. That said, giving the Secretary of State a statutory duty would seem to provide a stronger protection than has previously been the case and it is one that can ultimately be tested in the courts.

3. The Supreme Court 3.1 The establishment of a Supreme Court is to welcomed for a number of reasons. These include: — The need for a constitutional separation of the legislature and the judiciary The incorporation of the ECHR through the Human Rights Act has made it increasingly important for judges not only to be independent but to be seen as such and while the law lords operate a self- denying ordinance with regard to speaking in debates of a political nature, their presence in the legislative chamber does not give the appearance of independence. The fact that their decisions are announced within the chamber and the appellate committee is dependent on the upper house for administrative support further undermines notions of independence and is confusing to citizens. Their removal from the legislative chamber is therefore necessary. — Compatibility with the ECHR The position of the law lords within the legislature could be in breach of the ECHR. At the very least their lordships have to take care that they do not limit their ability to hear subsequent cases through opinions expressed about legislation before the House.. — Increased public confidence It is no longer appropriate for a modern state not to have an institutionally independent final court of appeal. Housing the court in its own building is psychologically and practically important for public confidence. More space should allow the court to make greater use of researchers, to liaise more eVectively with the media and to assume a greater role as educator. — Bringing together the jurisdiction of the House of Lords and Privy Council The establishment if the Supreme Court importantly brings together the jurisdiction of the current House of Lords and the jurisdiction given to the Privy Council under devolution legislation. This will ensure a coherent development of constitutional jurisprudence and give the Supreme Court a constitutional status not currently held by the House of Lords. — The need to recognise geographical diversity The position of the law lords within the House of Lords gives the appearance of it being an “English” court sitting in the English-dominated legislature. Establishing a UK Supreme Court separate from the legislature, and recognising in the appointments process the need for geographical diversity, will help to change this perception. 3.2 With reference to the provisions which establish the Supreme Court, the following points are made; — The provision to the minister by the Commission of a list of between 2 and 5 candidates (Clause 21) is preferable to the alternative of providing a single name which could result in a “no risk” strategy. — The changed role of the prime minister in the appointments process is to be Welcomed. — The “medical retirement” of a judge of the Supreme Court, provided by Clause 27, is an important provision, as is the setting out of procedures by whichjudges can be investigated and the role of the Ombudsman in overseeing the operation of these procedures. 9674042009 Page Type [E] 28-06-04 20:19:13 Pag Table: LOENEW PPSysB Unit: PAG3

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However; — The continuation of the current situation where the court comprises 12 judges who sit in panels would seem a lost opportunity. There is a sound argument for a Supreme Court sitting en banc thereby avoiding speculation about who will sit and what criteria are used to determine this. Alternatively, the Court could be established with criminal and civil/public law branches, with the latter always sitting en banc and joining with the criminal branch when a criminal case raises a matter of human rights. — The provision for acting judges (Clause 29) would seem ill-founded. Using judges on an ad hoc basis raises questions about their selection and why they were chosen to hear a particular case. — The Bill contains no provision for a Code of Conduct or Register of MembersInterests. The law lords currently operate under the House of Lords’ Code of Conduct which requires them to register their interests. Arrangements should be made for the Supreme Court to operate its own register.

2. Judicial Appointments Commission Such a Commission is long overdue and its inclusion within the Constitutional Reform Bill is important. The establishment of a Commission, as defined within the Bill, will help to ensure public confidence in the appointments system and should, over time, result in a broadening of the judicial profile. I support the form and operation of the Commission as set out within the Bill and have no particular comments to make. 19 April 2004

Examination of Witness Witness: Professor Diana Woodhouse, Professor of Law, Oxford Brookes University, examined.

Q345 Chairman: Professor Woodhouse, thank you become particularly evident in more recent times. If I very much for coming to help us in Committee. I could summarise these very briefly, pulling them wonder if you would two things, please. One is together, these defects include the need for a greater introduce yourself formally for the sake of the record separation between the judges and the executive and and, secondly, open up the discussion for us on the also a greater separation between senior judges and basis of the paper you submitted, and then we can the legislature. This is vital because of the increase in pursue whatever issues on your paper we think would cases that there has been against government and be helpful. other public bodies and the nature of some of these Professor Woodhouse: First of all, thank you very cases which are politically controversial, so an much for inviting me here to give evidence to you this increased separation, I believe, between the judges afternoon. I am Professor Diana Woodhouse from and both the executive arm of government and the Oxford Brookes University where I am Professor of legislature is essential. Related to this is the need for Law. I have written a book which was published in there to be compatibility, and evident compatibility, 2001 on the oYce of the Lord Chancellor, and I have with the European Convention of Human Rights and written numerous publications looking at judicial with the requirement that judges are not only executive relations, the independence of the independent but are seen to be independent. judiciary, and those sorts of particular items. That is Appearances are becoming increasingly important. It my background and why I am here today. I am is what people see that matters as well as what is; that particularly concerned with the oYce of the Lord is another important defect that this legislation helps Chancellor and the Supreme Court. I do not feel to correct. Related to this is a need to recognise that myself particularly capable or expert to talk about for most citizens the Lord Chancellor is seen, first and the Appointments Commission in any detail; it is the foremost, as a government minister in charge of a other two areas that are my main concern and large government department, and therefore it is not interest really. Perhaps I could begin by saying that, always easy for lay people to recognise that he also as is evident from my memorandum, I support the has a role in protecting the independence of the main provisions within the Constitutional Reform judiciary and safeguarding it, and therefore at times Bill which seem to me to reaYrm the importance of there is confusion or perhaps even disbelief, that this judicial independence and to introduce important can happen. There is also, I think, the need, which modernisation mechanisms, both of which should this legislation addresses, to bring together the help to ensure public confidence in the judiciary. The overlapping jurisdictions of the House of Lords, the Bill addresses what I see to be a number of defects in Appellate Committee of the House of Lords our current constitutional arrangements which have currently, and the Privy Council, and to address 9674042010 Page Type [O] 28-06-04 20:19:13 Pag Table: LOENEW PPSysB Unit: PAG3

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22 April 2004 Professor Diana Woodhouse perceptions that the House of Lords as it is currently the European Court of Human Rights to mean that situated within part of the Westminster Parliament is the panel of judges must be seen to be independent, an English court. I think this legislation, together must appear to be independent, as well as being with the built-in requirements relating to independent. So it is not a question of challenging appointments, helps to address this issue, that we are their independence; it is a question of perception. moving to a United Kingdom Supreme Court rather Does it appear to somebody appearing before that than what some people in the regions might see as tribunal, before that court, that those judges are very much an English court. So those are, as I see independent? This is the key point that the European them, the main defects which the Bill helps to correct. Convention brings in which perhaps we have not had I do have some reservations which are more in the to consider before. detail than anything else, particularly with regard to the duty placed on the Secretary of State for Q347 Lord Howe of Aberavon: On that particular Constitutional AVairs to safeguard judicial point we have had written evidence from Professor independence, which again, I feel, appears to make John GriYths, whom I am sure you are familiar with. the judiciary reliant upon a member of the executive Professor Woodhouse: Yes. for its independence. I think judges are capable and should be able to defend themselves. In relation to the Q348 Lord Howe of Aberavon: And he discusses the Supreme Court, my reservations are in relation to the very question you have just been dealing with. In continuation of the panel system rather than the your own words, ﬁrst of all, you say there is a court sitting as a single court and also the possibility that even with the relinquishment of his appointment of, or the ability within the legislation to present role, the Lord Chancellor’s position as head appoint, acting judges on an ad hoc basis, which of the judiciary might be seen to infringe the again I am slightly unhappy about because I feel that appearance, so that is a fairly tentative judgment. it can lead to questions being asked as to why Professor Woodhouse: Indeed, it is fairly tentative particular judges were asked to sit on a particular because we do not know. I think with the Lord case. Finally, I would like to see in the legislation Chancellor continuing with the judicial role there was something that actually requires the Supreme Court a fairly good chance of a challenge and that the to have at least a register of interests, if not a code of challenge would be successful. If the position of Lord conduct, in the same way as currently the Law Lords, Chancellor continues and future Lord Chancellors of course, have to comply with the House of Lords’ also relinquish their judicial role then, I think, there Code of Conduct and the Register of Interests, and I is less of a case, but the fact that you have a senior think it would be a useful addition to have a clause in government minister and a member of the Cabinet in the Bill that did that. charge of a large government department, acting as head of the judiciary, making judicial appointments, Q346 Chairman: Thank you. Could I start oV with playing a key role in that, might be seen, and as I say one of the issues that we have skirted round, or which it is speculative, might be seen as infringing the has been skirted round, in the course of this whole Convention. Even if it does not, we really do not, I argument and that is the Human Rights Act side. I think, want challenges being brought on that basis wonder whether, since you have spent some time and necessarily going through the courts here and looking at this, you could spell out for the Committee going to the European Court on Human Rights. what the arguments are concerning the Human Lord Howe of Aberavon: If one throws it a little Rights Act on this? further, even if it was to be held, rather contrary to Professor Woodhouse: There are two arguments, I expectations, that there was an infringement in that think. One is that, since the passing of the Human respect, we do not have to comply with that ruling if Rights Act in 1998, the types of cases, because they we are prepared to defend the relationship that has concern with human rights, are by their nature more existed for a long time. controversial. We have seen this with asylum cases Professor Woodhouse: It might not look very good if and a number of other areas where you have really we do not. There are lots of things we do not have to sensitive politically controversial issues brought do in relation to the Convention, I guess, but it then before the courts, and I think it is important that the does not look very good. judges are seen as separate from the government, to ensure conﬁdence in the decisions. Perhaps more Q349 Lord Howe of Aberavon: Professor GriYths important though is the fact that the Human Rights says that the second reason for change argues that the Act, of course, incorporates the European Human Rights Act has made people more sensitive Convention on Human Rights, and Article 6 of the and aware of the position of the highest court being European Convention requires that there is a right to seen within Parliament and so on, yet the Act has a fair trial, a fair hearing, before an independent and greatly increased rather than diminished the impartial Tribunal, and that has been interpreted by authority of the judiciary and emphasised the 9674042010 Page Type [E] 28-06-04 20:19:13 Pag Table: LOENEW PPSysB Unit: PAG3

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22 April 2004 Professor Diana Woodhouse independence of senior judges. That is certainly right, cannot be done in public too frequently, or it has to is it not? be done very discreetly in public. Related to that is Professor Woodhouse: I would concur with that. I the fact that, again, if a government minister is think the Act has given judges more authority and responsible and has that duty to defend judicial more independence in that regard in many respects, independence, it does appear to look as if the so in some ways why not make it complete and get rid judiciary is reliant upon the executive for its of the appearance that there might be that there is not independence, and I think that is not right. In my that independence? I agree totally that it has given memorandum I said that I did not like the idea of a them more independence but it does not necessarily minister defending or safeguarding judicial show that it has. independence; nevertheless the fact that it has been given a statutory form is better than it has been up to Q350 Lord Howe of Aberavon: But if your now. I do not have a problem with the general duty preoccupation is with appearance, Professor for ministers. GriYths also says that that the considerable growth in judicial review, which we are all aware of, is itself Q354 Lord MacLennan of Rogart: May I just inquire strong evidence for transparent independence. So how that duty would be enforced practically and, there is another factor diminishing the appearance? secondly, when I went to the bar as a very young man, Professor Woodhouse: Yes, I agree. Nevertheless you I do remember there was a principal statutory have situations where, for instance—and I know we interpretation inclusio unius est exclusio alterius can say it is just one case, the Pinochet case—some which almost suggests that the Secretary of State for people and some foreign newspapers believed that Constitutional AVairs would be the only person the decision was made by politicians as well as judges charged with defending judicial independence. Is that because it was made by the House of Lords and was really what you would advocate? announced in the Chamber in the House of Lords, so it is important. I agree entirely and I would argue Professor Woodhouse: I am concerned about that strongly that the independence of the judges has whole clause—partly, because, as you say, if it comes increased through the Human Rights Act. before the court, which it may do if there is an argument that the statutory provision has been contravened—that there is not any definition of what Q351 Lord Howe of Aberavon: And it has also been judicial independence is or what is required to defend increased by the robust debate that has been taking it, so I think we get into a very diYcult ballgame. place recently between the judiciary and the There is no settled definition, other than the very executive? basic definition that a judge within his own court Professor Woodhouse: Yes. should be free from interference when making a decision according to the law, and beyond that there Q352 Lord Howe of Aberavon: So if appearances are is no general agreement as to what judicial important they are not doing too badly? independence means. As I said in my evidence, I am Professor Woodhouse: Indeed. concerned about problems of definition, what exactly it means, protecting or defending judicial Q353 Lord MacLennan of Rogart: I wonder if we independence means, how that could be interpreted, might be a little more clear about what you and what is required to do it. Those are the points I recommend with regard to sustaining judicial am concerned about. independence, because you have said that you see diYculties in a Cabinet minister discharging that role, and yet you say that you would wish to see it Q355 Viscount Bledisloe: You suggest in your imposed by statutory duty upon a particular Cabinet evidence it would be a good idea for the Supreme minister. Would you not agree that it should be the Court to sit in bank, ie with twelve people or, if some duty, whether or not a statutory one, of all Cabinet people have their way, fifteen. Firstly, have you ever ministers to seek to sustain judicial independence? conducted a case in an appellate court and, secondly, Professor Woodhouse: My reservation is about judicial do you really consider it compatible with the English independence being protected by a Cabinet minister, system of oral argument to have to conduct a case in and relate to the fact that there seems to be a clear front of twelve or fifteen people as opposed to on the problem with a Cabinet minister who is bound by continent where things are dealt with almost entirely collective responsibility being able publicly to on paper? chastise another minister who appears to be Professor Woodhouse: No. I have never conducted a undermining judicial independence. That seems to case before an Appellate Committee; I am not a me a rather frail basis. I am not saying it has not practising lawyer. As to your second question, I worked and that it does not work behind the scenes would not want twelve judges; I would want seven or but certainly we do not see it working because it nine at the most in court. I would not want twelve 9674042010 Page Type [O] 28-06-04 20:19:13 Pag Table: LOENEW PPSysB Unit: PAG3

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22 April 2004 Professor Diana Woodhouse members; that would not be my view as to how it in Birmingham or wherever. The key point is moving should operate. it out of the legislature.

Q356 Viscount Bledisloe: Are you reducing the Q361 Lord Lloyd of Berwick: Following on Lord number of judges to seven or nine? Bledisloe’s first question, currently, as I am sure you Professor Woodhouse: Yes. That would be my know, the House of Lords does sit in panels. Would preferred option. the eVect of your recommendation, whether with twelve Law Lords or nine or seven, simply not be to halve the number of cases they can hear, or do you Q357 Viscount Bledisloe: Secondly, you suggest that expect them to work twice as hard? moving the highest appellate court out of the House Professor Woodhouse: No, I am sure I do not. of Lords will improve the theory that it looks as an Obviously there is an impact there that needs to be English court. That is obviously of primary thought through and I have to confess I have not fully importance to the Scots who have their own system thought it through. Perhaps the senior judges could of law. Firstly, are you yourself a Scot and, secondly, give up some of the other tasks they do, like chairing would it surprise you to know that the Scots who judicial inquiries. That might be something that in have put it in evidence, for example Lord Hope and the future they might decide they want to do anyway. Lord Mackay, take precisely the opposite view? There could be greater appointment and greater use Professor Woodhouse: I am not a Scot. My argument of researchers and administrators to help in the work relating to it being important that it be seen as a they do, because my understanding is that currently United Kingdom court and definitely not an English they are very undersupported, as it were, and giving court, and I do know some Scots who do see it as an them more support in that regard might reduce some English court so I suppose people have diVerent of their workload. Thereafter I am not sure. I suppose opinions, is because it is going to assume the ultimately it might mean, and as I say this obviously jurisdiction for devolution issues. In some areas it requires very serious consideration, that the House of does not have jurisdiction over Scotland but when it Lords does have to have a say over what appeals it assumes jurisdiction for devolution issues it will have hears, rather than there being an appeal as of right. jurisdiction to decide those which relate to Scotland, Northern Ireland or Wales, and I think it is important, therefore, that the court is very much seen Q362 Lord Lloyd of Berwick: Of course, currently as a United Kingdom court, with representatives there is not an appeal, as of right except from from Scotland and Northern Ireland built into Scotland? legislation, or at least into regulations, and even with Professor Woodhouse: Yes. the Appointments Commission having to have regard as to whether there is someone with experience Q363 Lord Lloyd of Berwick: On the third page of in the Welsh courts, for instance. your memorandum you say that housing the Law Lords in their own building is psychologically and practically important for public confidence. Could Q358 Viscount Bledisloe: You think there are parts you expand on that? What does that really mean? of London which are less English than the United Professor Woodhouse: It is again going back to the Kingdom Parliament, do you? separation of the Law Lords from the legislature and Professor Woodhouse: I am sorry, I do not understand seeing the final and top court in its own building that question. which is very important psychologically for public confidence and perception about judicial Q359 Viscount Bledisloe: You are moving this to independence. This is an independent building with some other part of London, presumably, and I would independent judges within it. If it had its own have thought that that was more English than building there would be more room for it to play a Westminster which is the United Kingdom more educative role, as other supreme courts do, a Parliament? role in which there could be public access to certain Professor Woodhouse: I think that a number of people parts so they can learn about how the court operates from countries other than England might still see and so on, so they can have more knowledge in the Westminster as very much centred on England rather way in which the court works. than necessarily always representing the other parts. Q364 Lord Lloyd of Berwick: Do you have any Q360 Viscount Bledisloe: And the Strand less so? evidence that the public do not have confidence in the Professor Woodhouse: No. It is taking it out of the independence of the Law Lords? House of Lords and out of the legislature that is Professor Woodhouse: Do I have evidence? I am aware important, not whether it is located in the Strand or of confusion. I take first year law students and when any other part of London, or whether it is to be put you immediately start telling them about the position 9674042010 Page Type [E] 28-06-04 20:19:13 Pag Table: LOENEW PPSysB Unit: PAG3

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22 April 2004 Professor Diana Woodhouse of the Lord Chancellor and the Law Lords in the white the roles, the position, and the fact that he is House of Lords there are a lot of questions they ask, appointed by the Prime Minister. and I think it is not clear to people. They are very intelligent people coming into the system and they are Y somewhat bamboozled by the whole situation at that Q368 Lord Carter: That is a description of the o ce, point, so I would suspect that generally the public are but how about the overtly party political role of the similarly confused and somewhat turned oV by the Lord Chancellor? Do the students find that odd? whole business because they do not really understand Professor Woodhouse: They find it odd—they find it all how it works. very odd. Interestingly, they have found it increasingly odd over the years. Going back ten years the students more or less accepted the situation, Q365 Lord Lloyd of Berwick: But they do not think saying “That is how it is”. They find it increasingly the Law Lords are biased? diYcult now to equate the political role and how he Professor Woodhouse: No, I do not think they think the can be a party politician. One explains about the Law Lords are biased at all. They may think that at diVerent hats he wears. The extent to which they times the closeness of the government may result in believe it, however, is another matter and it becomes the government trying to influence the Law Lords, particularly diYcult when you have students who do but that does not mean to say they think the Law not come from a United Kingdom background. You Lords react accordingly. say, “We have this tradition and we do have the reputation of this wonderful independent judiciary”, Q366 Baroness Gibson of Market Rasen: You but when you go into the detail they do look at you obviously feel quite strongly about this question of as if to say, “Where do you think I come from?” housing the court in a diVerent building. A number of people have put to us, both written and verbally, that Q369 Chairman: How do you explain that the head that is all very well but what about the cost of such a of the judiciary is dismissible by the Prime Minister? move, and the justification of this cost, and again the I always find great diYculty explaining that to the question of public perception? Would you like to Americans. comment on that? Professor Woodhouse: Exactly. You tell it as it is and Professor Woodhouse: I am obviously aware of the then try and indicate how it has worked. cost. We have costs in other areas, such as devolution with the cost of new buildings and so on, and I am aware that it would be a considerable cost but to my Q370 Lord Kingsland: Professor Woodhouse, I have mind it is a cost worth paying. There are some things two lines of questions to ask you, one about you have to pay for in a democracy to improve a appearances and one about the rule of law. I notice system or institutions, and as long as it is well- from your paper that concern about appearances defended and well illustrated why it is important predominates. I imagine you follow the debates and then, as I say, I think it is a cost worth paying. you probably know that, on more than one occasion, the Lord Chancellor has said that there is absolutely no evidence whatever of any single or more cases of Q367 Lord Carter: In your book The OYce of the judicial independence being compromised, and I Lord Chancellor, and when you are teaching your presume you accept that. students, do you try to explain what to some people Professor Woodhouse: would seem to be the anomalous situation where a Yes, indeed I do. party politician is the head of the judiciary. All Lord Chancellors are political, some are more political Q371 Lord Kingsland: So you are essentially than others, even to the extent of helping to draft a concerned about appearances? party’s election manifesto. How do you explain this Professor Woodhouse: Yes, indeed. to the students? Professor Woodhouse: The way in which I explain it is to try and look at all the diVerent functions of the Q372 Lord Kingsland: On some occasion those Lord Chancellor, and explain why the position is appearances appear to be appearances to you, and on important and has been historically. What I tend to other occasions they appear to be your perception of do is to look at the traditional position and then say other people’s perceptions of what is going on. Is that “These are the changes that have happened”, such as a fair observation? the great increase in the size of the Lord Chancellor’s Professor Woodhouse: They are my perceptions and department and so on and the increased—well, not those based on, for instance, how the press have necessarily increased—but the fact that the Lord perceived and reported certain elements, which Chancellor is a political role and so on, and let them clearly then feed into how I perceive the situation to draw their own conclusions. I set out in black and be. 9674042010 Page Type [O] 28-06-04 20:19:13 Pag Table: LOENEW PPSysB Unit: PAG3

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22 April 2004 Professor Diana Woodhouse

Q373 Lord Kingsland: Clearly the appearances with Professor Woodhouse: The defence of the rule of law which you are concerned are the impressions that the could be undertaken in government by the Attorney general public have about our constitutional General. I see no reason why he cannot assume the arrangements? role of advising the government or objecting when he Professor Woodhouse: No. They are concerns to make or she sees that certain measures are incompatible sure that the public have confidence in the judiciary. with the rule of law. I know this is a role that obviously the Lord Chancellor fulfils currently. Q374 Lord Kingsland: So your concern is that the public must have confidence in the judiciary? Q379 Lord Kingsland: The Attorney General is not, Professor Woodhouse: Yes. of course, in Cabinet? Professor Woodhouse: No, but I am not sure nowadays how much business is done in the Cabinet whereby he Q375 Lord Kingsland: Do you have any evidence needs to be there! that the public does not have confidence in the judiciary? Professor Woodhouse: No, I do not, but I think it is too Q380 Lord Kingsland: So who would oppose the late, as it were, to close the stable door and I would Home Secretary, for example, or some other minister not want to get into a situation where there became a introducing a piece of legislation which contained a loss of public confidence. I think we can move blatant breach of the rule of law? Supposing you had before that. a piece of legislation, for example, which denied the vote to a certain proportion of the population. If that legislation went through, judges would be placed in a Q376 Lord Kingsland: You say it is too late. This is very uncomfortable position, would they not? a Bill and here we are in Select Committee trying to Professor Woodhouse: Yes. analyse its merits; so you would accept, would you not, that constitutionally it is not too late? Professor Woodhouse: Yes, absolutely. Yes. Q381 Lord Kingsland: Do you not think it is more desirable that a piece of legislation that threatened to do something so blatantly constitutional should be Q377 Lord Kingsland: On your second page, about stopped before it reaches the statute books? two thirds of the way down in the final paragraph of Professor Woodhouse: Yes, but I see no reason why the the third bullet point, you are expressing your doubts Attorney General cannot give that opinion to the about the role of the Secretary of State for Cabinet or to ministers in relation to that legislation. Constitutional AVairs in defending the judiciary and There are all sorts of ways this can be dealt with, but you say, “I am of the view that the judiciary is quite certainly the Attorney General can be called in to capable of defending itself . . .” Are you talking there address Cabinet or can ask to, if that should be the about it defending its own independence, or are you case, I would have thought. I think there are ways referring to something wider? around it. I do not think that removing the Lord Professor Woodhouse: I am referring to it defending its Chancellor so there is no longer a Lord Chancellor own independence through a number of mechanisms, sitting in Cabinet means we are then going to get possibly through the Lord Chief Justice or the Judges legislation which breaches the rule of law. Council always responding to any legislative Lord Kingsland: Thank you. proposals that they feel in anyway compromise judicial independence, or in some way aVect the Q382 Lord Craig of Radley: I have one question on administration of justice. I also see no reason why, if the Supreme Court, to do with your view about the the judges are concerned that certain actions of the provision to the minister by the Commission of a list government or indeed of a single minister are really of between two and five names. You say that is threatening judicial independence, they cannot write preferable. Could you tell us why it is preferable in a memorandum to the government. Whether that is your view? made public or not I do not know but there could Professor Woodhouse: Yes. I know opinions are split perhaps be an annual report that the Lord Chief on this but it is preferable in my view because I am Justice or the Judges Council produces which sets out concerned that if only one name is given then the at the end of each year where they have concerns and Commission might always produce, or is in danger of so on, and I think this would be a much more open producing, the “no risk” candidate at all times way and would lead less to the sort of speculation because they would be so scared of getting it wrong. that you get in the press about the judges being upset. If there is a degree of choice then in the end it is still going be the minister who gets the blame, as it were, Q378 Lord Kingsland: What about the defence of the if he chooses the wrong one. After all, he is the one rule of law? who is accountable ultimately to Parliament so I 9674042010 Page Type [E] 28-06-04 20:19:13 Pag Table: LOENEW PPSysB Unit: PAG3

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22 April 2004 Professor Diana Woodhouse think that putting the onus on the minister is not a Professor Woodhouse: Certainly with regard to bad thing. disciplinary powers I would agree with you that it would seem unnecessary for the Lord Chief Justice to have to consult with the Secretary of State. It might Q383 Lord Howe of Aberavon: I am concerned again be more appropriate for him to be consulting with with the observed independence of the judiciary, and other senior judicial colleagues rather than that, if I want to ask your reaction to two points taken that was the case. together, if I may spell them out. The Bill is concerned to distribute the present functions of the Q385 Lord Howe of Aberavon: But the duties to Lord Chancellor, and that is done, amongst other consult under Schedule 1 are not disciplinary. They things, by Clause 3 of the Bill which has Schedule 1 are much wider powers over many diVerent statutory distributing them. That Schedule contains about 150 provisions? statutory provisions where the Lord Chief Justice has Professor Woodhouse: Yes, and a lot of those to my to consult with or agree with the Secretary of State. mind are fine. There needs to be consultation between The second point is that Clause 83 of the Bill, which the two sides on certain issues. On the disciplinary deals with disciplinary powers over the whole range ones I have reservations but, more generally, I am of thousands of judicial oYcers, says, “The Lord happy. Chief Justice may exercise any of the following powers but only with the agreement of the Minister Q386 Lord Crickhowell: Briefly, firstly, I am and only after complying with prescribed fascinated by the Oxford perception that this place is procedures”. Now, assume that the Secretary of seen as an English court. Having represented a Welsh State, who is meant to be a senior Secretary of State, constituency for seventeen years in the other Place I is not, if I may use these terms with some hesitation find this a little surprising! But could Professor but with respect, the well house-trained Secretary of Woodhouse explain why she thinks a court sitting, say, on the other side of Parliament Square should be State we have sitting with us now—and when I say perceived any diVerently? “house-trained” I mean a lawyer of distinguished Professor Woodhouse: It is taking it out of the experience and a former Solicitor General—but legislature which alters that—and I would hate to assume, again for the sake of argument, that it is Mr think it was the Oxford perception. I would not want David Blunkett, so that the Lord Chief Justice has to in any way to suggest that all my Oxford colleagues consult with Mr Blunkett on all these propositions share the same view! and is not allowed to exercise disciplinary power over the judiciary without consulting with him. How does Q387 Lord Crickhowell: Secondly, one of the that improve the perceived independence of the fascinations of sitting on this Committee is the totally judiciary compared with the present situation? diametrically opposed views of successive academics Professor Woodhouse: I think that is a very good point who come before us, and I quote Professor GriYths’ and it is something that I did not put in my paper final words: “The heart of the matter is that, while the because I wrote it very quickly. I do have reservations senior judges are not part of the machinery of the about this. I do not see why there is a need for the government, they are part of the machinery of Lord Chief Justice to consult over disciplinary government. To exclude the most senior judges from matters with the minister, and I agree and do not the political arena is seriously to weaken the co- think that helps. mixture of powers which is the vital ingredient of our constitution”. Do you not agree that that co-mixture is a vital ingredients? Q384 Lord Howe of Aberavon: And Schedule 1, the Professor Woodhouse: No. With respect to Professor literally 150 diVerent provisions on which GriYths I would have to disagree with that. consultation has to take place? That is key to the Chairman: Professor, thank you very much indeed disaggregation of the functions of the Lord for coming. We have found it enjoyable, and I hope Chancellor. you have had an interesting time.

Memorandum by Lord Bingham of Cornhill

Accommodation

1. The Supreme Court should be housed in a building, and should sit in courtrooms, which reﬂect the constitutional importance attached to the rule of law in a country such as ours (where the expression was coined). We do not labour this point since we understand it to be agreed by everyone. 9674042011 Page Type [O] 28-06-04 20:19:13 Pag Table: LOENEW PPSysB Unit: PAG3

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2. The Appellate Committee of the House of Lords has operated in a manner diVerent from other courts in this country. We think it very important that it should continue to do so. Leave to appeal is given only where issues of law are to be decided, and are usually complex and diYcult, often involving important questions of legal policy. Evidence is not called. While the issues are often highly contentious, the style of advocacy tends to be much less openly adversarial and much more deliberative than in other courts. It is sought to resolve the problems which arise by reasoned debate, conducted almost conversationally. This style has an important bearing on the nature and configuration of the courtroom. The traditional configuration (raised bench, advocates’ benches below, witness box, etc) and in particular the traditional configuration of a criminal court (with dock and jury box added) are not only unnecessary: they are inappropriate and counter-productive. 3. The two ground floor courts in Middlesex Guildhall were built, and have since 1912 been used, as traditional criminal courts. They are doubtless very serviceable for that purpose. But the present layout and all the existing court furniture are wholly inappropriate for a supreme court. There would, we understand, be enough space to accommodate a court of five judges, but we do not think it would be possible to achieve the layout and ambience which we require without very substantial re-modelling, including levelling the floor. It would also be necessary substantially to lighten and brighten the present dark and forbidding aspect of the courts which, however appropriate for a criminal court in 1912, is entirely unsuited to the work we do and could only give a misleading impression to the public we serve. 4. The former Middlesex County Council Chamber on the second floor, now used as a court, would accommodate a bench of seven or even nine judges. But the existing configuration, with a high raised bench facing tiers of semi-circular benches, would not meet the needs of a supreme court. It would again be necessary to strip out all the existing court furniture. It would also be necessary to re-orientate the auditorium and to change the existing floor levels. A modernised revision of this space would not sit easily with the ceiling ornamentation of very prominent black wooden carvings. 5. We cannot envisage that the Guildhall could house the Supreme Court without making use of the spaces we have so far mentioned. There are additional courtrooms, created much more recently, the ceiling heights of which could, we understand, be doubled. That would greatly improve them. But they have a makeshift appearance and it would be very strange if the Supreme Court were housed in the attic of what had become a museum. 6. It appears that the three “historic” spaces could be used to accommodate two Supreme Court constitutions and the Judicial Committee of the Privy Council (which we have not thought it necessary to distinguish from the Supreme Court for present purposes). But we have grave doubts whether, even if radically transformed, these spaces can ever provide a suitable setting. The impression will always remain that the Supreme Court has been crudely thrust into a building designed and built for quite another purpose. 7. With Parliament Square and the Palace of Westminster to the east, and with Westminster Abbey to the south, the Guildhall site in our view deserves a building very much more distinguished than the Guildhall is or can ever be.

Commencement

1. Wherever the Supreme Court is ﬁnally accommodated, there must be a delay of some years before the earliest time at which transfer to the new accommodation could be accomplished. A delay of three to four years would appear to be the minimum. 2. During that period, in the ordinary course, some new appointments to the Court would fall to be made. 3. There would be no practical problem if, during the period of delay, the Appellate Committee and the Judicial Committee continue to function as they now do. But an intolerable situation would arise if the new arrangements were to take eVect before there was accommodation to which the judges could transfer. “Old” appointees would continue to be peers and as such entitled, presumably, to use the facilities of the House. “New” appointees, unless they were peers, would have no claim to use the facilities of the House or to occupy any of its space. It is not at all clear how the ﬁnancing of the Court, the employment of staV etc could be. handled during this interim period, which would call for very detailed transitional provisions. 4. We think it essential that new legislation creating a Supreme Court should not come into eVect until there is accommodation in which the Court can be established. 30 April 2004 9674042012 Page Type [E] 28-06-04 20:19:13 Pag Table: LOENEW PPSysB Unit: PAG3

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Response of the Law Lords to the Government’s consultation on a Supreme Court for the United Kingdom, laid also before the Select Committee

1. This paper has been drafted to convey the majority view of the current Lords of Appeal in Ordinary. There are important questions of principle and detail on which opinions diVer and on which individual Law Lords may wish to respond separately. The response should be read subject to six important provisos. 2. First, it should not be thought that the Law Lords as a body support the proposal to establish a new Supreme Court of the United Kingdom. A number of serving Law Lords8 believe that, on pragmatic grounds, the proposed change is unnecessary and will be harmful. The present arrangements work well. They believe that the Law Lords’ presence in the House is of benefit to the Law Lords, to the House, and to others including the litigants. Appeals are heard in a unique, suitably prestigious, setting for this country’s court of final appeal. The “House of Lords” as a judicial body is recognised by that name throughout the common law world. Overall, it is believed, it has a fine record and reputation. The Law Lords who do not support the proposed change consider these real advantages need not be, and should not be, put in jeopardy. They consider that the cost of the change would be wholly out of proportion to any benefit. Other serving Law Lords9 regard the functional separation of the judiciary at all levels from the legislature and the executive as a cardinal feature of a modern, liberal, democratic state governed by the rule of law. They consider it important, as a matter of constitutional principle, that this functional separation should be reflected in the major institutions of the state, of which the final court of appeal is certainly one. 3. Secondly, we are at one in regarding it as essential that a new Supreme Court of the United Kingdom, if established, should be properly accommodated and resourced, and equipped with the facilities it will need to discharge its public duties to the best possible eVect. The Consultation Paper eschews any detailed consideration of this fundamental aspect. While some preliminary thought has, we appreciate, been given to the accommodation which a Supreme Court will require, no business plan has to our knowledge been prepared and no estimate of cost made. The building in which the Court is housed must reflect the importance of the rule of law in a modern democracy; and it must aVord the judges (plus their librarians, secretaries, judicial assistants, law reporters, press oYcer, IT staV, doorkeepers and security staV) the resources and facilities they need. 4. Thirdly, we are at one in regarding it as essential that a new Supreme Court should enjoy corporate independence in the sense used by Professor Ian Scott in his response to the Consultation Paper. The new court will be a United Kingdom court and cannot be appropriately administered by the Court Service of England and Wales. It must have its own budget, settled in a manner which protects the court from political pressure. It must have its own Registrar, answerable to the court, its own staV and its own IT facilities. The independence of the judges requires not only that they be free of extraneous pressure but also that the court be institutionally free of administrative pressure. In Australia, a one-line budget is agreed annually between the High Court’s chief executive oYcer and the attorney-general, and a similar arrangement would be appropriate here. 5. Fourthly, we do not in this response comment on the proposal to abolish the oYce of Lord Chancellor. We are, however, very greatly concerned that the important constitutional values which the oYce of Lord Chancellor protected should continue to be eVectively protected. In the past the Lord Chancellor’s role was to uphold constitutional propriety and champion judicial independence. The constitution would be gravely weakened if that safeguard were removed and not replaced. 6. Fifthly, we question the statement in paragraph 28 of the Consultation Paper: “The administrative and support arrangements for the Judicial Committee [of the Privy Council] would therefore remain unchanged.” We accept, of course, that the institutional independence of the Judicial Committee of the Privy Council must be preserved. We advocate no change in judicial eligibility to sit, nor in the role of the Registrar. We cannot, however, see any reason why hearings should take place in a diVerent place from those of the Supreme Court, provided the judges sit as members of the Privy Council and in a courtroom clearly designated as a Privy Council hearing room. Provided its institutional independence was preserved, we feel that there would be obvious gains in operational eYciency if the Privy Council were to sit under the same roof as the Supreme Court.

8 Lords Nicholls of Birkenhead, HoVman, Hope of Craighead, Hutton, Millet, Rodger of Earlsferry. 9 Lords Bingham of Cornhill, Steyn, Saville of Newdigate, Walker of Gestingthorpe. 9674042012 Page Type [O] 28-06-04 20:19:13 Pag Table: LOENEW PPSysB Unit: PAG3

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7. Sixthly, and subject to what we say in answer to Question 1, we do not propose any change in the jurisdiction of the Appellate Committee on its becoming the Supreme Court. The Appellate Committee has never had jurisdiction to hear criminal appeals from Scotland. It is not a jurisdiction which the Supreme Court (save for its Scottish members) would be well-ﬁtted to discharge. If there is any desire for change in this regard, we would not support it.

8. We turn to the speciﬁc questions raised in the Consultation Paper. In answering them we shall use the expression “Court” to mean the new Supreme Court of the United Kingdom.

Question 1: Do you agree that the jurisdiction of the new Court should include devolution cases presently heard by the Judicial Committee?

9. It would in our opinion be consistent with the role of a Supreme Court of the United Kingdom that it should be the ﬁnal arbiter of devolution issues arising in the devolved jurisdictions. The Scotland Act 1998 and the Northern Ireland Act 1998, however, in giving jurisdiction to resolve devolution issues to the Judicial Committee of the Privy Council, permit such issues to be decided by judges drawn from the devolved jurisdictions who are eligible to sit in the Judicial Committee but are not eligible to sit in the House of Lords and, if our answer to Question 2 is accepted, will not be eligible to sit in the Supreme Court. We would not wish, and we very much doubt if the devolved administrations would wish, to see this feature of the devolution settlement abrogated. If it is to be preserved, the choice lies between leaving matters as they are and making special rules to govern eligibility to sit in the Supreme Court when it is dealing with devolution matters. We do not regard this last possibility as satisfactory and accordingly, although with a measure of reluctance, favour preserving the status quo.

Question 2: Do you agree that the number of full-time members of the Court should remain at 12 but that the Court should have access to a panel of additional members?

10. It is important to the quality of the Court’s work and the consistency of its decision-making that the number of members should be relatively small. In present circumstances we consider 12 to be the right number. While the power to increase that number by Order may be retained, it should be provided that there be no increase or reduction without the concurrence of the senior judge of the court for the time being and his or her deputy. Any increase or reduction should in addition be subject to an aYrmative resolution of each House.

11. It is desirable, for the foreseeable future, that the Court should be free, when and as the requirements of business demand, to invite eligible additional members to fill places on panels which the serving members of the Court cannot conveniently fill from their own number. Those eligible to sit should include former Lords of Appeal in Ordinary under the age of 75. Eligibility could perhaps be extended to (a) those who have served as the British Judge or Advocate-General of the Court of the Justice of the European Communities or (b) have sat in the Appellate Committee of the House of Lords as Lord Chancellor or (c) currently hold oYce as Lord Chief Justice of England and Wales, Lord President of the Court of Session, Lord Chief Justice of Northern Ireland, Master of the Rolls or Lord Justice-Clerk. We would strongly resist extending eligibility beyond the categories so defined, unless (see our answer to Question 1) the Court is to rule on devolution issues.

Question 3: If there were such a panel, under what circumstances could the Court call on it?

12. The ordinary presumption should be, both in the Court and (subject to the welcome attendance of overseas judges in Commonwealth appeals) in the Privy Council, that panels should so far as practicable be made up of serving members of the Court. Where for any reason (such as absence, sickness, pressure of business or the need for particular expertise) additional members are needed, this should be arranged on the direction of the senior judge of the court or his deputy. 9674042012 Page Type [E] 28-06-04 20:19:13 Pag Table: LOENEW PPSysB Unit: PAG3

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Question 4: Should the composition of the Court continue to be regulated by statute, or should it be more ﬂexible?

13. We consider that the composition of the Court should continue to be regulated by statute. We do not consider that the composition should be ﬂexible.

Question 5: Should there be a Deputy President?

14. We are of the clear opinion that there should (adopting the terminology of the Consultation Paper) be a Deputy President who will (as now) almost invariably preside over the panel of which he is a member, participate in decisions on the composition of panels and discharge the duties of the President if he is for any reason unable to do so. The importance of these functions in our opinion requires that the oYce be underpinned by statute. 15. The suggestion has been made that the senior judge of the Court should be called “the Chancellor”. We do not support this: such a title would in our opinion be unhistorical, undescriptive, old-fashioned and (through associations with the Lord Chancellor) misleading.

Question 6: Should the posts of President and Deputy President be ﬁlled by the same process as membership generally, or should these appointments always be made on the advice of the Prime Minister after consultation, without involving any Judicial Appointments Commission?

16. We find it convenient to approach this diYcult question by reminding ourselves of certain principles which we regard as fundamental: (1) Appointments of this seniority must be made by The Queen. (2) The Queen must act on the advice of ministers. (3) The minister exercising relevant authority in relation to all the UK jurisdictions must be the Prime Minister. (4) Since the appointments are to a United Kingdom court, full account should be taken of the views of the devolved administrations. (5) The process of appointment should be wholly apolitical and should not in any way infringe the independence of the judges. (6) The process of appointment should be such as will command public confidence. 17. The last of these principles would point towards a small appointments commission including members from all the UK jurisdictions with some non-legal membership. On the other hand, the number of candidates for either oYce deserving of serious consideration will in all probability be very few; and the judicial and personal qualities of those few will be very well known to the members of the Court and the holders of the leading judicial oYces in England and Wales, Scotland and Northern Ireland. 18. While we consider that the informal process of consultation adopted in the past, suitably adapted, would lead to the identification and recommendation of those best fitted to serve in the new Court, we recognise the understandable desire for a more transparent process and it would perhaps be anomalous that procedures implemented when making appointments at lower levels of the judiciary had no counterpart when appointments were to be made at the highest level. On balance, we consider that the appointment of the President and the Deputy President should be made in the manner outlined in our response to Question 12 below. The procedure should be that outlined in our answer to Question 11.

Question 7: Should the link with the House of Lords be kept by appointing retired members of the Supreme Court to the House?

19. Since the size and composition of the House of Lords may not yet have been ﬁnally settled, we ﬁnd this adiYcult question to answer. As matters stand, we feel it might be appropriate to appoint former members of the Supreme Court to be members of the House of Lords provided they had either reached the age of retirement or announced that they would not in future sit judicially and provided they wished to be appointed. 9674042012 Page Type [O] 28-06-04 20:19:13 Pag Table: LOENEW PPSysB Unit: PAG3

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Question 8: Should the bar on sitting and voting in the House of Lords be extended to all holders of high judicial office? 20. There is no doubt that, in the past, the House of Lords has valued and profited from contributions made, particularly on matters relating to the administration of justice, by holders of high judicial oYce. On the other hand, the creation of the Court and the ending of the Lord Chancellor’s judicial role provide the opportunity to reflect the complete independence of the judiciary from the executive and the legislature, and with some 80 lawyers among its members the House of Lords does not lack legal expertise. 21. The serving Law Lords are not agreed on the answer to this question. Some10 consider that the President of the Supreme Court, the Lord Chief Justice of England and Wales, the Lord President of the Court of Session and the Lord Chief Justice of Northern Ireland should be appointed members of the House in order to give it the benefit of their experience on matters relating to the administration of justice in their respective jurisdictions. Others11 consider that complete eVect should be given to the separation of judicial and legislative activity: if the most senior judges wish to make their views publicly known, they do not lack opportunities to do so.

Question 9: Should there be an end to the presumption that holders of high judicial ofﬁce receive peerages? 22. There is again a diVerence of opinion on the answer to this question. Some serving Law Lords12 would wish, consistently with their answer to the last question, to see peerages conferred on future holders of the four oYces mentioned. Others13 would not. The issue is whether the principle underlying the proposals (that in future members of the Supreme Court should not be members of the Upper House) should be given eVect subject to exceptions or without exceptions.

Question 10: Should appointments to the new Supreme Court continue to be made on the direct advice of the Prime Minister, after consultation with the First Minister of Scotland and First and Deputy First Ministers in Northern Ireland and with the profession? 23. No. We refer to and repeat our answer to Questions 6, 11 and 13. The procedure we there outline would in our opinion be appropriate for all appointments to the Court.

Question 11: If not, should an Appointments Commission recommend a short-list of names to the Prime Minister on which to advise The Queen following consultation with the First Minister of Scotland and the First and Deputy First Ministers in Northern Ireland? Or should it be statutorily empowered to advise The Queen directly? 24. An Appointments Commission, if established, should recommend one appointee to the Secretary of State for Constitutional AVairs. The Secretary of State should be authorised to invite the Commission to reconsider its recommendation, giving reasons. If so invited, the Appointments Commission should reconsider its recommendation and then recommend an appointee (whether the same appointee or another) to the Secretary of State. The Secretary of State would then advise the Prime Minister of that recommendation, and the Prime Minister would advise The Queen accordingly. The Secretary of State would be bound to accept the Commission’s recommendation (either initially or after reconsideration) and the Prime Minister would be bound to advise The Queen in accordance with the Secretary of State’s advice.

Question 12: If there is to be an Appointments Commission for Supreme Court appointments, how should it be constituted? Should it comprise members drawn from the existing Appointments bodies in each jurisdiction? 25. In answering Question 6 we suggest that the serious candidates for appointment as President and Deputy President of the Court will be few and that their judicial and personal qualities will very well known. These points apply with equal force to candidates for appointment to the Court more generally. The serving members of the Court devote the bulk of their time to hearing appeals against decisions of the Court of Appeal of England and Wales and in doing so acquire a detailed knowledge of the strengths and weaknesses of diVerent members of that court. Further, the serving members of the Court, and in particular the President and the Deputy President, will know better than anyone the ﬁelds of law in which additional strength will be most valuable at the time of the appointment in question.

10 Lords Nicholls of Birkenhead, Hope of Craighead, Hutton, Hobhouse of Woodborough, Millet, Scott of Foscote, Rodger of Earlsferry, Walker of Gestingthorpe. 11 Lords Bingham of Cornhill, Steyn, HoVman, Saville of Newdigate. 12 Lords Nicholls of Birkenhead, Hope of Craighead, Hutton, Hobhouse of Woodborough, Millet, Scott of Foscote, Rodger of Earlsferry, Walker of Gestingthorpe. 13 Lords Bingham of Cornhill, Steyn, HoVman, Saville of Newdigate. 9674042012 Page Type [E] 28-06-04 20:19:13 Pag Table: LOENEW PPSysB Unit: PAG3

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26. These considerations point towards a small and largely expert body, convened ad hoc as occasion demands, which we suggest should comprise: (1) The President. (2) The Deputy President. (3) The senior member of the Court appointed from the bench or legal profession of Scotland (if not President or Deputy President). (4) The senior member of the Court appointed from the bench or legal profession of Northern Ireland (if not President or Deputy President). (5) The two senior members of the Court appointed from the bench or legal profession of England and Wales (this number to be reduced to one if either the President or Deputy President was so appointed and reduced to nil if both of them were). (6) Two lay members, one or both of whom might be legal academics, appointed (by an independent body) for substantial periods of time. (If this model were to be used on appointing a President and Deputy President, there would have to be scope for adjusting the membership since some of those in (1) to (5) might be candidates.) The strengths of such a body would in our opinion be these: (1) It would be small (never numbering more than six). (2) It would avoid the embarrassment which would arise if the senior judges in the three jurisdictions were members and were also candidates for appointment. (3) The judicial members would be well placed to consult judicial, professional and (so far as practicable) non-legal opinion in their respective home jurisdictions, including the opinion of the Secretary of State for Constitutional AVairs, the First Minister of Scotland and the First and Deputy First Ministers in Northern Ireland, to report the outcome of their consultations and to ascertain whether a favoured candidate, if recommended, would be willing to serve. (4) The participation of the lay members would aVord a public guarantee that the process of appointment had been carried out in a fair, open-minded and thorough way and with due regard to the interests of the public at large. The recommendation made should be decided by majority vote. If there were no majority (for example, two members supported candidate A, two supported candidate B and two candidate C, or all six members supported diVerent candidates) the President should exercise a second, casting, vote.

Question 13: Should the process of identifying candidates for the new Court include open applications? 27. Open applications ensure that any qualiﬁed applicant can invite consideration of him or herself as a candidate for appointment and ensure that no eligible candidate is inadvertently overlooked. These are valuable safeguards at the High Court level and below, where they have the additional advantage of enabling the stronger candidates to signal their willingness to accept appointment if invited These safeguards are not in our opinion of value when appointments at the highest level are under consideration. The outstanding candidates, as we have already pointed out, are likely to be few and well-known; the problem is not to identify a candidate worthy of appointment but to choose between candidates all of whom have strong claims to be appointed. Thus there is no risk of inadvertent oversight. Nor, in England and Wales, is there any recorded history of unwillingness to serve if appointed. For serving judges in Scotland and Northern Ireland, appointment to the Court (as in the past to the Appellate Committee) will involve a degree of domestic and professional upheaval which might doubtless deter some from accepting appointment, but there is no reason to think that this would be a problem, whatever appointments machinery were adopted, if the views of favoured candidates were ascertained before a recommendation was made.

Question 14: Should there be any change in the qualiﬁcations for appointment, for example to make it easier to appoint distinguished academics? Or should this be a change limited to appointment to lower levels of the Judiciary, if it is appropriate at all? 28. Since we are of the ﬁrm opinion that merit should be the overriding criterion of appointment at all levels of the judiciary, we could not support any rule which precluded consideration of any candidate who was or might be worthy of appointment on grounds of merit. Our collective experience in the three UK jurisdictions does not, however, yield any example of a candidate who was considered deserving, or possibly deserving, of 9674042012 Page Type [O] 28-06-04 20:19:13 Pag Table: LOENEW PPSysB Unit: PAG3

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22 April 2004 appointment on grounds of merit and who was debarred from consideration for want of the requisite qualiﬁcation. In practice, a number of legal practitioners have held academic appointments before turning to practice or accepting judicial appointment; and a number of academic lawyers with judicial ambitions recognise the value of familiarising themselves with the practice of the law and the conduct of trials to supplement their store of academic learning. We would ourselves regard a measure of experience (whether in practice or on the bench or both) as an all but essential qualiﬁcation of trial judges, and while, on occasion, appeals may raise fairly abstract questions of law, this is not in our experience the norm, and we see special dangers in decisions made on appeal by judges who have never experienced the exacting reality of conducting adiYcult case or presiding at a diYcult trial.

29. We do not consider that the existing rule works adversely to the public interest.

Question 15: Should the guidelines which apply to the selection of the Court be set out administratively, or through a Code of Practice subject to Parliamentary approval, or in legislation?

30. The personal and professional attributes to be looked for in a member of the Court are integrity, incorruptibility, independence and impartiality; intellect, analytical ability, legal knowledge, relevant experience and the ability to assimilate large quantities of material at short notice; the capacity to formulate legal policy at a high level; open-mindedness, fair-mindedness and single-mindedness; the ability to compose clearly reasoned judgments without prolixity within a reasonable time; a general knowledge of social conditions and trends; courtesy; common sense; energy and assiduity; decisiveness; and good health. These attributes are, in our opinion, so obviously desirable that we question the need to list them in a public document. We can, however, recognise that the disappearance of the oYce of Lord Chancellor may render it necessary to make explicit what was formerly largely implicit. Since we foresee no likelihood that the attributes required of a Supreme Court justice will change over time (although the relative importance of each may doubtless do so) we consider it important that they be expressed in legislation and not in any less formal manner.

Question 16: What should be the arrangements for ensuring the representation of the different jurisdictions?

31. Of the ﬁrst two Lords of Appeal in Ordinary appointed under the Appellate Jurisdiction Act 1876, one was an English judge and one a Scottish. In 1882 a judge was appointed from Ireland. In recent times the Appellate Committee has always included two Scottish Law Lords. The representation of Northern Ireland since 1922 has been much less continuous. But the Appellate Committee has included a Northern Irish member for most of the period since 1988, and for shorter periods in earlier years, again to its great beneﬁt. None of us would contemplate any reduction in this level of representation so long as there are (as in the past) candidates of outstanding quality in these jurisdictions who are willing to serve.

32. The volume of appeals reaching the Court from Scotland and Northern Ireland respectively would not on current ﬁgures justify an increase in this level of representation, but we would not wish to rule out the possibility of an increase if, for a particular vacancy, the most meritorious candidate were to be found in Scotland or Northern Ireland. On the other hand, we should think it undesirable that an unmeritorious candidate should be appointed (in the unlikely event that no meritorious candidate were willing to serve) in order to ﬁll a quota. It would moreover be wrong to assume that the Welsh legal system will forever be indissolubly linked to the English; the devolution settlement is already leading to a revival of the indigenous legal culture which once existed in Wales.

33. These considerations prompt us to conclude that representation of the diVerent jurisdictions is best left, as at present, to convention. The only purpose of a statutory rule would be to protect the smaller jurisdictions against the dominant English majority. To suppose that there is a need for such protection is to misunderstand the extent to which the continuing contribution of Scottish and Northern Irish members is valued and the pride which all members of the Court would take in its being a Supreme Court of the United Kingdom. We would add that if an Appointments Commission were to be constituted as we have suggested in answer to Question 12, the judges appointed from the bench or practising profession of England and Wales would always be in a minority. 9674042012 Page Type [E] 28-06-04 20:19:13 Pag Table: LOENEW PPSysB Unit: PAG3

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Question 17: What should be the statutory retirement age? 70 or 75?

34. We regret the decision to lower the statutory retirement age for judges to 70, since although few Lords of Appeal in Ordinary in recent years have continued in oYce until the age of 75 a majority have continued to sit full-time, and have done very valuable work, when over the age of 70. 35. Our preference is that the retirement age for members of the Court should again be ﬁxed at 75. If it is to remain at 70, those who retire from the Court at that age and who wish to continue to sit part-time should be eligible to do so, if invited, until they reach the age of 75. 36. We support the existing rule which precludes a judge from sitting after the age of 75 save to complete a hearing commenced before the judge’s 75th birthday.

Question 18: Should retired members of the Court up to ﬁve years over the statutory retirement age be used as a reserve panel?

37. We refer to our answer to the last Question.

Question 19: Should the Court continue to sit in panels, rather than every member sitting on every case?

38. The composition of panels to hear particular cases must continue, as now, to be a matter for the President and the Deputy President, save that statute should provide for a quorum of three to rule on any petition for leave to appeal or any appeal. 39. We envisage that, as at present, panels of three should ordinarily conduct oral hearings of petitions for leave to appeal, and panels of ﬁve the great majority of full appeals. In cases of particular diYculty or importance or where diVering opinions have been expressed in the past, however, it will continue to be appropriate to establish panels of seven or nine, and this should perhaps be done more readily than in the past. 40. While the possibility that all members of the Court might sit on a particular case need not be ruled out, and we are mindful of the advantages which would ﬂow from a sitting of all members of the Court in banc, this should not be the norm since, bearing in mind the demands of the Privy Council, the inevitable result would be either a dramatic fall in the number of cases decided or a delegation to assistants of work now done by judges. Neither outcome is desirable. We would add that eVective forensic argument before a participatory bench of 12 judges would tend to be protracted and diYcult to manage.

Question 20: Should the Court decide for itself all cases which it hears, rather than allowing some lower courts to give leave to appeal or allowing some appeals as of right?

41. The lower courts in England and Wales and Northern Ireland are very sparing in granting leave, recognising that the Appellate Committee is almost always better placed to decide whether leave should be given or not. But there are cases of obvious urgency when the lower court judges that an Appeal Committee is likely to grant leave, and in such a case leave may be given to avoid a needless waste of time. There are other cases where the lower court may have good reason to think that the ﬁnal court should consider (or reconsider) a question. This is a valuable discretion. In our collective experience leave is very rarely given by the lower court in cases where the Appellate Committee feels it should not have been given. Appeals as of right are infrequent. 42. The present system works well. We see no reason to alter it.

Question 21: Should the present position in relation to Scottish appeals remain unchanged?

43. There are two views. Some serving Law Lords14 regard the absence of a leave requirement in relation to Scottish appeals as anomalous and capable, however rarely, of leading to unmeritorious appeals. They would take this opportunity to end this anomaly. Others15, while recognising the anomaly, regard the requirement of certiﬁcation by counsel as an adequate safeguard in all but a very few cases, and would not wish to disturb a long-standing procedure which gives rise to minimal diYculty in practice.

14 Lords Nicholls of Birkenhead, Steyn, Millet, Walker of Gestingthorpe. 15 Lords Bingham of Cornhill, Hope of Craighead, Saville of Newdigate, Rodger of Earlsferry. 9674042012 Page Type [O] 28-06-04 20:19:13 Pag Table: LOENEW PPSysB Unit: PAG3

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Question 22: What should the existing Supreme Court be renamed?

44. The existing Supreme Court is not a court but a cluster of courts, the Court of Appeal, the High Court and the Crown Court. Save in statute and subordinate legislation, and for some purposes of formal nomenclature, the expression is rarely used, and for well-known historical reasons it has been a misnomer from the beginning. It will cause no confusion, and remove a source of misunderstanding, if references to each of the three courts, when to a single court, are to its name and if references to two or more of the courts are (subject to any inclusive deﬁnition which may be convenient) to the names of the courts referred to.

Question 23: What should members of the new Court be called?

45. There are, we suggest, two options: (1) The first option is to adopt the Scottish model. Since the modern Court of Session was instituted in 1532 its members have been called Lords of Session. “Lord” in this context marked the dignity of the oYce but the holder did not (and does not) become, a peer. The holder is known as “The Hon Lord X” (unless a Privy Counsellor, when the prefix is “Rt Hon”. If a peerage is conferred, the Scottish judge is in the same position as his English, Welsh or Northern Irish equivalent). By a Royal Warrant of King Edward VII dated 5 February 1905 the holders of the title “Lord” are permitted to retain it on their retirement and their wives are entitled to assume the title of “Lady” and to continue to use it during the life of the husband and after his death so long as they do not remarry. By a Royal Warrant of The Queen dated 25 June 1996 every female Senator of the College of Justice is entitled to adopt the style of “The Hon Lady” and to retain that title on her retirement. As in the case of Dames, the husband’s title is unaVected. (2) The second option is formally to call the members of the new Court “Justices of the Supreme Court” but in ordinary speech (as in the United States) “Justices”. 46. The main arguments in favour of the first option are these. During the transitional period when some members of the Court will be peers and some will not this usage will eVectively mask the diVerence in formal status of the members. It will provide an element of continuity with a very longstanding tradition that members of the highest court are known as “Lord”. It will distinguish the members of the new Court from judges at lower levels (except in Scotland). The main arguments against this option are that it would be retrograde, in seeking to establish a new and modern court, to use an old and perhaps anachronistic title, however venerable. The antiquity of the model is reflected in its unequal treatment of men and women (although this could be cured by providing that the title of a spouse should remain unchanged whether the oYce holder is a man or a woman). The title does not describe the function performed. 47. The main argument in favour of the second option is that the title “Justice of the Supreme Court”; or “Justice” for short, is simple, descriptive, intelligible to the public and the legal profession, consistent with widespread international practice and gender-neutral. The main arguments against this usage are that it would involve a break with longstanding tradition, that it would appear to downgrade the status of members of the Court and that it would be liable to cause confusion between members of the Court and justices of the High Court who currently style themselves “Mr Justice or “Mrs Justice” but who may no doubt prefer, at some time in the foreseeable future, to be called “Justice”. 48. Two serving Law Lords16 favour the first option. Others17 favour the second. 49. We do not consider that the mode of address in court gives rise to any problem specific to the new Court. So long as justices of the High Court and members of the Court of Appeal, and also a significant number of circuit judges, are addressed as “My Lord” and “My Lady”, it would be anomalous if the members of the Supreme Court were addressed in any other way. 50. We think it essential that there should, in the future, be equality of treatment as between members of the Court appointed from the three jurisdictions. At present judges of the Court of Session, although styled Lord and Lady as noted above, are not knighted or appointed DBE as the case may be. Scottish judges appointed to the Supreme Court should receive any honour ordinarily conferred on their English, Welsh or Northern Irish colleagues. 27 October 2003

16 Lords Hope of Craighead, Millet. 17 Lords Bingham of Cornhill, Nicholls of Birkenhead, Steyn, HoVman, Saville of Newdigate, Walker of Gestingthorpe. 9674042012 Page Type [E] 28-06-04 20:19:13 Pag Table: LOENEW PPSysB Unit: PAG3

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Supplementary response of Lord Hobhouse of Woodborough A. This response is written to supplement the Response of the Lords of Appeal in Ordinary of which I am one. I support that Response and, insofar as I do not add any separate view of my own or do not refer to a specific Question, it may be taken that my response to any Question is the same. B. For clarity and economy of presentation, I will cover the main points relevant to the proposal and to the answers to be given by reference back to these opening paragraphs. C. I am in principle in favour of setting up a United Kingdom Supreme Court and therefore would support a properly structured and implemented proposal. However the Consultation Paper does not contain such a proposal. In particular, it contains no “cost/benefit” analysis nor does it contain any clear valid statement of the constitutional principles to be applied. This absence makes it diYcult to assess whether there will be in fact a net benefit and leaves open the question whether the implementation will include the essential constitutional safeguards, specifically, maintaining the independence of the Judiciary and the Rule of Law. D. The Independence of the Judiciary D.1 The fundamental constitutional principle of the Rule of Law in the United Kingdom is, and has been, explicitly, since the Bill of Rights 1688, the independence of the Judiciary. Parliament has the exclusive power to legislate. The Judiciary have the exclusive power to rule upon what is legal and illegal and what a person’s legal rights and obligations are. This exclusive power includes determining guilt and innocence and what legal remedies a person is entitled to or liable to. It also includes making determinations in favour of or against the Executive; the Executive is not above the Rule of Law. This creates a tension between the Executive and the Judiciary, such as existed in an extreme form prior to 1688 and still manifests itself today. There is no such tension between the Legislature and the Judiciary: the Judiciary and the Judicial Oath sworn by all judges (renewed at each promotion) are part of the protection the Judiciary gives to supremacy of Parliament. The essence of judicial independence is independence from any direct or indirect interference or influence by the Executive. It is also relevant that independent is the criterion used in the European Convention on Human Rights. D.2 It is important not to confuse the United Kingdom’s constitutional principle of the independence of the Judiciary with the United States of America’s principle of the separation of powers. The latter is a doctrine based on a mistaken analysis of the British constitution developed by French thinkers in the 18th Century. It involves the complete and balanced separation of all three branches of government ı the Executive, the Legislature and the Judiciary from each other. Thus in the United States, the President and other members of the Executive are debarred from being members of the Legislature whereas in the United Kingdom the position is the reverse. It is a serious flaw in the Consultation Paper that, insofar as it adopts any constitutional principle, it appears to choose the doctrine of the separation of powers not the independence of the Judiciary. D.3 It is convenient, at this stage, to mention two other matters which have been used to justify the proposal and have shaped some of the questions asked. The first is the level of public understanding of the existing structure. The general public are often ignorant of the structure of the court system and, in particular, by the terminology used. Some still believe that an appeal to the House of Lords is determined by the political peers. If this is the cause of the Department’s concerns, the correct solution is clear and long overdue. There should be a better education, and dissemination of information, concerning the British constitution. This lack of knowledge and the solution lie in the hands of the Executive and are not a reason for introducing potentially damaging constitutional changes. D.4 The second is the question of judicial bias. The potential for bias exists at all levels of the judicial hierarchy. It is addressed in the Judicial Oath; it should be minimised by selecting judges who understand the need to be unbiased and who have experience of acting without bias and the proven ability to do so. Insofar as the position of Lords of Appeal might be thought to give rise to a risk of bias, it has been answered by the public statement made by Lord Bingham of Cornhill, the Senior Law Lord. Mere membership of the House of Lords creates no risk of bias whatsoever. E. The Cost/Benefit Assessment E.1.1 Judicial Independence: The present structure does provide such independence. The corner-stone of that protection is (paradoxically) the role of the Lord Chancellor as the head of the Judiciary. He takes the Judicial Oath even though he does not now-a-days actually sit. He sits in the House of Lords not the Commons. He has legal qualifications which would qualify him for high judicial oYce. He is or should be non party political. He heads a Department which does not suVer from the primarily political outlook of other Departments. The Reform Proposals would remove all this and not replace it with anything of equivalent constitutional value and, indeed, which will facilitate political interference with the Judiciary. 9674042012 Page Type [O] 28-06-04 20:19:13 Pag Table: LOENEW PPSysB Unit: PAG3

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E.1.2 The Lord Chancellor further has provided an independent element in the appointment of Judges. The criteria he uses are clearly set out in paragraphs 7-9 of the paper on Appointments. He makes or recommends the appointment of “those who appear to him to be the best qualified regardless of gender, ethnic origin, marital status, sexual orientation, political aYliation, religion or disability”. Legal knowledge and relevant experience are treated as primary criteria coupled with other more personal characteristics. It would be perfectly possible for an independent appointments commission to replicate the Lord Chancellor’s role but not if diVerent criteria were introduced or there was a political input by a politically selected membership or giving the Executive a power of veto or making a Commons minister accountable to the Commons for the appointments. So far as the composition of the proposed Supreme Court is concerned it is essential that, at the least, the safeguards set out in the Law Lords’ Response be statutorily incorporated in any new scheme. E.1.3 Financial and administrative independence from the Executive is, so far as Law Lords are concerned, at present provided by the place of the Judiciary within the structure of the House of Lords. The building is managed and manned by House of Lords staV. The finances of the House are in eVect insulated from political interference by the Executive. Thus the existing structure does support the independence from the Executive. It is not at all clear that the proposal includes similar features, rather the reverse. E.1.4 Under this head, therefore, there are clear benefits conferred by the existing structure. There is no assurance that these benefits will be provided by the proposed scheme. The assessment therefore under this the most important head is that the proposal does not show any cost-benefit gain. E.2.1 Cost implications: The cost to the taxpayer of housing the Law Lords and their support in the House of Lords is at present minimal. The Consultation Paper is silent upon the cost of setting-up the new court and the annual cost of running it. Both the initial expenditure and the continuing annual expenditure will be disproportionate to the savings, if any. It will require an altogether diVerent level of expenditure and there is no assurance that the Executive are willing to provide it. The civil justice system in England and Wales is already suVering from significant under-funding arising from budgetary constraints imposed upon the Lord Chancellor’s Department. E.2.2 There is no measurable benefit to set against this cost. There is no public benefit; the proposal will make no diVerence to the public. The only benefit would be to give the Law Lords more space within which to operate (and a marginal increase in available space within the Palace for the House of Lords). The assessment of “cost/benefit” is strongly adverse to the proposal. E.3.1 The pragmatic ground: Paragraph 4 of the Consultation Paper sets this out. It is a valid ground and is the reason why I personally have in the past supported finding a new home for the Law Lords as a Supreme Court. In the Palace there simply is not enough space to provide the Law Lords personally with adequate working conditions and support staV and materials of the right kind. The working conditions of members of the Court of Appeal are markedly better than those they encounter if they are promoted to the House of Lords. The work load of Law Lords is very considerable and inadequate working conditions only increase that work load. E.3.2 So, here there is a benefit but it will only be achieved by the incurring of the considerable extra costs both initially and on an annual basis. Unless this requisite level of expenditure is assured, the benefit will be lost and the proposal becomes unsupportable on this ground. E.4.1 Conclusion: No basis for a favourable “cost/benefit” analysis has yet been shown. There are signs that any such analysis, when it is done, will be unfavourable. As regards the Constitutional position and the independence of the Judiciary, the assessment has to be even more adverse: the preservation of that independence is a non-negotiable imperative. F. Membership of the Supreme Court: Membership of the House of Lords F.1 A number of the Questions asked are about membership of the House of Lords. This is in principle a completely separate topic from that involved in the main proposal. It appears to have been included as a result of not following the constitutional principle of judicial independence but introducing instead a doctrine of separation of powers and risk of bias: see D.2 and D.4 above. There is no inconsistency between an individual being a member of both bodies and no constitutional requirement that membership of one should preclude membership of the other. A substantial part of the business of the Upper House is deliberative, not legislating. F.2 What should be the composition of the membership of the House of Lords is still to be decided and may make this topic academic. If the membership of the House is to be by nomination and is to include cross- benchers, there is no constitutional reason why Supreme Court judges should not receive life peerages as at present. Given that the proposals include the abolition of the oYce of Lord Chancellor, it is important that the most senior Judges (not necessarily all the judges of the Supreme Court) continue to receive peerages and 9674042012 Page Type [E] 28-06-04 20:19:13 Pag Table: LOENEW PPSysB Unit: PAG3

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22 April 2004 be able to speak in the House of Lords. They will thus be able to speak on behalf of the Judiciary, on the record and in public, in an appropriate forum. The giving of press conferences which is not, and should not be regarded as, a proper judicial function or delivering lectures are not means of communication which should become the sole opportunity, apart from the delivery of judgments, for the views of the Judiciary to become known. F.3 If the risk of bias be the concern, it has already been addressed publicly by the “Bingham Statement”. It would be wrong to try and separate out one risk of perceived bias and make special provision for it and leave all the others, as they must be, for decision on an individual basis. Judicial decisions over the last ﬁve years or so have greatly clariﬁed the law on bias and apparent bias. The ability of the President to select the panel to hear an appeal and the vigilance of colleagues should be allowed to continue to avoid any problem in practice.

Question 6: I agree with and strongly support the answer given to this question read in conjunction with the answers given to questions 11, 12, 13, 14, 15 and 16. My reasons are as explained in D.1 and E.1.2 above. I would only add one thing: if a new scheme was being introduced, I see no reason why it must be a minister who conveys the advice to The Queen as assumed in the answer to question 6.

Questions 7 to 9: See F1-3 above.

Question 21: I support the second alternative but for the reason that it should be decided by those representing Scotland since it was part of the constitutional settlement with Scotland at the start of the 18th Century.

Question 23: I support the second alternative for the reason that the relevant denomination is that of an individual as a member of the UK Supreme Court. If he or she is also a Life Peer or a Knight or Dame or a Privy Councillor is for that purpose irrelevant. His or her ordinary non-judicial denomination will only appear if he or she is sitting as a co-opted supernumerary. 7 November 2003

Examination of Witnesses Witnesses: Lord Bingham of Cornhill, a Member of the House, Lord of Appeal in Ordinary, and Lord Nicholls of Birkenhead, a Member of the House, Lord of Appeal in Ordinary, examined.

Q388 Chairman: Can I start by thanking you both Lord Bingham of Cornhill: My name is Bingham, and very much for coming, and apologise for keeping you I am the senior Lord of Appeal in Ordinary. I have waiting. We were in the middle of an academic not submitted a paper but I have drawn attention to pursuit, if I can put it that way. I am not quite sure the response that the Law Lords put in to the how you would like to do this. Would both of you consultation paper. like to speak, and then we could, so to speak, wade in Lord Nicholls of Birkenhead: I am Donald Nicholls. I with the questions we have? am the second senior Lord of Appeal in Ordinary. I Lord Bingham of Cornhill: Perhaps if you put your have not produced a paper but I have expressed the questions we will see which of us is inspired! views that I would wish to in summary form on the whole question of whether there should be a Supreme Court in the course of the speech I made in the debate on 12 February 2004. Q389 Chairman: What we have done with every Chairman: Could I also say that the acoustics in this other witness is ask them to do two things. One is to room are dreadful, so if you would be kind enough to identify themselves for the sake of the record, which keep your voices up we would be grateful. will cause no problems, and, secondly, to open the discussion on the basis of the papers that we have got in front of us from the individual witnesses. If you Q390 Lord MacLennan of Rogart: I wonder if I would be kind enough to do that then we can pursue could ask Lord Nicholls about some of his remarks whatever issues we might think relevant. made in the debate on 12 February on this subject 9674042013 Page Type [O] 28-06-04 20:19:13 Pag Table: LOENEW PPSysB Unit: PAG3

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22 April 2004 Lord Bingham of Cornhill and Lord Nicholls of Birkenhead that we are considering. You expressed the view that nothing derogatory about that description of the the proposed change would be harmful because a new relationship. Supreme Court would be deprived of some of the advantages of the present arrangements, and you Q393 Lord Goodhart: But, for instance, Lord Nolan emphasised that what is proposed would be a new said in his evidence that this danger that a small court. I want to ask if that is really the case when the number of judges may become inward-looking and jurisdiction of the court in most respects would be out of touch with the wider world as seen as present unchanged and, indeed, it is the submission of the “can be largely overcome by the company of their Law Lords that it should be unchanged, largely. fellow Peers. There is no shortage of highly Secondly, you draw attention to the virtues of the intelligent, articulate, interested and interesting ambience for the members of the Appellate companions, with an enormously wide range of Committee working here in this building where experience, for the Law Lords to mix with if they so legislative activity is in train, and you speak to some wish”. Do you think that represents the wider world? extent of its involvement in that as being Lord Nicholls of Birkenhead: I would not express it in advantageous, but to the extent that it is involved, quite that way. does that not militate against the independence which you are also supportive of? Lord Nicholls of Birkenhead: I do not think it militates Q394 Lord Goodhart: I do not think you did in your against the independence at all. There is no speech. Following on, the House of Lords here is a suggestion whatever that any member of the House, junior partner in Parliament and there is no contact other than Lords of Appeal, should participate or between judges at any level in the House of ever do participate, or could participate, in the Commons. Particularly, of course, nowadays I think judicial business. The point that I was making was there is no serving judge who has ever sat as an MP. quite a diVerent one, and that is perspective. As I Lord Nicholls of Birkenhead: That I do not know. sought to say, the law courts are judge-centred and when I came here I found that there was a broader Q395 Lord Goodhart: But it is fair to say there is no and much more helpful perspective by being in a system, no channel, through which the judiciary can place which is not just judge-centred but has other have direct contact with members of the House of activities of a legislative character and so forth that Commons? one could participate in and it gave one a broader Lord Nicholls of Birkenhead: That is correct, as far as perspective, and I think myself that the Law Lords I know. beneﬁt from this real advantage. I have read the transcripts of the evidence taken so far, one of which was the evidence of Lord Rees-Mogg, and I know Q396 Lord Goodhart: And there are no channels of that to judge from some of the questions put to him contact between the House of Lords and members of he had a somewhat sceptical response to his point the judiciary below the rank of Law Lords? Lord Nicholls of Birkenhead: Correct. that to put the Law Lords in a building with columns miles away might give them rather grand ideas and not be very productive. I think there is something in Q397 Lord Goodhart: Might it therefore not be that. I really do think there is an advantage in judges better, instead of relying on membership of the Law being reminded, even from their environment, of the Lords of the House of Lords, to have a joint limit to the role that they are performing, and I do not committee of the judiciary which would have direct think it impinges on their independence. contacts between members of both Houses and members of the judiciary at all senior levels, and where there could be a dialogue and structured Q391 Lord Goodhart: I want to follow up what Lord discussion? MacLennan was saying, Lord Nicholls, and ask you Lord Nicholls of Birkenhead: The point that I have this. Following what you just said, would you say been seeking to make is not one that relates to that the links between the Law Lords and members structured discussions; it is perspective. Having of the House of Lords are somewhat casual and formal meetings where there is going to be an agenda unstructured? and certain particular topics are going to be Lord Nicholls of Birkenhead: “Casual and considered is not the point I am seeking to make. unstructured”? Q398 Lord Goodhart: But do you think it would be Q392 Lord Goodhart: Yes. a good idea to have such a joint committee? Lord Nicholls of Birkenhead: They are the same Lord Nicholls of Birkenhead: I would need to give that relationship as between any other members, so in that further thought. I am not quite sure what would be sense they are casual and unstructured, yes, but I see the topics on the agenda. 9674042013 Page Type [E] 28-06-04 20:19:13 Pag Table: LOENEW PPSysB Unit: PAG3

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Q399 Lord Craig of Radley: Lord Bingham, this is a because they did not now how far they were going to question on the Supreme Court and really how you get with the Treasury. Everything that has passed think the Supreme Court should be funded. The Bill between me and Lord Falconer has indicated that he in Clause 38 and so on gives considerable would like to give as much financial independence as responsibilities commensurate with the Secretary of he can achieve for it. State, and I will not read it out because I am sure you are aware of it, whereas there are other jurisdictions where the court is very much its own boss as far as Q402 Lord Craig of Radley: Could I just press you a Y V applying for and managing resources. Could you give bit further on clause 39, o cers and sta appointed us your perception of which is the right route? by the minister: “The Minister may appoint such Y V Lord Bingham of Cornhill: I wonder if I can answer o cers and sta as he thinks appropriate”. Are you that question by starting with two points of principle happy with that arrangement? which I regard as fundamental. The first is that, of Lord Bingham of Cornhill: No, I am not. Without course, any public money that is devoted on a court disrespect to him, I would like to minimise his or anything else has to be prudently spent and involvement in the running of the court so far as we properly accounted for, so there is no question of can consistently with the two principles that I have anybody wanting a blank cheque or the opportunity mentioned. The Lord Chancellor at the moment now to be profligate or extravagant or wasteful in has no input, it is true to say, in the running of the spending public money. Subject to that, our ambition member committee. He used to set the panels, the is to achieve maximum independence financially. constitutions which sat, and in amazingly recent How that is best achieved is something which others memory was willing to manipulate the panels to present, and I am looking particularly at Lord Howe, achieve a certain result—I am not suggesting within know a very great deal more about than I do. I read the governmental experience of any one present. That with great interest the questions he was putting to the is a prerogative that he has entirely given up, it has Lord Chancellor because he was suggesting ways in been in the hands of the two senior Law Lords for the which—and I am sure he was not contemplating that last ten years and out of the hands of the Permanent the money would be in any way spent Secretary since then. indiscriminately or without accountability or anything of that sort— Q403 Lord Windlesham: Can I raise a diVerent issue, particularly with Lord Bingham, relating to public Q400 Lord Howe of Aberavon: Of course not. money and public access to the Supreme Court in our Lord Bingham of Cornhill:—he was seeking to explore judicial system. It relates to location. Can I draw you means of channelling money to the court so that it out on the matter of access. It seemed to me, on the would enjoy at least as much financial independence rare occasions when I have attended part of a hearing as it has at the moment. So I am afraid the rather before the Lords of Appeal, that there were very few unsatisfactory answer to your question is I am not Members of Parliament present, indeed very small quite sure how this is best achieved. I had a valuable numbers. Is that so, with the exception of an discussion with Lord Falconer on the subject. We are occasional Pinochet hearing? not at daggers drawn or anything, indeed I think both Lord Bingham of Cornhill: My four years as senior his heart and his ambition are very much in the same Law Lord were preceded by four years as the Lord place as ours, but he has got a diYcult colleague Chief Justice sitting in Court 4 in the Strand and one’s department in the Treasury which does not experience in that court was of a constant stream of automatically say yes to every request put to it, even people coming into court in order to see what was by such a minister as the Secretary of State for going on, some of them American tourists, some of Constitutional AVairs. I very much hope, not them members of the British public, some of them speaking purely for myself but speaking, I am school children. The ushers had had instructions to confident, for all of the Law Lords, that anything that turn out any children and I said, “Please, let the the Committee can contribute towards devising children come in. I would have to say that the something that will meet those two principles will be tolerance of most of these people to listen to what was very, very warmly welcomed by us. going on was quite limited, I should think the average endurance was a matter of five or ten minutes, but at Q401 Lord Craig of Radley: Can I take it from that, least people had the right to come and see a public Lord Bingham, that the present arrangement in the institution which belonged to them in action. The Bill would not meet that perception? position here is totally diVerent. No doubt it is true, Lord Bingham of Cornhill: The present arrangement in as Lord Lloyd said in his letter to The Times the other the Bill seemed somewhat unspecific, as I understood day, that you can get a pass and make your way in it. I thought it was unspecific because Lord Falconer and so on, but it is quite a business and in practice and his oYcials were not in a position to be specific people do not do it and you do not get anything 9674042013 Page Type [O] 28-06-04 20:19:13 Pag Table: LOENEW PPSysB Unit: PAG3

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22 April 2004 Lord Bingham of Cornhill and Lord Nicholls of Birkenhead approaching the public observation of the conduct of any understanding of our aVairs at all I would not judicial business that you get in Court 4. expect them to say the Court of Appeal.

Q404 Lord Windlesham: Do you regard it, therefore, Q407 Lord Lloyd of Berwick: That is what Professor as what should be an aim of policy that on this Jowell’s article says. He said in his article, which I particular issue of the Supreme Court that it should have read and followed up since, that when he asks not only be removed from the Houses of Parliament students “What is the highest court”, they say “The but it should be to a public building which would be Court of Appeal”. In a sense that is what one would easily recognised and which would attract numbers expect. If he said “What are the Law Lords?”, would which would justify it? they doubt that the Law Lords were judges at the Lord Bingham of Cornhill: I would certainly hope that highest level? wherever it ends up it is in a place, subject obviously Lord Bingham of Cornhill: I take issue with your ﬁrst to security procedures, that the public can have point, it is not what I would expect at all. I would access to and one would hope that in the course of expect somebody seeking admission to UCL to know time it would be in a building that people would that the Court of Appeal was not the highest court in actually feel proud of. If you drive around Singapore the country. What they think about the Law Lords everybody says “That is the Supreme Court of beggars belief. Singapore”. If you go to New Delhi exactly the same is true, and true in Canada, true in Australia. These Q408 Lord Lloyd of Berwick: Another argument buildings are regarded as belonging to the people and which has been put forward by the Government, as they are buildings that they are proud of. I cannot you know, is that one of the problems of having the actually see why the fourth richest economy in the Law Lords sitting in the House of Lords itself is that world cannot do that. they could be nobbled or got to or talked to by Peers. Does that represent a worry from, let us say, Lord Nicholls’ view? Q405 Lord Falconer of Thoroton: I was going to ask Lord Nicholls of Birkenhead: I have to say, I have never about the standing of the Law Lords. The standing of been approached by anybody in any of the 20 years I the Law Lords in the legal world, both nationally and have been a judge here or anywhere outside. I have internationally, is very, very high indeed. What eVect never been approached in connection with any case I do you think moving to a Supreme Court would have have been involved in by a member of government, on that? by a fellow Peer or anybody at all. Nor have I ever Lord Bingham of Cornhill: I think it would make the heard of any other judge being so approached. British public appreciate that actually we are judges. I can be anecdotal about it. I was being driven home Q409 Lord Lloyd of Berwick: One of the arguments last night and my driver said “Have you made some which has been used very frequently is a quotation good laws today?” and I said “I do not really make from something Lord Bingham said, namely that laws, I am a judge”. Long silence: “Have you ever sat Law Lords are appointed as judges and not as in a court?” he said. Professor Jowell, Professor of legislators, which of course is so true to be, in a sense, Law at University College London, in a recent article almost facile. Does that not also apply to many said that one of the questions he routinely puts to others who are appointed to the Lords, to the aspirant law students seeking admission to that great doctors, the diplomats and bishops even? They are all law school is “What is the highest court in this appointed because they have reached the top of their country”, to which the students without fail say “The professions, not as legislators. Does not the view that Court of Appeal”. People just have no understanding you must exclude the Law Lords on some ground at all of the function of the Law Lords and, indeed, really ignore the fact that the House of Lords is not The Times always records me on my birthday as just a chamber of the legislature but it is a part of the having retired. great counsel of the nation on which the people should be? Q406 Lord Lloyd of Berwick: Following Lord Bingham of Cornhill: Is that a question? immediately on from that, of course if you ask students “What is the highest court” naturally they Q410 Lord Lloyd of Berwick: It is a question for think in terms of the Court of Appeal. If you asked both of you. the same students “What are the Law Lords”, would Lord Bingham of Cornhill: I happen to think that the any of them doubt that the Law Lords were judges? exercise of judicial functions is a unique function. None. That is not to say that it is a better job than anybody Lord Bingham of Cornhill: I do not agree with your else’s or a more important job than anybody else’s, ﬁrst point. You say of course they would say the one does not need to get into childish arguments of Court of Appeal but I do not accept that. If they had that kind, but it is a diVerent job. At the moment in 9674042013 Page Type [E] 28-06-04 20:19:13 Pag Table: LOENEW PPSysB Unit: PAG3

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22 April 2004 Lord Bingham of Cornhill and Lord Nicholls of Birkenhead the present climate, and I am not suggesting that it is Q412 Lord Carlisle of Bucklow: Just following that a climate that is going to change, these roles get up. Lord Nicholls, you set out very strongly in your confused and diYculties arise. It is not only that a speech on 12 February what you saw as the Law Lord contributes something on the floor of the advantages of the Law Lords being Members of the House which then leads him to disqualify himself House of Lords. The argument that you in some way from hearing a case, although that has happened to would be influenced by your presence there, could me. It is not just that he says something that leads to that not be met, in fact, by what I understand to be objections to his sitting to hear a case, although that the declaration as to judges not involving themselves has happened to me. It is not just that he may in the directly in clearly extremely party political matters or course of debate assure the House on a certain matters which are likely to aVect them in their judicial proposition of law which then comes before him capacity and, if necessary, could that be strengthened judicially. There is a case on the way to us from in some way to make it clear that while you sat you Scotland which raises that problem. I express, of would not be influenced by those considerations? course, no view as to the rights or wrongs and I know Lord Nicholls of Birkenhead: If it was thought very little about it. There is actually, in my opinion, necessary, yes. I may be wrong about this but my a slightly more dangerous risk than any of those recollection is that the reason why that statement was because it is more subconscious, and it is this: if one made was that was the response to the Wakeham sits for hour upon hour listening to a debate one gets Commission report. The Wakeham Commission a very, very deep feeling in one’s bones as to what the report, I think, had recommended that the position intention of the House is. If that same provision should be made more transparent and that is why the comes before one judicially the temptation to give Law Lords made that statement. eVect to your knowledge of what the intention of the Lord Bingham of Cornhill: Could I just add as a House is rather than doing your job as a judge, which footnote that although you call it my statement, I is to say what has Parliament enacted and what does only read it. it mean, is one that I think is potentially worrying. I think Lord Windlesham may conceivably know what I am talking about. Q413 Lord Carlisle of Bucklow: On behalf of the judges. Lord Bingham of Cornhill: I did not write it. I was not even in oYce at the time that it was drafted. Q411 Lord Lloyd of Berwick: Lord Nicholls, would you like to comment? Lord Nicholls of Birkenhead: This is one of the points Q414 Lord Carlisle of Bucklow: I think that all of us on which I have to say we do diVer. As to the risk that around this table know your views about the you may say something or participate in some Supreme Court, you have expressed them to the business in the House which is incompatible with select committee and you have expressed them many your judicial duties, it has to be recognised that this times. I would like to ask you about your reaction to is a danger against which judges always have to be on the position of the Lord Chancellor. You probably their guard, not merely in relation to activities in the have not had the advantage that we have had of House but even for judges who are not Members of various written evidence. There is a letter from Lord the House. Indeed, there is one case, and Lord Nolan. I wonder whether I might read the second Bingham knows what I am referring to, wherein one paragraph of that to you. “I can well understand the of the Law Lords is finding himself unable to sit on argument that the Lord Chancellor, as a member of a matter which is coming to the House by reason of the Government, should not sit as a Judge. I can also something he said not in the House but outside the see the force of the argument that the Department House. This is a perennial danger for judges about should be represented by a Minister in the House of which judges have to be on their guard. There is no Commons, to account for its expenditure. The particular problem in this respect with regard to principal function of the Lord Chancellor should, I membership of the House. As to the idea that we sit believe, remain as the person responsible, under the listening to debates for hours and hours on current Queen, for the appointment of Judges, the legislation and then we are unable to view the representative of the Judiciary in Cabinet, and the legislation dispassionately when it comes to being supervisor of the Court system—surely in themselves interpreted by us, first of all that is not my experience justification enough for the retention of the oYce at of what happens and, secondly, we are now in its present level of seniority.” Do you find any appropriate cases required to read Hansard and I diYculty with that comment? really do not think myself, with great respect to Lord Lord Bingham of Cornhill: I am afraid I rather want to Bingham, that these are two reasons of any weight. express my own view on that question. 9674042013 Page Type [O] 28-06-04 20:19:13 Pag Table: LOENEW PPSysB Unit: PAG3

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Q415 Lord Carlisle of Bucklow: Please. authorise them and the Lord Chancellor of the day Lord Bingham of Cornhill: I think, and there may be did demur. On the Suez Expedition, for example, in general agreement on this, that the time had come 1956 the Lord Chancellor not only did not demur but when the Lord Chancellor had to stop sitting was at the forefront of the support for that event. The judicially. I got out some figures a few years ago to last Lord Chancellor, to my personal knowledge, was discover how much judicial sitting Lord Chancellors very forthright in his support of constitutional had done in the 60 years since the end of the war and propriety and judicial independence and certainly the answer was that on an average over that period was willing to take issue with his colleagues on they had sat for eight days a year and that covered questions in that field. To what extent over the last 50 some periods, such as Lord Hailsham’s first term, for years that is true, I do not know, but anecdotally example, when he sat really rather a lot, and other those people who have served in cabinets have tended periods, such as when Lord Gardiner and Lord to tell me that Lord X or Lord Y has been very silent Elwyn-Jones scarcely sat at all. The truth is that eight and never opened his mouth. I simply do not know days a year is simply not a significant contribution. whether that is true or not. I do feel that a The days when the highest court in the land should be constitutional safeguard has gone and I regret that. presided over by somebody who, whatever his other qualities, has almost certainly not been selected for Q416 Lord Windlesham: Just taking up exactly the his qualities as a judge have gone and gone forever, I point you have made, because it is important, does feel. In the three years until Lord Irvine retired when that mean that you would like to see the retention of I was here he sat on two cases. It was agreed between the oYce of Lord Chancellor but with diVerent us that he could not do anything to do with crime V responsibilities? Is that behind what you have just because that a ected his colleague, the Home said? Secretary, he could not deal with human rights Lord Bingham of Cornhill: I think the truth is that the because he piloted the Bill through the House, he Lord Chancellor’s time is inevitably going to be spent could not deal with judicial review because it was of on administering what is now a substantial governmental interest and he could not deal with department of state and a very substantial budget, commercial cases because they always went on for completely diVerent by orders of magnitude from his much longer than he could possibly sit. That left him predecessors many years ago. in that period of three years with two cases, one about whether premises could be a dwelling for purposes of the Rent Act if they did not have a kitchen and one Q417 Lord Carlisle of Bucklow: That is really what about the construction of a mortgage deed. This was Lord Nolan is saying here. He is saying that he has a the result of both of us trying to find cases on which role and he can see no objection to him remaining the he could sit. I came to form the view that really no person responsible, under the Queen, for the useful purpose was served. So far as his function as appointment of judges. If you are going to have a Speaker is concerned, while it is primarily a matter Judicial Advisory Committee, is it not better that the for the House, it seemed to me, I have to say, that was Committee should report to the person in the role of also dispensable. The old days when the Lord the Lord Chancellor rather than some non-lawyer Chancellor spent the first half of his day sitting who happens to be a member of the Cabinet called judicially and the second half sitting as Speaker, for the Secretary of State for Constitutional AVairs? better or worse, have clearly gone forever. I hoped Lord Bingham of Cornhill: I myself think it is quite too that he could keep his role as head of the judiciary diYcult once the Lord Chancellor, under whatever because the advantages of that, both in terms of the name, becomes a pure departmental minister, not a appointment of judges and disciplining of judges, judge, not the head of the judiciary, it is very diYcult were immense and they saved huge bureaucracy and to continue to justify his appointment of the judges. an enormous expenditure of time which almost every other country in the world has had to devote to this Q418 Lord Carlisle of Bucklow: How do you justify question. I came to have doubts as to whether it going to a non-lawyer called the Secretary of State somebody could credibly be regarded as the head of for Constitutional AVairs? the judiciary if he actually was not a judge at all, so I Lord Bingham of Cornhill: I am so sorry? came to have doubts as to whether the situation was maintainable. I continue to have a very strong belief in the role of the Lord Chancellor as a guardian of Q419 Lord Carlisle of Bucklow: How do you justify constitutional propriety. I think there is a very it going to a non-lawyer called the Secretary of State interesting study to be made of the Lord Chancellor’s for Constitutional AVairs? role in that particular capacity. So far as I know, it Lord Bingham of Cornhill: That is not the proposed has never been done. In 1939 it was proposed to bring dispensation. 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Q420 Lord Carlisle of Bucklow: Assuming there is a Q425 Viscount Bledisloe: I want to question Lord Commission they have still got to put a name up to Bingham in his capacity as an ex-Lord Chief Justice. someone else who has the right to decide whether Do you consider that the primary function of a Lord they accept that name and pass that name on. In the Chief Justice should be judging or administration? case of the Supreme Court they are going to be given Lord Bingham of Cornhill: My overwhelming interest five names to choose one. as Lord Chief Justice was in judging. I have put to a Lord Bingham of Cornhill: I do not think they are. number of senior judges that if you go into a room and find two piles of notes on your table, one is Q421 Lord Carlisle of Bucklow: Maybe you know administration and one of them is the next case, more than we do. which do you want to open first, and I have never met Lord Bingham of Cornhill: We have taken issue with a judge who did not say the next case. I think most the Lord Chancellor. I do not think the most recent judges regard such administration that comes their exchange of correspondence has actually achieved a way as an unfortunate necessity. response. Q426 Viscount Bledisloe: You would regard that not Q422 Lord Falconer of Thoroton: The written only as being their natural bias but being the right evidence I put to this Committee reflects exactly what primary role for a Lord Chief Justice? Lord Bingham is saying. You are asking a rather Lord Bingham of Cornhill: It is usually what has got unfair question there. them there. Lord Bingham of Cornhill: In one moment, perhaps rather weakly, I made a concession in discussion with Q427 Viscount Bledisloe: I know, if nobody else Lord Falconer and I was then brought to book by does, of your phenomenal capacity for work rate and Lord Nicholls, quite rightly. In our consultation workload, but do you consider that a normal human paper, what we suggested was that the Commission, being would, in fact, have time to sit primarily as a having consulted widely, should put up a name and judge? the Lord Chancellor or the Secretary of State should Lord Bingham of Cornhill: I have expressed worries to be free to say “Would you please reconsider”, in Lord Woolf and others that he is going to have so which case the Commission would do so, of course, many responsibilities for appointing judges, and he would give reasons. The Commission would disciplining judges, this, that and the other, as to then reconsider and either put up the same name or a whether he will still have enough time to give a diVerent name and the Secretary of State would then serious and very important judicial oYce the judicial have no choice but to recommend that name. time it needs. This is a very real worry I have and although, of course, you can delegate and have an Q423 Lord Carlisle of Bucklow: Why is that an assistant this and an assistant that, there is always a appropriate role for the Secretary of State for good deal of the most diYcult decision making that Constitutional AVairs if it is not an equally as ends up on the desk of the top man. appropriate role for the Lord Chancellor if you are retaining that oYce? Q428 Viscount Bledisloe: Do you consider that faced Lord Bingham of Cornhill: Are you proposing that is with that workload the people primarily best suited all that the Lord Chancellor— to sit as Lord Chief Justice judicially will want to take up a role with this enormous burden of Q424 Lord Carlisle of Bucklow: I am proposing that administration, leaving aside extreme devotion to there should be a Judicial Advisory Committee. I duty? accept that we have not discussed how many names Lord Bingham of Cornhill: I expect people will be they would be putting up but I am saying, in fact, it willing to take it on because it is a famous and old and Y seems to me the appointment of judges is better distinguished o ce, people fancy themselves in the channelled through a qualified senior lawyer holding chain and so on. I suppose they probably would. that position than a junior member of the Cabinet who may have no interest in the job. Q429 Viscount Bledisloe: With much reluctance. Lord Bingham of Cornhill: I do not want to sound Lord Bingham of Cornhill: With even greater flippant, but if the role that we are reserving to reluctance, yes. whichever minister it is is that you are describing, I do not mind really very much which minister it is, Q430 Lord Carter: I want to put a question to Lord whether it is the Lord Chancellor of the Secretary of Nicholls. Lord Nicholls, at the beginning you State, as long as he is being given a very limited area referred to the extremely interesting evidence that we of discretion. had from Lord Rees-Mogg. His argument was that if Lord Carlisle of Bucklow: It depends on the degree of we have a Supreme Court as is proposed that over discretion. time it will be inevitable that its powers will increase 9674042013 Page Type [O] 28-06-04 20:19:13 Pag Table: LOENEW PPSysB Unit: PAG3

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22 April 2004 Lord Bingham of Cornhill and Lord Nicholls of Birkenhead compared with the powers of Parliament, and he Q434 Lord Crickhowell: Most of the ﬁrst half of called in aid the experience of the Supreme Court in what I wanted to ask has just been asked by Lord America. The Supreme Court will be a creature of Carter, but there is one small aspect I want to cover. statute, therefore if it is to have increased powers then The view has been expressed in evidence to us that the there must be a conscious decision of both Houses of title “Supreme Court” is not accurate, and indeed if it Parliament to cede sovereignty to the Supreme is used might lead to just the kind of switch (or partly Court. Do you think that is a realistic proposition? encourage it) which has just been discussed. Do you Lord Nicholls of Birkenhead: It is not a question of the believe that it is an appropriate title or would you powers, it is the way that the powers are exercised. prefer some other title? Lord Bingham of Cornhill: No; I think it is a totally appropriate title. I appreciate that it has been Q431 Lord Carter: I am not sure what that means. suggested that it should be called the High Court. Lord Nicholls of Birkenhead: For example, courts There is already a High Court in England, there is a today have very wide powers to review High Court in Justiciary in Scotland, there is a High administration decisions by way of judicial review. Court in Northern Ireland and we do not want The manner in which the courts exercise their powers, another high court. The Supreme Court has existed whether they look closely at intended decisions and with the Court of Appeal and the High Court since actually upset these decisions quite regularly or 1875 and it is not a title that is unfamiliar to us. I can whether they stand back and let the administration see no reason why everybody should have a rush of proceed, that is a question going to the manner in blood to the head as a result of this title, which is, which the courts exercise their powers. That is the while not completely accurate, very nearly so. That area where there will be, as it were, growth by the does not suggest for an instant that anybody has any judiciary unless the judiciary keep very much in mind agenda to create a body of United Kingdom law, nor what is their proper role within the constitution. does it suggest that some takeover bid for the criminal law of Scotland is going to be made, which it most emphatically is not. The truth is that it is the Q432 Lord Carter: Do you think the chance of that nearest we have got to the apex of the jurisdictional, happening will be greater with the new proposals? rcurial pyramid in the jurisdictions of England, Lord Nicholls of Birkenhead: Yes, I do. Wales, Scotland and Northern Ireland, and that is the proper name for it in my opinion.

Q433 Lord Carter: Does Lord Bingham share that view? Q435 Lord Crickhowell: During your time as Lord Lord Bingham of Cornhill: I emphatically do not. We Chief Justice there were occasions when you have centuries of tradition behind us. The bedrock of addressed the House on legal matters and the present Lord Chief Justice has done so, notably, of course, on our constitution is respect for the sovereignty of the Bill which we are now considering. Presumably Parliament and although occasionally in lectures you envisage a situation in which that will no longer people raise questions about “Suppose Parliament be possible. How would you see the judges giving were to enact that every baby should be mutilated or Parliament the undoubted wisdom and experience have a swastika branded on its forehead, would V from which we have benefited in the past and in judges have to give e ect to that?”, these ludicrous particular how is the Lord Chief Justice to do that? suggestions in my view can be ignored. I can see no Lord Bingham of Cornhill: There is a paper which I reason whatever why the judiciary should not have seen a copy of which suggests various means by continue in the future, as in the past, to respect the which the Lord Chief Justice, and I think it may sovereignty of Parliament. For my part, I would suggest other judges, can make their views known to reject totally the analogy with the United States Parliament by means of select committees, joint V Supreme Court. Their history is quite di erent, the committees or whatever. I myself do not take the view origin of their doctrine on the subject, the that you have to be a member of a parliamentary constitution is quite diVerent, they have got an assembly in order to contribute the benefit of your entrenched and codified constitution. I can see wisdom and experience to it. If one were to think in absolutely no reason why we should deviate from the American terms, the suggestion that you do would be path that we have followed successfully for many absurd. They have 100 members of the Senate. None hundreds of years. The Chief Justice of New Zealand of them, of course, is a judge but if the Senate wants is present and I would be rather surprised if she advice on a judicial question or a military question or thought that her Supreme Court was going to start a medical question or an ethical question then striking down legislation and behaving in a manner anybody who is approached and asked to give the that involved the use of nullification powers— benefit of their wisdom and experience in the US Chairman: We will ask her if she gives evidence. Senate would be pleased and flattered to do so and I 9674042013 Page Type [E] 28-06-04 20:19:13 Pag Table: LOENEW PPSysB Unit: PAG3

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22 April 2004 Lord Bingham of Cornhill and Lord Nicholls of Birkenhead can see absolutely no reason why the same would not those who can to contribute a reasonable amount, it be the case here. should not be regarded as unthinkable that some of the burden of what people cannot be reasonably Q436 Lord Howe of Aberavon: I would like to make expected to contribute should fall on the state. two points, with the one about the Lord Chancellor Successive governments have taken a diVerent view and the Lord Chief Justice later. To respond to what and I suppose we have to regard that as an argument Lord Bingham was saying about the financial that we have simply lost, but it is not a principle that provisions, you will remember in the supplementary any of us would wish to forsake at all. note from Lord Hobhouse that he describes quite compactly the way in which the present Law Lords Q441 Lord Howe of Aberavon: I have suYcient Appeal Committee is financed within the umbrella of recollection of my role in the Treasury to hesitate at the House of Lords, where there is the kind of challenging that overwhelming presumption, but I financial independence that you think the court am concerned about its application to the Supreme would enjoy in its new creation in that it is not Court. What you would like to see is that the scrutinised, whereas the Explanatory Notes for the Supreme Court at least should be exempt from that Bill that we are looking make it plain that the running jurisdiction? costs, which will be much more substantial, of course, Lord Bingham of Cornhill: Yes. will be financed largely by court fees. Nevertheless they will still have to be agreed within a budget negotiated through the Secretary of State with the Q442 Lord Howe of Aberavon: That is something Treasury. You will have seen the suggestion which I which you believe Australia has managed to achieve? made to Lord Falconer that the power should be in Lord Bingham of Cornhill: My understanding of the the hands of the legislature on a loose rein but a Australian system is incomplete. They do, I think, responsible rein rather than in the hands of the charge fees for access to the High Court of Australia executive and the dreaded Treasury. Is that the sort but I am not entirely sure how much freedom they of arrangement that you visualise? have to decide what those fees will be. Lord Bingham of Cornhill: Yes. I am cheating a little because when you say it is what I visualise, it is what Q443 Lord Howe of Aberavon: Perhaps we can wait I visualise since I read your questions. for further evidence about that. If I may summarise this triangular discussion, broadly speaking the Lord Q437 Lord Howe of Aberavon: It sounds as though it Chancellor, the senior Law Lord and this humble impresses you as well as it impresses the Lord creature have the same objective in mind? Chancellor. Lord Bingham of Cornhill: Yes. Lord Bingham of Cornhill: The tenor of our discussions has been that we have been pressing for Q444 Lord Howe of Aberavon: I want to come back maximum independence and are resistant to to the central point if I may. We have visualised in anything which gives us less autonomy in financial this Bill the disappearance of the oYce of Lord matters than we have at the moment. Chancellor, an “if” rather than a de facto conclusion, and the disaggregation of the Lord Chancellor’s Q438 Lord Howe of Aberavon: But at the moment function between the Secretary of State and the Lord you do not depend on court fees at all. Chief Justice. We visualise the absence therefore of Lord Bingham of Cornhill: We do recover most of our any oYcer like the Lord Chancellor in government at costs from court fees. the moment. As part of that set of transactions the Lord Chief Justice is going to be required to share Q439 Lord Howe of Aberavon: Oh, you do now? with the Secretary of State some 150 consultative Lord Bingham of Cornhill: Yes. obligations set out in Schedule 1. He is going to be required or have the power to delegate to other judges Q440 Lord Falconer of Thoroton: Lords court fees some 100 functions set out in Schedule 1. He is going rather than civil court fees lower down the system. to have the obligation to prepare rules under 11 Lord Bingham of Cornhill: You have actually touched diVerent statutory provisions, and he is also going to on a matter that has been a running sore between the have to assume responsibility for disciplinary control judges and successive governments. Successive of the judiciary, subject, however, to the provision in governments have said that the civil justice system section 83 that the Lord Chief Justice may exercise must pay for itself and the judges, for what it is worth, any of the following powers but only when he has have never ever accepted this. They have suggested been to the minister and only after complying with that the provision of a proper system of civil justice is the prescribed procedures. something which any civilised state has to provide for Lord Bingham of Cornhill: I am so sorry—which its citizens and, while it is perfectly reasonable to ask section? 9674042013 Page Type [O] 28-06-04 20:19:13 Pag Table: LOENEW PPSysB Unit: PAG3

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22 April 2004 Lord Bingham of Cornhill and Lord Nicholls of Birkenhead

Q445 Lord Howe of Aberavon: It is clause 83 on page paragraph 5, page 2, you do not comment on the 29, at the bottom of the page. proposal to abolish the oYce of Lord Chancellor but Lord Bingham of Cornhill: Yes; thank you. you are very greatly concerned that the important constitutional values which the oYce protected Q446 Lord Howe of Aberavon: That is going to should continue to be eVectively protected, and so impose a huge administrative burden on the Lord on. “In the past the Lord Chancellor’s role was to Chief Justice, involving even so a multilateral uphold constitutional propriety and champion continuing partnership with the Secretary of State. judicial independence. The constitution would be Does that not oVer the prospect of an almost gravely weakened if that safeguard were removed unmanageable burden for the Lord Chief Justice? and not replaced.” Are we not making a very Lord Bingham of Cornhill: I would have thought it was hazardous presumption that that may not be fulfilled extremely burdensome. I am afraid I have rather if we follow the path set out in this Bill, abolishing the superficially applied my mind to the questions that oYce, sharing its functions, as I have identified, pertain to the Lord Chief Justice and the between what may be a very junior Secretary of State, appointment of disciplinary judges, because I knew or might be a tyrannous Secretary of State, and the that Lord Woolf had given a great deal of attention Lord Chief Justice? to this point. I was rather leaving that to him but the Lord Bingham of Cornhill: Had I myself been the point you put seems to me a very strong one. government or the Prime Minister last June my preference would have been to remove the two Q447 Lord Howe of Aberavon: The second aspect of functions of the Lord Chancellor which I have that is this. Suppose that Part I of the Bill, the referred to already, namely, the judicial function and abolition of the oYce of Lord Chancellor, the speakership function and otherwise to leave the disappears. Suppose that in whatever way we can we oYce pretty much as it was, although Lord Irvine had restore the concept of the Lord Chancellor’s already come to conclude, and I had reluctantly come existence as a senior legal figure in the Cabinet, as to conclude as well, that the whole process of judicial now, taking the judicial oath because he would be at appointments had to be recast. I think it is rather the pinnacle of the judicial tree. He might even be a diYcult to compel a government to have a Lord former Law Lord like Lord Mackay or Lord Chancellor if it does not want one. Simonds. He certainly would not be accountable in any way to a Secretary of State in relation to his management of the courts or his exercise of Q451 Lord Howe of Aberavon: The point at the disciplinary powers. Do you understand the concept moment is if the government is to be allowed to Y that I am trying to put? abolish the o ce of Lord Chancellor. We all accept Lord Bingham of Cornhill: Not entirely. I am not clear, the case for a Judicial Appointments Commission. for example, whether he is going to be the minister That is common ground amongst many people now. who administers the legal aid budget. If one accepts that, and Parliament decided that it did not want the government to abolish the oYce of Lord Q448 Lord Howe of Aberavon: That I think is Chancellor, then that would be a position in line with probably one of the areas about which I am less what you would have preferred last summer? certain myself because it is that which gives him this Lord Bingham of Cornhill: It is what I would have great tranche of public expenditure which could be preferred last June, but I wonder if it is quite as easy handled by a junior minister in the House of as that because if compelled to keep an oYce which it Commons, but broadly speaking I am recreating the really does not want to keep a government could oYce of Lord Chancellor in that form. react by giving the oYce holder very little to do. Lord Bingham of Cornhill: Somebody has got to manage a department with really quite a lot of civil Q452 Lord Howe of Aberavon: It would not be a servants up and down the counrty. government for ever. Lord Bingham of Cornhill: No, but that is a diVerent Q449 Lord Howe of Aberavon: Yes, as now. point. Lord Bingham of Cornhill: Yes, and I am not sure whether you are envisaging that that would be the Lord Chancellor or the Secretary of State. If the Q453 Lord Kingsland: My question also arises from former, there is very little diVerence. paragraph 5 and follows on and supplements, in a suitably modest way, the questions posed by the Q450 Lord Howe of Aberavon: No; I am visualising noble and learned Lord Lord Howe. Perhaps I could it remaining with the Lord Chancellor and the ask the noble and learned Lord Lord Bingham this Secretary of State not being there. My final question question. I assume that the view expressed in is this. In your submission from the Law Lords, paragraph 5 is a unanimous view of the Law Lords. 9674042013 Page Type [E] 28-06-04 20:19:13 Pag Table: LOENEW PPSysB Unit: PAG3

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Lord Bingham of Cornhill: Shall I read it out? “. . . we Q459 Lord Falconer of Thoroton: I am not do not in this response” and so on. I am sorry; I must suggesting a diYculty. I am trying to address Lord have an earlier draft because I see that it says Howe’s issue about burden. “Fourthly”. Lord Bingham of Cornhill: I think the sad truth is that the moment you establish procedures for dealing Q454 Lord Kingsland: It is paragraph 5 but it starts with things people tend to avail themselves of them. “Fourthly” in mine too. The Law Society is quite a good example of this. It Lord Bingham of Cornhill: I am so sorry. That was ﬂies a ﬂag saying, “If you want to complain come unquestionably the unanimous view, yes. here” and, my golly, people do in such numbers as to make it diYcult to cope with them. I think there is a great risk that the rather informal way in which the Q455 Lord Kingsland: With regard to these Lord Chancellor traditionally dealt with these things important values that should continue to be may not translate into a rather more formal V e ectively protected, and setting aside your responses arrangement. The one instance that I mentioned, to the noble and learned Lord Lord Howe, would which may or may not be of importance, was that you agree that whoever protects them would have to there was a question as to whether judge A had acted be in the Cabinet? rightly in relation to judge B and the Lord Chancellor Lord Bingham of Cornhill: Yes. of the day was very concerned about the judicial independence of judge B and I was very concerned Q456 Lord Kingsland: Would you agree that they about the judicial independence of judge A. would be most eVectively protected in the Cabinet by somebody who had not only the prestige of Q460 Chairman: What happened? somebody who held the oYce of Lord Chancellor but Lord Bingham of Cornhill: He altered his position also the seniority? considerably. One of the judges was dead; the other Lord Bingham of Cornhill: I would have no diYculty was promoted. in agreeing that the protection would be the more V e ective the more clout the person had. Q461 Lord Falconer of Thoroton: One last point on the question Lord Howe was asking. Assume you Q457 Lord Falconer of Thoroton: Pre-dating my stripped away from Lord Howe’s hypothetical Lord arrival as Lord Chancellor there were arrangements Chancellor his role as a minister and his speakership in place which I have continued and which are of the House of Lords, in eVect his role is to play the extremely sensible where if any question of part that Lord Carlisle refers to in the appointment of disciplining a judge arises I consult the senior judges using the Judicial Appointments Commission, judiciary before I make any decision in relation to it. so his role was to accept or reject the proposals put by I do not know if that was in place at the time that you the Judicial Appointments Commission in relation to were Lord Chief Justice. individual judges, and otherwise he really had no Lord Bingham of Cornhill: These occasions arise so functions of any sort apart from that. Would you see very rarely that there is scarcely a track record. that as a practical possibility and that that person would then sit in the Cabinet, not necessarily being a Q458 Lord Falconer of Thoroton: Broadly, if any minister but being as it were a member of the sort of investigation into the facts, for example, Cabinet? would be required, I would consult with the senior Lord Bingham of Cornhill: I think it would be a much judiciary, a judge would be appointed to look at the sought-after role. facts, and then before taking any decision of any seriousness at all I would consult with the Lord Chief Q462 Lord Falconer of Thoroton: But would it be Justice or the appropriate head of division. That practicable? places a considerable burden on the Lord Chief Lord Bingham of Cornhill: I would have thought that Justice or the head of the division but it seems to me anybody who did as little as that would command both necessary and sensible whatever happens. I am rather limited respect amongst his or her brethren. wondering the extent to which there would be that much of an increased burden on the Lord Chief Q463 Chairman: I have one last question I might put Justice if one introduced the sorts of provision that to you. In your consultation paper there are some the noble Lord Lord Howe has referred to in his very helpful footnotes giving us so to speak the line- questions. up inside the Law Lords on various issues. The Lord Bingham of Cornhill: With the exception of one personnel of course have changed with the advent of instance, which I will say a word about in a moment, I Lady Hale, Lord Carswell and Lord Brown. I do not have never known any diYculty in this area whatever know whether you have can help us on this but has between the judges and the Lord Chancellor. that had any eVect upon the mathematical division 9674042013 Page Type [O] 28-06-04 20:19:13 Pag Table: LOENEW PPSysB Unit: PAG3

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22 April 2004 Lord Bingham of Cornhill and Lord Nicholls of Birkenhead inside the Law Lords on various issues, particularly facilities which we need; 3) have a building and staV on the Supreme Court? and resources which we can control and apply with Lord Bingham of Cornhill: The situation is actually a the assistance of an appropriate department, as does good deal more complex than the inclusion in the the Court of Appeal. Note: 1 to 3 could not be footnotes of names would suggest. One of those achieved without the agreement of government. It whose name does not appear in either footnote had would probably only be achieved by creating a true expressed, as he put it, strong support for a Supreme supreme or constitutional court but this is not a Court but very conditionally, and the condition was necessary prerequisite. Given the will there is no that it had to be a proper Supreme Court in terms of necessary reason why we should not operate building, resources, space, etc, etc, and he ended up independently from a separate building with a by saying, “So I am in support of it but very separate budget for both our House of Lords and conditionally”. He did not appear. Another judge, Privy Council work”, and so it goes on. The truth is Lord Hobhouse, will unquestionably be seen by the that people’s views are not black and white and world and this committee as an opponent of this idea. people have various reasons for taking one view or In fact, he was the ﬁrst person to mention this whole the other. Lord Hobhouse’s main reason for not question to me when I arrived down here four years wishing to subscribe, I think, was that he held very ago. He said, “I would like to have a conversation strong views on the separation of powers which he with you after you have found your way round but felt we had all misunderstood. Be that as it may, the before you have had time to go native”, and he then range of opinion that has been expressed—there are did have a conversation with me in which he gave me some, like Lord Nicholls, who has never wavered in a memorandum, and it was expressed with his his views on this scheme— but everybody is not characteristic trenchancy. It covers two pages: “a) nearly as clear in their view as that. It is a long way of relevant features of the present situation, (b) main answering your question. I am not sure really causes of present situation, (c) major needs. “Major whether anything has changed very much or not. needs: 1) move to new premises nearer to the RCJ and Chairman: Can I thank you both for coming. It has the Inns and their facilities, 2) have a building been an extraordinarily helpful session and I am very suYcient to house us properly and our staV and the grateful to you.

Memorandum by Professor The Lord Norton of Louth

Introduction In evidence to the Constitution Committee of the House of Lords in October 2001, the Lord Chancellor, Lord Irvine of Lairg, laid before the Committee a flow chart detailing the process within Government by which issues of constitutional reform are considered. The process was clear and rational. The announcement of constitutional changes on 12 June 2003 and the means by which the proposed reforms were subsequently handled bear no relationship to the flow chart. No convincing reasons have been presented to justify what appears to be the Government’s precipitate—and major—departure from what, on the Government’s own evidence, is best practice for dealing with issues of constitutional reform. The principal justification for the failure to consult thoroughly on the merits of the changes is that the issues had been much discussed prior to the announcement of 12 June. This tells us little other than that the issues had been discussed. Extracts are taken from some of the discussion to justify the change, but this does not prove that the prior discussions were conclusive or that the proposals embodied in the Bill are uncontested. The consultations that followed, rather than preceded, the statement of 12 June were essentially consultations on the means rather than the ends. The ends were taken as given. Consequently, there has been no thorough consultation on the fundamentals of change embodied in the Bill. There has been no draft Bill and no pre-legislative scrutiny (as recommended by the Constitutional AVairs Committee in the House of Commons) to compensate for the absence of such thorough consultation.

The Supreme Court [Part 2 of the Bill]

Lack of evidence In the absence of any thorough process of consultation and discussion, we are left with statements from the Lord Chancellor as to case for change. The arguments for a discrete Supreme Court can be summarised: It will provide greater clarity and transparency 9674042014 Page Type [E] 28-06-04 20:19:13 Pag Table: LOENEW PPSysB Unit: PAG3

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The public will be better able to see what goes on It will avoid conflict between Law Lords in a judicial and a legislative capacity It will provide for greater independence on the part of the judiciary It is consistent with the principle of the separation of powers The problem with each of these is that there is either no empirical evidence or logic to justify the claim. The claim as to transparency is to ensure that the public are aware of the distinction the highest court of appeal and the second chamber of the legislature. The Government has presented no evidence to show that the public are confused and that, if they are, that it aVects their perception of the impartial delivery of justice.5 For the Government to proceed with such a major measure, it has to demonstrate that these claims are empirically valid. Reliance on perceptions of the ordinary citizen—the Government’s perception of perception—is not justifiable as the basis for proceeding with a fundamental measure of constitutional reform.6 The claim that the public will be better able to see what goes in the highest court has, again, not been supported by any empirical evidence and has been eVectively refuted by Lord Lloyd of Berwick in a letter to The Times. The claim that it will avoid conflict between the Law Lords in their judicial capacity and their legislative capacity, especially in the event of a claimed conflict of interest, is again built on no clear sustainable evidence and has been eVectively undermined not only by the statement in the Lords by Lord Bingham in June 2000 but also by Lord Phillips of Sudbury in the “take note” debate on 12 February (col 1276–7). The claim that it will, in the Lord Chancellor’s words “enhance the vital independence of the judiciary” is contestable. There is no clear justification of how existing independence can be “enhanced”—the Government accepts that the Law Lords are independent—but there is some evidence that it may have the opposite eVect. The initial plans for approving judicial nominations by the Secretary of State for Constitutional AVairs hardly “enhanced” independence and the plans for funding the Supreme Court—through the Secretary of State’s negotiations with the Treasury—hardly constitutes an advance on the independence maintained through present arrangements. The claim that the change is necessary in order to give eVect to the principle of the separation of powers suggests a lack of rigour in thinking through what this means. Taken literally, a separation of powers already exists, in practice, in the United Kingdom and has done for some time. What the term normally refers to is a separation of institutions, with separate personnel. However, in the USA, there are some exceptions (such as the Vice-President chairing the Senate and the Chief Justice presiding over impeachment trials in the Senate) and the concept applies as much to the separation of the executive from the legislature as it does the separation of the judiciary from the legislature. To call in aid the concept of the separation of powers thus raises far more fundamental questions about the relationship of the executive and legislature than have been addressed in the context of the Bill. If one is to embrace the separation of powers, then this Bill is inadequate to the purpose. In short, the Bill is borne of inadequate, not to say shaky or non-existent, foundations. I find it diYcult to see how one can commence with the framework for a new Supreme Court—in other words, the Bill—when the basis on which it is introduced appears to have no demonstrable substance.

The case for the existing arrangements The onus is on those advancing the Bill to make the case for it. So far, that case has not been made. The case for change downplays or neglects the value of retaining the existing arrangements. The Government concedes that the existing Law Lords are of the highest quality and that their integrity is not in question. What they have not conceded is the beneﬁt of having the Law Lords operating independently within the House of Lords. The existing arrangements are signiﬁcant not only for protecting the Law Lords from a powerful executive— a free-standing Supreme Court may be isolated and vulnerable to attacks from ministers, including through having its budget cut—but also, a point not made explicitly in the debate so far, protects them from the legal profession. There is the danger of “capture” by the legal profession. As Lord Hope of Craighead noted in his

5 The only recent reference I have come across to any empirical study is in Charles Banner and Alexander Deans, OV with their Wigs! (Imprint Academic, 2003), where they write “A recent empirical study has shown that two of the most common criticisms of the judiciary are inaccessibility and lack of openness—quite possibly symptoms of such confusion [over the basis nature of state institutions]” (pp 40–1). How they make the leap from the ﬁndings to this speculation is not explained. They add: “Clarifying the structure of the nation’s highest court may help combat this.” How these criticisms of the judiciary can lead to this observation is mystifying. The claims bear no obvious logical relationship to the ﬁndings. 6 Given that the intention is to replace the Law Lords with a new court on the grounds of injecting clarity into the process, one has to wonder why therefore the new court is to be titled the Supreme Court, which may convey to those with some passing knowledge of the US and certain other judicial systems the impression that it will have the power to strike down measures as incompatible with the provisions of the constitution. 9674042014 Page Type [O] 28-06-04 20:19:13 Pag Table: LOENEW PPSysB Unit: PAG3

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22 April 2004 evidence to the Constitutional AVairs Committee in the Commons, if the Supreme Court is housed in Somerset House, Law Lords are likely to dine in the Inns of Court rather than in the House of Lords. Being in the House of Lords provides a perspective that detaches the Law Lords from other judges and this, in my view, has a value. It is certainly not something that can or should be easily dismissed.

Recommendations My conclusion, therefore, is that Part 2 should be removed from the Bill. If the Government wishes to pursue the proposal, it should come back with a separate Bill following more extensive investigation—including of the views of the public (those whom the legal process is designed to serve) and not simply some involved in the legal process—and with a view to such a Bill being published in draft and subject to pre-legislative scrutiny. If the Committee and the House are content to proceed with Part 2, then I think a number of amendments are desirable or, in some instances (as with fees), essential: — Clauses 29 and 32(1) (c): Appointment of Acting Judges. Under the clauses, it is possible for a panel to be made up of a majority of acting judges. (Under 33(2)(b), if a judge is not able to continue, a panel can comprise solely acting judges.) It may be desirable to stipulate that no panel should comprise more than one judge from outside the permanent membership of the Court or that 33(2)(b) be left out. — Clauses 35 and 36. Given that the purpose of the Bill is to enhance judicial independence, why is the Secretary of State given a veto power over practice and procedure rules issued by the President of the Court? Would it not be preferable for it to be a consultative role? — Clause 44 (fees). There is a need to provide that the costs of maintaining the court should not be recouped from litigants. To use power to prescribe fees for this purpose would be fundamentally objectionable. The sheer cost to the citizen of seeking to achieve justice through the legal system is seriously circumscribed by the cost of so doing. The real crisis in our legal system has nothing to do with the position and role of the Appellate Committee of the House of Lords. It has everything to do with the cost of access to the legal system. The Clause (44(3)) imposes a duty on the minister to have regard “to the principle that access to the courts must not be denied”. How is that to be enforced, given that, for many, access to the courts is already denied? The Clause, as presently drafted, holds out the prospect of exacerbating the problem rather than resolving it. — Clause 103 (Commencement). Given the accepted need to ensure that a new court, and resources are in place, before the court comes into being, the Act should not take eVect until the conclusion of a speciﬁed time period. I would recommend that the minister be empowered to make an order for commencement, by statutory instrument, but that this can only be introduced after the passage of a set period of time: for example, one or two years.

Abolition of the Office of Lord Chancellor Clause 12 provides for the abolition of the role of Lord Chancellor. The case for abolishing the post, as distinct from separating the trinity of roles embodied in the position of Lord Chancellor, is not made. The judicial functions of the Lord Chancellor can be transferred elsewhere (and are, under the provisions of the Bill). The political role of the Lord Chancellor, as a member of the Cabinet, can be hived oV to another minister, in this case the Secretary of State for Constitutional AVairs. Why, then, the need to wipe out the ancient position of Lord Chancellor once this separation has occurred? The parliamentary role of the Lord Chancellor is clearly not superfluous, otherwise there would be no need to appoint a Committee to consider the Speakership of the House of Lords. Lord Falconer did not make a case for abolition in his oral evidence to the Committee on 1 April. The case advanced by the Government in its response to the Report of the Constitutional AVairs Committee in the Commons is contained in paragraph 51: “The Government is taking forward the abolition of the OYce of Lord Chancellor as part of a wider programme of constitutional reform. It is important that these changes fit together in a comprehensive fashion. The current OYce of Lord Chancellor does not fit with these improvements and must go”. The paragraph begs a number of questions and does not make the case for the abolition of the position of Lord Chancellor. Leaving the Lord Chancellor to be available to fulfil a parliamentary role—in eVect, put the OYce of Lord Chancellor at the disposal of the House—is not incompatible with other changes and it is not self-evident why getting rid of the oYce should be regarded as an “improvement”. 9674042014 Page Type [E] 28-06-04 20:19:13 Pag Table: LOENEW PPSysB Unit: PAG3

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Retaining the position of the Lord Chancellor for parliamentary purposes would provide for some element of continuity, not just formally but in practice. The preference of most member of the House is to retain a self- regulating chamber. The position of the Lord Chancellor in this respect is clear and understood within the context of the existing arrangements. Retaining the position will also give the occupant a stature that is helpful—I put it no stronger than that—in representing the House in oYcial and other gatherings. However, these should be matters for the House. Retaining. the post avoids the prospect of encountering unknown consequences of getting rid of the position.

Appointments The only query I raise in respect of Part 3 concerns Clause 52. The Commission and any selection panel “must have regard to any guidance issued by the Minister”. There is no requirement for consultation prior to the giving of such guidance. It would seem desirable to include such a requirement.

Guaranteeing Continuing Judicial Independence Clause 1, as has been variously noted, is not obviously enforceable. I believe that, at a minimum, there must be some mechanism or powers introduced to provide teeth for the Secretary of State for Constitutional AVairs to enforce the responsibilities vested under Clause 1(3)—even if, at a minimum, this constitutes a written declaration to the Prime Minister and members of the Cabinet—and that some provision must also be included to protect the special status of the Secretary of State for Constitutional AVairs, so that the holder is not simply listed in the list of cabinet ministers, taking his place in the pecking order on the basis of length of tenure or Prime Ministerial whim. What I have in mind—this is purely suggestive rather than a ﬁrm recommendation—is the classiﬁcation of the minister as the senior Law OYcer, which would also carry with it the implication that the holder should be a lawyer. April 2004

Examination of Witness Witness: Professor the Lord Norton of Louth, a Member of the House, Professor of Government, University of Hull, examined.

Chairman: Thank you very much for coming, Lord the substantial issues. I begin with what I think is an Norton of Louth. I have just received a paper from important point in terms of process; I do not think you which I clearly have not had time to read, nor that can be divorced from consideration of the Bill. indeed has anybody else, but the Lord Chancellor has This Bill comes in through a process which bears no a question. relationship to the government’s own declaration of Lord Falconer of Thoroton: I have to go and I was best practice. There is a very clear process that Lord very much looking forward to hearing your evidence. Irvine of Lairg outlined in a flow chart on the way in I apologise very much for going and I will certainly which the government consider major constitutional read it in the transcript. reform. This Bill has not followed that process and therefore there has been no thorough prior Q464 Chairman: Could I ask you to do two things? consideration of the fundamentals of the Bill as a Bill. One is to introduce yourself for the record and, That is the background. The second part looks at secondly, could you speak to this paper so that we Part II of the Bill, the proposals for a Supreme Court. will know what it contains? I summarise there each of the arguments that have Lord Norton of Louth: Certainly, my Lord Chairman. been advanced for the creation of such a body and I am Lord Norton of Louth and, as lawyers would then deal with each one and explain why the say, for the avoidance of doubt I am speaking purely argument is not based on any empirical support or in a personal capacity because I also chair the lacks logic, and I run through the arguments there Constitution Committee of the House. Could I fairly succinctly. On pages 2 and 3 I identify the case apologise for the lateness of the paper? I have been for the existing arrangements. I think one has to not away and this is very much hot oV the presses and was only say, “Here is the good side of the case for only completed earlier this afternoon. I am happy to change; put that against the disbenefits of the existing summarise the import of it and I will try and be arrangements”. You have to factor in the benefits succinct in doing so. I have tried to keep it to four derived from the existing system balance and them. I pages and structured it, not necessarily in terms of the think there are important arguments there for the chronology of the Bill but in relation to what I see as existing arrangements, including looking at it from 9674042015 Page Type [O] 28-06-04 20:19:13 Pag Table: LOENEW PPSysB Unit: PAG3

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22 April 2004 Professor the Lord Norton of Louth the perspective of a non-lawyer. On page 3 I make considered by the Committee, how do you provide for recommendations in an ideal situation. I think one enforcement of the required ministers to protect should exclude Part II of the Bill. If we fall from the judicial independence. As a minimum, as I say there, ideal then I have identified a number of specific issues there ought to be some teeth given to the Secretary of that I think need addressing in the context of the State for Constitutional Affairs to ensure that he can specifics of the Bill, touching on the appointment of actually fulfil his responsibilities under Clause 1(3) if acting judges, judicial independence in relation to the only to provide a written statement to the Prime Secretary of State, fees and commencement. I will Minister and other members of the Cabinet. And also, just stress the point about clause 44 in dealing with as I suggest, perhaps trying to find some means of these. There is a debate going on about this Bill which distinguishing the role of the Secretary of State for has some fairly legal elements and is totally divorced Constitutional Affairs from other Members of the from what I think the public would be much more Cabinet, not just an ordinary Member who moves up concerned with. Certainly anybody I have talked to through the pecking order through seniority or Prime about the Bill is less concerned with understanding Ministerial whim, there should be some separating out the role of the House of Lords’ in the process of of the position—I have suggested something and I am delivering justice. I find the real issue is the one of not sure how viable it is—perhaps defined as the fees, how is this financed, the fact that it is already senior law officer which would be classed in the list as part financed through money from litigants. separate from other Members of the Cabinet and that The Bill as presently drafted will exacerbate the would also provide the implication that the holder problem, not solve it. As far as I see the real crisis has should be a lawyer, and the benefits which flow from nothing to do with the position and role of the that. That is a summary of the general points about the Appellate Committee of this House, it has everything nature of the Bill and the creation of a Supreme Court to do with the cost of access to the legal system. Clause and some more specific points in relation to the 44(3) has been drafted to have regard to the principle specific provisions of the Bill. that access to the courts must not be denied. To all intents and purposes to a large extent it is denied at the Q465 Chairman: I wonder if I can start oV by dealing moment because of the cost of going to law. I do not with your position on the Lord Chancellor, which I think one should overlook that problem. The way that find very interesting. As I understand it you want to it is drafted would make charging litigants possible hive oV the judicial role so that he does not sit as a therefore the Bill needs to be redrafted to close off that judge, he is not technically head of the judiciary; hive particular option. The issue needs to be addressed in oV his political role, which should go to somebody the wider context, which is a far more real issue, than who is an administrative Cabinet minister, and then in the main points embodied in the Bill. That is the you use the phrase, “Leaving the Lord Chancellor to second page dealing with Part 2 of the Bill. In page be available to fulfil a parliamentary role—in eVect, four, the final page, I deal with the abolition of the put the OYce of the Lord Chancellor at the disposal Office of the Lord Chancellor. I do not think the case of the House”. Can you help us with that? I am not has been made for abolition, the case has been made sure what you envisage, should the House take into for separating out the separate parts of the current role consideration what it wants the Lord Chancellor to of the Lord Chancellor, the trinity of roles. When the do? Lord Chancellor appeared before you as a witness he Lord Norton of Louth: In essence, yes. made a case for separating out the roles but at no point in his oral evidence did he make a case for abolition of Q466 Chairman: You are preserving the name, you the post. Neither is a case made in the Government’s are preserving the shell, you are saying to the House response to the Constitutional Affairs Committee of Lords, here is a person called the Lord Chancellor Report in the House of Commons. I repeat in the now dispose of him as you see fit? submission paragraph 51 of the response in its totality, Lord Norton of Louth: Not necessarily him. In other three short sentences which do not make a case for words, for the Lords to reflect whether they wish the getting rid of the post as such. I see no reason why Lord Chancellor to continue in his current role in shorn of its judicial role, its legal role, shorn of its fulfilling Parliamentary duties. political role why the position of the Lord Chancellor as it remains should not be at the disposal of the Q467 Chairman: As Speaker? House, as distinct from Government. A number of Lord Norton of Louth: Yes and whether the House benefits would flow from that, as listed in the paper. should wish to amend that or not. In the matters I raise at the bottom of the page point one is in relation to appointments. I think there should Q468 Chairman: What you are advocating here is a be consultation prior to the minister giving guidance. new Speaker for the House of Lords, get rid of the old Then there is the point about continuing judicial Speaker of the House of Lords, called the Lord independence. I know this has been a matter Chancellor. 9674042015 Page Type [E] 28-06-04 20:19:13 Pag Table: LOENEW PPSysB Unit: PAG3

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Lord Norton of Louth: That is precisely it. In a way it would leave the Lord Chancellor with the residual is reversing what the Bill proposes. My view would be responsibilities unless the House decides otherwise. that you leave what is and if necessary for the House to decide whether it wants to deviate from that. Q476 Chairman: We heard from Lord Mackay about keeping the great seal as part of the working of Q469 Lord Carter: Do you expect the House to elect the Lord Chancellor, would you share it with the the Lord Chancellor? Lord Chancellor or would you give it to somebody Lord Norton of Louth: I think that it is right for those else? unresolved issues to be resolved by the House, I think Lord Norton of Louth: I am not sure I would share the it is easier doing it within the context of maintaining view about the significance of holding the great seal, the current position. there may be something about it which I have completely misunderstood. Q470 Chairman: You would not have your Lord Chancellor speaking in the Cabinet, would you? Q477 Chairman: I think lots of us misunderstood it Lord Norton of Louth: No, not at all. That role is too—some of us did. removed by the creation of the Secretary of State for Lord Norton of Louth: I cannot see it goes with the Constitutional AVairs. political role or actually the legal role. It is not an issue on which I would go to war. I cannot see any Q471 Lord Carter: Do you think the Lord reason necessarily—I am open to persuasion—as to Chancellor/Speaker in the role you describe should why the responsibility for the great seal should not be elected by the House? remain with the Lord Chancellor. I do not think the Lord Norton of Louth: It should be determined by the Government is going to come tumbling down if it House. I think it is for the House to decide for itself stays with the Lord Chancellor. whether it should be a direct election or some other mechanism for doing it. Q478 Lord Goodhart: Going back to the Supreme Court, having quickly gone through your paper you concentrate on what I might call the negative Q472 Lord Carter: Do you see a role for the usual arguments, you only have one argument which could channels? be called a positive advantage to the present system. Lord Norton of Louth: That is why the House needs to You say, “Being in the House of Lords provides the discuss it. It could be an election or some form of perspective that detaches Law Lords from other deliberation and discussion, but they are not judges, this in my view has a value”. How do you mutually exclusive think that gives a new perspective? What is value of that perspective? Q473 Lord Carter: Does this person need to be a Lord Norton of Louth: I think there is an lawyer? understanding which takes it beyond the purely legal Lord Norton of Louth: Not at all because it is a and a somewhat detached perspective which derives, Parliamentary role, the legal aspect is gone. It would to some extent, from the isolation of the judges. On be up to the House whether it would be open to any the one hand there needs to be some degree of Member to put their name forward. detachment and some degree of isolation. I think there are disadvantages if that goes, particularly Q474 Chairman: That is a sort of misnomer, calling given the role of the Law Lords as the highest Court the Speaker of the House of Lords the Lord of Appeal. There is a greater appreciation of the Chancellor given the history— political system, I think that it is beneficial for Lord Norton of Louth: It is better than the alternatives. understanding, I think it is beneficial for Law Lords because they can occasionally avoid making Q475 Lord Craig of Radley: There are, of course, a mistakes. An example I would give you is the Wilson number of other responsibilities the Lord Chancellor case, which is to do with the courts actually looking has outside Parliament, do you have any view about at parliamentary proceedings to determine the how should they be handled? mischief which was meant to be addressed by the Lord Norton of Louth: I think it would be for the original enactment. House to discuss whether they should move. I think there is a certain advantage in retaining the Lord Q479 Lord Goodhart: Is that Pepper v Hart? Chancellor, unless there is decision to move that. The Lord Norton of Louth: No, this is subsequent to point I make in the paper also covers unexpected Pepper v Hart. The Wilson case was more recent, the consequences, the Lord Chancellor may have some Court of Appeal in a way wanted to go rather far in responsibilities still hidden away which are not looking at proceedings and in eVect making covered in the Act, so that covers that eventuality. I comments on the quality of what was being 9674042015 Page Type [O] 28-06-04 20:19:13 Pag Table: LOENEW PPSysB Unit: PAG3

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22 April 2004 Professor the Lord Norton of Louth discussed. The Law Lords took a much more members of the House of Commons with this restricted view of what was permissible. I think that Chamber. It needs to be addressed in a much wider must be brought about by greater awareness of the context and there needs to be far greater appreciation Parliamentary process, a greater sensitivity as to the by the House of Commons about what the Law significance of Parliament. I think there is a value. On Lords do and a far greater appreciation by the Lords my reading of the case there was a diVerent of what the Commons does. I think to some extent, perspective held by Law Lords to that of the Court of yes, the Commons should be more aware and we can Appeal. I think that was beneficial. do that through indirect means. On the other hand it is rather appropriate the Law Lords are in this House Q480 Lord Goodhart: How would the Law Lords because I think it provides much more of a detached have achieved that diVerent perspective, is that by buVer than would be case in the partisan House of listening to the debates or by talking to other Commons. There is some value in being in this members of the Lords socially? How? House. Lord Norton of Louth: I think the answer is both, they are not mutually exclusive. It is in part listening to Q483 Viscount Bledisloe: Lord Goodhart put to you debates on the issue. I think interaction with the a contrast between the Law Lords knowing Members House, both individual members and its collective of the House of Lords and Members of the House of capacity, not just the chamber but committees as Commons, I think the point which is being made was well, an appreciation of the system and its subtleties. that they were meeting people from other professions You cannot do it necessarily by some mechanistic and in other activities. I do not think the point was process. The Law Lords must still maintain their being made that they needed to have titles in the independence and integrity in fulfilling their judicial Lords or Members of Commons, it is just they were role but I do think it gives them a wider widening their aspects to meet other people from understanding, which I do think is useful. You other diVerent areas and other activities. Do you cannot give that to all members of the judiciary so regard that as a useful advantage? that in a way makes it even more important, you have Lord Norton of Louth: I think it is a benefit, the prime the Law Lords with that appreciation, otherwise I reason is to do with understanding the Parliamentary think there is going to be a degree of detachment if process and the diVerent parts which fit together. The you follow the Wilson case, where you are going to fact that they are mixing with others has a relevance. get some rather serious confrontation between the I would not claim they are meeting with a socially courts, the executive courts and Parliament. typical body of people, I would not see it in terms of a greater understanding of society as such, but it is Q481 Lord Goodhart: You probably were not here certainly a greater understanding of other areas. when Lord Bingham told us about this particular issue, his view was there was a positive danger of the Q484 Chairman: Do you not think they could do Law Lords being too familiar with the process that at the Garrick Club? because it encouraged them to impose their own Lord Norton of Louth: That is my point. It is a benefit judgment on what they thought Parliament meant which they derive, it is not a fundamental reason. rather than starting by looking at the words, then going only to a very limited extent to what Pepper v Q485 Chairman: It is the club argument! Hart allows you to look at. Lord Norton of Louth: No, it is not. In an incidental Lord Norton of Louth: I do not see a danger. I can see way you get that social interaction elsewhere, you the logic of the flow of the argument that leads to that cannot get that understanding of parliamentary conclusion but I do not think it has ever been realised. process, which is why they have to be here, that is why In practice it strikes me the Law Lords are suYciently I say it is an incidental side benefit. well able to detach from their role as distinct from any other Member of the House. Q486 Baroness Gibson of Market Rasen: Does it happen? I am sorry to challenge this view. I am new Q482 Lord Goodhart: Do you feel there is a problem to this House, I have only been here four years, and here that contact with the Law Lords, certainly I am sure I am speaking on behalf of many others on through this House, is very much the second player of the Labour side of the House that our knowledge of game and they have no contact whatsoever with the the Law Lords and our interaction with them is very, Commons, which is where the principle decisions very limited indeed, we might meet them in the lift, we are taken? might say good morning, we know who they are— Lord Norton of Louth: I think there is a problem, to and I give the honourable exception to the new lady some extent, in that regard. I do not think you can Member who does tend to talk to us more, but address it in terms of a direct solution. I think it is perhaps that is something to do with the diVerent indirect, which is a wider issue about awareness of the sexes—seriously, this little paragraph bothers me a 9674042015 Page Type [E] 28-06-04 20:19:13 Pag Table: LOENEW PPSysB Unit: PAG3

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22 April 2004 Professor the Lord Norton of Louth lot because you say they will dine in the inns of court, you say that reliance on the perception of ordinary they might may dine in the House of Lords but they citizens is not justifiable as the basis for proceeding do not dine with me or many of my colleagues. The with a fundamental matter of constitutional reform. point I am trying to make is that other lawyers may I am really anxious to know what kind of evidence talk to them, and that would be natural, but I am not you are speaking about in putting forward the lack of certain they do talk to the other people from other evidence as being the killer blow? professions. Lord Norton of Louth: The first point is no, I am not Lord Norton of Louth: My experience is they do, they saying there is a criticism of the system. There is a talk to me and I am not a lawyer. In a way you are criticism of the judicial system but that is not the putting it the wrong way round. The important thing same thing as criticism of the House of Lords in its is not that we get a great appreciation of individuals judicial capacity. If there is a lack of understanding who are Law Lords. There is an importance in the there is the question of, why should people be that House having some appreciation of the Law Lords as well informed of the features of our legal process, such, that would be particularly important if there is they are not that well informed of the features our an acute conflict. I think there would be some level of parliamentary system. The point I have made else sensitivity on the part of Members. The value of where is lack of knowledge of the system does not having the Law Lords in the House is for them to get necessarily undermine confidence in the delivery of a greater awareness of the parliamentary process and justice. The point about evidence, of course people to mix with individual members. As long as they are say things, organisations put in their view, my point doing some of that that is the benefit. It is that way is about strong empirical evidence that there is a round rather than us becoming great experts on the public perception that in some way our existing Law Lords themselves. system does not deliver justice. Where there is some empirical evidence in respect of the judicial system is Q487 Baroness Gibson of Market Rasen: Iam the fact that it is inaccessible. That is not directed at wondering how they do it? the House of Lords in its judicial capacity, it comes Lord Norton of Louth: I think we should have some back to my earlier point, it is inaccessible because appreciation of them and their role within the process people cannot get into the process at the bottom end, itself, which can be quite important. We do use the they cannot aVord to come in. If you create a Law Lords for certain formal purposes within the Supreme Court and it is going to be partly funded by organisation of the House itself, so that provides for litigants then people are horrified and totally some interaction. All of those who will have served opposed to it. I do not see why in bringing in a body on the European Union Sub Committee E will know which is not the House of Lords in its judicial the advantage of having a Law Lord as Chairman. capacity is suddenly going to produce a population That is not an exclusive argument for the keeping the that is suddenly well aware of our judicial process and Law Lords it is an incidental in terms of awareness of what the position of the Supreme court is. The their role and value. argument is that it will introduce clarity and so what happens you call it the Supreme Court—anybody Q488 Lord MacLennan of Rogart: Lord Norton, with informed knowledge of the American judicial system will probably read into it a completely part of your case, as we have seen this afternoon, and V we have only just seen it, is that you think the di erent role to that which it will have. I cannot see evidence in support of the Government’s position, how it can ensure that somehow the population is particularly on the Supreme Court is lacking. As I going to feel they have an understanding of what our read it what you have said is the Government has not judicial process is and feel any more confident in it, produced evidence of public perception of the especially if they have to bring a case which reaches unsatisfactory nature of the present system. the top and they have to pay for the privilege of Lord Norton of Louth: No. doing it.

Q489 Lord MacLennan of Rogart: You have Q490 Lord MacLennan of Rogart: With respect it possibly heard some of evidence that we have had on does sound like heads I win and tails I lose. On the this this afternoon from Professor Woodhouse and one hand there is no evidence of public evidence but then from Lord Bingham speaking of the public’s on the other if there was it would not matter. I ask lack of awareness of how the system works and how you, what do you mean by saying that reliance on the students even applying for a position in the perception of the ordinary citizen is not justified? Can University College London Law School consider the you think of any other major reform of the Court of Appeal is the final court. That is evidence. It constitution which has not been prompted to some seems to me you go on in the same paragraph of your extent by the electors? I am bound to say as someone submission to say that even if there were such who was elected five times and has lived through a evidence we should not take any account of it because number of constitutional changes I do not see how I 9674042015 Page Type [O] 28-06-04 20:19:13 Pag Table: LOENEW PPSysB Unit: PAG3

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22 April 2004 Professor the Lord Norton of Louth could have defended them without there being some courts but probably hiving oV or possible hiving oV public interest in them. the particular thorny point of Legal Aid and Lord Norton of Louth: I am inclined to say how long retaining his position of being the person who on the do you have if you want a list. It is very diYcult to advice of the Political Appointments Commission identify anything which is coming in on the back of actually recommends the judges. That is a rather less strong public pressure rather, it has been top down slim version of the role that you envisage, what would not bottom up. We do have empirical evidence of this be your comment on that as a viable proposition? in terms of opinion polls. In terms of constitutional Lord Norton of Louth: You touch on it in your last issues on the whole it just drops oV the screen, it does point, I distinguish what I regard as desirable and not even register with only about three per cent of what I regard as achievable given that the people identifying it as significant. If you ask them Government is keen on basically divesting itself of about specific reforms they tend to say, yes, if you the position of Lord Chancellor. What I focused on then ask them, “Do you know anything about it?”, is what I regard as achievable but equally to say what more will say no than yes. And if you ask what I regard as desirable I would go more in the direction importance they attach to it they do not. I cannot see of the proposal put forward by Lord Mackay. any grounds for arguing that at all. I cannot see there being any major constitutional reforms which Q492 Lord Howe of Aberavon: You are really saying produced a population which suddenly feels that the Mackay approach is what we desire and if confident and better informed about the processes. If that were not to be achievable then you are oVering you go out to a housing estate and knock on doors to the House of Lords the title of Lord Chancellor as and say, “What do you know about the provisions of a kind of consolation prize for romantic the Human Rights Act 1998?”, you are not going to antiquarians? get a very friendly or informed reception. Lord Norton of Louth: I was with you until your last Chairman: Thank you very much. point. For the first part I see it a more significant if the post was retained as the fallback realistic option. I think there is quite significant status which does Q491 Lord Lloyd of Berwick: Your vision is, as I attach to the role that resonates outside and I do not understand it, is retaining the role of Lord Chancellor see why we should lose the benefit of that, for what? or post of Lord Chancellor but in a very, very I do not see what the alternative delivers which slimmed down version. I do not know if you read adds value. Lord Mackay’s evidence, his evidence was along Chairman: Thank you very much indeed. I thought it these lines, the Lord Chancellor could continue to was a refreshing piece of evidence which we greatly exist happily by perhaps hiving oV his role as enjoyed. I am not sure there is unanimity of Speaker, saying that he would not sit as a judge, agreement round the table with you. Thank you retaining his political role in the sense of running very much. 967404PAG4 Page Type [SE] 28-06-04 23:19:13 Pag Table: LOENEW PPSysB Unit: PAG4

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TUESDAY 27 APRIL 2004

Present Bledisloe, V Gibson of Market Rasen, B Carter, L Goodhart, L Carlisle of Bucklow, L Howe of Aberavon, L Craig of Radley, L Kingsland, L Crickhowell, L Maclennan of Rogart, L Elder, L Richard, L (Chairman) Falconer of Thoroton, L Windlesham, L

Memorandum by the Judges’ Council of England and Wales 1. The Prime Minister’s announcement on 12 June 2003 prompted the judiciary to give urgent thought as to how best to protect judicial independence within the proposed new constitutional arrangements. Lengthy discussions between representatives of the judiciary, the Lord Chancellor and his officials resulted in the concordat described by Lord Falconer in his statement to the House on 26 January 2004. The Lord Chief Justice’s endorsement of the concordat during that debate was given on behalf, and with the approval, of the Judges’ Council, a body on which all levels of the judiciary of England and Wales are represented. 2. The concordat is an agreement between the judiciary and the executive as to the safeguards of judicial independence which need to be put in place should the constitutional reforms be implemented. The Judges’ Council continues to believe that the translation of the concordat into primary legislation is essential, if the office of Lord Chancellor is to be abolished. 3. However, in considering these issues in recent months the judiciary has reached the conclusion that, irrespective of the extent to which the reform proposals are implemented, there is a pressing need for legislation which enshrines the principles set out in the concordat. The Judges’ Council’s reasons for coming to this conclusion are set out below. 4. The need for the concordat must be seen in the context of changes which had been taking place for many years prior to 12 June 2003. (a) In recent years the Lord Chancellor’s departmental responsibilities have grown significantly in breadth and complexity (a process which began some time before the creation of the Department for Constitutional Affairs). The Lord Chancellor is now responsible for a major Department of State with a spending capacity of £3.5 billion. Leaving to one side the question of whether it is appropriate for a Minister to sit as a judge, it has been increasingly difficult for recent Lord Chancellors to devote any meaningful time to this role. (b) In addition, the growing politicisation of the office of Lord Chancellor has made it increasingly difficult to identify appropriate cases on which he can sit as a judge. It is clearly unacceptable for him to sit on cases in which the Government has an interest in the outcome and the Human Rights Act 1998 has introduced a potential legal impediment to a member of the executive sitting as a judge at all. (c) Once it was decided that the Lord Chancellor would no longer sit as a judge, it became unacceptable for him to continue to be Head of the Judiciary. An office-holder who is not going to sit as a judge does not need to possess the credentials and qualities required of a judge. It is not reasonable to expect the judiciary to be represented by an individual who is not performing a judicial function and who may well have very different skills, experience and knowledge. And it is clearly inappropriate, in terms of independence, for the judiciary to be subject to the direction of a person who is not a judge. (d) During Lord Irvine’s time as Lord Chancellor, it had already become evident that extra safeguards were necessary to protect the independence of the judiciary in relation to disciplinary matters. In an exchange of letters and, later, in a protocol drawn up jointly by the Department and the Judges’ Council, it was agreed that it would be for the Lord Chief Justice to decide whether a serious allegation of misconduct on the part of a judge warranted investigation and, if it did, to nominate a judge to conduct the investigation. Furthermore, it was agreed that the Lord Chancellor would not seek to remove a judge without obtaining the consent of the Lord Chief Justice. 9674042016 Page Type [O] 28-06-04 23:19:13 Pag Table: LOENEW PPSysB Unit: PAG4

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(e) Whilst doubt has never been cast upon the quality of judges appointed, it was becoming increasingly difficult, under a system which gave sole responsibility for appointments to the Lord Chancellor, to meet the expectations of the Commission for Judicial Appointments created by Lord Irvine in March 2001. Lord Irvine announced that he would shortly be consulting about the establishment of a full Judicial Appointments Commission, when he appeared before the Select Committee on the Lord Chancellor’s Department on 2 April 2003, (f) It had also become apparent that there was a need to rethink the relationship between the judiciary and those responsible for the administration of the courts; an evolutionary process both before and after the Beeching Commission of 1969. The planned implementation of the unified administration of the Courts, as provided for in the Courts Act 2003, was proving a catalyst for another stage in the development of this relationship. There was increasing recognition of the benefits to be gained from a closer involvement by the judiciary in decisions which would impact on the administration of the courts. As a result, judges at all levels were taking on new ‘administrative’ roles and responsibilities. 5. Whilst it was not inevitable that the post of Lord Chancellor would be abolished, the time was nearing when the responsibilities of the Lord Chancellor would have to change, in any event, to reflect the realities outlined above. Looking back, it is clear that the need for new constitutional arrangements did not derive from the need to achieve a strict separation of powers, but rather from the necessity of achieving, within the constitutional structure, a clear and separate role for the judiciary as a distinct arm of the State with responsibility for dispensing justice. 6. The announcement on 12 June 2003 provided a catalyst for a process of formally recognising that the judiciary-related functions of the Lord Chancellor should be separate from the executive. The judiciary took the view that the abolition of the office of Lord Chancellor would result in the loss of one of the checks and balances that had up to now existed in the constitution. The ability of the office of Lord Chancellor to act as a check and balance depended, at least in recent history, on the fact that the office was occupied by individuals who were above the political fray, who had a lawyer’s understanding of the justice system and who were not interested in political preferment. Lord Chancellors have tended to hold office for longer periods than their cabinet colleagues. Under the proposed new arrangements, it is probable that the Secretary of State for Constitutional Affairs will be a Minister of lower rank than the Lord Chancellor, a non-lawyer and an individual deeply engaged in party political matters and interested in political preferment. The Judges’ Council response to this prospect was that the independence of the judiciary needed to be protected by way of a new constitutional settlement enshrined in statute. 7. The judiciary believe that, if implemented as a whole, the concordat will accord the Secretary of State the appropriate degree of responsibility in relation to the administration of the courts without allowing those executive responsibilities to interfere with judicial independence. 8. Looking at the position now, it is evident that the concordat reflects an inevitable development brought about by gradual changes in the office of Lord Chancellor and in his department over the past half century. Having exposed and explored the issues, the judiciary have come to the conclusion that it is not realistic to expect to return to a position whereby a Minister, whether or not with the title Lord Chancellor, provides the protection for the rule of law and judicial independence necessary in contemporary conditions. 9. However, the concordat does seek to maintain the advantages of the close working relationship which has now been recognised as essential for the proper administration of justice. It emphasises the need for partnership between the judiciary and the executive while demonstrating the need for a clear and systematic division of responsibilities. 10. We are aware that various new models for a figure such as a Lord Chancellor are being canvassed. Whether that figure could have a role in relation to the judiciary and the nature of the role will depend on the other responsibilities of the individual concerned, by whom he is appointed and the terms on which he is engaged. Any such role would need to fit within the framework of the concordat and to be compatible with it. It would be essential, for example, not to undermine the Lord Chief Justice’s authority to provide for the judiciary the leadership which they now require. 11. One important aspect of the role of the Lord Chancellor has been to defend the independence of the judiciary within Government. Without a representative of the judiciary in Cabinet, it is clear that the judiciary can no longer rely on constitutional conventions to ensure that their independence is upheld. The Judges’ Council considers it essential that new statutory provisions should place a duty, not just on the Secretary of State for Constitutional Affairs but on all Ministers, to uphold the independence of the judiciary. Whilst the judiciary have some reservations about the drafting of Clause 1, it is designed to achieve that aim. The 9674042016 Page Type [E] 28-06-04 23:19:13 Pag Table: LOENEW PPSysB Unit: PAG4

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27 April 2004 implementation of this aspect of the concordat would meet the urgent need to ensure that judicial independence is secured. 12. The concordat also outlines the other key functions of both the Lord Chief Justice and the Secretary of State with a view to these functions being embodied in statute. For example, appropriate structures are to be put in place for the deployment of individual members of the judiciary and for the allocation of work within the courts. Those structures reflect the need for the Head of the Judiciary to be able to deploy judges and allocate cases free from executive influence, so that decisions by the courts are, and are seen to be, independent. 13. Another example of this partnership is in relation to judicial complaints and discipline. The concordat provides for the Lord Chief Justice and the Secretary of State to be together responsible for providing a system for considering and determining complaints of misconduct on the part of members of the judiciary. The Lord Chief Justice is to be the person responsible for reprimanding judicial office holders and the Secretary of State is to have no power to require him to do so. This is an essential requirement to ensure that the independence of the judiciary is upheld. 14. One further matter arising from the concordat is the duty allocated to the Lord Chief Justice at Clause 2 (2) (a) of the Bill which states that the Lord Chief Justice, as President of the Courts of England and Wales, is responsible for ‘representing the views of the judiciary of England and Wales to Parliament, to Minister and to Ministers of the Crown generally’. The Judges’ Council is concerned about how the Lord Chief Justice will carry out this duty, in relation to Parliament, if he loses his seat in the House of Lords. The Judges’ Council is of the view that the Lord Chief Justice, the President of the Supreme Court, the Lord President, the Lord Chief Justice of Northern Ireland (and, in the case of England and Wales, the Master of the Rolls) should have the right to speak in the chamber of the House of Lords for the purpose of representing the views of the judiciary to Parliament. We do not suggest that these judicial figures need to be voting members of the House of Lords in order to carry out this duty, but they could continue to make a valuable contribution to debates. 15. Throughout this document, we have emphasised the importance that the judiciary attaches to the concordat being translated into statute. There are a number of respects in which the Constitutional Reform Bill, as published, does not conform with the concordat. The Judges’ Council has established a working party, chaired by Lady Justice Arden, which is working closely with DCA officials to resolve these discrepancies. We anticipate that agreement will be reached and that the Government will table amendments designed to address all outstanding matters. However, the Select Committee may find it helpful to have a record of the key areas under discussion. We hope to be in a position to provide such a document in advance of the oral evidence session involving Lady Justice Arden and Lord Justice Thomas.

Judges’ Council of England and Wales

LIST OF MEMBERS (APRIL 2004)

Name Position The Rt Hon Lord Woolf of Barnes The Lord Chief Justice of England and Wales The Rt Hon Lord Phillips of Worth Matravers Master of the Rolls The Rt Hon Dame Elizabeth Butler Sloss DBE The President of the Family Division The Rt Hon Sir Andrew Morritt The Vice-Chancellor The Rt Hon Lord Scott of Foscote House of Lords Representative The Rt Hon Lord Justice Rose The Vice-President of the Court of Appeal Criminal Division The Rt Hon Lord Justice Brooke The Judge in Charge of Modernisation The Rt Hon Lord Justice Judge Deputy Chief Justice The Rt Hon Lord Justice Thomas The Senior Presiding Judge The Rt Hon Lord Justice Keene The Chairman of the Judicial Studies Board The Rt Hon Lord Justice Dyson Deputy Head of Civil Justice The Hon Mr Justice Forbes Representative of the other specialist courts within the RCJ The Hon Mr Justice Collins Judge in Charge of the Administrative Court The Hon Mr Justice Tomlinson Representative of the other specialist courts within the RCJ 9674042017 Page Type [O] 28-06-04 23:19:13 Pag Table: LOENEW PPSysB Unit: PAG4

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Name Position The Hon Mr Justice Roderick Evans Presiding Judge of the Wales and Chester Circuit The Hon Mr Justice Pitchford Presiding Judge of the Wales and Chester Circuit The Senior Master Representative of the London High Court Masters Group Her Honour Judge Fisher President of the Council of Her Majesty’s Circuit Judges His Honour Judge Lyons Honorary Secretary of the Council of Her Majesty’s Circuit Judges District Judge Martyn Royall President of the Association of District Judges District Judge Michael Walker Honorary Secretary of the Association of District Judges Judge Workman Senior District Judge (Chief Magistrate) Rachel Lipscomb Chairman of the Magistrates’ Association Examination of Witness Witness: Rt Hon Lord Woolf,1 a Member of the House, Lord Chief Justice of England and Wales, examined.

Q493 Chairman: Lord Woolf, thank you very much down to speak to any meeting where they were for coming; we are deeply obliged. We have all had an unhappy and I had no invitations to come down and opportunity of reading the submission which you put resolve their doubt and that was a remarkable in to us and I would ask you to do two things, one of situation. With the most recent submissions to this which is to formally identify yourself for the record Select Committee, the Judges’ Council gave their and, secondly, if you would be so kind to open up the unanimous support and the High Court judges and discussion for us on the basis of the paper and then the Bar gave their support. If you look at the two lots perhaps we would pursue what issues the Committee of submissions, you will see that there is one might find it helpful to pursue. significant difference. In regard to the concordat, Lord Woolf: Can I, first of all, my Lord Chairman, which was the matter which the Judges’ Council thank you very much for the invitation to address regarded as its business, with regard to the first you. I must say, coming through that door with your submissions it was saying, “If we cease to have a Lord Lordships sitting in a horseshoe in front of me Chancellor, this is the concordat which we would brought back memories of the days when I was at the want”. Ten months later, in the submission which we Bar and had to launch into submissions to you. I made to this Committee, we have put it differently. hope I will be rather shorter than I used to be when Irrespective of whatever else happens as a result of addressing them in their capacity as the Law Lords. this Bill, the judges unanimously want to see the As this Committee knows, of course the judiciary in concordat and, if I may in these opening remarks, this country are independent. They are independent could I try and explain why they should feel so of the other branches of government and they are strongly about this. In order to understand the independent among themselves. Each has individual position, I think you would have to go back into independence as well as collective independence. history, as Professor Stephens did in his submission, Now, having regard to the nature of our judiciary but not quite as far as he went. I think you have got and the fact of what I have just said, one of the just to go back to the reforms of Dr Beeching and remarkable and pleasing experiences, so far as I am after that, the judiciary withdrew from playing any concerned, that has come out of the process that part in the administration of the courts. In general followed 12 June is that on two occasions the terms, before that, as people of my generation can judiciary, I can say, without dissent have come to a recollect, the courts locally were run by the judiciary. conclusion as to what they would like to see. The first The assize judge was in complete control of what occasion was when they made their responses to the happened and a similar thing happened in the Crown consultation process. That was made by me on behalf Court sessions with the recorders. Now, with of the Judges’ Council, but it was also the responses Beeching, there was a new era and it was felt that the which had been made after meetings when all the Court Service would do all the administration and judiciary had considered them and endorsed them. It the judges would drop out. After a time it was found is not right to say that every member of the more that this was not working. It was not any fault of the junior judiciary had an opportunity individually of civil servants and the Court Service; it was the fact doing that, but what I did do was speak to groups of that they did not have the practical experience of the junior judiciary and I got collective support. what should happen and how courts should be run, Secondly, I gave them an opportunity to invite me so slowly but surely the judges have become more and

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27 April 2004 Rt Hon Lord Woolf more involved. A significant event was the creation of Chancellor. I could give you other examples, but I presiding judges and I, for example, was a presiding will not take up more time, but come 12 June we, so judge in the south-eastern circuit when I was then a to speak, had to grow up. We had to say, “What are junior member of the High Court and more and more the things which, in society as it is today, the judiciary over the years since I have been a judge, the judges should be responsible for?”, and some of them had have been directly involved with administering the already moved that way. Taking the example of court system. They did so in partnership with the discipline, with Lord Irvine I had agreed a situation Court Service and in partnership with the Lord for the protection of the judiciary whereby there was Chancellor, but what were the respective duties of the no real disciplinary action and even a reprimand partners was never clearly defined. What happened could be given to any judge right through the process after 12 June last is that the judges and the Lord without the concurrence of the Chief Justice. Now, if Chancellor and his Department got down for the first he really was head of the judiciary, that was a strange time to try and work out what, in current situation and we have now got a protocol which is circumstances, should be the Lord Chancellor’s signed up, setting this out, and it was not so much the responsibilities and what should be the judges’ senior judiciary who were worried about this, the responsibilities. It was done at that time on the senior judiciary had the act of settlement, but the assumption that the Lord Chancellor would cease to people who were really concerned were the circuit be head of the judiciary. Now, whereas that was the judges and even more concerned were the district assumption behind it, it is my view, and I do not judges because they felt that the powers of the Lord know, but this may be slightly controversial, it is a Chancellor to discipline them could undermine their personal view, that in fact the Chief Justice over the independence. It is at that level that the judiciary, I years was becoming the de facto head of the judiciary think, in this jurisdiction can be most threatened and the Lord Chancellor was really the constitutional because, and I hasten to say I am not making any head of the judiciary. There were various reasons for criticism of this, if the Government have a policy this. For example, because of the dominance of the where they want certain types of cases to be held Home Office in relation to criminal justice and expeditiously, the civil servants in the court system because, in relation to criminal justice, the Home can start taking that into account in forming all the Office were doing various things which had a direct activities which are now agreed to be judicial impact upon the judiciary, the Chief Justice was activities which can affect their listing and they feel going to see the Home Secretary to direct and the pressurised and if you talk to adjudicators dealing Home Secretary was treating him as the person he with immigration and asylum cases, they feel this should deal with when dealing with the judiciary. Of very deeply. So these are matters which are important course the Lord Chancellor would be kept informed and the judiciary’s view is that this division which we and sometimes the Lord Chancellor would do it, but have agreed on in the concordat does two things, one the idea of direct meetings with the Chief Justice was being that it divides those responsibilities which indicated. On a matter of some importance to the should be the primary responsibilities of the judiciary, salaries, the person who went along to Government, and those are resources and policy, and speak to the Senior Salary Review Board each year is those which should be the primary responsibility of the Chief Justice and he goes along and says why he the judiciary. In regard to those, it says that the Chief thinks the different sections of the judiciary should be Justice should be involved in these matters and have the final say and in the other matters the Lord paid in a particular way and he is there as the Chancellor should have his say, but there should be spokesman of the judiciary. I could give you a mass consultation between the two despite this. The same of other things that indicate that, but in relation to thing is done with regard to those which are the grey salaries it is interesting because on the other side was areas in the middle and those should be dealt with by the Lord Chancellor. He was putting before the consensus. Now, the judiciary feel, and I feel, that the Senior Salary Review Board considerations to two have achieved, on a collective and consensual indicate why the judges should not get as much salary basis, a package which deals with these principal as they thought they were, without doubt, entitled to matters, and they are not so many, but they have a lot and we would find situations where, much to the of little incidence in this way as the ideal step forward anger of the judiciary, the Lord Chancellor felt and it would be a terrible shame if, as a result of other constrained by his governmental responsibility, for aspects of the reforms, this, what I regard as a, huge example, to require that staged payments should be step forward which will really provide protection for made, so you got the situation where the judiciary the judiciary in the future should be lost, so those are were always trying to catch up with what the Senior the remarks I wish to make. Salary Review Board, when left to themselves, would have recommended, so one can see that the idea of the Q494 Chairman: Thank you very much indeed. I ordinary judge who was speaking on their behalf was wonder if I could just perhaps try and summarise the not as they had always accepted, the Lord position. As I understand it, what you and the judges 9674042018 Page Type [O] 28-06-04 23:19:13 Pag Table: LOENEW PPSysB Unit: PAG4

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27 April 2004 Rt Hon Lord Woolf are saying is that before 12 June, and I am tempted to Chancellor to say where is the concordat and he call it “6/12”, but before 12 June last year, the said, “Well, I made a statement”, and it is this position of the Lord Chancellor was clearly changing document, but if the principles contained in Clause and that the traditional division of responsibilities 1 of the Bill are of the importance that I think we between the Lord Chief Justice and the Lord all agree they are, my first question really is: would Chancellor, that had already altered to such an extent there be an advantage in having a separate that something had to be done about it. Is that a fair document, whether issued by yourself or the Lord way of putting it? Chancellor or preferably both, stating, in terms that Lord Woolf: A fair way and, if I may say, what the informed public can comprehend, what precisely happened is that that critical announcement was the are those principles? You know and Lord Falconer catalyst for the changes which took place thereafter. knows what they are and perhaps most of us do, but this is a constitutional document of great value and Q495 Chairman: And one of the reasons or one of I would like to draw you out on whether you believe the changes underlying the need for the concordat that a separate document, incorporating much of was that the Lord Chancellor really could not sit what is generally available which could bring this in anymore and it would be terribly difficult to find together, would be of value. cases in which the Lord Chancellor could actually Lord Woolf: I think the point that you make, Lord legitimately participate. We heard some of this from Windlesham, is one of significance. As it happens, Lord Bingham the other day, so that was a factor, the papers that the Department issued originally was it not? never really tackled this problem and in our Lord Woolf: That was also a factor and I would say it response to the initial consultation, we drew was a factor for this reason: that we have always had attention to this lacuna and said that it has got to the situation that the Chief Justice, or whoever it is be tackled. We issued a separate paper dealing with who is going to be head of the judiciary, led the this and what the concordat deals with, and once judiciary because he was the most senior judge and one looks at it, one can see, the fact that clearly once it was decided that either the Lord Chancellor there was a paper issued at least of which I have a should only be a nominal judge or should not be a copy where it shows the principles which are at the judge at all, then he lost his ability to be the de facto heart of the concordat. It takes, for example, the head of the judiciary. There was no statute which said question of the independence of the judiciary and that the Lord Chancellor was the head of the then it takes certain things like judicial education judiciary. The only statutory position was that he was and it takes them in turn, saying, “Whose president of this court or president of that court and responsibility should it be for them?”, having first the fact that he was head of all of the judiciary would set out the principles involved, and if that document never appear in statute, but it was the natural has not received the width of circulation that it consequence of the powers that he exercised, one of should, then I think it would be very helpful for which, and the most important one of which, was that to be done. The copy that I have is, “The that he sat as a judge and when he sat as a judge, he Lord Chancellor’s Judiciary-Related Functions did so in this House as the most senior member of the Proposals” of January 2004, and it is the same committee hearing that case. document, so if one looks at it, it deals with, for example, the key statutory responsibilities of the Q496 Chairman: But presumably, coming at it from Secretary of State and the Lord Chief Justice and the other end, the judges, I would imagine, were then that the key respective responsibilities of the unhappy about being represented by a head of the Secretary of State and the Lord Chief Justice should judiciary who was not in fact a judge? be set out in statute so as to provide clarity and Lord Woolf: Yes. transparency of the relationship and I think that is really what you are saying. Q497 Lord Windlesham: I would like to ask the Lord Chief Justice to comment on the all-important Q498 Lord Windlesham: Yes. opening clause of the Bill covering what is described Lord Woolf: I think that is extremely helpful and as the “concordat”. Am I right in thinking that the already the Bill is unusual in that the Schedules are origin of the concordat are discussions between the much longer than the actual body of the Bill, but Lord Chief Justice representing the judiciary and perhaps at least something of this sort could be Lord Falconer much earlier in the year in January, produced. Part of the reason I think it has not yet when I think, Lord Falconer made a statement in surfaced is the fact that the negotiations on the the House followed up by the publication of the detail, and there is a lot of detail, are continuing document, very inadequately titled, in my opinion, still up to this moment and later you are to hear “The Lord Chancellor’s Judiciary-Related from Lady Justice Arden and she has very helpfully Functions Proposals”? I was pressing the Lord been chairing the judicial committee which is 9674042018 Page Type [E] 28-06-04 23:19:13 Pag Table: LOENEW PPSysB Unit: PAG4

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27 April 2004 Rt Hon Lord Woolf working on those details because, and again I am try to ensure that government measures accorded making no criticism, the Bill in many places does with the rule of law. I believe that in the old days not actually reflect the concordat. It is not because the Lord Chancellor was known as ‘the keeper of of anything else other than drafting errors and the Queen’s conscience’. Perhaps in more modern failures to understand precisely what had been times, he ought to have been seen as the keeper of agreed, but through this consensus process the Government’s conscience on matters of law. between the Department and Lady Arden’s Now,inthatexamplethereismentioninsection1 committee, I am sure we will get a situation where of the rule of law and there is really not much amendments will be made to the Bill to reflect mention in the concordat of the rule of law. How do precisely the concordat. you see protection now being given for the rule of law to try and steer the Government away from Q499 Lord Carter: I was about to ask a similar making proposals or committing themselves to question. It is in paragraph 11 of the note from legislation which infringes the principles of the rule yourself, which says, “Whilst the judiciary have of law? some reservations about the drafting of Clause 1, it Lord Woolf: Well, Lord Ackner, in his evidence, is designed to achieve that aim”, and then in suggested that clause 1 should be amended to paragraph 15, “There are a number of respects in reflect the rule of law and he indicated that he had which the Constitutional Reform Bill, as spoken to me about that and I had no objection and published, does not conform with the concordat”. that is exactly the position. It seems to me that it is Is it just a drafting detail or is there something more very desirable that there should be a clear important which is missing from the Bill? statement which reflects the need for the protection Lord Woolf: Well, sometimes although they are of the rule of law and I can well see that there is a matters of detail, and they all tend to be matters of very important role for the individual, whether he detail, they are quite important. Often the devil is be called the Lord Chancellor or whether he be in the detail, but it is essentially a drafting matter. Secretary of State, to perform the function that you We have got the principles agreed and it is fitting in have just identified within government. On some the various responsibilities within the principles. occasions he would find that it was not possible for him to do that and indeed I am sure that the Lord Q500 Lord Carter: Can you give us an example of Chancellor and Secretary of State will not object to a important detail which is missing? my mentioning the fact that one of the areas where Lord Woolf: A good example is arranging the I was in vigorous discussion with him was the Appointments Panel for the Appointments proposal with regard to no access to the courts in Commission where the detail there was not correct, relation to asylum, and I am glad to say that he and there are others which were similar. I am sure eventually perhaps performed the very role that the Lord Chancellor could give us some. you have indicated and the Government decided to Lord Falconer of Thoroton: There are one or two drop that provision and new arrangements are to which I flagged up in my speech in the opening of be made which I hope will accord with the role of the debate in Second Reading. The prime example theruleoflaw.Itindicates,ifImaysayso,exactly is the example which the Lord Chief Justice the sort of tensions that can occur between the referred to, which is quite an important issue, judiciary and a member of the Government who is namely whether the Government can define merit Lord Chancellor and also Secretary of State where for the purpose of its appointments, and we have there is this sort of tension and this was not, in my specifically agreed that they should not be able to experience, the first time this had happened. There do that and, therefore, we need to amend the Bill to was a situation which had happened under Lord reflect that. In addition to that there are a number Irvine and again there is a very significant of detailed issues where further discussions are difference between the Government as a whole, but required and it would be our view, as a the Lord Chancellor was conveying submissions of government, subject to what we proposed to the the judiciary on that matter to the Government and Committee, that all outstanding matters have to be I am glad to say that on that occasion as well these dealt with by amendment so that the Committee submissions were listened to and accepted and could consider them and I think that is what you eventually what was proposed was dropped. say, Lord Chief Justice, in your written evidence. Q502 Viscount Bledisloe: In paragraph 6 of your Q501 Viscount Bledisloe: In the position you have paper, you describe the qualities of the Lord been giving us and in your paper, you explain the Chancellorship which enabled somebody to provide arrangements which you now need in order to that power and you say, “The ability of the office of preserve the independence of the judiciary, but Lord Chancellor to act as a check and balance surely another role of the Lord Chancellor was to depended . . . on the fact that the office was occupied 9674042018 Page Type [O] 28-06-04 23:19:13 Pag Table: LOENEW PPSysB Unit: PAG4

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27 April 2004 Rt Hon Lord Woolf by individuals who were above the political fray, who Q506 Lord MacLennan of Rogart: In your written had a lawyer’s understanding of the justice system evidence, Lord Woolf, paragraph 8, you say that it is and who were not interested in political preferment”. not realistic to expect to return to the position in Now, it is that which I imagine is the sort of person which the rule of law would be underwritten by a you would see who would be best fitted to fulfil that Minister. I wonder if that affects your thinking about role of protecting the rule of law? whether or not the occupant of the role of Secretary Lord Woolf: Yes, I agree. of State should be a lawyer necessarily and also whether or not it affects your view about whether Q503 Viscount Bledisloe: But going back to that Secretary of State should sit in the House of paragraph 4(c) of your paper, you seem there to limit Lords or whether, in view of the departmental more rigorously who is suitable to be head of the administrative responsibilities which are so judiciary which perhaps says something different. enormously enhanced, it would be appropriate for You talk about somebody “who is not performing a that head of department to sit in the House of judicial function”. Now, first of all, to take somebody Commons? who has performed a judicial function, though Lord Woolf: Well, we are very much affected, and essentially he is not going to do so, but supposing when I say “we”, the justice system, by budgetary Lord Mackay had said, “I am not going to sit”, he considerations and one knows that with regard to would still have been able to perform the functions budgetary matters the normal place for a Minister and fulfil the qualities you had in paragraph 6, would who is responsible for those is the House of he not? Commons and I can, therefore, see that it would be Lord Woolf: Yes. I think the reason for that possible thought that that is a more natural resting place by a conflict is because of dealing with two roles, if you particular Prime Minister, but it seems to me that if like. One is the ability to be head of the judiciary, and the Lord Chancellor is going to be able to play the with regard to that I have been addressing you this sort of role that we have been talking about, then it morning, and the other is with regard to acting as a has got to be done with the agreement of the Prime buffer, if I may put it that way, between the judiciary Minister of the day. After all, he appoints the Lord and the Government. The roles that I was referring to Chancellor and he can remove the Lord Chancellor in paragraph 6 are the roles in relation to the and if he does not want the Lord Chancellor to Government, and I have got no doubt that the Lord perform that role, then it would be perhaps a foolish Chancellor was very important in the past in playing Lord Chancellor, if he is determined on a political that role. career, to adhere to that role. Having said that, I recognise equally on the other side that it can be said Q504 Viscount Bledisloe: Could I ask you just one that because of the importance of the office that the question about the buffer. You have an arrangement Lord Chancellor has got a weapon to ensure that he in the concordat that you cannot reprimand a judge is able to be heard and that is the threat to resign. In without the consent of the Secretary of State and that principle, because of, in particular, the importance he likewise cannot do that, but what happens in a legally of them both to the justice system and in situation where you feel that a judge is being far too financial terms, I do not think today, speaking from obsequious to the Executive? He has either treated a a personal point of view, that I could reasonably witness of the Executive tremendously well or he argue that it should not be somebody who is in the always gives them enormous adjournments when House of Commons, who is a Minister and, they want it and you think, “Oy! I would say you are therefore, who is not necessarily a lawyer. I am bound giving the judges a bad image because of how kindly to say that I have always been in favour of retention and over-politely you treat the Government”, and of the Lord Chancellor and when one of my the Secretary of State surely should not have power colleagues wrote an article saying that we should get to prevent you doing that, should he? rid of the Lord Chancellor, I said that my experience Lord Woolf: Well, although it appears to be equal- was that we should retain the Lord Chancellor, that handed in the way it is stated, the practical realities he made a special contribution to our system and we are that I never have any difficulty in approaching were very lucky to have him. My conversations with any judge and saying to him or her, “Look, I would judges in other jurisdictions when they talked to me prefer you not to do that or not to do this”. about how they went about getting resources were to confirm that view, but the fact that that is my Q505 Viscount Bledisloe: I see. You do it off the personal preference has got to be affected by what is record and, therefore, it does not come within this happening on the ground. It seems to me that we have procedure? now got a situation where the role of Lord Lord Woolf: One of the differences between the Lord Chancellor, as it was historically, is inevitably going Chancellor and myself is that the Lord Chancellor to change. If I can just give another tiny example of has to do it formally. the sort of thing that I am talking about, we use at the 9674042018 Page Type [E] 28-06-04 23:19:13 Pag Table: LOENEW PPSysB Unit: PAG4

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27 April 2004 Rt Hon Lord Woolf moment the press office of the Lord Chancellor. advantages to being able to speak to the House When I give a speech or a lecture, which is one of the direct. One of the things that we find as a judge is that ways that I can properly, I think, put in the public those who are inimical to your views sometimes say, domain the concerns of the Lord Chief Justice of the “Well, what right have you got to speak on this day, it was always published by the Lord subject?”, and the fact that you are a member of the Chancellor’s press office. During Lord Irvine’s House and with it comes a right to address the House period as Lord Chancellor, there were manifest does to some extent get over that responsibility. difficulties in that which he was subject to, and other However, you will notice that clause 2(2)(a) provides, Ministers were horrified that a government press and this was important, that the Lord Chief Justice office was issuing my lectures and my speeches which should have the responsibility for representing the were undermining, as it was seen, government policy. views of the judiciary of England and Wales to Lord Irvine and I agreed that the time had come Parliament, to the Minister and to Ministers of the when the judges must have their own information Crown generally and I think that gives a statutory office so that they could make available things direct, respectability to doing what I think today is so these were things which were happening which just necessary to do on matters of importance, and I reflected the realities of government today. emphasise that it should be confined and the power should be used with great restraint, and I hope that it is only rarely that I would have to speak to the House Q507 Lord Goodhart: Turning to a slightly different of Lords, that the Lord Chief Justice of the day can subject, paragraph 14 of the new paper proposes on do that. behalf of the Judges’ Council that holders of five offices should have the right to speak in the Chamber of the House of Lords in order to represent the views Q508 Lord Goodhart: You say that when you are of the judiciary to Parliament. Now, whilst I entirely speaking to the House of Lords, what you are in fact agree that the judiciary should have a right to present doing is speaking to the Government? their views to Parliament, is there not a problem that Lord Woolf: And to the public. the more important House and the only House when it comes to the allocation of finances is the House of Q509 Lord Goodhart: And that could be done Commons, and might there not, therefore, be some through something of the nature of a joint examples where, instead of having some of the senior committee? judicial holders having a right to address the House Lord Woolf: It could. of Lords, having, as proposed, for example, by the Bar Council, a joint committee of both Houses which Q510 Lord Goodhart: Some of the witnesses recently would enable the judiciary to make their proposals or have been suggesting in written evidence or oral that their complaints apparent to both Houses of the administrative burden on the holder of the office Parliament? of Lord Chief Justice would become so intense under Lord Woolf: Indeed there could be. In our previous the Bill, if enacted, that effectively the Lord Chief paper what we said with regard to the most senior Justice would become an administrator rather than a judges being able to address the House of Lords was judge. Is that something you agree with or disagree? very much a matter for the House of Lords. All I Lord Woolf: Well, I noted the evidence and I noted could say based on my experience is that I have found Lord Howe’s questions on the subject and, if I may it a great advantage to come to the House and speak say so, I thought it was absolutely right that he direct to the members of the House as a whole. Now, should air this issue because it is an important one. It one can speak to a committee and one of the new seems to me that the credibility of the Chief Justice of phenomena which has been arising is that you have the day, just like that of the Lord Chancellor, would joint committees which sometimes seek and hear be dependent on his ability to sit as a judge. Our evidence from judges, you have committees, such as tradition has been that he does so not necessarily in this, hearing evidence from judges and there are this House, though occasionally he does, but that he obviously other ways that one can do it. I saw it as a does so in the courts of appeal, civil and criminal, and particularly useful way to have the ability to speak to in other courts. Another provision of the Bill is that their Lordships’ House, but of course that is for the first time ever the Lord Chief Justice should dependent upon what happens to the membership of be able to sit at all levels and I think that that is very this House and if the membership of this House were, important because that is a way of giving leadership for example, to become elected, it would be very and it seems to me in the future that the job of the strange if you had a non-elected judge who was a Chief Justice will be to give leadership. If the pressure member of the House, so it does not necessarily mean of work was such that it would be not possible for the that because a senior judge is not a member of the Chief Justice to remain a judge, in the true sense of House he cannot be heard by the House. The Judges’ the word, regularly, week by week, deciding cases, I Council and myself share the view that there are think that would be a serious disadvantage. We have 9674042018 Page Type [O] 28-06-04 23:19:13 Pag Table: LOENEW PPSysB Unit: PAG4

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27 April 2004 Rt Hon Lord Woolf been considering that and one of the things that we things in a lot of what you have just been saying and have agreed as part of the concordat is that the Chief I would like to hear your view about the Justice should have power to delegate and we are interrelationship between the three elements of the setting up within the judiciary a structure and first Bill. steps have been taken. I have now got a Deputy Chief Lord Woolf: I think the Appointments Commission Justice and the Bill provides for a new intervention is, purely from a timing point of view, the most role which is a role which the Chief Justice has critical. I think that the present appointments system hitherto played. What was agreed in the negotiations is in real danger of not being able to meet the scrutiny of the concordat was that the Lord Chief Justice of any commission which is already existing and a would be used as shorthand and the role would be strong candle for saying that it was the judiciary one of the judiciary and it is certainly not intended which had it right. I think we have always got the that the Lord Chief Justice should perform all of right people, but what is important is that not only these functions, but that he should have should we get the right people, but that there should responsibility for them, that they should be delegated be the appearance that we are getting the right people and they are being delegated, but it is little bit and if we do not comply with the sort of standards deceptive. In regard to appointments, the role of the which now are thought to be necessary for public Lord Chief Justice is actually going to reduce because appointments, and we have the critical reports from of the Appointments Commission, whereas the Lord Sir Colin which are no doubt justified in many Chief Justice is intimately involved with respects, I would not say all, but in many respects, appointments now and spends a lot of time talking to that is very damaging for the confidence of the public the Lord Chancellor about appointments with his in the appointments system, and that is an example of colleagues. In discipline, as I mentioned in my earlier the facts of today as opposed to the facts of the past. remarks, he already has a central role in discipline The Lord Chancellor has been striving not only in the and the only difference now will be that this question case of the present holder of the office, but his two of consent will be in a statutory form. The predecessors, to my knowledge, because I worked correspondence passed almost daily between the with them, to get the appointments system as good as Lord Chancellor and myself on matters of discipline. it is possible to get and I think they have done a very Alas, there are matters which have to be considered good job, but the public, with this closed process not and, fortunately, very, very rarely with regard to a subject to scrutiny, are not able to judge by results as High Court judge and we have the record of a High the judiciary are able to judge by results. They know Court judge never having to be removed because of the people who should receive the appointments and the sort of events which are commonplace elsewhere, but there are things where the judiciary is very large if the Lord Chancellor was to go off on a frolic of his in this jurisdiction. There are not only full-time own, appointing people who were unsuitable, there judges, but there are part-time judges and there are would be a public outcry not only from the judiciary, 30,000 magistrates, so of course there have got to be but from the Bar and from the solicitors’ profession issues which have to be resolved, but again this is a as well, so there is a real need for the Appointments job which the Lord Chancellor delegates and I may Commission and I see a real need for the concordat. delegate, or my successor, which is really going to be So far as the Supreme Court is concerned, I recognise the reality of the situation. What we are going to have the different views about that and that the House of now, which we never had before, is the proper Lords is split on that. I do not think one can say, even resources to enable the Chief Justice to perform this if you are committed to the Supreme Court, that it role and yesterday I met the head of the team that the has to happen tomorrow. That is not as urgent a Lord Chancellor has put in to work out precisely the matter, but I emphasise that although the Judges’ resources which the Chief Justice is now going to Council has a member of the House of Lords on the have, regrettably, to be responsible for so that he can Judges’ Council, the Judges Council have not not only delegate matters of judges, but delegate expressed views about the House of Lords and I matters of staff and it is critical. I have already got a would rather leave that question to Lord Bingham larger office than any of my predecessors and they and Lord Nicholls who gave evidence before you work extraordinarily hard. recently.

Q511 Lord Craig of Radley: There are three strands Q512 Lord Carlisle of Bucklow: Lord Woolf, when to this Bill really, being the Lord Chancellor, the you gave your evidence, you laid great stress on the Supreme Court and the Judicial Appointments importance, as you saw it, of the concordat. As I Commission. Do you see that essentially they should understand it, that concordat was agreed between all be dealt with in the same statute or would you see yourself and Lord Falconer in his capacity as Lord one or other as absolutely critical? The Judicial Chancellor rather than his capacity as Secretary of Appointments Commission strikes me as one of the State for Constitutional Affairs. 9674042018 Page Type [E] 28-06-04 23:19:13 Pag Table: LOENEW PPSysB Unit: PAG4

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Lord Woolf: That is right. government”. That is a very powerful statement of that fundamental case. Since that was written of Q513 Lord Carlisle of Bucklow: Is there any reason, course, the Lord Chancellor is destined not to sit in a therefore, why the roles that you foresee being needed judicial capacity, but he is still going to retain by the other part of the package, as it were, should enormous influence over the decisions that you, as not continue to be carried out by someone holding Lord Chief Justice, take and indeed the entire judicial the office of the Lord Chancellor with its history as a and legal system. senior lawyer in the House of Lords and member of Lord Woolf: He will do so whether he is a Lord the Cabinet rather than the junior Cabinet Minister Chancellor or whether he is a Secretary of State for who probably is not even a lawyer and who has less Constitutional Affairs, as is proposed. It is the probably professional knowledge of the matters responsibilities which he has which are so important. involved? There are advantages, as are clearly set out there, in Lord Woolf: I see no such reason. having the traditional situation, and that is why I was in favour of retention of the office. It seems to me that Q514 Lord Howe of Aberavon: Could I follow up the it could have evolved rather than be abolished. We same point. You have seen the questions I put to have got the position as we are now and I made my Lord Bingham about the burden and you have other submissions on that basis. The Judges’ Council accepted and faced up to that fact. I would like to has made their submission on that basis, and I spoke explore the implications of that for the relationship in the House saying that the judges must view the between the holder of your office and the holder of situation as it is. Lord Falconer’s office, whatever it may be called. You saw that, aside from the hundreds of examples Q517 Lord Howe of Aberavon: And as it is where you may delegate, there are more than that developing, but we know not which way. occasions on which you would have to consult with Lord Woolf: Yes. the holder of that office, sometimes often, sometimes superficially and sometimes seriously. In addition, you mentioned the occasions when you had a quiet Q518 Lord Howe of Aberavon: Professor Hazell word with the judicial figure who needed a warning, expressed the view that the office of Lord Chancellor, but in clause 83(2) of the Bill, it says that you “may if we may call it that, would certainly fit most exercise any of the following powers but only with the comfortably into the House of Lords as the House of agreement of the Minister and only after complying Parliament which he saw as the constitutional long- with prescribed procedures”, and the powers are stop and, also, would be most suitably held by a giving advice, a warning or a formal reprimand, so lawyer of long experience, such as the noble and this apparently is an intimate relationship between learned Lord sitting over there. you and the holder of that office. Lord Woolf: I do not know which one you are Lord Woolf: I entirely agree. It is already. referring to! Lord Howe, can I just make this absolutely clear. What I have said so far does not in Q515 Lord Howe of Aberavon: Exactly, and this is a any way detract from what I said, which is that I do formal continuation of that. You saw that Lord not think he is any longer equipped to be the actual Bingham, I think, shared your feeling that head of the judiciary, and if he ceased to be a judge instinctively at the outset you preferred the office of and did not sit, I would say that would be the Lord Chancellor to be preserved. That is still inconsistent with his being head of the judiciary. I am your position? not sure that the other witnesses who previously gave Lord Woolf: Still my position, yes. evidence made that clear. What is, I think, evident from the concordat and the endorsement of that concordat and the latest evidence from the Judges’ Q516 Lord Howe of Aberavon: You will recall no Council is they say that the reality now is that judges doubt the evidence given by the Judges’ Council to need a judge as head of the judiciary. Lord Wakeham’s Commission on this issue and this was the third point on which they were agreed. “The Council is concerned that the Lord Chancellor’s dual Q519 Lord Howe of Aberavon: That, I think, is the position as head of the judiciary and Cabinet distinction I was going to come to, because when you Minister with responsibility for the administration of were giving evidence a little while ago you drew a justice should not be affected by the outcome of the distinction between the functional head of the reforms. We observe that this dual role has judiciary, which clearly describes your status as it historically proved invaluable in maintaining the would evolve under this system, and the independence of the judiciary in England and Wales constitutional head of the judiciary which would still and we have considerable anxiety that any other role be embodied in the description of Lord Chancellor. 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Lord Woolf: There certainly could be that distinction. Q521 Lord Howe of Aberavon: I think I would have What has happened up till now, and I hope that as a been on the side of change, as far as the Permanent result of the legislation this would no longer be the Secretary was concerned. However, I come back to situation, is that because of the Lord Chancellor’s the central point: granted that that transition has position as it had been, that he was the constitutional been successfully managed, would it not be wiser— head of the judiciary, the role of the Chief Justice was reminding oneself that the dual role has historically undermined to that extent. A constitutional monarch proved invaluable in maintaining what we have been does not get in the way of a Prime Minister. There are talking about—to exploit that history and that various views both within this jurisdiction and historic value rather than destroy it? without, but to have somebody who is clearly the Lord Woolf: I certainly go this far with you: that one head of the judiciary who is a judge—as I see it now— wants to pause long before one destroys the office is important. that history gives qualities to which may be very difficult to define but which holders of that office have, once they were in office, found influences the Q520 Lord Howe of Aberavon: What I am seeking way they behave and the way they act. If I may say your assessment of is the prospect of getting the best so, our present Lord Chancellor, although he is a of both worlds; having necessarily a Lord Chief Secretary of State, is conscious—and if I may say so, Justice with the kind of powers that we have been increasingly conscious—of the very role that you discussing, and having also the additional continuity have indicated as a result of his experience of being in of safeguard that would follow if the Lord the office, and may indeed himself bring other Chancellor was still there, still qualified in the virtues. traditional way. Putting it crudely: would you not feel rather more at ease if that role in Cabinet was being exercised by a Lord Chancellor, as now is, than by a Q522 Lord Kingsland: Lord Chief Justice, just to try Secretary of State—whether of the modest, humble and round off those exchanges which you had with and ambitious kind, or of the arrived and established the noble learned Lord Lord Howe, in your Squire kind, such as Mr David Blunkett? Do you not think Law Library speech, amongst many other things, you it would be better to have a legally qualified figure said: “I am worried about a Department for like Lord Falconer holding that position as Lord Constitutional Affairs becoming a subsidiary of the Chancellor? Home Office, or unable to compete with the Lord Woolf: Yes. What the concordat sought to do, dominance of the Home Office. The result would be and what this Bill seeks to do, is by setting out in a the Home Office being in a position to dictate the declaratory form (it is not going to be enforced by agenda for the courts, which would not accord with action in the courts) the responsibilities of the the need for independence.” You are probably minister. That is intended to compensate for the fact familiar with the response of the Law Lords to the that there is no convention which gives him or her proposals for constitutional reform. We asked the that responsibility. My own view is that it would be noble learned Lord Lord Bingham some questions preferable for it to be done by a lawyer, and I have to about that document last week and, in particular, say this: that I stood up in the House and said, when paragraph 5. May I quote a few sentences? The noble the Permanent Secretary to the Lord Chancellor’s learned Lord said: “Fourthly, we do not, in this Department no longer had to be a lawyer, that this response, comment on the proposal to abolish the was very worrying, for the same reasons that you office of Lord Chancellor. We are, however, very indicate there, and I have to admit—and I have greatly concerned that the important constitutional admitted to him and admitted in the House—that I values which the office of the Lord Chancellor was, to this extent, wrong, because the present holder protected should continue to be effectively of that post has proved to be an outstanding protected.” Lord Bingham confirmed that that was Permanent Secretary who is not a lawyer and, indeed, the unanimous views of all the Law Lords. In has in some ways performed the role in a way which response to the questions which were put to him, the somebody who did not have his experience in the first question was would he agree that whoever larger departments of government would have not protects those values would have to be in the Cabinet, been able to perform. So I acknowledge that I was, in to which he responded yes. Would you agree with the past, over-attracted to the nature of that job as it that? has historically been, and when one comes to the Lord Woolf: Yes. situation today it is true, somebody who has not had experience as a lawyer—and I would say above all, Q523 Lord Kingsland: Thank you very much. importantly, experience of the constitutional Secondly, he was asked about the seniority of this workings of our system—would be at a disadvantage, person, and he said: “I would have no difficulty in and I do have to accept he or she might bring other agreeing that the protection would be more effective virtues to the table. the more clout this person had.” 9674042018 Page Type [E] 28-06-04 23:19:13 Pag Table: LOENEW PPSysB Unit: PAG4

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Lord Woolf: Again, I agree. trial process is dependent on Parliament giving him authority to do so. Q524 Lord Kingsland: Thank you very much. You said, very interestingly, in your opening remarks that Q526 Lord Kingsland: I am not suggesting, of it had become the tradition that the Lord Chief course, that there is any evidence that any Home Justice negotiated directly with the Home Secretary Secretary has ever interfered in the trial process in the about criminal justice matters. Professor Hazell, in direct manner you suggest; but do you not think that his evidence, also very interestingly, talked about there might be a temptation for Home Secretaries Cabinets having two powerful forces running who are responsible for order to look at the rules of through them: one being the force of order and the evidence in the context of gaining more? other being the force of justice. He went on to say it Lord Woolf: This is one of the tensions which I do was desirable that these two forces should be equally agree exists. It is one of the reasons why I think the balanced. Would you agree with me that a desirable concordat is particularly important, because there way of balancing these two forces in the Cabinet, at can be conflicts between what the Government the moment, would be to remove from the Home reasonably regards as their policy priority which Secretary the powers he has to determine the rules of interfere with what the judiciary will say are the criminal procedure and evidence, and hand them interests of justice. Where that happens it is over to whomever in the Cabinet represents the forces important that the judiciary should have the of justice? responsibility for making decisions. An example of Lord Woolf: Taking the rules of procedure, I must this is listing. There may be an initiative where it say, it has been a huge step forward that the Home would be very convenient to the fulfilment of a Office had handed over the making of rules of government project to which they attach importance procedure in the criminal system to the Chief Justice if priority is given to certain cases. It may be that in who heads the Criminal Procedure Rule Committee. the interests of justice the judiciary would share the It is just starting, but I think that is a real step view of the Government. So be it. However, if they do forward. That deals with one aspect. I do not want to not then it is the duty of the judiciary to say that cases will be listed in a way which accords with what is, in get involved, subject to what I have just said, in a our discretion, a judicial matter. demarcation dispute between the Home Office and Lord Kingsland: Thank you very much indeed. the Department for Constitutional Affairs. I think Chairman: I have got four speakers on the list, one of sometimes even the Prime Minister has problems in whom has not asked a question or spoken before, so that area. I do not think I have the authority— I will take him first, and then I would ask the remaining people on the list, please—time is moving Q525 Lord Kingsland: Perhaps I can press you a little on and the Lord Chief Justice has been more than further on that question. The philosophy behind the generous with his time—if we could be a bit brisker. Government’s proposals is based, as I understand it from the noble and learned Lord Lord Chancellor, Q527 Lord Crickhowell: Lord Chief Justice, in on the principle of separation of powers. If an paragraph 11 of your written submission you say that objective observer were to apply that principle to the the judiciary have some reservations about the current responsibilities of the Home Secretary— drafting of Clause 1, and (in other evidence) the somebody who was responsible for the overall enforceability of Clause 1 has been significantly requirement of order in society, including prisons, questioned. Earlier we had an acceptance by you of the police and so forth—in an ideal world where the the desirability of extending Clause 1 to deal with the principle of separation of powers would be protection of the rule of law and not just the operational, is it really right that that person should independence of the judiciary. I think you said that also be responsible for the rights of the criminal the principles contained in Clause 1 were in a dependant in a trial? declaratory form and it is not going to be enforced in Lord Woolf: I think that he certainly should not have the courts. I may have got that wrong. Do you have an unfettered right. I may be wrong on that, and I any further comments about Clause 1 because it does defer to your knowledge. I would respectfully suggest seem to me, as a non-lawyer, that if we start with the that the Home Secretary cannot—certainly in my very first Clause of the Bill and its enforceability is view should not—seek to interfere directly with the being seriously questioned and there are reservations rights of the parties to any litigation except by about drafting, I am anxious, at any rate, that we promoting legislation through Parliament so that should have some fairly clear advice from someone Parliament does that. I do not think he has, myself, like yourself about how we could improve Clause 1. any power to interfere. It is a subject on which the Lord Woolf: So far as improving it, I would see that Home Office traditionally have had the lead role what has been suggested already to this Committee, within government, but his ability to interfere in the of including the rule of law, as being an improvement. 9674042018 Page Type [O] 28-06-04 23:19:13 Pag Table: LOENEW PPSysB Unit: PAG4

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Where I think I differ with your view is I do not think Lord Woolf: So far as the first part of your question is that because a Clause in a Bill—especially a Clause of concerned, I have no hesitation in saying yes. So far this sort in a Bill—is not intended to be enforced in as the second part is concerned, I have some the courts means that it has no purpose. What it does hesitation for the reasons I have given this morning. is set out precisely what are to be the duties of that I would say it seems to me that that decision as to minister, or all ministers, in relation to Clause 1. That whether there is that sort of person in a Cabinet must is in itself, I would say, of constitutional significance be the Prime Minister’s decision. I have clearly, at the because the minister will not be able to hide the fact moment, a situation where this Government, at any that those are his responsibilities. If he or she does not rate, does not want to see that, and I have fulfil those responsibilities they will be answerable to reservations as to the ability of Parliament to impose Parliament and the public for the failure to do so. upon a government, who is unwilling to have this, the That is why I think that that provision is important. complex role which has hitherto been exercised by the When later you hear from Lady Justice Arden, she Lord Chancellor. So for that reason I would accept will possibly tell you about the way in which she your second contention, but I do not do it in such an thinks that provision should be made more unqualified manner. entrenched than it appears at present. She would say it could be improved by making it clear that it is not Q530 Lord Falconer of Thoroton: The reason I am going to be repealed impliedly. She would say, asking this question is by reference to the questions perhaps, that it should have the status of the Human you have been asked about the continuing role of a Rights Act so that judges should be under an Lord Chancellor. How would you see the obligation to construe future legislation in a way relationship between the head of the judiciary being which complies with that provision. So there are the Lord Chief Justice on the one hand and the office- different ways in which the provision can have effect, holder—if we can call him or her that neutrally—who but what I think is very important about it is that is both a minister and, also, in some constitutional there is no doubt about the significance of the fact way the head of the judiciary or some role like that? that the Secretary of State has this job under this Bill. What is your comment on that? That is something which he should, I think, have Lord Woolf: I am emotionally attached, as I think pasted on his mirror, if he is a male, so that he sees it possibly some others in this Committee room are, to every morning when he shaves, so that it reminds him the very concept of this historic office of Lord of it. I cannot paste it on his mirror but I can ask Chancellor. I have to say that I feel attracted to it. Parliament to put it in the Bill, and I do. Equally, I have to say that as I see the situation that we are in now today—whereas some others would Q528 Lord Crickhowell: Just one follow-up, and take a different view—I think that the clarity which is indeed we look forward to hearing further evidence. now needed which the concordat provides means that If we have a Clause—particularly if it has the same if the Lord Chancellor’s office should cease to exist status as Human Rights legislation—are not others the considerations for which I am primarily going to seek to have judicial review, as Professor concerned, which are the rule of law and the Jolowicz suggested, or actually to challenge it in the administration of justice (including the independence courts and, therefore, it will have force? of the judiciary), would not be adversely affected if Lord Woolf: It is not unknown, in legislation of the we no longer had a Lord Chancellor. sort we are dealing with, for it to contain a declaratory provision of this sort. If you look at the Q531 Lord Windlesham: Very briefly, coming back Education Bill, it has a very fine statement of what we for the second time. If the notion of separation of should. If we look at National Health Service powers lies behind the introduction of the Bill by the legislation, you again see very fine statements, but the Government in the first place, I would like to ask you, idea that the letter of what is contained within those how does that accord with the opportunities you acts can be enforceable in the courts, the courts have have taken to use the House of Lords as a platform said is wrong. for your views? Lord Woolf: It does not accord. Q529 Lord Falconer of Thoroton: Lord Woolf, correct me if I am wrong but I think it is implicit and Q532 Lord Windlesham: Does that cause you any explicit in what you are saying that the time has come disturbance of thought? for the operational head of the judiciary to be, in Lord Woolf: Yes. I have made it clear I prefer the effect, a full-time professional judge. I think it is present situation to continue. On the other hand, if explicit, but comment on it, that you also recognise there was no opportunity to do what I have done in that the ministerial/political role of the person in the the past I do not think it would be a matter of great government responsible for the courts probably significance because there are other ways in which the requires a full-time minister to do that as well. Chief Justice of the day can properly communicate 9674042018 Page Type [E] 28-06-04 23:19:13 Pag Table: LOENEW PPSysB Unit: PAG4

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27 April 2004 Rt Hon Lord Woolf with Parliament. The Bill, as it is now, presupposes Lord Woolf: You are not saying “nodding off”? that the Chief Justice should have the responsibility of communicating to Parliament, and whether it is a Q535 Viscount Bledisloe: No, no, I would just like to joint committee or a committee of one House is a get your “yes” on to the record. matter of detail. There should certainly be Lord Woolf: Yes. machinery, as I see it, or we would be the poorer if we had a lack of machinery, to enable direct Q536 Viscount Bledisloe: Is that now not going to be communication by the senior judiciary of the day infinitely more burdensome if you are dealing with a with Parliament. Secretary of State who may hold office, if he is lucky, in that one post for a couple of years or so, who comes to the office with no legal background, no knowledge of the system at all and who, really, just by Q533 Viscount Bledisloe: I want to come back to the the time you are beginning to train him into question of the workload on the Lord Chief Justice understanding your problems and so on, will be and those to whom he delegates. At the moment, you moved on to rule our armed forces or our deal with the Lord Chancellor. Yes? environment or whatever? Lord Woolf: Yes. Lord Woolf: Yes, I agree with you; it would be more difficult.

Q537 Viscount Bledisloe: Much more difficult? Q534 Viscount Bledisloe: He is normally in office for Lord Woolf: Significantly more difficult. a considerable continuous period—or has been in the past—Lord Chancellors, and he comes to his role Q538 Chairman: Lord Woolf, thank you very much with knowledge of legal principles, the rule of law, the for coming. You have been generous with your time system and very frequently the personalities and your comments. We are very grateful to you. involved. You are nodding. It is lovely to be able to Lord Woolf: I am grateful to the Committee for giving say to a judge, for a change, “You are nodding, rather me the opportunity of making the comments I have. than saying yes.” Thank you very much.

Memorandum by the General Council of the Bar We propose to deal with the following particular areas: — The importance of the independence of the legal system and the relationship with the Executive; — The Judicial Appointments Commission; — The Supreme Court; — The abolition of the office of Lord Chancellor; and — The need for Parliamentary scrutiny of the judicial system by a Select Committee of both Houses.

The Independence of the Legal System We hope that we do not need to emphasise the importance in a democratic, pluralistic society of a legal system that is independent and upholds the rule of law. This means that it may on occasion take decisions that go against Government policy, declare Government activities unlawful or go against popular opinion. The fact that it can do so without fear is a feature of a mature and healthy legal system. The judiciary and, also, the legal professions, need to be confident that they work in an environment in which they can serve justice fearlessly. Judicial independence can be compromised in a number of ways: — By direct or indirect interference by the Executive; — By a biased or inadequate appointment system; — By ill-informed media or public comment by Government or other senior figures; — By a down-grading of the resources and standing of the system. While the Lord Chancellor was a senior figure who by convention was, himself, at the head of the Judiciary and held direct, independent responsibility for the appointment of the judiciary and for representing their concerns to Government, the conventions and dynamics that had developed over time maintained and supported that independence. There is a danger, identified by the House of Commons Select Committee, that the new system may not replicate such conventions. 9674042019 Page Type [O] 28-06-04 23:19:13 Pag Table: LOENEW PPSysB Unit: PAG4

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Clause 1 of the Bill imposes statutory duties on the Secretary of State and other Ministers to protect and respect judicial independence. We welcome the sentiments that this expresses but we question whether it is sufficient for the purpose that it is intended and whether it is a sensible way of dealing with the problem. We consider that the duty as it stands is inadequately defined and difficult to enforce. In our view, there need to be more effective mechanisms to protect independence. This is absolutely critical.

Judicial Appointments Commission (JAC) The Bar Council supports the establishment of this Commission. It is essential, however, that the Commission should (a) have the expertise and resources to carry out its task effectively and (b) carry public confidence.

Membership and Appointment We consider that a lay Chairman of distinction will be essential if the Commission is to command public confidence. However, we consider that the Commission should hold a majority of members who hold judicial office. This could be achieved by reducing the number of lay members by one. We consider that all Commissioners should be appointed by a system which is transparent and complies with good equal opportunities practice so that confidence in the appointment process is maintained. The proposed membership of the advisory panel appears appropriate to us but it is important that they should make their recommendations using Nolan principles of selection and should be subject to scrutiny by the select Committee.

Recommendations by the Commission We can understand why the Secretary of State may need a power to reject individual recommendations by the Commission and consider that the proposals in the “concordat” between the Secretary of State and the judiciary are broadly acceptable. In our view, however, it is essential for the Commission to maintain its standing that there should be a presumption that the Secretary of State will approve its recommendations.

Criteria for Appointment to the Judiciary There need to be clearly established and properly defined criteria for appointment.

Diversity The Bar Council supports the aim to provide a more diverse judiciary, recruited on the basis of merit. It is crucial both for the quality of the system and for the authority and integrity of those appointed to it that each individual who is appointed should clearly be an individual whose qualifications, attributes and abilities fit him or her best for the post, irrespective of their sex, ethnic origin or other irrelevant identifying characteristics. We believe that this should be made clear in the Bill. The essential criteria of “merit” requires careful definition to ensure that the qualifications, attributes and abilities which are identified as being those most relevant to the requirements and performance of judicial office. The focus should be on attracting suitable applicants from all backgrounds to the post. We are also aware of concerns that many successful, well-qualified individuals from all backgrounds may feel diffident about putting their names forward for an open competition. We consider that the Commission should have an explicit role in identifying and encouraging suitable candidates to apply.

Supreme Court We support the formation of a Supreme Court, provided that it is fully and properly resourced and housed in a building appropriate for its purpose and standing. Unless these resources are to be made available, it would be preferable to retain the existing arrangements, perhaps with a formal rule that judges should not vote in the House of Lords. The Bar Council was concerned about the proposals that the Secretary of State should be offered a choice of between two and five nominations for what are the most important appointments in the system. We do not understand why there should be difference between the approach for the Supreme Court and that for other appointments. If it is felt that the Supreme Court needs a particular expertise or a candidate from a particular 9674042019 Page Type [E] 28-06-04 23:19:13 Pag Table: LOENEW PPSysB Unit: PAG4

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27 April 2004 jurisdiction, then the President of the Supreme Court or the Secretary of State should indicate this to the Commission before the Commission takes its decision on the individual it proposes to nominate.

An important question which should be addressed is whether the Supreme Court should not always sit “en banc” rather than in separate committees.

Lord Chancellor

We agree that it is inappropriate for the Lord Chancellor to retain his judicial functions. This change is likely, of itself, to necessitate a significant change in the role and characteristics of the office holder. While we are neutral on whether it is appropriate to retain the title or not, we feel very strongly that the Minister who is responsible for the judicial system should be of sufficient seniority to protect the integrity of the system in cabinet and publicly, to bid properly for the resources to support the system and to ensure that the judges’ concerns are heard in cabinet. A convention needs to grow up that the Secretary of State for Constitutional Affairs has this level of seniority.

Joint Committee of Both Houses

As we have suggested, we consider that, since the existing conventions that have served the system well are disappearing, more formal mechanisms are needed to protect the independence of the judiciary and the integrity of the judicial system. The absence of the judges from Parliament means that there is no direct channel between the Judiciary and Parliament. If the Judiciary felt that their views were not being addressed by the Secretary of State, or not expressed in a way they were happy with, this might create a temptation on the part of the Judiciary to use the Press too often or with too much force. Equally, Parliament would feel that there was an approved channel by which questions could be raised with the Judiciary, without being forced through the conduit of the Executive. Clearly, the Judiciary cannot be held accountable to Parliament, but a sense of connection between the two would be desirable.

We suggest, therefore, the formation of a joint committee of both Houses of Parliament to deal with the Judiciary, and those aspects of legal affairs that properly concern the Judiciary, such as the resources of the court service generally, ethics, behaviour in court and regulation of the professions. Such a committee would require particular conventions and a good precedent would be found in the non-partisan conventions associated with the Joint Committee on Human Rights. We would suggest that Judges should be invited to attend the committee, but by convention could not be summoned. There would also need to be a clear convention that Judges would not be questioned—and if questioned would not answer—about particular cases or decisions.

The distribution of business between the Judiciary and Legal Affairs Committee and the Constitutional Affairs Committee of the House of Commons would require detailed consideration.

In our view, this Committee should be established by statute as one of the measures to protect the integrity of the system. April 2004

Memorandum by the Law Society

The Law Society welcomes the opportunity to submit evidence to the Select Committee scrutinising the Constitutional Reform Bill.

The Law Society agrees, in principle, with the proposed reforms outlined in the Bill to establish an independent Judicial Appointments Commission; to establish a Supreme Court separate from the legislature; and to end the practice whereby a Government minister is also head of the judiciary. The Society hopes that the Bill will be enacted as soon as possible. 9674042020 Page Type [O] 28-06-04 23:19:13 Pag Table: LOENEW PPSysB Unit: PAG4

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1. The Abolition of the Role of the Lord Chancellor The Law Society supports the abolition of the post of Lord Chancellor in its present form. For a single person to serve simultaneously as head of the judiciary, Cabinet minister and Speaker of the House of Lords is no longer tenable. The question of whether a Cabinet minister can reasonably be expected to preside over proceedings of the House of Lords is primarily for the House itself and the Government to determine—although, given the breadth and importance of the Lord Chancellor’s ministerial responsibilities, it does seem undesirable to impose avoidable ancillary responsibilities on the post-holder. The Law Society believes that it is no longer defensible for a Cabinet minister to sit as a judge or to be regarded—even nominally—as head of the judiciary. The overriding need is to ensure that judges are appointed in a way which is free from party politicial considerations, and that judges act in a way wholly immune from party political influence. This is inconsistent with the maintenance of a system under which the Head of the Judiciary is appointed on party political grounds, and acts (perfectly properly) as a party politicial Cabinet minister. We recognise that abolition of the post of Lord Chancellor gives rise to the key issue of ensuring that respect for the rule of law, and respect for judicial independence, remain at the heart of Government policy making. We note in passing that tensions between the Lord Chancellor and the Home Secretary are not merely a feature of the present Government. During the last Conservative Government there were a number of issues on which the Lord Chancellor of the day needed to stand up to pressure from colleagues in the Home Office and in Downing Street. Some commentators have expressed concern that the abolition of the post of Lord Chancellor could, in future, mean that there might be no champion for the rule of law and the independence of the judiciary in the Cabinet. A future Secretary of State for Consititutional Affairs, it is argued, could well be a politician whose ambition and loyalty to his or her party might inhibit him or her in standing up to a more powerful and senior Cabinet colleague who was, say, the Home Secretary. It is of fundamental importance that decisions concerning criminal and civil procedures, and the administration of justice generally, are not over-influenced by the interests of Government as one party to proceedings, whether criminal or civil. In part, this can be tackled by ensuring that responsibility within Government for administration of justice issues is kept seperate from the conflicting responsibilities, so that, for example, criminal procedure became the responsibility of the Secretary of State for Constitutional Affairs, rather than the Home Secretary. It is also important to devise mechanisms to reduce the risk of the Secretary of State for Constitutional Affairs being over-influenced by party political considerations. This might be achieved by establishing a convention that the Secretary of State should be a member of the House of Lords. In a bi-cameral system, it is perfectly reasonable for some Cabinet ministers to sit in the Upper House. Constitutional affairs, and responsibility for the administration of justice, could be more appropriately dealt with by a minister who is less detached from the intensely party political atmosphere of the House of Commons. Although the Law Society recognises that the minister must be accountable to Parliament. Indeed, the Law Society believes that there should be a strong measure of parliamentary accountability for the new institutions. We would favour the establishment of an all-party committee of both Houses of Parliament that would operate on a non-partisan basis and would, from time to time, have hearings with the senior judiciary and others involved in the administration of justice. The Committee could also enquire into the functioning and resources of the new institutions—both the Supreme Court and the Judicial Appointments Commission. However, we do not think such a Committee should be able to enquire into judicial decisions of the Supreme Court, nor into the reasons for the recommendations or non-recommendations by the Judicial Appointments Commission of specific individuals for judicial appointment.

2. Supreme Court The Law Society supports the establishment of a Supreme Court, seperate from the legislature. We believe it is undesirable in principle for members of the highest court in the land to serve also as members of the legislature. The Society is, however, strongly opposed to the Supreme Court being funded from court fees. The Law Society believes it is wrong in principle to charge individual litigants to defray the cost of the Supreme Court. 9674042020 Page Type [E] 28-06-04 23:19:13 Pag Table: LOENEW PPSysB Unit: PAG4

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The Supreme Court will be the ultimate safeguard against the abuse of Executive power by the State. The Court does not exist primarily to provide relief to individuals but to develop the law in the interests of society as a whole. Indeed, the Supreme Court will only hear an appeal if there is a point of law of general public importance. We hope that the Select Committee will delete Clause 44 from the Bill. We agree that serving judges should no longer sit and vote in the House of Lords. We have no strong view as to whether retiring Justices of the Supreme Court should be appointed to the House of Lords on retirement. However, we believe that appointments should either be offered to all retiring Justices or to none, to ensure that the appointments are not perceived as a reward for “good behaviour” by those Justices who are offered appointment. If retired Justices are to be appointed, it should be because of the contribution their experience could make to the House, especially when scrutinising legislation. It should not merely be considered an honour. The Law Society supports the establishment of a Supreme Court Appointments Commission (SCAC). We support the decision by the Secretary of State to propose a Government amendment to the Bill to provide that the SCAC would make only one recommendation per vacancy to the Secretary of State for Consititutional Affairs. We hope that the Select Committee will support the amendment. We believe the SCAC itself should be responsible for ensuring that the Court has sufficient knowledge and experience of the law in each of the jurisdictions it will cover. The SCAC, rather than the Secretary of State, should be responsible for consulting the senior judiciary in each of these jurisdictions prior to making a single recommendation per vacancy to the Secretary of State. Clause 20 of the Bill provides for the SCAC to comprise the President and Deputy President of the Supreme Court, and one member from each of the Judicial Appointments Commission and the Appointing Commissions for Scotland and Northern Ireland. We believe that there should be provision that some of the members of the SCAC are lay. The SCAC should be required to reach consensus on the sole nomination to the Secretary of State. The subject of accommodation for the Supreme Court has attracted much attention. The Society’s view is that suitable and dignified premises should be found for the Supreme Court as soon as possible. There is, however, no objection to the Court continuing to sit in the Palace of Westminster until suitable alternative accommodation has been found. The important issue for the future is not the grandeur of the building, but rather that the Justices of the Supreme Court have the right kind of administrative and research support and efficient information technology. There are many competing demands for resources for the courts. For example, there is an urgent need to modernise the Commercial Court, if London is not to lose its position as the leading international centre for the resolution of commercial disputes.

3. An Independent Judicial Appointments Commission The Law Society has long supported the establishment of a fully independent judicial appointments system. We support the proposed establishment of a Judicial Appointments Commission and are broadly satisfied withi its proposed composition. While no one disputes the calibre of the judges who are appointed, the Society considers it inappropriate, in principle, that a member of the Executive should be responsible for appointing members of the judiciary. There is also widespread concern, articulated by the current Commission for Judicial Appointments, the Law Society and others, that the current methods of appointing judges do not accord with best modern practice for the operation of fair selection procedures. While the number of women, minority ethnic and solicitor members of the legal profession who would meet the criteria for appointment have grown substantially, they remain significantly under-represented in the senior ranks of the judiciary. Research has indicated that women, in particular, are under-represented even when allowance is made for the proportion they form amongst lawyers of appropriate seniority. Some commentators have expressed concerns that seeking to appoint a more diverse judiciary could undermine the principle merit. In the Law Society’s view, those are not incompatible principles. The objective for the Judicial Appointments Commission must be to ensure that the most meritorious candidates are appointed. The Commission, however, should be charged with ensuring that all potential candidates of merit are encouraged to seek appointment. This will involve encouraging candidates who do not meet the profile of the current judiciary to recognise that they could well meet the criteria, and should therefore apply. The Law Society would not favour quotas or targets for appointments by gender or minority group. We do feel, however, that it would be legitiment for the Commission to be charged with ensuring that a more diverse range of applicants come forward to seek judicial appointment. 9674042020 Page Type [O] 28-06-04 23:19:13 Pag Table: LOENEW PPSysB Unit: PAG4

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The selection panels for Lord Chief Justice, Heads of Division and Lord Justices of Appeal should be required to achieve consensus, rather than the chairman of the panel—the Lord Chief Justice or his nominee—having a casting vote. We believe the Bill should include such a provision. We welcome the provision in the Bill concerning the responsibility of Secretary of State for Constitutional Affairs to uphold the independence of the judiciary. As stated above, we support parliamentary scrutiny mechanism to provide additional safeguards of judicial independence. April 2004

Examination of Witnesses Witnesses: Mr Peter Williamson, President, Mr Russell Wallman, Director of Strategic Policy, the Law Society; Mr Stephen Irwin QC, Chairman, and Mr Richard Drabble QC, the Bar Council, examined.

Q539 Chairman: Gentlemen, can I thank you very believe it is desirable that a Government Minister is much for coming. First of all, would the Law Society no longer the senior judge, even if the postholder does and the Bar Council wish to do this separately or is not sit judicially in practice, and thirdly we think it is this to be an extraordinarily joint thing? surprising that a Cabinet minister should also sit as Mr Irwin: It is not that extraordinary, my Lord! We Speaker of the House of Lords. So for these reasons can co-operate. I think we had envisaged that we we think the role of the Lord Chancellor must change would each, if you would like us to, say a few things substantially. But we do recognise that there is to start with and then mix it. significant enduring value in the role that the Lord Chancellor has hitherto played as champion of the Q540 Chairman: In that case, I would be obliged if independence of the judiciary, of the rule of law and you would do two things: first of all, introduce of the proper role of lawyers and judges within our yourselves for the sake of the record and then let us democratic system. We believe those values are of have the submissions of the Law Society—speak to fundamental importance, but they are, from time to your paper—and then the Bar Council can tell us time, under some threat as Government ministers their thoughts. mistake proper scrutiny of their decisions for Mr Williamson: I would agree with the Chairman of political opposition to them. We think it is highly the Bar, my Lord, as to the way we might proceed. I desirable that any new system should reinforce that am Peter Williamson and I am the President of the role of the Lord Chancellor, and those values, rather Law Society. than discarding them. We have suggested that one Mr Wallman: I am Russell Wallman, Director of means by which that might be assisted would be to Strategic Policy at the Law Society. establish a convention where the Secretary of State Mr Irwin: Stephen Irwin, Chairman of the Bar for Constitutional Affairs is a member of the House Council. of Lords, rather than the House of Commons. We do Mr Drabble: I am Richard Drabble, Chairman of a not have any strong view as to whether the post- Working party on the Supreme Court at the Bar holder might also be called the Lord Chancellor, Council. although if the role is to change as fundamentally as Mr Williamson: I would very much like to say, my the Government intends, and as we believe it should, Lords, by way of introduction that we very much the presumption must surely be that a new name support the Government’s initiatives to establish a should be adopted. There is, however, only so much Judicial Appointments Commission and a Supreme that can be achieved through institutional Court separate from the legislature. So far as judicial mechanisms of this sort. Respect for the rule of law, appointments are concerned, we have—together with and for the proper functioning of lawyers and judges other groups such as Justice—pressed for changes within our system, depends primarily on it being very much along the lines the Government proposes accepted by Prime Ministers and by the Government for over 10 years now, and so we are very pleased to as a whole as a value worth preserving, whatever the see the Government’s plans. One of the matters of occasional irritation that might arise from particular most concern to the Select Committee has been the judicial decisions. We do not think that retaining the abolition of the office of Lord Chancellor itself. I post of Lord Chancellor would be sufficient if would summarise the Law Society’s position on that Government lost this commitment to the rule of law. as being that, first of all, we believe it is important to There is nothing that could be done to stop a Prime establish arrangements for judicial appointments Minister appointing as Lord Chancellor a person separate from the Government, rather than leaving whom he knew to be compliant, and we do not responsibility with the Lord Chancellor. Second, we believe that the requirement to swear a judicial oath 9674042021 Page Type [E] 28-06-04 23:19:13 Pag Table: LOENEW PPSysB Unit: PAG4

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27 April 2004 Mr Peter Williamson, Mr Russell Wallman, Mr Stephen Irwin QC and Mr Richard Drabble QC is in reality a protection against that. On the Supreme Government gave recently about the buildings and Court and the Judicial Appointments Commission, about the undertaking to resource that. That is very as I have said, we very much support the helpful. The building is not the only key resource but Government’s approach. We would say, however, on it is a principal concern. As to the Lord Chancellor an important matter of detail, that we do not believe and his functions, there are differing views within the it is appropriate for the cost of the Supreme Court to profession about the maintenance of the office of be recovered from court fees. The Supreme Court will Lord Chancellor. Many, although we believe not the not be, as other civil courts are, available to majority, would favour the maintenance of that individual litigants to pursue their disputes; it is office with much the same tone, enthusiasm and available only where a point of law of general warmth that you heard this morning from Lord importance has been certified. It is there to develop Woolf. If I may, can we break the problem down? the law for the benefit of the general public as a The problem is having a judge in Cabinet. There is no whole, not the individual litigants, and we believe the problem having a legislator in Cabinet—they all are cost should be met from public funds. legislators. There is no problem in having a very Mr Irwin: My Lords, we are grateful to be asked to senior minister with particular responsibility for come. Firstly, we wholeheartedly support the protecting the rule of law and protecting judicial concordat. As you have heard from Lord Woolf, that independence. I, personally, see great merit if it were is a carefully worked through disposition of the the case that the Government were to continue to constitution, and it seems to us to need to be carried choose senior and experienced lawyers with the through into the Bill, but we are in full support of it, constitutional knowledge to do the job of Secretary with this addition: we do see value in the addition of of State. That is a political question, much as Lord the rule of law to Clause 1, as was discussed this Woolf said; that is a genie that only the Government morning. Secondly, judicial selection. The Bar is in can put back into the bottle, so to speak, by refilling full agreement that a Judicial Appointments this job with the old conventions and with a Commission is appropriate, and we have consulted personality or person of similar experience. The widely on that. There are two or three points to be constitutional problem is having a judge in Cabinet, emphasised. We are also in agreement with the and we are clear—and it is the view of the Bar—that Government’s programme of increasing diversity on balance that is no longer appropriate. That does within the judiciary, and we believe that a lot can be leave us with a potential gap. That can be cured in done to achieve that. But diversity should be three complementary ways: firstly, whoever the expressly subordinate to merit. The two are not in Secretary of State is, he or she must take prime conflict; we can increase diversity while retaining responsibility within government for maintaining merit, but, in the end, diversity is a secondary judicial independence and for maintaining the rule of consideration, for this reason—and it is arising from law. It must be clear, whoever that minister is, that the nature of law and the nature of the exercise of that is their responsibility. If they are clearly far down judicial office: if it means anything, it means to the Cabinet pecking order that will not be possible. reassert that the proper function of the judge is to be So a signal that Government should send, whoever dispassionate, logical, objective and fair—not to the individual may be, is that these are key favour intuitively one group or another. So the constitutional duties within Cabinet, and the minister primary job of a judge must be to act in that way, should be someone of suitable seniority. Secondly, whoever he or she may be, and the question of which we believe that part of the problem can be addressed group in society they come from—although through the committee which we have proposed, of important—must be made expressly subordinate to which you have seen a draft Clause, I hope, which their technical merit and their integrity in following was delivered to your Committee yesterday. The the judicial function. We are extremely keen to see draft is there to show that it can be done and not to judicial consultation maintained as a key part of the be prescriptive about the detail. The essence of the selection of judges. Of course, the new Judicial committee is this: to create a direct connection Appointments Commission will seek to introduce between the senior judiciary and Parliament, which is more modern personnel, techniques and assessment, essential. If there is a collision, or a lack of and so forth, that will be of benefit, but it is of vital communication or a misunderstanding between the importance, in the view of the Bar, that the judiciary Government, the executive and the judiciary it is remain the key consultees of all in the choosing of unsatisfactory for either side to have that incapable judges because they know best how those questions of of resolution in Parliament. That may be addressed merit can be preserved. On the Supreme Court, the by having the senior judge, or Chief Justice or others, Bar is pretty clear that we are in favour of the speaking in Parliament, but then if the House of Supreme Court if it is properly resourced, and not if Lords is reformed—either now or 50 years from not. We were very glad to see the indication the now—we will have lost that connection. It seems to 9674042021 Page Type [O] 28-06-04 23:19:13 Pag Table: LOENEW PPSysB Unit: PAG4

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27 April 2004 Mr Peter Williamson, Mr Russell Wallman, Mr Stephen Irwin QC and Mr Richard Drabble QC us appropriate to create a committee with very Q547 Chairman: I wanted to say one or two words specific conventions, and there are three: that it is about that Committee. Is that your basic position— non-partisan, that it is non-party-political in the way that you want a Secretary of State who is a lawyer to it approaches its business; secondly, that no judge can be responsible for ensuring the Government lives up be compelled to appear before the Committee (he to the rule of law? should be invited) and, thirdly, that no judge can be Mr Williamson: Ideally. questioned about an individual case or decision Mr Wallman: Can I just add that we do not anticipate because that would be to cross that essential line it would be a requirement that the postholder be a between executive and judiciary. So the Committee lawyer, although very often it would be sensible that provides some answer to the abolition of the historic they should be. The particular feature that we were role of Lord Chancellor. Thirdly, we see that suggesting was that it might at least, as a convention, inevitably more weight is likely to be thrown on the be a post held by a member of the House of Lords office of Attorney General, and that that, too, should rather than the House of Commons in order to be recognised in the convention. My Lords, I think distance from, if you like, any emotional intensity of those are the key points we would wish to make. the political fray.

Q541 Chairman: Thank you very much. I wonder if Q548 Chairman: Can I just say one word about the I could start with Mr Williamson and the Lord joint Committee, which I heard about with great Chancellor position. As I understand it, Mr interest, and I read your draft with great interest? I Williamson, your real concern is that there should be am told by those who know much more about these some minister somewhere who is basically things than I do, namely Mr Walters who is sitting on responsible for making sure that Governments obey my immediate left, that it is very unusual indeed, if the rule of law. That is right? not unprecedented, to call for a joint Committee Mr Williamson: Indeed, my Lord, it is. actually in legislation. I think to actually incorporate it as a Clause in the Bill, not through what the rules of Q542 Chairman: Presumably, if the Secretary of order in the House of Commons are, would be gently State for Constitutional Affairs takes over that frowned on by the Clerks. So you may have position, and somehow that is not even part of his procedural problems with that. job, that would satisfy you? Mr Irwin: May I respond to that? We elicited the Mr Williamson: In part, my Lord. I think the gentle frowns ourselves when thinking about this. difficulty would arise where we have a Secretary of The point about this Committee is that it would State who is not a lawyer. become part of the working constitution; it is not just another Committee, it is intended to complement the Q543 Chairman: That is the next part I was coming formal constitutional arrangements. So we think one on to. You are not advocating two people in the of two things: we think that provides a sufficient Cabinet, one of whose job is to permanently sit there platform for breaking with conventions that and loom over the Government— otherwise apply. Secondly, that, if not, the Mr Williamson: No. Government and Government’s successors would need to give a clear undertaking that they would Q544 Chairman: So the “loomer” is out? We only encourage the continued existence of such a want one active Cabinet minister who is responsible Committee. That is a second best. for ensuring that Governments live up to the rule of Mr Williamson: Can I add, my Lord, that we have law. always been of the view that a Committee such as this Mr Williamson: Yes. would be appropriate in the circumstances, but we fully accept the point that it may not be appropriate Q545 Chairman: To do that, in your view, he ought for the Bill and, subsequently, for the Act. to be a lawyer and he ought to be a senior lawyer? Mr Drabble: May I add my point on that? A lot has Mr Williamson: Yes, my Lord. been said already about Section 1 being unenforceable and there is plainly a difficulty about Q546 Chairman: I mean an experienced lawyer, not whether you could ever truly litigate the nature of the necessarily a practitioner; I suppose a senior duty within Section 1. If you are looking at a academic could do it just as well if there was one. constitutional document that is supposed to survive Mr Williamson: Alternatively, if that person was not in time, we would see Section 1 sitting together with a lawyer, one has to concede that it is a possibility as the Committee. Therefore, there is a basic force in far as the future is concerned. We would go along having, on the face of the legislation, in this particular very much with the Committee along the lines that situation almost the enforcement mechanism that the Bar has proposed. goes together with Section 1. 9674042021 Page Type [E] 28-06-04 23:19:13 Pag Table: LOENEW PPSysB Unit: PAG4

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Q549 Lord Carter: In fact, my question is also on the that role should be carried out by someone who is a Parliamentary Committee. It is true that it is member of the House of Lords rather than in the far extremely unusual to have such an amendment to a more party-political atmosphere of the House of Bill. In fact, the way to do it would be to put down the Commons; that is someone who is a lawyer rather amendment, have the debate in both Houses to get than a non-lawyer and someone—to use your own assurances from the Government and the Opposition words, I think—who is recognised as a senior parties that they would support it, and then have it responsible member of that Cabinet? If that is so, done by Parliamentary motion. That is much more accepting that our constitution is not written but flexible. That is a procedural point, but the main based, largely, on convention, are you not really point is, if one had such a Committee, would it not be saying get rid of the Lord Chancellor sitting but allow a better way for the judiciary to express its views that historic office to continue with it, by convention, about the way that the Government is handling the always being held by a senior lawyer sitting in the issue of the rule of law than the present extremely House of Lords? Is that probably the best solution? anomalous position we have with the serving Law Mr Irwin: I cannot express a profession-wide view Lords and the retired Law Lords who can sit that it is probably the best solution. I myself have no judicially. Since the Bingham statement of June 2000 difficulty with a senior lawyer in the House of Lords a number of the serving Law Lords have not spoken doing this job. I think quite a significant body of the at all in the House of Lords; others have spoken and profession, as I have said, do see an anomaly in one has voted on a highly contentious issue. The sitting as a judge and in Cabinet, and I also think that retired Law Lords who sit judicially are, it seems to it is important to the profession that this office is not me, in an even more anomalous position. Would it responsible for judicial selection. not be much better, easier and produce greater clarity if the judiciary were to express its views to a Q552 Lord Carlisle of Bucklow: We are having the Committee of this nature than, as I say, in the Judicial Appointments Commission. present, rather odd arrangements that we have in the Mr Irwin: Yes, but I do not think the profession House of Lords? would have an objection to this job being done by a Mr Irwin: That is why we suggested it. I do not think senior, legally qualified person. we should be taken to say that we are against retired judges or, indeed, current serving judges being able to Q553 Lord Carlisle of Bucklow: May I ask if Mr speak in Parliament. I myself take the view that there Williamson be asked to answer the same question? is an advantage in having the Chief Justice—or, Mr Williamson: I think I agree, my Lord, with the maybe, a group of the senior judiciary—able to speak answer given by the Chairman of the Bar. Can I come but not vote. I do see an anomaly with voting. This is back on one point that Lord Carter mentioned? We, not a choice between one and the other, it is a at the Law society, would not be in favour of senior question of whether you have both. This is a form of members of the judiciary sitting in the House of judicial legislation which we see as having great Lords and speaking in the House of Lords. We are merit, and you then go on to consider the other. strongly of the view that the sort of Committee that is being proposed—and, as I have already said, we Q550 Lord Carlisle of Bucklow: You said, Mr Irwin, understand that it may not be appropriate for it to be that the main objection of the members of the Bar— in the Bill and then in the Act but, nevertheless, to be who you thought were a majority—to the existence of created—is the forum for the senior judges to come the office of Lord Chancellor was that of a judge and express their views to Parliament. In my view sitting in the Cabinet. that is quite important. We do not think it is right Mr Irwin: Yes. that as things go forward senior judges should be members of the House of Lords. Q551 Lord Carlisle of Bucklow: Most of the evidence we have been given, so far certainly, has been that the Q554 Viscount Bledisloe: I have two topics. The first Lord Chancellor, whatever happens, should not one is for the Law Society and I think the second one continue to sit at the time he is Lord Chancellor. If, is more for the Bar Council. You make your point in fact, therefore, that objection is removed, and about being strongly opposed to the Supreme Court looking at the role that Lord Woolf mentioned being funded from court fees. Are you saying there (indeed, that you have mentioned) of a future should be no fees or that the fees should continue at Cabinet minister responsible for ensuring the general the sort of level they are at the moment and the rule of law is being upheld in government decisions, balance to be paid by the taxpayer? responsible probably for perhaps some of the Mr Williamson: Ideally, my Lord, we are saying there administration of the courts, so far as the civil courts should be no fees, for the reasons which I gave in my are concerned, are there not great advantages that opening statement. 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27 April 2004 Mr Peter Williamson, Mr Russell Wallman, Mr Stephen Irwin QC and Mr Richard Drabble QC cases that would end up in the Supreme Court is law point. The sum of money at stake was £60,000. comparatively small; they are all, by definition, going Chetnik was a moderate sized property developer, to be cases where a point of law of public importance Tower Hamlets is a London Borough with all the is involved. It is not a court where a litigant can say financial problems which go with it. The point “I am going to take my case to the Supreme Court in needed deciding and in my view it would be a major any event”—that is not in that litigant’s power; he retrograde step if one faced complex additional fees has to have leave and, as I say, it has to be a matter as a result of the reform. I say the support of the Bar of law of public importance. It is deciding matters in Council for a Supreme Court is conditional upon the public interest and for the public and in those adequately endorsing, meaning no further obstacles circumstances we consider that it is wrong that the to that sort of case getting in front of the final court, people who happen to be the litigants in that point of whatever it is. law of public importance should have to pay for it. That is our primary position. I recognise, Q556 Lord Falconer of Thoroton: Can I pick up with nevertheless, that there may continue to be a need for both professions the fees issue? There are two court fees to be levied but we hope very much they separate sort of fees we are talking about, in relation will be kept to the absolute minimum. to civil cases if you go to the House of Lords you have to pay a fee, are you both saying that should now be Q555 Viscount Bledisloe: I think the second question abolished? You are saying some recovery can come is primarily to the Bar Council, would you agree with from those fees, you do not object to that? me that if you are going to get applications for Mr Drabble: From my own perspective it is a major appointment to the judiciary it is vitally important if disincentive at the present level of fees if you deal in you are going to persuade people to apply that there my sort of work, it is a major disincentive at the should be total secrecy about the fact they have present level and you have to think very hard about applied? Presumably it would be enormously it. I am not saying it should be abolished, no. damaging to the on-going career of a member of the Bar or indeed maybe of the solicitor profession as Q557 Lord Falconer of Thoroton: You are saying it is well if it was known that he had applied and had not a major disincentive, you do not want that abolished. been accepted or, even worse, rejected. Do you Mr Wallman: We say in principle it should be regard total secrecy as being of enormous abolished. We recognise where we are. We opposed importance? the across-the-board approach of full cost of Mr Irwin: Yes. recovery which the Government has taken for a Mr Williamson: Can I add to that, yes is the answer number of years. We recognise there are fees in the but perhaps even more so because one of the House of Lords at the moment. We think it would be problems in the solicitors’ profession in relation to preferable, for the reasons which the President has judicial appointments is so-called career blight. By given, that they were not for House of Lords or and large solicitors are in partnership rather than in Supreme Court cases, but it would be particularly chambers as individuals and it can become a unacceptable and unattractive to us as a result of the considerable problem if they wish to embark on a creation of a Supreme Court if there was a substantial judicial career so far as their partners are concerned increase in those fees, whether borne by litigants in if they find they are not successful, so secrecy is the Supreme Court or, as I think the Government has incredibly important. proposed, tagged on to court fees generally. Mr Drabble: Can I say a word about the fees issue, which is a matter on which we do feel strongly. Our Q558 Lord Falconer of Thoroton: I am trying to go consultation responses to date have indicated we through it in stages. I think what both the Bar support the Supreme Court only on the condition Council and the Law Society are saying is, “although that the additional cost of its creation is borne by the we are not wild about it we are not suggesting that Government. I would strongly advocate the view that you abolish individual fees in the case of the House the sort of litigation which is going to find its way— of Lords or the Supreme Court”. The second stage is which finds it way at the moment to the Appellant what the Government said in November two years Committee, and will find its way to the Supreme ago was in civil justice, not criminal justice, where Court—is there because it is in the public interest for separate considerations apply, the cost of running the it to be heard. It may not be a very obvious public court system for civil cases has got to be recovered interest. One obvious example I thought of overnight from fees over a period of time, which means in advance of coming here is a case called the case of including the Court of Appeal and in first instance the R v Tower Hamlets Borough Council Ex Parte judges even though 99.999 per cent of cases never get Chetnik, which was a case about double recovery of before a judge at all. You are saying despite the fact rates. It ended up establishing a fundamental public that that approach applies to judges who do not hear 9674042021 Page Type [E] 28-06-04 23:19:13 Pag Table: LOENEW PPSysB Unit: PAG4

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27 April 2004 Mr Peter Williamson, Mr Russell Wallman, Mr Stephen Irwin QC and Mr Richard Drabble QC cases and the Court of Appeal it should not apply to Mr Irwin: We do not agree. the Supreme Court. Why is that? Mr Williamson: Can I just add, I agree entirely, as I Mr Drabble: For the very reason we have already have already indicated, with the views of Richard identified. There is a public interest in all litigation Drabble about the Supreme Court. You have to draw and therefore there is an element of principle in play the line somewhere and I would say at the moment at all levels. Coming to the Supreme Court, the you have to draw that line between the Court of justification for the role of the Supreme Court is the Appeal and the House of Lords. I do not think there maintenance of the rule of the law, the protection of is anything more which I can add. There is one thing, the constitution, the decision of points of principle Lord Chancellor, which is this, I would not say that which will almost always be wider in their impact all civil court and civil justice decisions should be than on the individual litigants. There will be a large funded entirely by court fees, I just wanted to make number of litigants whose personal stake in the that quite clear so far as the record is concerned. matter ought to be subsidised by the State. Q562 Lord Falconer of Thoroton: The abolition of the role of Lord Chancellor: Firstly to the Bar Q559 Lord Falconer of Thoroton: For much of the Council, I think you were saying you agree broadly work of the Court of Appeal now do leave is now with the evidence given by the Lord Chief Justice that required in a vast number of cases and they in effect the head of the judiciary to be a professional judge, only select cases where there is obvious error or a not the traditional role of the Lord Chancellor? point of principle is involved. I think you are happy Mr Irwin: Yes, we certainly agree with that. for that to continue to be paid for in part or in whole by fees? Q563 Lord Falconer of Thoroton: It is not just the Mr Drabble: Your process of logic is to force me to Lord Chancellor not sitting as a judge, correct me if accept something which I regard as undesirable but I am wrong, but the head of the judiciary should no obviously present in the Court of Appeal and from longer be the Lord Chancellor, it is not just a question there to say that it should be extended to the House of him not sitting as a judge and the head of the of Lords. I do not accept that logic. The starting basis judiciary role should be performed by the Lord is the principal role of the Supreme Court is as a Chief Justice? public interest body, therefore if you look to the Mr Irwin: We agree with that. group of people who should pay for it it has more in Mr Williamson: So do we. common with the taxpayer generally than the defendant on the back end of a consumer credit Q564 Lord Falconer of Thoroton: The role of the action in a county court. That is the fundamental Lord Chancellor in your view would not involve point. Why should there not be— fulfilling the role of head of the judiciary? Mr Irwin: Correct.

Q560 Lord Falconer of Thoroton: You are saying the Q565 Lord Falconer of Thoroton: You are both keen court system is very apex, it has that public interest that he or she should have a significant role in matter and it should separate from the rest of the protecting the independence of the judiciary. Lord court system. Do you object to the principle of civil Woolf makes it clear that the concordat is given effect fee recovery paying for the rest of the courts? to by legislation and that would go a very Mr Drabble: I have not thought profoundly about it. considerable distance to protecting the independence Mr Irwin: This is a bit of a by water. In a sense the of the judiciary accepting that Part 1 is Clause 1 of the Supreme Court is clearly only there for public Bill. Do you agree with that? interest. All of the cases and all of the legal debates Mr Irwin: Yes, it will go a long way but it will not which take place affect the health of the law fully meet it. What none of the concordat or the generally. The case is clear there. In the Court of Committee or any of these other things can do is to Appeal there is a mix and there is a good argument put a senior voice at the heart of Government for saying that there should be by pari passu subsidy saying “stop”. for the Court of Appeal. That is another debate. We are here talking about the Supreme Court and you Q566 Lord Falconer of Thoroton: That depends, have to argue about where the line is. does it not, ultimately on the person who is appointed to do the job? Mr Irwin: It does depend on the person ultimately Q561 Lord Falconer of Thoroton: The principle appointed to do the job, which is why we have been which was established for civil court fees was the civil discussing whether that person should be prescribed system should pay for itself. to be this or that kind of person. 9674042021 Page Type [O] 28-06-04 23:19:13 Pag Table: LOENEW PPSysB Unit: PAG4

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27 April 2004 Mr Peter Williamson, Mr Russell Wallman, Mr Stephen Irwin QC and Mr Richard Drabble QC

Q567 Lord Falconer of Thoroton: I was not clear Q570 Lord Falconer of Thoroton: It would be a whether you were saying it should be so prescribed question of balance. that it should be a matter for the Prime Minister of Mr Irwin: Yes but that often means we can forget it the day, assuming he or she wishes to give effect to and I can do what I want. Here the balance is much those values and to make a decision as to where and more important than the ordinary political judgment who the holder of office should be, “where” meaning taken by a Prime Minister when deciding whether to Lords or Commons and “who”, lawyer or not? appoint X or Y to a given office. We would see this Mr Irwin: Your question moves beyond anything we as being one of the key constitutional reforms have discussed with our profession so it can only be because you are removing a constitutional safeguard a personal view. I have a sense of reluctance in saying from within the heart of the Cabinet and asking how Parliament, much less our Council, can tell the someone to fulfil that job, the same job without the Prime Minister to fill a given job. If that is back up and prestige of wearing three wigs. constitutionally appropriate I can see the value in the argument but mine is an unprepared position and we have not taken views from the profession on that Q571 Lord Falconer of Thoroton: You would specific question. support the head of the judiciary coming out of Cabinet? Mr Irwin: Yes, which means we have therefore Q568 Lord Falconer of Thoroton: Very well. Just sought ways to replace that role: The Committee is picking up on Mr Drabble’s point, and Mr Drabble one; the duty is another; the enhanced role of the correct me if I am wrong, do you see the Attorney General is another but none of them are parliamentary access that the senior judges have, perfect and it throws a lot more weight on to who whether it be through a joint Committee or otherwise does this job than it does to any other balancing as being, as Mr Drabble put it, part of the choice across Government. enforcement method of Clause 1, which I assume Mr Williamson: I agree it is a matter of balance. I from that the enforcement mechanism is essentially understand totally the need for the minister to be political with a small “p” rather than judicial? accountable to the Commons. I think the balance Mr Drabble: I would mean by using the words here requires that the minister be a member of the enforcement mechanism political with a small “p”. I House of Lords, as you said earlier, ideally with a think as a lawyer one could argue for a long time junior minister who can be accountable in the House about whether the present drafting of Clause 1 would of Commons. It is a matter of balance. be actionable in the courts or not, it might depend on Mr Wallman: Firstly, fortunately it is not the nature of the breach of the duty which would unprecedented for the Prime Minister’s discretion to postulate the extremity of the breach. The Committee be constrained, it is effectively constrained at present certainly recognise that the ordinary way of by the fact that the role of Lord Chancellor should be maintaining the culture which lies behind Clause 1 held by somebody eligible for high judicial office. The and therefore the enforcement mechanism in that proposition that the Prime Minister’s discretion in sense is a matter for Parliament and political with a respect of some individual having the post might be small “p”. constrained would not be a new one. Secondly, on the responsibility for resources, clearly there has to be arrangements for accountability to Parliament but Q569 Lord Falconer of Thoroton: We all obviously other Secretaries of State have from time to time been share the value of independence and the rule of law, in the House of Lords, until very recently the in making judgments about this do you have a view Secretary of State for International Development, about this, about who should hold the new office which has a very large budget, has been a Member of because it will not be the head of the judiciary any the House of Lords. It would be wrong to think that more? To what extent does the fact that there are there is a bar to Secretaries of State with significant important levels of expenditure, something in excess resource. of £3 billion, play a part in making the decision as to Lord Falconer of Thoroton: There is a difference who should hold the office and where it should be? between saying, it has to be in the House of Lords as Mr Irwin: We have read the argument which says opposed to saying it might be desirable from time to responsibility for major expenditure should be in the time to be in the House of Lords. Taking an invidious Commons, it normally is, that is the chamber which example, suppose that in a notional House of decides such matters. The question here is whether Commons in 20 years’ time there was somebody of a there is the necessity to have somebody of seniority standing equivalent to the Lord Howe who had been and weight to provide the stop sign when needed. Chancellor of the Exchequer, Foreign Secretary and That is why my answer to you is guarded because we Solicitor General when he was in the Commons, are not in a political position to make a judgment. would it be wrong for the Prime Minister of the day 9674042021 Page Type [E] 28-06-04 23:19:13 Pag Table: LOENEW PPSysB Unit: PAG4

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27 April 2004 Mr Peter Williamson, Mr Russell Wallman, Mr Stephen Irwin QC and Mr Richard Drabble QC after the notional Lord Howe had been Chancellor of Q574 Chairman: Is that the view of the Bar? the Exchequer and Foreign Secretary to be appointed Mr Irwin: We are rather more cautious, we think the notional Lord Howe whilst remaining a Member what you need is a senior, single minister who is of Parliament for his constituency in Sussex? Would capable of doing all of the duties and standing up to you wish the position to be that the Prime Minister of Cabinet colleagues. the day could not appoint the notional Mr Jeffrey Howe? Q575 Chairman: If the judicial function of the Lord Lord Howe of Aberavon: There is a subsidiary Chancellor goes and he is no longer head of the question there! judiciary, if that goes, then the consequences that you heard that flow from that position will flow. Mr Irwin: Yes. Q572 Chairman: Before the current Lord Howe Mr Williamson: Yes. answers, what is your answer to that? Mr Wallman: We would think it desirable for them to Q576 Lord Craig of Radley: Could we move to merit become a member of the House of Lords if you were for a moment and selection. The Bill says it must be going to take that up. You can think of examples on merit. In your opening remarks you talked about where the post would be held with extreme diversity being a secondary consideration. distinction by a member of the House of Commons Mr Irwin: I do not mean unimportant. but then similarly you have no particular criticisms of the calibre of individual judges appointed now or of the way the House of Lords operates. The question is, Q577 Lord Craig of Radley: Diversity can mean which is the better way of arranging it to provide the many things to many different people. I wonder protection for the values we are trying to protect in whether you felt the Bill is sufficient in what it says, the long-term? leaving diversity, as it were, to one side, and looked Lord Howe of Aberavon: My subsidiary on that is at by the Appointment Commission or do you think this, would this hypothetical creature having held the there should be something specific in the Bill about office of Solicitor General, Chancellor of the this and if not why not? Exchequer, Foreign Secretary and Deputy Prime Mr Irwin: We feel that the right balance is to have Minister do you think he would be prepared to accept merit as the only criterion in the Bill. Once you the appointment of Lord Chancellor without going enshrine any other criterion then you perpetuate an to the House of Lords? Would he not by that time be argument. Diversity is a complex, practical matter. only too anxious to rid himself of this? You need not We cannot say we must have so many people with answer that. criminal convictions, if spent, and so many women and so many people from different ethnic groups, and so forth, it has to be more flexible than that ridiculous box-ticking exercise. Our feeling is that merit must be Q573 Chairman: It does seem to me the more one enshrined and then diversity is largely cured by goes into this one goes round and round in circles on looking at the pool of those who have the right the same point. If you are going to take away the experience to be appointed. At the Bar we have been judicial function of the Lord Chancellor then you are setting up specifically to look at the retention of left with an administrative minister who has to run a women, we have a very good entry level, we retain as court system and spend £3 billion. If you are going do many ethnic minorities as we do non-ethnics but we that do you worry about whether or not there is a have a problem of retaining women because of sufficiently strong voice somewhere in Government circumstances beyond our control. That kind of hierarchy? You cannot have, it seems to me, two practical thing cannot be built into a Bill in a people in the Cabinet, one of whom is there as a satisfactory way because it would date. Our feeling is Secretary of State doing an administrative job and the key criterion of merit must be in the Bill as the the other one who is there to see to, what I describe primary consideration and the Commission should as earlier on, moving the Cabinet and saying, “you be charged with looking at the rest and meeting must not do this because this is wrong”, especially conditions as times change. when that very person is by definition dismissible by Mr Williamson: Our position on that is that we agree the Prime Minister of the day and appointable by the that merit is paramount. What is important is that all Prime Minister of the day. Do you see any virtue in people of merit are in a position, and are encouraged, that system? to apply, that is where diversity comes in so far as this Mr Wallman: We agree it should be one post, not is concerned. My personal preference would be for two. 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27 April 2004 Mr Peter Williamson, Mr Russell Wallman, Mr Stephen Irwin QC and Mr Richard Drabble QC

Q578 Lord Goodhart: Stephen Irwin raised one issue the rule of law to ensure proper legal advice had been which has not been explored when he suggested that taken. I think it goes considerably further than that. the change from the traditional role of Lord Mr Irwin: I do not think we are talking about merely Chancellor would put more weight on the Attorney giving legal advice. The whole point of what we are General, can I ask what functions he would see as talking about is the law is presumably usually being transferred or what additional responsibility technically written up and digested for members of the Attorney General would apply? the Cabinet. You will know better than me, what we Mr Irwin: I am not in a position to rewrite his job are talking about is protecting the rule of law, description, if he has one. I think it is inevitable that protecting the independence of judges. As I in the future Cabinet where the Attorney General is understand the Irish system—which is the closest the senior lawyer, because you have the Secretary of parallel—they have abolished the Lord Chancellor, State for Constitutional Affairs who is not, whether essentially it was the same system. The Attorney there he is Lords or Commons, it is inevitable that in a talks about propriety as well as legal technicality but debate—we can think of any major decision in any speaks from a position of legal authority. I context—the Attorney General is going to be the understand that to have been the historic role of the only one saying, “I have the knowledge to tell you Lord Chancellor in Government in the Cabinet room that this is the rule you must not break, this is a step and outside the Cabinet room. All I am saying is I you must not take”. Inevitably, it would seem to me, believe that is going to happen much more with the that is going to throw more weight into what he has Attorney General. to do. Q581 Lord Goodhart: The Attorney General in Ireland is not only not a member of Government but Q579 Lord Goodhart: The Attorney General can be he is not a member of the Dail. invited to attend Cabinet meetings if he is not a Mr Irwin: That is right. member of the Cabinet in his role as adviser to Mr Williamson: I would have some concern about the Government. There are probably clear advantages Attorney General becoming more involved in these that he should not be a member of the Cabinet matters bearing in mind there would be a major risk because he may have to advise on the legality of a that this would compromise his role as the legal decision which the Government is contemplating adviser to the Government. taking and he should not be party to that decision. Mr Irwin: I agree with that. I was discussing this very recently with the Chairman of the Irish Bar who had Q582 Lord Goodhart: Would there be any significant been looking into the role of the Irish Attorney difference, in your view, if the head of the DCA, General, where there is not a Lord Chancellor, and whatever he is called, was required to be a qualified the Chief Justice is not a member of Government. lawyer? The convention which has grown up there, precisely Mr Irwin: To be honest the mere qualification of for parallel reasons, is that the Attorney is present at being a qualified lawyer does not give you quite Cabinet discussions when anything relevant takes enough, it might be a fig leaf, because there are a lot place and he is regarded in the Irish system as being of us around, Lord Goodhart, and I am not sure how many could do this job. I think it is the nature of the the senior legal voice of Government for exactly that beast rather than the formal legal qualification. reason. He is not implicated, he is not a Cabinet member with a vote, he is present and he is turned to as the senior legally qualified governmental voice in Q583 Lord Howe of Aberavon: First of all I think it the situation. Nowadays in the English system you is clear that we are talking about just one figure as certainly have the Lord Chancellor advising and you head of the DCA, or whatever it is called, and I am might have the Attorney as well. going to be asking about what the title and qualification should be. First of all the emphasis being placed on the money spending function of the Q580 Lord Falconer of Thoroton: This is quite holder of the present job but that of course is important, I have always regarded the role of the adjustable if one looks at ways of diminishing the Lord Chancellor not to give legal advice to the expenditure for which the DCA head is responsible. Cabinet but the Attorney General is the adviser on Secondly, even if the Bill goes through as it is, if you these issues. I think it proceeded on the basis that the look at the detailed provisions of it and, for example, role of the Lord Chancellor in relation to the rule of at paragraph 14 of the explanatory notes, just law and independence is different from simply summarising, Clause 3 provides for all of the saying, “this is what the law is, this is permissible, this statutory functions currently invested in the Lord is not”. That is why I would slightly disagree with Chancellor to transfer to another office owner. They Lord Mackay’s evidence and his role in relation to are in the main transferred to the Secretary of State 9674042021 Page Type [E] 28-06-04 23:19:13 Pag Table: LOENEW PPSysB Unit: PAG4

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27 April 2004 Mr Peter Williamson, Mr Russell Wallman, Mr Stephen Irwin QC and Mr Richard Drabble QC for Constitutional Affairs ...In a number of Q588 Lord Howe of Aberavon: It is one of many instances the Secretary of State will be required to factors. consult or obtain the concurrence of the Lord Chief Mr Williamson: I have already alluded to this in my Justice or vice versa”. What that means is that the opening remarks. We feel that with the role changing holder of this office, the head of the DCA, uniquely in so substantially it would be misleading if somebody Cabinet is going to be concerned with the Lord Chief is called Lord Chancellor. I say this with some regret Justice in a partnership and very, very close to the for historical reasons, but ideally the title of Lord operations and preservation of the rule of law. It Chancellor would no longer be appropriate. remains that although not head of the judiciary as near as damned head of the judiciary as any other Cabinet minister has ever been required to be. It is a Q589 Lord Howe of Aberavon: The witnesses have very important factor. You are all nodding your been talking about the difficulty of constraining the heads. Prime Minister to choose in a certain way, are we Mr Irwin: That fits with what I said earlier: here the not, apparently, in the position where a Prime balance for constitutional weight might well be Minister did try to choose in a certain way and thought to outweigh the money-spending announce in a press release and he is currently going departmental responsibility. through retribulations in order to discover if and if so how far he has the opportunity to abolish the role of the Lord Chancellor? That is right. The burden Q584 Lord Howe of Aberavon: The holder of the of proof is not upon those who wish to entrench the office has large, detailed intimate involvement in the qualifications to the Lord Chancellor, the burden of operation of the rule of law— proof is on those who wish to destroy those Mr Irwin: Yes. qualifications. Mr Williamson: Yes. Mr Wallman: I think Lord Falconer has acknowledged that himself. Q585 Lord Howe of Aberavon: For that reason you would prefer to see the holder of that office in the Q590 Lord Kingsland: I want to ask a question House of Lords? about the criteria for selecting judges. I think there Mr Williamson: That is what we say. is general agreement that there should be a single Mr Irwin: That is the Law Society’s position, the Bar criterion of merit. The only question which remains Council’s position is that we must have somebody of is how you make the diversity issue compatible with the correct weight, seniority and expertise. I am afraid we have not dealt with the position that it that. I do not know whether you have had an should be a member of the House of Lords. opportunity to look at the Northern Ireland Justice Bill that is currently going through Parliament—you have every reason to be excused for not doing so! Q586 Lord Howe of Aberavon: If you are looking for On the face of the Bill there is quite an interesting people of the right weight, seniority and expertise it is resolution of this problem. The principle of merit is a rather sad fact that there are fewer and fewer of set out in absolutist terms, I would say quite such animals in the Commons than there used to be, correctly. Then it goes on to say that candidates even a few years ago. should be, in so far as is possible, reflective of Mr Irwin: What can I say? Northern Irish society. It achieves this objective by Chairman: Yes. requiring the Judicial Appointments Commission to institute a programme which will widen the pool of Q587 Lord Howe of Aberavon: Perhaps we may take applicants so that the pool should become more and judicial notice of the fact that the last two offices of more reflective of Northern Ireland society. If you Attorney General have been in the House of Lords have not seen the drafting of the Bill I am not asking and the Solicitor General also. If one is looking at the you to commit yourselves to it; but if my account need for this heavyweight figure qualifications are of of what is in the Bill is accurate would that be an enormous importance of the kind you described, attractive resolution of the issue? surely the title with all of its historic association of the Mr Irwin: I speak as an Northern Irish man, I have holder of the headship of the DCA, the very name not read the Bill but I do know what is happening, Lord Chancellor, has weight and significance and which is that the Democratic Unionist Party have that must be taken into account? started to complain about the latest appointments Mr Irwin: We do not have the slightest objection if because there are too many Catholics. Once you the Lord Chancellor remains the Lord Chancellor start playing the game, building in formal criteria in but I do not think it is of the essence, that does not whatever context you choose, whether it is Northern trouble us. 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27 April 2004 Mr Peter Williamson, Mr Russell Wallman, Mr Stephen Irwin QC and Mr Richard Drabble QC easily have ethnic points or gender points made in everyone’s objective which is a more diverse the same way, you begin to politicise the question judiciary. of who becomes a judge. Mr Williamson: That sounds sensible to me. As I said earlier we all agree merit is the criterion which Q591 Lord Kingsland: That is precisely why the is absolutely vital; the question is to make sure that Government have chosen to introduce this new Bill, all people of merit are in a position to apply, this new formula to make it absolutely clear that the something along the lines of what I understand is in criterion itself would not be affected—that diversity the Northern Ireland Bill, and I would not have any only went to efforts to improve the range of the objection to that at all. candidates who applied for the job. In a sense I Chairman: Could I thank you gentlemen for coming entirely understand the worry that you have this morning. I think this has been a very useful expressed here; but it is an attempt now to meet that session. worry and at the same time achieve what I think is

Supplementary memorandum by Lord Woolf 2 I have been asked by the Chairman of the Select Committee to clarify my view of the consequences of the retention of an office with the title “Lord Chancellor”. I have also been asked by Lord Lloyd to respond to the suggestion that the abolition of the office of Lord Chancellor and the establishment of the new Supreme Court should be deferred. This note is my response to those two requests. I have not, in the time available, had an opportunity to ask the Judges’ Council to endorse its contents, but I have consulted as many of my senior colleagues as possible, including all the Heads of Division. They have indicated their support for the views I express. I start by making clear that the judiciary as a whole has not taken a position on the question of whether the office of Lord Chancellor should be abolished. Nothing in this note seeks to change that fact. By far the most important outcome that the judiciary are seeking from the current Parliamentary process is the implementation of the concordat which has been reached between the judiciary and the Government. The concordat seeks to define the relationship that should exist, in future, between the Lord Chief Justice, as Head of the Judiciary, and the Government Minister who will exercise the responsibilities which fall properly to the Executive in respect of the judiciary and the courts. My firm support for the concordat reflects the fact that I see no difficulty with a Government Minister exercising any of the functions assigned to the Secretary of State for Constitutional Affairs by the concordat. I do not consider that such a Minister requires any enhanced status or particular title to enable him or her to exercise those functions. There is benefit in that Minister being a lawyer. However, the Minister’s ability to defend the independence of the judiciary and the rule of law and ensure that the courts are adequately resourced will, to an extent, depend upon his or her standing within cabinet. This is a matter about which it is impossible to legislate, since it is in the hands of the Prime Minister of the day. The concordat is predicated on the fact that the Lord Chief Justice of the day will be the Head of the Judiciary of England and Wales. As the senior judge in that jurisdiction and the President of the Courts of England and Wales, he has to represent the Judiciary in its dealings with the other two arms of the State. There should be no scope for confusion on this point. It has been suggested that it might be appropriate to have two Heads of the Judiciary—the Lord Chief Justice as the “professional” Head of the Judiciary and the Lord Chancellor as the “constitutional” Head of the Judiciary. Such an approach would create a serious risk of confusion and the potential for future conflict between the two office holders. It would be quite possible for them to have very different ideas as to the proper boundaries of their respective roles. It is precisely this lack of clarity, and the consequent risk of encroachment on the independence of the judiciary, that the concordat is intended to avoid. I would strongly oppose the retention of a Lord Chancellor who was considered to be the “constitutional” Head of the Judiciary. The judiciary must be represented by a judge. If it proved possible to define an office, bearing the title Lord Chancellor, which met the concerns I have expressed, I would not object to that office. Indeed, as I indicated when I gave evidence, I have an emotional attachment to this historic title and understand why many members of this House are seeking to find ways

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27 April 2004 to preserve it. However, because of an accumulation of events, including the fact that the role of the Government Minister envisaged in the concordat is very different from the historic role of the Lord Chancellor, I have real reservations as to whether it is possible to retain the title while avoiding the damaging consequences I set out above. I am also aware of a suggestion that a future Lord Chancellor might take the judicial oath. As any future Lord Chancellor will not sit as a judge, it would be inappropriate for him to do so. The judicial oath is not used for those who are not judicial office holders. As to the question of whether the establishment of the new Supreme Court should be postponed, this is not a matter upon which I am in a position to express a view on behalf of the judiciary of England and Wales whom I represent. 9674042023 Page Type [SO] 28-06-04 20:30:41 Pag Table: LOENEW PPSysB Unit: PAG5

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THURSDAY 29 APRIL 2004

Present Bledisloe, V Goodhart, L Carter, L Holme of Cheltenham, L Carlisle of Bucklow, L Howe of Aberavon, L Craig of Radley, L Kingsland, L Crickhowell, L Lloyd of Berwick, L Elder, L Maclennan of Rogart, L Falconer of Thoroton, L Richard, L (Chairman) Gibson of Market Rasen, B Windlesham, L

Memorandum by The Law Society of Scotland

Part 1—Arrangements to Replace Office of the Lord Chancellor

Part 1 relating to the arrangements to replace the oYce of Lord Chancellor is of limited importance for the Society. Clause 1 provides a statutory protection and reinforcement of the independence of the judiciary. These provisions do not apply to Scotland but there is a question as to whether or not they should. The Society is of the view that these provisions should apply to Scotland There is a risk that if this clause is limited in its application to England and Wales there will be a lack of symmetry in the guarantees of judicial independence which will apply throughout the UK. In this context it is noted that section 1 of the Justice (Northern Ireland) Act 2002 also contains a guarantee of the continued independence of the judiciary Clauses 3 (functions of the Lord Chancellor and Organisation of the Courts); 4 (Head and Deputy Head of Criminal Justice); and 5 (Head and Deputy Head of Family Justice) all apply to England and Wales. These provision should be clariﬁed to ensure there is no confusion in the mind of the public as to the geographical extent of the new oYces created by clauses 4 and 5.

Part 2—The Supreme Court

Part 2 of the Bill creates a new Supreme Court for the United Kingdom and makes provision for the transfer of the appellate jurisdiction of the House of Lords and the devolution jurisdiction of the Judicial Committee of the Privy Council. The new Supreme Court, will be separate from Parliament. At present the exercise of the highest level of jurisdiction in the United Kingdom is shared between the Appellate Committee of the House of Lords and the Judicial Committee of the Privy Council. The Appellate Committee of the House of Lords receives appeals from the courts in England and Wales and Northern Ireland, and in civil cases from Scotland. The Judicial Committee of the Privy Council, in addition to its overseas and ecclesiastical jurisdiction, considers questions as to whether the devolved administrations are acting within their vires. The Bill seeks to make a clear constitutional separation between the legislature and the judiciary. It creates a Supreme Court of the United Kingdom giving it the jurisdiction of the Appellate Committee and the devolution issues jurisdiction of the Judicial Committee of the Privy Council. It makes provision to allow for the appointment of members of the Court in a way that requires the participation of the judiciary and the devolved administrations throughout the United Kingdom. It makes provision to determine the practices and procedures of the court, to allow the Minister to provide staV, equipment, security arrangements and accommodation for the court. It also makes general provision for the proceedings of the court to be broadcast in certain circumstances. As a counterpart to the creation of the Supreme Court the Bill restricts the right of members of the House of Lords to sit and vote for so long as they hold full time judicial oYce. Finally the Bill makes consequential and transitional provisions to allow the transfer of functions to the Court. 9674042023 Page Type [E] 28-06-04 20:30:41 Pag Table: LOENEW PPSysB Unit: PAG5

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Clause 17—(The Supreme Court) This clause establishes a Supreme Court of the United Kingdom, and sets out the composition of the Court, the number and method of appointing judges, including the President and Deputy President (as distinct from the process for selection of candidates for appointment, clauses 20, 21 and 22). It also provides for the title of the judges of the Court. The Society is of the view that there should be 15 judges of whom at least 3 should come from Scotland. In the Society’s view, for the Supreme Court to operate as a Supreme Court for the United Kingdom, it must respect the laws, traditions and systems of the constituent jurisdictions of the UK. This has an implication for the doctrine of stare decisis. In the Society’s view the decision of the court when sitting in a case arising from an English court should be binding on all lower English Courts but only highly persuasive in Scottish Courts and that the converse rule should apply so that if the case arises from a Scottish Court it will be binding on lower Scottish Courts but only highly persuasive in English Courts. That said, it is diYcult to imagine that any decision which is seen to be on point, will not be followed in the constituent jurisdictions.

Clause 18—(First Members of the Court) This clause provides for the ﬁrst judges to be the Lords of Appeal in Ordinary holding oYce at the date of commencement. This is provision applies to the transition of members from the Appellate Committee of the House of Lords to the Supreme Court. The Society has no comment to make on this clause.

Clause 19—(Qualification for Appointment) This clause deﬁnes eligibility for appointment as a judge of the Supreme Court, which will be the same as eligibility for appointment as a Lord of Appeal in Ordinary. The Society is of the view that the qualiﬁcation rules for appointment as a judge of the Supreme Court from those members of the legal professions operating within the constituent jurisdictions of the United Kingdom should allow for the largest possible pool of potential candidates having regard to the nature of legal practice in each jurisdiction.

Clause 20—(Commission), Clause 21—(Selection of Candidates) and Clause 22—(Recommendation to Her Majesty) These 3 clauses provide for the process by which candidates for appointment to the Court are to be selected and recommended to Her Majesty for appointment. Clause 20 provides for the creation and membership of an ad hoc commission, rather than a standing body which will be responsible to draw up a shortlist of candidates to be submitted to the Secretary of State for Constitutional AVairs (“the Minister”), if a vacancy arises in the Court. The Society is of the view that an ad hoc commission of appointment is satisfactory but a standing commission could also be appropriate. In the Society’s view it would be appropriate for non-lawyers to have a role in the Appointments Commission under clause 20.

Clause 23—(Oath of Allegiance and Judicial Oath) This clause provides for every judge of the Supreme Court to take the oath of allegiance to the Sovereign and the Judicial Oath, as soon as practical, after accepting that oYce. The Society has no comment to make on this clause.

Clause 24—(Tenure) This clause provides for the full time judges of the Supreme Court to hold oYce while they are of good behaviour. This clause also provides that removal from oYce of any judge of the Supreme Court may only be eVected following resolutions passed by both the House of Commons and the House of Lords. 9674042023 Page Type [O] 28-06-04 20:30:41 Pag Table: LOENEW PPSysB Unit: PAG5

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The Society is concerned about the provisions of this clause. There should be provision for the adequate investigation of alleged judicial misconduct and for the reporting of such an investigation. It might be that members of the various Appointments Boards of the constituent jurisdictions could have a role in this. It is important that the judges of the Supreme Court should be insulated against political interference. An independent investigation process is key to obtaining that objective.

Clause 25—(Salaries and Allowances) This clause provides for Justices of the Supreme Court to receive a salary and allowance, detailing how the salary and allowance is to be determined and from where the salary and allowance is paid. The Society has no comment to make on this clause.

Clause 26—(Resignation and Retirement) This clause makes provision for the resignation or retirement of judges of the Supreme Court. The Society has no comment to make on this clause.

Clause 27—(Medical Retirement) This clause makes provision for vacation of the oYce of a judge of the Supreme Court on medical grounds. Subsection (1) provides for the scope of the clause: it applies if the Minister is satisfied by means of a medical certificate that the person holding oYce as a judge of the Supreme Court is both disabled by permanent infirmity from performing his duties and for the time being is incapacitated from resigning from his oYce. In such circumstances, the Minister is able to declare the oYce of the person in question to be vacated. This declaration has eVect as though the person in question had resigned on the date of the declaration. Subsection (4) requires the Minister, before making a declaration, to secure the agreement the Supreme Court President or Deputy President. Without that agreement, the declaration will have no eVect. The Society has a number of concerns about this clause. In the Society’s view, it is inappropriate that the resignation procedure should be operative after one medical certificate. Recent Scottish legislation on incapacity requires two medical reports by suitably qualified doctors before certain provisions take eVect. Similar provisions should apply to judges of the Supreme Court.

Clause 28—(Pensions) This clause makes amendments to the Judicial Pensions Act 1981 and Judicial Pensions and Retirements Act 1993. The Society has no comment to make on this clause.

Clause 29—(Acting Judges) This clause makes provision enabling the Supreme Court to have access to additional Judges beyond its permanent membership. The Society believes that acting Judges may have a role in the work of the Court, as indeed may a supplementary panel, but neither option is an adequate substitute for full-time membership which is why the Society believes there should be 15 members of the Court.

Clause 30—(Supplementary Panel) This clause makes provision for the constitution of a supplementary panel. The Society has no comment to make on this clause.

Clause 31—(Jurisdiction) This clause makes provision for the jurisdiction of the Supreme Court, which is in essence that of the House of Lords Appellate Committee together with that of the Judicial Committee of the Privy Council in relation to devolution issues under the Scotland Act 1998, Government of Wales Act 1998 and Northern Ireland Act 1998. The Society has no comment on this clause. 9674042023 Page Type [E] 28-06-04 20:30:41 Pag Table: LOENEW PPSysB Unit: PAG5

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Clause 32—(Composition) The Supreme Court will be able to sit in panels. Clauses 32 and 33, make provision for the composition of panels. The basic rule is that the Court will be duly constituted if it comprises an uneven number of judges greater than three, at least one of whom is a permanent member of the Court. This is however subject to the possibility that the President will direct a higher quorum for certain proceedings. The Society is of the view that the constitutional convention which provides that two judges of the House of Lords Appellate Court should come from Scotland should be enshrined in statute subject to the terms of clause 17. In the Society’s view there should be at least 3 judges from Scotland.

Clause 33—(Changes in Composition) This clause provides for the eventuality of the Court being reduced in number, for example due to death or illness, before the end of proceedings. The Society has no comment to make on this clause.

Clause 34—(Specially Qualified Advisers) This clause provides for the Court to have specially qualiﬁed advisers to assist it in its work. This derives from the Supreme Court of Judicature Act 1891 and Judicial Standing Orders of the House of Lords (Order XVI). The Society has no comment to make on this clause.

Clause 35—(Making Rules) and Clause 36—(Proceeding After Rules Made) These clauses set out how Rules of Court will be made for the Supreme Court. The Society has no comments to make on these clauses.

Clause 37—(Photography) This clause removes the prohibition on photography in the Criminal Justice Act 1925 and of the Criminal Justice Act (Northern Ireland) 1945 (both of which prohibit the taking of photographs in all courts) in relation to the Supreme Court. The Society has no comment to make on this clause.

Clause 38—(Minister’s Duty) This clause places a statutory duty upon the Minister to ensure both that there is an eYcient and eVective administrative system put in place for the Supreme. The Society has no comment to make on this clause.

Clause 39—(Officers and Staff:Appointment by Minister) This clause enables the Minister to ensure that the Supreme Court is provided with appropriate administrative support. The Society is of the view that the Minister should be under a statutory obligation to ensure the administrative workings of the Court.

Clause 40—(Staff:Provision by Third Parties) This clause allows the Minister to make staYng arrangements as deﬁned by subsection (2) for the Supreme Court. The Society is of the view that the Minister should consult with a number of bodies not currently mentioned in clause 40(5) including the Lord Justice Clerk and the legal professions of the constituent parts of the United Kingdom. 9674042023 Page Type [O] 28-06-04 20:30:41 Pag Table: LOENEW PPSysB Unit: PAG5

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Clause 41—(Services:Provision by Third Parties) Clause 41 allows the Minister to make service arrangements, including sub-contracting to third parties, for the provision of services to the Supreme Court. The Society questions why the Minister is under no obligation to consult on these arrangements.

Clause 42—(Accommodation) This clause enables the Minister to provide accommodation and facilities for the use of the Supreme Court The Society is of the view that the Minister should have a speciﬁc statutory duty in this respect.

Clause 43—(Annual Report) This clause places a statutory duty on the Minister to prepare an annual report in relation to the Supreme Court and to lay that Report before both Houses of Parliament. The Society is of the view that the duty to lay the report before Parliament should be extended to the devolved assemblies and the Scottish Parliament.

Clause 44—(Fees) and Clause 45 (Fees:Supplementary) These clauses make provision about fees. The Society has no comment to make on this clause per se but there are issues about the financing of the Court. According to the Explanatory Memorandum on the bill, the set-up costs of providing a new building, the location and the nature of which (conversion or new build) has yet to be identified, will be between £6m and £32m. The annual costs are estimated to be between £1.6m and £6m for the recovery of setting up costs and about £4.3m for operational costs. There is a proposal that 80 per cent of the annual costs are to be met by a surcharge on the court fees (dues) payable by all those engaging in civil litigation throughout the United Kingdom. The amount of the increase in paragraph 251 of the Explanatory Memorandum is stated to be likely to be between 0.8 per cent and 1.0 per cent per civil case in each jurisdiction. The present situation, according to the Memorandum, is that the additional cost of providing facilities in the House of Lords for the handling of appeals is about £165,000—£170,000 per annum. The total sum recovered by way of fees payable to the judicial oYce is just under £500,000. This is suYcient to cover the cost of servicing the judicial oYce and reimburse the House for the cost of other services which the judicial arm shares with the legislature. But it is below the figure that would be needed to service the costs of the new court. There are implications for Scottish litigants in the proposal that 80 per cent of the costs of the new court are to be met by a surcharge on all civil court fees. Paragraph 263 in referring to the Regulatory Impact Assessment, states that the majority of the costs will be defrayed across the wider civil jurisdiction from which cases come. This proposal will increase fees payable at every level in the SheriV Court and in the Scottish Land court, irrespective of whether there is a right of appeal to the House of Lords. There should be remembered in assessing its impact, that the Supreme Court’s jurisdiction will be broad and encompass appeals from the United Kingdom Tribunals, but will not include criminal law cases from Scotland. These two factors crystallise the potential unfairness which the proposed policy of recovery of costs from civil litigants represents. The Society’s position is that general taxation should make a substantial contribution to the costs of the Supreme Court.

Clause 46—(Records of the Supreme Court) This clause amends the Public Records Act 1958 to include records of the Supreme Court. The Society has no comment to make on this clause.

Clause 47—(Proceedings Under Jurisdiction Transferred to Supreme Court) This clause paves the way for Schedule 9, which makes transitional provision relating to proceedings which are pending in the House of Lords or Judicial Committee of the Privy Council which are transferred from the House of Lords or the Judicial Committee to the Supreme Court by the Act. The Society has no comment to make on this clause. 9674042023 Page Type [E] 28-06-04 20:30:41 Pag Table: LOENEW PPSysB Unit: PAG5

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Clause 48—(Interpretation of Part 2) The Society has no comment on this clause.

Part 3 Part 3 relates to judicial appointments and discipline in England and Wales, the creation of the Judicial Appointments Commission and the provisions in respect of disciplining judges, including the role of the Judicial Appointments and Conduct Ombudsman.

Part 4 Part 4 relates to issues of disqualiﬁcation, the judicial functions of the Lord President of the Council.

Part 5 Part 5 deals with miscellaneous issues, such as interpretation provisions relating to orders and regulations under the Bill, minor and consequential amendments. The Society has no comments on Parts 3, 4 or 5. It may have minor drafting points to raise on aspects of the schedules. April 2004

Examination of Witnesses Witnesses: Mr Duncan LMurray, Vice President, Mr Gerard ABrown, Convenor of the Working Party considering the Bill, and Mr Michael PClancy, OBE, Director of Law Reform and Secretary to the Working Party on the Bill, Law Society of Scotland, examined.

Q592 Chairman: Good afternoon. Thank you very Mr Clancy: We are quite happy to take questions much for coming. I wonder if you would be kind on these two areas or any other areas which the enough to formally identify yourselves for the sake Committee want to put to us, my Lord Chairman. of the record. Mr Murray: I am Duncan Murray. I am Vice President of the Law Society of Scotland. Q594 Chairman: Could you tell us what your Mr Clancy: My name is Michael Clancy. I am one preoccupations are about judicial independence as of the Directors of the Law Society of Scotland with it applies to Scotland and how you would deal with responsibility for law reform. it in this particular situation? Mr Brown: I am Gerard Brown. I am Convenor of Mr Clancy: The Bill is very clear on this issue in the Criminal Law Committee of the Law Society of relation to Part 1 and section 1, clause 1, which Scotland. provides that “Ministers of the Crown and all with responsibility for matters relating to the judiciary or otherwise to the administration of justice must uphold the continued independence of the judiciary.” If one looks then at the extent Q593 Chairman: Thank you. I wonder if you would provisions, the extent provisions make it clear that be kind enough to, so to speak, open up the this particular clause will extend to England and discussion for us on the basis of your paper and Wales only. I would refer you to clause 102(1). To a perhaps we could pursue such issues as arise from it. certain extent, in looking at this we considered that Mr Brown: As far as the paper is concerned, this was Scotland was in a diYcult position because this the result of a working party that was especially set provision which underscores judicial independence up to look at the consultation paper on the does not apply to Scotland. You will be aware, my Constitutional Reform Bill. I do not want to go into Lords, that the House has already enacted any detail but allow the opportunity of questions, legislation for Northern Ireland which provides for my Lord Chairman. There are two or three issues a guarantee of judicial independence there. which we think should be highlighted. One would Therefore, on the basis of symmetry applying be the question of judicial independence and the throughout all the constituent jurisdictions in the application of that to Scotland and the other would United Kingdom we thought it appropriate that this be the question of the funding of fees issue in provision should be extended. If it is not extended relation to the proposed Supreme Court. to Scotland then we could be in an anomalous 9674042024 Page Type [O] 28-06-04 20:30:41 Pag Table: LOENEW PPSysB Unit: PAG5

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29 April 2004 Mr Duncan L Murray, Mr Gerard A Brown and Mr Michael P Clancy, OBE situation. Ministers of the Crown are defined inter Scottish judges, not in the context of the Supreme alia in the Scotland Act 1998, section 117, as those Court but in the context of judicial independence ministers who include Scottish ministers, so generally. Question: which is the appropriate body, therefore Scottish ministers would be in the position this Parliament or the Scottish Parliament to deal of having an obligation to uphold the independence with that? Scottish law is jealously guarded by the of the judiciary in England and Wales but would Scottish Parliament for a number of reasons which not, apparently, be under a similar duty quoad we fully respect. I think you are saying we should Scotland. That could be an anomalous situation. It deal with it in this Bill as your argument. would also create the situation that two Cabinet Mr Clancy: Yes, that is my argument because I ministers, the Secretary of State for Scotland and think we might wait for some time for the Scottish the Advocate General for Scotland, who have a role Parliament to be able to enact a similar protection. more appropriately in the UK and would be For the purposes of symmetry and until such time definitely caught by this provision, would be as the Scottish Parliament has the opportunity to responsible for upholding the independence of the legislate on this issue this would be a useful judiciary in England and Wales. We think that all mechanism to use. in all, on the basis of symmetry and to make sure that there are no diYculties about interpretation, Q598 Chairman: You only wish this Parliament this provision should have application in Scotland. here to legislate if there is a Sewel motion. It would Chairman: Could I ask the Lord Chancellor straight not be able to legislate in the absence of one, away whether he wants to be symmetrical? would it? Mr Clancy: No, it would not be able to legislate. It Q595 Lord Falconer of Thoroton: I am always very could legislate in the absence but the convention keen to be symmetrical. I think the point that Mr applies and so, therefore, it would not, my Lord Clancy has made is quite an important one. I think Chairman. the area that one perhaps needs to explore is, are issues about judicial independence ones properly to Q599 Lord Falconer of Thoroton: The other point be dealt with by the Scottish Parliament rather than on this, and this is in the context of the abolition of by us? That seems to me to be the issue. the role of the Lord Chancellor, is what role Mr Clancy: That is a very interesting point, Lord historically and what role recently has the Lord Chancellor, and, indeed, if this clause were not Chancellor played in the protection of independence located in Part 1 under the arrangements to replace of the Scottish judiciary? the oYce of Lord Chancellor then one could easily Mr Clancy: The Lord Chancellor has had no role in have a clearer run at this. It is certainly part of the relation to the Scottish judiciary as far as I am balancing act, or the rebalancing act, which has to aware. be achieved following the abolition of the oYce of Lord Chancellor and one can clearly see why this Q600 Viscount Bledisloe: I wanted to ask you provision applies. If there is an issue about this something diVerent but I want to follow up on that. applying to Scotland and having the Scottish It would be somewhat odd, would it not, if the Parliament enact it, then certainly the Scottish Secretary of State for Constitutional AVairs was Parliament should consider whether or not this allowed to influence the outcome of a Scottish would be appropriate for it to take on a separate appeal to the Supreme Court but not allowed to basis. This bill is a convenient vehicle to achieve the influence the outcome of an English appeal to the same end. It will be possibly approved under a Sewel Supreme Court? There is clearly an anomaly which motion, if the Sewell motion goes to the Scottish is not merely restricted to what happens within Parliament, and the Scottish Parliament gives Scotland, is there not? approval to the Bill being applied to those aspects Mr Clancy: I think you are right, my Lord, yes. which rest with the Scottish Parliament. I think one has also got to consider the role that the Supreme Q601 Viscount Bledisloe: I will come to the question Court will have. At one point it will be the pinnacle I wanted to ask. We have got a summary here of of the Scottish judicial system. your response to the Department’s consultation paper. Some of the things you mention are that you Q596 Lord Falconer of Thoroton: We are talking would like to see 15 rather than 12 judges in the here about clause 1, judicial independence. Supreme Court, that vacancies should be advertised Mr Clancy: Yes, indeed. and there should be a provision for there to be a minimum of three justices from Scotland and so on. Q597 Lord Falconer of Thoroton: For me, the area That could all just as easily be achieved within the that I would be interested to explore is we are present system of an Appellate Committee of this talking about the position of the protection of House, could it not? 9674042024 Page Type [E] 28-06-04 20:30:41 Pag Table: LOENEW PPSysB Unit: PAG5

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Mr Brown: Yes. sometimes when I am sponsored by Nytol, it was quite clear at an early stage after the Union came Q602 Viscount Bledisloe: Secondly, if we retain the into eVect that an appeal which had been in use to Appellate Committee of this House we avoid the the Scottish Parliament under earlier legislation was very tricky and constitutional problems that you not mentioned here and that litigants were being raise in your paper, is that right? denied the opportunity to take their cases forward. Mr Brown: Yes. The issue, my Lord, is in relation So very swiftly in 1708 the Earl of Rosebery in a to preserving the independence and the distinctness civil case, in 1709 a further case from the Court of of Scottish law. As far as the Bill is concerned, our the Exchequer and then in 1713 in the criminal case response is that if there were an increase in numbers of Elgin Magistrates v the Elgin Ministers, and I to 15 that there should be at least three Scottish Law have not read it so I cannot elucidate on the rather Lords in respect of that 15. In our view that would intriguing name of the case, these cases very rapidly be a safeguard in relation to appeals taken from established the appeal which applied right the way Scotland. through the 18th century and almost to the end of the 19th century in criminal cases and to the present Q603 Viscount Bledisloe: The second half of my day in civil cases. There has been a use for these question is more related to the problems that you appeals. There is a divergence of opinion certainly raise about the Act of Union and so on in your in Scotland but I would estimate that most people paper. Those are all avoided if we stay where we are, have the desire to continue an appeal. I have no are they not, with a Judicial Committee of this empirical evidence to support that. House? Mr Clancy: I am not sure what you mean by the Q605 Lord Maclennan of Rogart: Continuing on problems which we raise in relation to the Act of that point briefly, Mr Clancy, Scotland is not up in Union, my Lord. arms about this, is it? Mr Clancy: From my vantage point I see no armies, Q604 Viscount Bledisloe: Sorry, I am attributing to my Lord! you views that have been expressed by others in Lord Falconer of Thoroton: A very cautious reply. Scotland. I misunderstood the paper. Is it right that there is concern in Scotland that the new Supreme Court provision will entrench upon the system of Q606 Lord Maclennan of Rogart: It has been put to the Act of Union and the present system limitations us by the Faculty of Advocates that this issue is of on Scots appeals and a greater right to bring appeals constitutional significance and it cannot be “over- without leave and so on? estimated”. It is not your view that that is the case, Mr Clancy: It is fair to say that there is a divergence is it? of opinion in Scotland. I think that goes beyond Mr Clancy: It is of considerable constitutional anything that we would say. The Act of Union was significance but that does not necessarily mean that pretty clear in its terms in relation to appeals to the one need oppose it. House of Lords; it did not mention them at all. It was completely silent on the point and that was probably not an error because, as I am given to Q607 Lord Maclennan of Rogart: The main issue I understand as I was not present on 14 February wanted to take advantage of raising with you was 1707 when the provisions of Article XIX were the distinction between civil and criminal appeals. debated in this House, the issues were not at all Is the justification for this distinction one which raised, possibly because of disputes between the should be continued in the present legislation? House of Commons and the House of Lords Mr Brown: This is an issue which we considered very regarding the equity of jurisdiction and appeals carefully, not only in the working party but in the inequity which had been decided only a short time Criminal Law Committee, which consists of previously. What the Treaty of Union, Article XIX, practitioners from throughout Scotland. We also actually says—if I can just get to the particular consulted informally and anecdotally on it. The point—is “that no causes in Scotland be cognoscible consensus was that there were no issues of concern by the Courts of Chancery, Queen’s-Bench, in relation to the criminal appeals system in Common-Pleas or any other court in Westminster Scotland which would have allowed us in any way Hall, and that the said Courts or any other of like to support a further tier of appeal. As far as the nature after the Union shall have no power to question of civil appeals is concerned, again it was Cognosce, Review or Alter the Acts or Sentences of considered very carefully and the opinion taken was Judicatures in Scotland”. At the risk of sending you that the present procedure serves Scottish civil law all to sleep, which is always a possibility when I get well and there was no reason to propose a change on to the Act of Union, and it is even worse to that. 9674042024 Page Type [O] 28-06-04 20:30:41 Pag Table: LOENEW PPSysB Unit: PAG5

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Q608 Chairman: What about getting leave to Q611 Lord Carlisle of Bucklow: Lord Mackay. appeal? Mr Clancy: Exactly. In times gone by there have Mr Brown: There is a distinction. been many, many valuable contributions made by Mr Murray: I think we have taken the view that the these judicial peers to Bills which have gone through area of leave to appeal has not caused any diYculty this House. I remember with great fondness Lord and that there is an issue perhaps under the Claim Morton of Shuna’s contribution in the late 1980s of Right whether there would be diYculties arising and early 1990s to many Bills and others have if that were to be changed and, given the current contributed very, very recently. Ever since eVectively position works adequately without diYculty or the self-denying ordinance in June 2000, we have not overwhelming the current committee with work seen as many contributions from judicial peers as we from Scotland, that there is no need to change the saw heretofore. I think perhaps, although there is current position regarding leave. I think it is no uproar about the prospect of these peers being important to say that we did consider very deeply able to contribute, and indeed the contributions the question of a retrenchment back to Scotland of which have been made have been extremely civil matters and an expansion to the Supreme valuable, there may be a consequence for those Court of criminal matters and I think we have aspects of Scots law which come before the House reached what we consider to be the right option, in the future if those peers are not in their place. We although clearly not the only option which is may have to look at ways to acquire expertise in the available. Clearly there are many matters of what House in matters of Scots law. I cannot say that there is a great clamour to have them removed. are sometimes termed single market law and as far as those civil matters are in the employment field, in which I practise, it would be very unfortunate if those appeals were not to proceed to the new proposed Supreme Court from Scotland. Q612 Lord Carlisle of Bucklow: The other matter I wanted to ask you about was totally diVerent which Q609 Chairman: I was putting it round the other follows on from what Lord Maclennan was asking way and wondering how one justifies the situation you and that is about the situation of costs in the in which in England and Wales you have to get leave new Supreme Court. As I understand it, at the to the Lords of Appeal and in Scotland you do not. moment not only is there no right of appeal to the Mr Murray: I think my Lord, Lord Hope, is going Judicial Committee of criminal cases but the right to address you on this later. We had a discussion of appeal in civil cases, although it can be done on with him earlier this afternoon. opinion of counsel rather than leave to a court, is, Lord Kingsland: Very wise. in fact, limited in number each year. What is the reaction, if any, of the Law Society of Scotland to the suggestion that the additional cost of a Supreme Q610 Lord Carlisle of Bucklow: Can I ask you Court should fall upon all civil litigants throughout about two matters. First of all, part of the evidence the United Kingdom? we have had in this Committee relating to the Law Mr Murray: I think we have considerable concern Lords is a criticism of members of the Law Lords about that proposal. As a matter of policy, we feel being part of the House of Lords and with the that the appropriate way of funding litigation in the ability to speak or to take part in debates in the courts is through general taxation, that citizens have House of Lords which can be said, by perception a right through general taxation to have that V anyway, to a ect their impartiality. It is of course funded. There are other points which arise in terms a fact, is it not, that unlike in England there are of placing the burden as proposed on civil litigation. certain High Court judges in Scotland who actually There are aspects of civil litigation in small claims are Members of this House. I can think of one which it is anticipated, I think, from the certainly at the moment and two in the immediate Explanatory Memorandum would have increased past. Has there ever been any criticism of the fact costs who have no right of appeal to a Supreme that those who are sitting as full-time judges in the Court in those matters. There are matters of courts of Scotland at First Instance are, in fact, Employment Tribunal work where there is a right Members of this House with, in fact, a right to speak of appeal to the Supreme Court which would have and to vote and, indeed, who do, to my knowledge, no impact on their costs because no costs are from time to time attend the House? payable for those. We think it is a matter of Mr Clancy: I think, my Lord, it is certainly the case principle that the value of cases being decided and that many judges in the Court of Session and High the law being clarified in the Supreme Court have Court of Justiciary are peers: Lord Hardie, Lord greater general application beyond the parties in any Mackay of Drumadoon. particular dispute. 9674042024 Page Type [E] 28-06-04 20:30:41 Pag Table: LOENEW PPSysB Unit: PAG5

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Q613 Lord Carlisle of Bucklow: I asked the Mr Murray: I think we see no reason to deviate question particularly because the Bar Council when from the principle as it applies at the moment giving evidence before us last week indicated that whereby there would not be a diVerence whether the their support for the setting up of a Supreme Court case commenced in England or commenced in in place of the Judicial Committee of the House of Scotland. That is the theoretical position. In Lords was in a large way dependent on how that practical terms it is inconceivable that a case which court was to be financed and the costs should not is in point, whether it arises in Birmingham or be paid by the litigants. As I understand your Aberdeen, at first instance would be looked at answer, the Law Society of Scotland would share diVerently by a Scottish court. that view. Mr Clancy: I think there is also a development of Mr Murray: We would share that view. this issue because your original question related to the devolution issues coming from Scotland but, as Q614 Lord Goodhart: I have two points. The first your Lordship knows, devolution issues can arise in is this: devolution cases I suppose can be described Wales and Northern Ireland as well. Under the basically as boundary disputes between the provisions of the various devolution acts the Westminster Parliament and the Holyrood decisions of the Judicial Committee of the Privy Parliament. Do you, therefore, regard it as an Council are binding on all other jurisdictions. One anomaly that they are decided mostly by judges can envisage a circumstance where there is a whose principal qualification for sitting is their refinement and a subtlety to the question of the membership of this House even if they are application of stare decisis in respect of those cases nominally sitting as members of the Judicial which are, for want of a better word, Committee of the Privy Council? constitutional cases. Mr Brown: I think that devolution cases as they are described— Q618 Lord Goodhart: I am aware that the most important case in the English law of negligence was, Q615 Chairman: Could you shout, please, it is very in fact, in the Scottish Division in the House of diYcult to hear. Lords. Mr Brown: I am very sorry, my Lord, I am not Mr Clancy: If it had not been for the House of normally so soft spoken, particularly at football Lords we would still not be able to sue for snails in matches. the ginger beer. It was mice in the earlier case of Mullen v Barr. Q616 Chairman: Revert to nature in that case. Mr Brown: I will imagine I am at a football match. As far as devolution cases are concerned, these Q619 Lord Craig of Radley: Could we have a look normally have arisen out of criminal cases in for a moment at the points which lead you to think Scotland and our view is that these are issues, that there should be 15 justices in the Supreme although described as devolution cases, that have an Court rather than 12. Clearly there is an additional application UK-wide and, therefore, we do not cost involved in this and it might get through more have, nor have we experienced, any problem in the cases and that would make headroom, I suppose, process. I think convention has shown that in cases for three justices in Scotland. Bearing in mind that coming from Scotland normally the assistance of you said that general taxation should make a Scottish Law Lords is sought in those devolution substantial contribution to the cost of the Supreme cases. Court and you seem to admit that there should be some contribution from the litigants, I just wonder why you are so keen to see 15 rather than 12 justices. Q617 Lord Goodhart: My other point is a more Mr Murray: You correctly state that in having a technical one. The Society says that in its view the dual function we think that there is an attraction in decision of the court when considering a case arising having three Scottish judges dealing with what is from an English court should be binding on all called the pure Scots law principle, that there will lower English courts but only highly persuasive in be a majority of Scottish judges who will have the Scottish courts, and vice versa. Do you see any opportunity to sit. We also recognise that is distinction between cases that arise out of what one impractical and unrealistic in the context of a bench might call pure Scottish law and cases that arise out of 12. The two were taken together in expanding the of the interpretation of United Kingdom statutes? bench to 15. For instance, if it is a question of the interpretation of the tax statutes, should it make any diVerence to the authority of that case that the taxpayer in Q620 Lord Craig of Radley: We are dealing with question happens to be resident in Scotland rather civil cases only and have been doing for some than England? considerable time. I just wondered why we had to 9674042024 Page Type [O] 28-06-04 20:30:41 Pag Table: LOENEW PPSysB Unit: PAG5

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29 April 2004 Mr Duncan L Murray, Mr Gerard A Brown and Mr Michael P Clancy, OBE make a change, other than to make room for the From reading the background papers I have formed three. the view that you would like the number to be Mr Murray: It deals also with devolution issues as stipulated in the Bill, is that correct? well. It is desirable that the cases should be dealt Mr Clancy: I think we are still considering whether with expeditiously and we felt that creating more an amendment to that eVect would be an resource would be helpful towards doing that. The appropriate way forward or whether to rest with the Lords of Appeal in Ordinary have a heavy caseload possibility that if the Supreme Court is established and it strikes us that increasing the numbers of the there would be an emerging convention. panel would serve to allow matters to be taken and decided more quickly and that would be a desirable Q624 Lord Kingsland: Would your answer to my end in our view. question be influenced by the numbers concerned? Would you take a diVerent view on stipulation if the Q621 Lord Craig of Radley: Even though it could number were two rather than three? increase the cost to litigants? Mr Clancy: Possibly. Mr Murray: There would be an increased cost of the judicial salaries of three extra judges. Q625 Lord Kingsland: At the moment the overriding criterion, in fact the sole criterion, for Q622 Lord Kingsland: I have got three short issues appointment to a position on the Supreme Court is to pursue. The first one is about the final court of merit. One possible advantage in not having the criminal appeal remaining in Scotland, which I numbers of Scottish judges stipulated in the Bill is understand is what you recommend. Without in any that you might get a candidate who is so meritorious way wishing to suggest that, for my part, I do not that even in a court of 12 he or she might become agree with that, I wondered whether, from the point the third judge. of view of the alleged accused, that was necessarily Mr Clancy: I accept that, my Lord. the best solution. After all, the alleged accused in England and Wales can take his or her case further to the House of Lords which will perhaps become Q626 Lord Kingsland: My third question, and it is the Supreme Court, whereas the alleged accused in much less elaborate than it would have been had not Scotland will not have that option. I am not saying other noble Lords asked questions on this subject that is less desirable but I think the issue ought at earlier, is about the absence of leave for civil appeals least to be explored. What is your reaction to that? to the Supreme Court. One advantage of Mr Brown: There are certain safeguards in Scotland introducing a leave criterion, in many cases, would involving the law of corroboration which apply be, would it not, the saving of money? There must particularly to Scotland which are jealously be a number of civil cases that arrive in the Judicial regarded as giving a safeguard against miscarriages Committee of the House of Lords at the moment of justice. I say no more on that. There has been no which are almost futile. Would the client not be criticism obviously from accused persons about the better served by having a leave barrier in those procedures, and certainly since the introduction of circumstances? the Scottish Criminal Cases Review Commission, Mr Clancy: I think recent experience has been that which has the power to investigate any complaints has not been the case. The cases which have actually of miscarriage of justice, and I attended the fifth run to be heard before the court have been anniversary on Monday evening in Edinburgh. That considered to be substantive matters of law for is another safeguard against any wrongful which leave would have been granted had it been convictions. There is also the increased powers of sought. The only area where there might be an issue the Appeal Court to hear new evidence which has around that perhaps is there are a number of cases been introduced successfully as a result of case law where cases for appeal are marked but then do not and statute over the last number of years. Taking proceed. I do not know whether that was one of the the general views of those who have involvement requirements to pursue leave if they disappeared other than the accused—we did not consult the before a hearing in any event. There is no recent accused I am sorry to say, my Lord—those solicitors experience of that proving to be an issue. and solicitor advocates who were involved did not feel there was any groundswell for a change. Q627 Lord Lloyd of Berwick: From my experience of whatever it is, six or seven years, sitting in the Q623 Lord Kingsland: Thank you, that is a most House of Lords, certainly there have been Scottish helpful response. My second question concerns the civil appeals which almost certainly would not have number of Scottish judges in the proposed Supreme had leave. I do not know whether that would aVect Court. There was nothing in the Bill that stipulates your view, therefore, as to whether leave should be the number, whether it should be two or three. required. It is only my view, of course. 9674042024 Page Type [E] 28-06-04 20:30:41 Pag Table: LOENEW PPSysB Unit: PAG5

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Mr Clancy: I think if there were to be widespread law it was understood that it would need a concern that was the case then we would be resolution of both Houses of Parliament to remove prepared to reconsider our position but that is not a judge of the Court of Session but that had no something that has been visible in Scotland, I expression in any Act of Parliament. When we saw should say. the provisions of clause 24, which provides for the removal on the address of both Houses of Q628 Lord Lloyd of Berwick: Turning to the Parliament, we thought how do we get to this question of criminal appeals, the argument against position and the Scotland Act provides a criminal appeals coming to the House of Lords, as mechanism for judges of the Court of Scotland to I understood it, was that Scottish criminal law is get to that position where they would be removed. diVerent in certain respects from English criminal That is why we came to the view that there should law and you mentioned the dreaded word be an adequate investigation of alleged judicial “corroboration”, which I am happy to say we finally misconduct and that investigation should be got rid of some years ago. Surely that is not a very adequately reported. This struck us as being a good strong argument, is it? Scottish civil law has not ever safeguard. If the Supreme Court provisions in the prevented the 12 Law Lords putting themselves in Constitutional Reform Bill are silent, how do we the position of Scottish judges and applying Scottish actually arrive at a position where an address to law to the particular appeal. The fact that the law both Houses of Parliament is to be made and what is diVerent does not seem to me to be a are the criteria where a justice of the Supreme Court tremendously strong argument. Surely a very strong could find him or herself in that position? That is argument the other way is that if we are to have a why we got to that point. I think you mentioned United Kingdom Supreme Court the fewer medical retirement, my Lord. exceptions, the fewer holes, the fewer variations and so on between the procedure in England and the Q630 Lord Howe of Aberavon: Yes. procedure in Scotland, the better surely. Mr Clancy: On the issue of medical retirement, Mr Brown: I can respect and understand the logic again this provision was considered by members of of that argument but the position is having our committee who deal with mental health and considered this matter carefully and having looked disability law. As you may be aware, in Scotland we at the alternatives, the opinion taken by the Society have recently enacted the Adults with Incapacity was that the safeguards that I have already (Scotland) Act and currently going through this commented on have worked so far. There are always House in draft form there is a mental health exceptions and there are always cases that slip incapacity provision which is being considered. through the net. There was no clamour or Looking at the provisions of clause 27, which allows groundswell within Scotland to change that system. the minister to be satisfied on the basis of one The appeal procedure is being refined on a regular medical certificate that a person holding the oYce is basis, the workload is being refined, and, according disabled by permanent infirmity and is incapacitated to all the views taken, it does seem to be working from resigning, we thought that was insuYcient. successfully, my Lord. Under the Scottish provisions, which apply to any individual not just judges, it would be the case that Q629 Lord Howe of Aberavon: Just one point really two medical reports, not simply certificates, by those and that is arising from your comments on clause who are adequately qualified in the area of mental 24 and clause 27. Clause 24 is the one enabling a health and mental disability are required for the Supreme Court judge to be dismissed by address of declaration of incapacity. We thought that was a both Houses of Parliament. Clause 27 is the one useful precedent to draw upon for our comments about medical retirement. You have not said here. anything about those. I wondered quite what the background was because I had assumed when I saw Q631 Lord Howe of Aberavon: If I understood it those two clauses that they were merely enacting the correctly, heretofore in Scotland, as in the rest of existing position in England and Wales, certainly in the kingdom, there has been nothing to elaborate the United Kingdom, so there was no need for the existing provisions in clause 24, simply the two concern about them. I may be wrong about that. resolutions? Can you explain what your anxiety is and why you Mr Clancy: Yes, in relation to a Lord of Appeal in have not mentioned it beyond what is in the text? Ordinary you are absolutely correct. Mr Clancy: Our analysis of these two provisions was informed by the provisions of the Scotland Act 1998, particularly in relation to the removal of Q632 Lord Howe of Aberavon: What you are judges from oYce, because until the Scotland Act suggesting is that now, for the first time, there there was no statutory provision. I think at common should be some elaboration of these provisions. 9674042024 Page Type [O] 28-06-04 20:30:41 Pag Table: LOENEW PPSysB Unit: PAG5

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Mr Clancy: That is the case, my Lord, yes. Mr Murray: I think historically there have been diYculties but in the recent past there have not been diYculties. Q633 Lord Howe of Aberavon: Likewise in clause 27 you are suggesting, as it were, updating existing Q639 Lord Falconer of Thoroton: You know that UK law to Scottish standards? I may have got it there is provision in the Bill for there to be a wrong. supplementary panel of people who can sit on the Mr Clancy: That is very chauvinistic phraseology, Supreme Court, including people holding high my Lord, if I may say, but, yes, you are right. judicial oYce in Scotland. Do you see that as a means by which in appropriate cases there could be Q634 Lord Howe of Aberavon: Could I make one a majority of Scots, for example in devolution cases? other observation and say that you may have Mr Murray: I think we see this as a means but it is noticed that the Welsh Members of this Committee a less preferable means, I think, than the proposal have not sought to rely on any specification on we suggest where we think there should be full-time numbers but are content to rely on the merit permanent judges. qualification alone. Mr Clancy: That speaks volumes for the Welsh Q640 Lord Falconer of Thoroton: You have referred judges, my Lord. to the legitimate concern to ensure that it is made Lord Howe of Aberavon: That is what it was meant clear that when the Supreme Court is hearing a to do. Scottish case it is not determining UK law, it is determining Scottish law. Would you want to see an amendment to make that clear or are you content Q635 Lord Falconer of Thoroton: I understand your with the drafting? evidence to be that your view on behalf of the Law Mr Clancy: I think we would like to see an Society is that if there is a Supreme Court in the amendment to make that clear, my Lord. United Kingdom, civil appeals from Scotland should go there but not criminal appeals? Q641 Lord Holme of Cheltenham: You do not feel Mr Murray: That is correct. that with a total court of 15 with three mandatory Scottish we would produce the legal equivalent of the West Lothian question where we would have an Q636 Lord Falconer of Thoroton: That is what you over-representation of Scotland in the deliberations would press for in your evidence as the jurisdiction of the Supreme Court, particularly since some as far as Scottish matters are concerned. I think it experts have recommended the Supreme Court is also the case that if there are only to be 12 justices should sit—I am not sure if I pronounce it right— of the Supreme Court full-time then I think you are en banc, ie together. At that point would you not be saying you recognise that probably as a matter of worried that there would be an overly strong strain practicality only two of those can be Scots? of Scottish jurisprudence flowing into the Mr Murray: That is correct. deliberations of the Supreme Court? Mr Brown: I do not know if my Lord is worried but Q637 Lord Falconer of Thoroton: Your concern, I we are certainly not. think, in relation to having three rather than two if it went up to 15 is that in certain cases there should Q642 Chairman: I have to say I thought that was be a majority of Scots. a very brave question. It does seem to me if I was Mr Murray: Indeed so. a Scot I would be complaining about having appeals heard by a court, only two of which were Scots and three of which were basically foreigners, with the Q638 Lord Falconer of Thoroton: Do you know in West Lothian question, or whatever it is. relation to a civil case tried by the Judicial Gentlemen, thank you very much for coming. You Committee of the House of Lords where it has ever have exposed us to some of the intricacies of the caused a problem by there being a mix of English Scottish position and for that, thank you very much. and Scots deciding a case? Mr Brown: Thank you for the invitation.

Memorandum by Lord Hope of Craighead

The Issues of Principle 1. The Government, basing itself repeatedly on pronouncements by Lord Bingham of Cornhill and Lord Steyn, has stated that it approaches the establishment of a Supreme Court for the United Kingdom as an issue of principle. The principle which it asserts is separation between the roles of judges and those of legislators. 9674042025 Page Type [E] 28-06-04 20:30:41 Pag Table: LOENEW PPSysB Unit: PAG5

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It adopts Lord Bingham’s recent statement that he had yet to hear any principled argument to the contrary: Secretary of State’s Written Evidence, para 50. 2. Lord Bingham and Lord Steyn are, of course, entitled to their own views on this matter. But they are not the source of all wisdom on these issues. I suggest that the views of others should have been sought by the Government during the consultation process. That did not happen. The Consultation Paper confined the process to a series of questions, assuming that there was to be a Supreme Court. Responses which went outside those questions, including my own, were ignored and not even acknowledged when the Summary of Responses was published. 3. The fundamental principle, which lies at the root of the rule of the law in the United Kingdom, is the independence of the judiciary. The essence of that principle lies in the judiciary’s independence from any direct or indirect influence by the executive. The principle of the separation of powers is a diVerent principle. Its essence is a complete separation of all three branches of government. The US Constitution is based on this principle, but has not been adopted in this country. The position which the Government has adopted appears to confuse these two principles. 4. If a principled argument against separation is needed, it can be expressed in the phrases “value for money” and “holding on to what is good”. These points were made by Lord Nicholls of Birkenhead, whose views deserve particularly close attention as he is the longest serving Law Lord, in the debate of 12 February 2004 (Hansard, vol 657, cols 12271229). A process of detailed evaluation and assessment is called for, and it has still not been conducted. The practical disadvantages of separation need to be identified, and compared with the perceived advantages of separation, which appear to be almost entirely cosmetic or theoretical, and its cost. It is striking how little Part II of the Bill sets out to achieve other than removing the Law Lords from the House, modernising the appointments system and providing them with a new name. 5. To take just one example of points made in favour of the proposal that need to be evaluated, the Secretary of State has referred to the position whereby a Law Lord could be lobbied in the corridors of Parliament or be required to withdraw from hearing a case because of comments made in the House: para 53. In my seven and a half years as a Law Lord I have not experienced the slightest hint of lobbying in the corridors of Parliament. There were one or two instances, following the Pinochet case, when a Law Lord had to withdraw from a hearing due to things said in the House. But this is very rare, has placed no strain on the system and could just as well happen because of things said in a written article or a public lecture. 6. It is also said that the existing accommodation for the Law Lords leaves a lot to be desired, which leads to other disadvantages: para 56. I believe these statements to be exaggerated. Those of us who have computer skills (not all of the Law Lords do at present, but this is where the future lies) do not need more secretaries. It is doubtful whether we could usefully employ more than the four judicial assistants we have, even if we could find more than four each year of suYciently high quality (I have been responsible for recruiting them since they first joined us four years ago). It is very unlikely that visitors, especially those from overseas whose impressions of the authority and importance of the court are almost entirely visual, will be as impressed by observing the Supreme Court at work in any of the rather lowly buildings which are currently being discussed (whose identity I cannot disclose) as they are at present when they visit us, as they often do, in this House. 7. Above all, I would suggest, value needs to be attached to the fact that the present financial arrangements insulate the Law Lords almost entirely from interference by the executive. The fact that its work is financed through the Parliamentary vote is a powerful protection against the risk of executive action designed simply to reduce costs and achieve savings. At present the executive cannot lay a finger on the work that the Law Lords do. In an uncertain world, this is a vital guarantee of judicial independence where it matters most which our history has bequeathed to us, and I do not think that it should be given up.

Sitting in the House 8. Clause 94 of the Bill extends the parliamentary disqualification to judges of the Supreme Court and members of the House of Lords while holding any of the judicial oYces referred to in clause 94(2). Those already members of the House of Lords who are disqualified will not for that reason be disqualified from receiving a writ of summons. But they will be disqualified from sitting or voting in the House of Lords and its committees. 9. I have no objection to the removal of the right to vote, but I do question the need for removal of the right to sit (which carries with it the right to speak). Judges of the Supreme Court will be entitled to sit on the steps of the Throne, as they will all be Privy Counsellors. As one who quite often sits in the House to listen to debates, I 9674042025 Page Type [O] 28-06-04 20:30:41 Pag Table: LOENEW PPSysB Unit: PAG5

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29 April 2004 would of course find it more comfortable if I were to be allowed to sit in the Chamber. But my point goes further than that: see the following paragraphs. 10. Although I have felt inhibited from doing this by the current proposal, I believed that it was open to me as a Law Lord to contribute to the work of the House as a revising chamber by drawing attention to possible defects in draft legislation. I did so in the case of the Crime (Sentences) Bill (1997), the Crime and Punishment (Scotland) Bill (1997), the Employment Rights (Dispute Resolution) Bill (1997), the Human Rights Bill (1998), the Scotland Bill (1998), the Armed Forces Discipline Bill (2000), the Limited Liability Partnerships Bill (2000), the Criminal Justice and Court Services Bill (2000) and the Proceeds of Crime Bill (2002) [if necessary, I can provide references to Hansard]. It has never been suggested to me that my interventions have disqualified me from sitting on cases arising from this legislation. 11. There is no universal truth that judges must be entirely separated from the process of legislation. It all depends on the part that judges play in this process. In Sweden (which has a unicameral system), for example, some of the 15 justices of the Supreme Court serve on the Council on Legislation which gives opinions on law proposals before they are submitted to the Riksdag. The Conseil D’Etat in France performs a similar function, although it also has an important judicial role. Section 33 of the Scotland Act 1998 provides that the Law OYcers may refer Bills of the Scottish Parliament to the Judicial Committee of the Privy Council for scrutiny as to their legislative competence before enactment. The Law Commissions are chaired by members of the judiciary, and former members become judges. The judiciary, in both England and Scotland, are frequently consulted as part of the legislative process. 12. The fact is that the process of legislation is assisted by making the best use of the resources that are available. There are good grounds for thinking that, while issues of legislative policy are not for them, there is no fundamental objection to judges assisting in the scrutiny and revising process so long as they do this openly and in public. 13. Since devolution, contrary to what was originally proposed by the Government, much legislation relating to devolved matters has been taken under Sewell motions at Westminster. This removes the legislation from detailed scrutiny at Holyrood and it heightens the importance of its receiving detailed scrutiny in this House. But only a few peers are skilled in Scots law and practice and almost all of them are based in Scotland. It is diYcult for them to assist in this process. The Scottish Law Lords, who are in this building almost every day, can help to fill the gap. The value of enabling the Scottish members of the Supreme Court to participate by allowing them to sit and speak in the House, particularly on legislation which aVects Scotland, needs to be assessed. 14. The value of participation of the Law Lords in the work of Committees of the House needs to be assessed too. These include the Committee for Privileges and the various scrutiny committees. It has never to my knowledge been suggested that the participation by Law Lords in the work of the Select Committee on the European Union has compromised their judicial work. My own experience has been that it adds greatly to knowledge and understanding of this area of the law in a way that is not readily obtainable anywhere else and is wholly beneficial. Allowing former judges of the Supreme Court to begin to participate in this work only after their complete retirement from judicial work (probably when aged 75) is an unsatisfactory substitute for the present system.

Scotland 15. The Bill as it stands says nothing about the need to preserve the distinct nature of Scots law and the separate existence of the Scottish legal system, which is guaranteed by article XVIII of the Treaty of Union 1707. Something needs to be done about this, in order to ensure that the established conventions will not be lost when the judicial business of the House is transferred to the new court. 16. It would be desirable to include in the Bill a clause to the eVect that nothing in the Act aVects the continuing commitment of the United Kingdom to the distinct existence of separate legal systems within England and Wales, Scotland and Northern Ireland. Other clauses dealing with the Scottish position as suggested by Lord Cullen of Whitekirk would also be desirable.

Spreading the Cost of the Court 17. The Explanatory Memorandum states that costs will be apportioned between litigants before the Supreme Court and those engaged in civil litigation before the lower courts in England and Wales, Northern Ireland and Scotland: para 251. I do not know whether the Government consulted the Scottish Executive before making this statement, but this seems unlikely. Fees are recovered from litigants in the Scottish courts 9674042025 Page Type [E] 28-06-04 20:30:41 Pag Table: LOENEW PPSysB Unit: PAG5

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29 April 2004 under regulations made under section 2 of the Courts of Law Fees (Scotland) Act 1895, which refers to fees payable to any oYcer of any oYce or department connected with the Scottish courts the expenses of which are paid wholly or partly out of the Consolidated Fund or out of moneys provided by Parliament. The deﬁnition of “the Scottish courts” does not mention the House of Lords, and there is no provision for the recovery of fees payable in one of the courts listed in the deﬁnition to be used to subsidise the cost of running another. 18. It appears that the Bill will need to be amended to make provision for the fees charged to litigants in the Scottish courts to be surcharged by the amount needed to contribute to the cost of the Supreme Court. A Sewell motion will be needed, as civil litigation in Scotland is a devolved matter. The proposal is likely to be contentious. For example, there are areas of Scots civil practice such as the work of the Scottish Land Court and the Lands Valuation Appeal Court and some civil work in the SheriV Court which are peculiar to Scots law and where there is no possibility of an appeal beyond the Court of Session. If the proposal is not accepted in Scotland or is restricted, the fairness of the proposal to surcharge all civil litigants in the other two jurisdictions will need to be assessed. 22 April 2004

Examination of Witnesses Witness: Rt Hon Lord Hope of Craighead, a Member of the House, Lord of Appeal in Ordinary, examined.

Q643 Chairman: Thank you very much for coming ancient bits of law, one being the Act of Union of and for submitting your written evidence. I wonder 1707 and the other the Claim of Right of 1689 which whether you would identify yourself formally for the gave a right of appeal to Parliament in the very sake of the record and then perhaps you would like to diYcult area of the Jacobite times and the late Stuart speak to your paper and open up the discussion for kings in Scotland. This was a very historical us so we can pursue that. approach. Since then, the Lord Chancellor has gone Lord Hope of Craighead: Thank you very much to very great lengths to develop a dialogue between indeed, my Lord Chairman. My name is David myself and other colleagues and the Scottish Hope, Lord Hope of Craighead. I am a Lord of Executive, and indeed with himself. I should like to Appeal in Ordinary. I have held that position for make it clear that a very large area of my concern has seven and a half years. Since we are, I think, going to been resolved as a result of that dialogue. While I talk about some Scottish issues, it may be relevant to have great reservations about the general principle, add that I held the combined oYces of Lord President for reasons explained in the written paper, there are and Lord Justice General of Scotland for seven years considerable areas of detail in the Bill with which I before I came to this House as a Lord of Appeal in agree. I thought it might help if I was to just run Ordinary. I was also appointed a life peer after a through some of these so that I can shorten matters number of years as Lord President, so I was already on them. a Member of this House before I became a Lord of Let me take, first of all, clause 31 which deals with the Appeal in Ordinary. My Lord Chairman, I did put in jurisdiction of the court, and in particular 31(3) which a written paper to try to shorten matters but I am effectively transfers to the new Supreme Court the conscious that I dealt very briefly indeed with the present appeals system which operates in the House of Scottish angle. I wonder whether it would help if I Lords on appeals from Scotland. My concern had been was to expand on one or two points on the Scottish that under the Claim of Right which gave this right of chapter. I hope that you will stop me if you think that appeal there might be some residue left in the House I am straying into areas that I should not stray into. of Lords which would not be dealt with under the Act. It might have caused difficulties if people were coming Q644 Chairman: It would be very helpful if you to this House asking to be heard in an area that had not could do that. We would be interested in your view as been effectively transferred to the new Supreme a sitting Law Lord on the rest of the issues. Court. My impression is that the wording of that sub- Lord Hope of Craighead: Certainly. The first point I clause, which is different from the English one but I would like to make is really by way of background. think well prepared, does resolve that issue. There are When the whole issue of the Supreme Court arose last also provisions in Schedule 8 which address the summer it did seem to me that the way it was being Scottish problem, one of which is a result of a presented had overlooked the existence of a separate suggestion made by me. On the broad issue of jurisdiction in Scotland. I have to confess I made a bit jurisdiction I think that the problems created by the of a nuisance of myself north of the border as I tried Claim of Right have been resolved, and as the Lord to draw attention to this problem relying on two very Chancellor knows a good deal of work has been done 9674042026 Page Type [O] 28-06-04 20:30:41 Pag Table: LOENEW PPSysB Unit: PAG5

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29 April 2004 Rt Hon Lord Hope of Craighead north of the border to check this issue and make quite any attempt to recover documents from ministers was certain that there are not any remaining issues which closed off in England, the same position should be might cause difficulty in the future, so for that I am adopted in Scotland. It was demonstrated that in Scots grateful and I wanted to make that position quite law the Scottish courts had always asserted a right in clear. the last resort to examine a minister’s certificate and The second point, while we are looking at clause 31, is decide whether or not he had good reason for a rather antique issue too. It is sub-clause (1) which withholding a document. In that case in 1956 it was says that the Supreme Court is a superior court of made clear by their Lordships who were sitting in the record. As a Scottish lawyer I am not absolutely sure I appeal that the two systems were indeed separate, and know what that means, although I believe that a that a Scottish case was not to be regarded as bound by superior court of record is a court which keeps a a decision in an English appeal. The cases where this permanent record of its transactions and has power to is of importance are few in number, but it is an fine people and send people to prison. I do not imagine important part of the existing jurisprudence and it the Supreme Court will be indulging in these things seems to me that if one is creating a new court it might very often, but the record keeping point is of some be better to write it in at the beginning as part of its importance and it is picked up again in another jurisprudence rather than leave it to the court to provision in the Bill, clause 46, which links the system discover this for itself later. It is of value and it would into the public record system which allows for records be better to spell it out. to be sent to the Public Record Office at Kew. So long Clause 37 deals with photography. I should make it as the House of Lords is part of this House, of course, clear that I was responsible in Scotland for introducing the Appellate Committee work is kept as part of the photography, and in particular television, to the records of the House and there has been no need for Scottish courts. This is not something that can be done any additional provision to be made. But there is need in England but in Scotland there is no statutory for it now, and it seems to me that it has been correctly prohibition on the admission of cameras to courts. It identified and provided for. The Scottish point of view is entirely a matter for the Lord President or the is this, that these records would be kept in Kew and presiding judge to decide what to do. Clause 37 is not not in Edinburgh. But one has a choice to make and it easy to understand, looking at it, but what it does is to is perfectly clear, I think, that the sensible thing to do exclude the Supreme Court from the bar on is to keep these records in Kew rather than send some photography, which is otherwise going to remain in of them to Scotland. England. I am in favour of doing that for a reason I am about to come to. But if I can explain the background, Q645 Chairman: What happens now? I used the freedom which I had in Scotland to allow Lord Hope of Craighead: The Scottish system is this to happen to try to make Scottish people provided for by what are known as the Books of appreciate the way in which Scottish courts operated, Council and Session which are held in the Public to see that they wore different robes from English Record OYce in Scotland. All records of the Court of judges, and indeed American judges, at a time when Session and the High Court of Judiciary go there. I the only television programmes one saw were think it is pre-Union legislation that provided for programmes of a popular series called Crown Court this. I do not see any point in sending records from and other things. It was never my intention that we the new Supreme Court to the Courts of Council and should allow live trials to be televised and that never Session, and I think actually that they will not happened,. But what still exists in Scotland is that particularly want to receive them. I want to make it when ceremonies take place, such as the swearing in of clear that while the wording is a bit odd from my a new judge or the swearing in of the Scottish point of view the result is a perfectly sensible one, Executive, in court (and I as Lord President was which I respectfully endorse. responsible for administering the oath) we were Coming to a broader issue about jurisdiction, what is televised and people could see on their news missing from the Bill nevertheless, I would suggest, is programmes that this was taking place in the court. If a clause which recognises the separate existence of the one is thinking ahead to the Supreme Court and trying jurisdictions. It needs to be emphasised, I think, that to identify its image so that people will understand under the existing system in the House of Lords, that there is a difference, bearing in mind the according to our own jurisprudence, the appeal television images of the State Opening of Parliament systems are separate. There was a very important and other things where they see judges in the House, issue which came up about the recovery of documents if one is trying to project the image that the Supreme from ministers in a case called Duncan v. Cammell, Court has then this could be of use, and I think it is Laird & Co.in 1942, when a particular result was something which is of value. If others object to it I reached in England which was raised again in a would respectfully disagree with them, and so I hope Scottish appeal in 1956, called Glasgow Corporation v. I have made my position clear. I think the position is Central Land Board. The argument was that, because correctly identified in this clause. 9674042026 Page Type [E] 28-06-04 20:30:41 Pag Table: LOENEW PPSysB Unit: PAG5

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29 April 2004 Rt Hon Lord Hope of Craighead

Clause 38 deals with resources and the minister’s duty. judges, which is another matter at issue, I have three This is an Act of Union point really. A decision that points to make. The first is that I believe that the sole had to be made as to how the administrative structure criterion should be merit, and that this is as much in of this new court was to be designed, bearing in mind the interests of the Scots as it is in the interests of the need to maintain the separate identity of the everybody else. There is no point in having a nominee Supreme Court from each of the systems in the three Scotsman or Scotswoman who cannot actually operate jurisdictions, and I have been persuaded that the effectively within the body. It would bring disrepute correct way to do this is through the Department for into the system and, quite apart from causing Constitutional Affairs. I cannot myself see anything difficulty in getting through the work, it would not fundamentally wrong with the structure which is set achieve anything valuable. I think one has to recognise out in the resources chapter of the Bill. I should make that there may come a point when one cannot find it clear, however, that there are issues that need to be somebody who is of sufficient calibre to fill the worked through on the ground about this. I would like position. It is better to target on merit as the criterion. to see, for example, a clear understanding that when The second point is that one has to bear in mind that in staff vacancies are being filled and advertisements are numerical terms the numbers of cases that come from being put out a fair opportunity is given to the smaller Scotland are very few, something like five or seven a jurisdictions, Northern Ireland as well as Scotland, to year, which is a very small proportion. I would participate in the applications for being placed on the certainly resist any suggestion that we should have as staffing of the Supreme Court. There are other points many as three, even if the bench were to be extended about maintaining links with the legal professions in to 15. I think that really overloads the Scottish element the three jurisdictions and so on. These are matters of beyond the requirements of the work we do. There is detail, and as far as I am concerned the umbrella exists a third point which I would like to make, which I do under the provisions as they are set out and I am not think is in the Lord Chancellor’s thinking, with confident from discussions with the Scottish respect, behind the issue of numbers. It is a problem Executive, and indeed the Lord Chancellor, that these that has cropped up in the past, and may crop up in the matters will be attended to. I am content that the future. This is persuading people to come. If I can be Treaty of Union issue, subject to the location of the purely personal about this, and I am not seeking building, is properly attended to by the Bill. sympathy, in my case what the job involves is leaving The last point I wanted to come on to, and it has been home late on a Sunday afternoon and returning home discussed already this afternoon and I can perhaps late on a Thursday, four days away from home and declare my position on it, is the numbers position family, 34 weeks in the year. I have to find which is dealt with in Clause 17. There are two issues. accommodation in London and pay for it out of taxed One is whether the number of judges in the Supreme income. When I tot together the rent and the council Court in clause 17, which was set at a maximum of 12, tax and the other things I realise that it actually is right, or whether it should be expanded to 15. The reduces my income below the level of the tier below other is whether there should be a specific allocation me. This is a very substantial cost burden. As it of places for judges from Scotland, there being no happens, in the building we are in at the moment, I allocation in the Bill at the moment. I support the line would not miss what I do for a moment. I love every which the Bill has taken on both issues, for reasons I moment of my job and I love coming here and it is not can briefly explain. As far as the difference between 12 a burden to me in reality. But if I am trying to look and 15 is concerned, my concern is not so much with forward to the future, bearing in mind that access to cost as with the collegiate nature of the body. Our this building is not to be available to those who sit on experience has been that we gain a great deal from the Supreme Court and the financial deficit and the deficit in terms of family life, there may well be people interaction with each other in the committee system who may say that they would rather remain in and that this is achieved by the way in which the Edinburgh and not come south. I think it would be sittings are organised: we meet in small groups, we get wise not to get into that area if one can avoid it. It is to know each other very well and we are able to vary better to leave the matter on the basis of the existing the size of the panels in a way that brings us into conventions and hope against hope that the system contact with each other, sitting on cases very regularly will survive into the future. It would be a dangerous and very efficiently. If you expand the body you make thing, I think, for various reasons to specify the it more difficult to achieve that constitutionality, and number, because one may end up with people who are the more the building tends to separate people off not adequately equipped to do the job. from each other, as indeed the building I have seen tends to do, the more likely that will be. But, more importantly, it is important to make sure that the Q646 Chairman: Thank you very much. Can I start present system, which operates within the number of with a slightly indiscreet question? You are a very 12, is not lost. I think the balance is correctly struck experienced Law Lord. You have sat on Scottish here. As for the identification of places for Scots appeals here in the House of Lords. How often do 9674042026 Page Type [O] 28-06-04 20:30:41 Pag Table: LOENEW PPSysB Unit: PAG5

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29 April 2004 Rt Hon Lord Hope of Craighead you find that your English colleagues have got a bit derive from having Law Lords as Chairmen of Sub- of catching up to do before they are in a position to Committee E and for that purpose I ask you for the judge them properly? moment to abandon all natural modesty. First of all, Lord Hope of Craighead: There are two areas I would is it correct that Sub-Committee E has always been identify, and this is no disrespect to my colleagues at chaired by a serving Law Lord? all because there is a very good reason for this. One is Lord Hope of Craighead: So far as my recollection goes the area of property law in Scotland, which is that is true. I can look back to four predecessors who radically diVerent from English property law for were all serving Law Lords. The name of the Sub- reasons I had better not go into. It is very diYcult for Committee, I should make it clear, is Law and Chancery lawyers in England to understand why we Institutions. The subject matter is essentially legal have a diVerent system. There has been a case which whereas other sub-committees on the European caused a great deal of diYculty in Scotland called Union Committee have diVerent chapters which do Sharp v Thomson, arising out of floating charges, not raise issues of law. So it is appropriate that there where the view was taken that Scots property law should be a substantial legal component on the should be changed to come into line with England membership of that Sub-Committee, and it certainly because it seemed the sensible thing to do. The helps to have a lawyer as the Chairman. It would be knock-on eVects of that in the Scottish property law diYcult to operate without that. system were considerable. We had a case just a few months ago in which we were able to identify the Q648 Viscount Bledisloe: Is it also right that the Sub- V boundaries beyond which that knock-on e ect would Committee has a very high reputation throughout not go. The result has been to settle the argument for Europe and that you find it perfectly possible to get the foreseeable future, but even in that case if you the most distinguished people from other European read the judgments you will see two very jurisdictions to come and give evidence? distinguished judges, very knowledgeable in trust and Lord Hope of Craighead: Like all the sub-committees property law matters in England, voicing grave of the European Union Committee, we depend very reservations about what they were agreeing to largely on the evidence we receive. There are two because they could not understand why the law in main components that make their way into the V Scotland should be di erent. The other area is reports. Part of it—and a very important part—is the criminal law, and it does arise in a tangential way in work of the legal adviser who provides advice to the the devolution jurisdiction that we now have in the Sub-Committee and indeed who prepares the draft Y Judicial Committee of the Privy Council. It is di cult report. That is a very important part of the end V to emphasise how di erent Scots criminal law is, both product. It also depends on the quality of the in terms of substance and of procedure. I am not witnesses and the way in which evidence is extracted criticising my colleagues about this but I think it is from them by the Committee when they appear Y quite di cult for them to grasp not just the before them. I think it is fair to say that the reputation terminology, which in almost every respect is of the Sub-Committee is high and people are V V di erent, but how di erently cases are handled, how prepared to give up time to travel to come and see us. V di erently judges deal with cases when they sum up That is an important part of preserving the standard at the end of the trial; the whole feel of the system is of its work which is respected by other Member V quite di erent. Without having worked in the system States. and known something, about it it is diYcult to grasp the depth of the diVerence. These are the two areas that I would identify which are of the greatest Q649 Viscount Bledisloe: Would you agree that it Y concern. However, it is right to say that over a large would be very di cult to perform the function of area of our law we share a common system. Chairman of that Committee properly unless one was Company law is largely the same, taxation law is virtually permanently attending the House during the essentially the same, employment law is the same and whole of the session, first of all because you meet very there are many other areas where we share a common frequently, secondly because you have to deal with bond and there are no diYculties at all. correspondence and see the special adviser, and, thirdly because drafts are coming up the whole time? Lord Hope of Craighead: I think that is true. My Q647 Viscount Bledisloe: Lord Hope, I would like to experience was that the chairmanship took up about ask you some questions in a diVerent capacity, in eight or nine hours a week of my time in addition to your capacity as a past Chairman of Sub-Committee the time I was spending on my work as a Lord of E and your work on the Select Committee. In your Appeal. I was called upon to attend committee paper you say that you derive great benefit as a judge meetings on average every fortnight in the case of the from the experiences you had on that Select Select Committee. The Sub-Committee, although I Committee. I want to look at the other half of the was promised it would meet only once a fortnight, in problem, the benefit that the House and the nation practice I found met very much more often, usually 9674042026 Page Type [E] 28-06-04 20:30:41 Pag Table: LOENEW PPSysB Unit: PAG5

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29 April 2004 Rt Hon Lord Hope of Craighead once a week, and it certainly does take a great deal of because of the diVerent structure of the court system time. Preparation is heavy and ready contact with the or for other reasons. I have never thought it right to legal adviser is important. One can maintain quite a engage myself in policy; that is a matter for others, bit of it by electronic means nowadays, but in practice but there are areas where one could raise in debate face-to-face meetings were necessary and there were points of detail of that kind. I recognise that that letters to sign and so on. It is fair to say that it would could be done by correspondence and I, unlike many be more diYcult to handle the job if one were not here of my colleagues, make sure I get all the and I would have reservations about a retired Law parliamentary papers, all the Bills, the amendments Lord taking the job on at the age of 75. I really do not that are proposed and so on, and I keep an eye on think that is a sensible solution. If one is them when I can. I could write, and sometimes have contemplating the absence of Lords of Appeal in written, to ministers pointing out points of concern. Ordinary, one would really have to find other peers It is an area where I have suggested a Scots Law Lord who were lawyers who were active enough and has a contribution to make. I could perhaps continue willing enough to give up eight or nine hours a week to make it from a distance but it is more helpful to do of time to spend on this work. it in discussion, and it is easier if the minister knows the face of the person who is writing to him or her and Q650 Viscount Bledisloe: And who were suYciently can take it up directly. uncommitted and independent of strong views one As for what one gets out of listening to debates, again way or another on Europe, so that they are not seen I can say that I was very conscious when the Human as partisan in the chair? Rights Act arrived and we were faced with section 3, Lord Hope of Craighead: I suppose a judicial which is the new interpretative obligation which background helps to some extent in trying to requires us to interpret Acts of Parliament (indeed all maintain impartiality. legislation) so far as possible in a manner that is consistent with Convention rights, of the need for us to understand the way in which legislation is put Q651 Baroness Gibson of Market Rasen: I was very together. If one is very remote from the system one interested in your written evidence and you tell us on perhaps does not really appreciate the care with which a number of pages about the role you play in the a Bill is put together. I have been very interested Chamber at the present time, for example, by indeed to watch the revising and scrutiny operation in drawing attention to possible defects in draft the House of Lords and the great care that is taken to legislation. I wonder if you could expand on that a discuss details of amendments and how in the end of little bit for us and also tell us whether you think that the day one feels that a Bill which emerges from this listening to debates, as I know you do, assists you House has received detailed scrutiny. I am afraid I am when it comes to your judicial role? one of the judges who has taken a rather more Lord Hope of Craighead: I thought it was only right conservative view about our role in interfering with that I should lay out my previous convictions so that legislation. I would rather proceed to say that a everybody would know what I had been up to. I hope measure which appeared to be incompatible should be I have not been causing too much trouble. If I can declared to be incompatible so that Parliament can give an example of the kind of point that interests me, look at it again rather than that we as judges should try you may remember the “two strikes and you are out” to re-write the measure ourselves, because I realise measure which was introduced shortly after I arrived that we have not got the depth of knowledge, we have in the House, where the proposal was that if you not got the time or the experience to re-write V committed a second serious o ence there would then legislation. That approach is built up very largely on be a mandatory sentence of life imprisonment. What my experience of listening to debates. Looking, say, the Bill sought to do was to set out in two separate 50 years ahead, I feel some concern that if the Supreme V clauses corresponding o ences in England and Wales Court has not got that kind of background there might on the one hand and Scotland on the other. I knew be a little less respect for the parliamentary process from my background that actually there was not a than exists at the moment. match between the descriptions of these oVences. There were really some quite serious defects in the way the Bill had been drafted, and I raised on the Q652 Lord Carter: I was struck by the remark in floor of the House a number of times in the your written paper that, although disqualified by the committee stage my concerns about this. They were Act, serving Law Lords will not stop being Members addressed, and when the Bill came back on report of the House of Lords because they are still entitled there was an amendment which cured the problem. to receive a writ of summons. I wonder if you would That is an example. What has usually interested me is agree that as a matter of form the serving Law Lords matters of detail of that kind, issues of procedure would probably apply for leave of absence. I wonder where I was concerned that a procedure that was if you are aware and are encouraged by the fact that being devised might not work out in Scotland if you do apply for leave of absence you are entitled 9674042026 Page Type [O] 28-06-04 20:30:41 Pag Table: LOENEW PPSysB Unit: PAG5

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29 April 2004 Rt Hon Lord Hope of Craighead to use the Library, the dining room, the oYces of the some broad issue on an unstarred question, where House outside the Chamber, obtain tickets for some of us have felt that we might be able to say Strangers’ Gallery, your spouse can use the same something which would not actually be a hostage to facilities as the spouses of other Members of the fortune in the future. I hope that explains part of House, you can sit on the steps of the Throne, you what has been going on and why the situation has can receive all parliamentary papers and as a clincher arisen. you can also receive tickets for the State Opening of What I have been trying to explore in my paper is this Parliament and the Trooping of the Colour. I say this whole idea about separation from legislation. It is a in passing because I thought you would find it rather very complex subject. One of the curious features of encouraging. Coming to a more serious point, if the the way Parliament presents itself at the State Law Lords did wish to comment on the Scottish Opening is the judges sitting in front of the Throne. aspect of the drafting of a piece of legislation, they Everybody says, “There are the Law Lords”, but of could do this in correspondence but my main point is course they are not. I do not know whether this is to that as an active Member of the House of Lords but a continue, but it may be that people will say, “There is non-lawyer I still find the position of the serving Law the Supreme Court”, but I dare say it will not be that Lords anomalous. Since the statement by Lord either. But there they are, right in the middle of the Bingham in 2000 I think the majority of the serving parliamentary picture which comes out in the press Law Lords have not spoken at all in the House. You from time to time, and I do not think anybody regards said that you have spoken on four occasions. Lord that as particularly odd; it is just part of our heritage. Scott of Foscote has spoken on 11 occasions. There If you look at what happens on the ground, as I have is a clear division of opinion about the meaning of the tried to explain, judges do contribute to legislation in Bingham doctrine, if we can call it that, but if that a way I hope is useful through the Law Commission was intended to mean that the Law Lords should not and in correspondence with ministers. We are speak on a matter which was controversial in terms of consulted by ministers, and usefully so. If care is party politics or on legislation with which they might exercised one finds that the times when people take have to deal, and then the majority of the serving Law objection to you on the grounds of participation in Lords do not sit at all, I am a little puzzled how those legislation disappear into the distance. It has not who do speak relate to that doctrine. happened in my case, despite the frequency with Lord Hope of Craighead: There is a very interesting which I have spoken. I suppose I am particularly group of points in your question. Could I begin with exposed because I was very active indeed when the the 2000 declaration? I heard Lord Bingham distance Scotland Bill was being discussed, and so was Lord himself a little bit from that because, although it is Clyde. But nobody has raised any objection to us associated with his name, it was actually drafted by taking part, largely because the issues we dealt with Lord Browne-Wilkinson who was the senior Law were issues of practice and procedure which do not Lord at the time of the Pinochet case. The give rise to the kind of problem where these objections background to the Pinochet case, which was pre- would be taken. It is a difficult area and there are human rights law and did not arise out of legislation anomalies, I am afraid. One has to recognise they are at all: it was a quite separate issue in that case, is that on both sides. we were asked as a body in the Wakeham Commission discussions to see whether something Q653 Lord Goodhart: There are a couple of points I could be done to address the risk of us getting into would like to raise. The first is on the question of the trouble in the future. Some of us, myself included, resources and administration of the Supreme Court. thought that one solution might be to deal with our There have been suggestions to us in evidence that it position by means of a standing order which would would be a good idea if in fact the Supreme Court was have clarified the issue even further but in a sharper an independent corporate body which was quite way. No doubt this would have prevented us from separate from the Department of Constitutional voting, which I certainly would not mind in the least. AVairs, negotiated its own financing with the But it was felt better to put it in the form which it Treasury and was responsible for appointing its own took. You mentioned Lord Scott and myself as staV. You took rather a diVerent view but what having spoken. We had a particular duty in Sub- would your feeling be about that proposal, which I Committee E, and some of my appearances since the think represents the position in a number of other statement are due to the face that I had the Commonwealth countries? responsibility of presenting its reports and Lord Scott Lord Hope of Craighead: I believe it is right to say that has the same responsibility. If you look at the in Australia and Canada that is the position. One has numbers of times we have spoken about half of them in spotting that diVerence, to recognise at once that probably are attributed to that exercise. Also, there these are institutions which were set up at the very have been other debates which do not involve beginning of their existence, that they are deeply legislation, I think it is the Wednesday debate or rooted in their culture and that these are enormous 9674042026 Page Type [E] 28-06-04 20:30:41 Pag Table: LOENEW PPSysB Unit: PAG5

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29 April 2004 Rt Hon Lord Hope of Craighead countries geographically where it is possible and getting to the point where I was being exposed to perhaps sensible to separate the administration out in executive pressure. It happens in other parts of the the way in which one sees it done. I am a little world. I visited Malawi last autumn and I met the concerned, in view of my background as Lord President. We discussed the constitution and I said to President when I dealt with the Secretary of State in him that he should of course realise that the judiciary managing the court’s aVairs, about being separated were the weakest arm in the constitution. He said to out from ministerial accountability and indeed the me, “Why is that?”, and I said, “We have no money”. value of having a minister to argue one’s position He said, “Ah, I see. I give you money. You do what where it needs to be argued. I found it quite useful to I want”, and I do not think he was entirely joking. I be able to go to the Secretary of State for Scotland think one has to realise that the existing structure and make representations to him about how I cocoons us against that. thought our court should be run, and to discuss with him points about administration and other matters. I Q655 Lord Goodhart: What you were dealing with in am not myself alarmed by the idea of the matter being Scotland, of course, when you were Lord President handled through the department. I think it is more a was the whole of the Scottish court system, which matter of how the thing works out on the ground obviously must involve a considerable amount of which cannot, I think, be developed in the Bill, as I spending, and in England its court system involves mentioned earlier. But so long as the minister realises certainly over a billion, ignoring legal aid. In the that he needs to set up a court structure with its own Supreme Court you would be dealing with what in Y principal o cer, be it a registrar or whatever, and a public expenditure terms is quite a trivial sum of structure beneath that which is respected to the extent money. One of our witnesses has compared it to the that it can take its own decisions about what it needs administrative costs of a small ﬁrm of solicitors and, and how it is to be organised, I do not see any real in fact, we have had some overstatement but it would danger in the system that is being proposed. I am certainly be substantially less than the administrative much more concerned about the funding costs of one of the big City ﬁrms. arrangements than the administrative arrangements. Lord Hope of Craighead: My position was not really very diVerent, because my responsibility was for what Q654 Lord Goodhart: What is your concern with were, and still are called the Supreme Courts in V them? Scotland. I was not responsible for the Sheri Courts; V Lord Hope of Craighead: I think I have explained that they have Sheri Principals to argue their position. I under the existing system we are funded through the was looking at the running of the 26 judges, as it was parliamentary vote, and what we do is provide then, in the Court of Session and the High Court of V through our fee income some return to the House Judiciary. So the scale was not very di erent from authorities to reimburse them for the shared costs what we are contemplating under the present which we enjoy in the House. In practice what proposals. happens—and I heard Lord Howe put this in questions in some earlier sessions—is that our Q656 Lord Craig of Radley: Can we turn to the request is transmitted through the parliamentary perception of the perception that having the Law vote and it is never questioned by the executive. We Lords in the Lords as part of the legislature is no are protected by the parliamentary system from longer acceptable, and it would appear that this challenge by the executive. This does raise concerns, would not apply to the Scottish Law Lords. Leading again because of my background as Lord President, on from that, what about an appeal under Article 6 because I was conscious of some pressure being put against some judgment which the Law Lords had upon me as Lord President by the Secretary of State, produced on the grounds that they were not totally who was being pressured in his turn by the Treasury, separate? Have you got any concerns about and I am talking about the early nineties, when there successful appeals on that basis? was a totally diVerent administration from that Lord Hope of Craighead: I must say I do not. We have which we enjoy now. Nevertheless, there was a very lived with the Human Rights Act for four years now, strong impetus being put upon us to save money. and there has never been a whisper of a suggestion When I asked for an additional judge I was told that that anybody wants to take that point in the I could only have an additional judge if I agreed to generality. I would like to distinguish between the temporary judges being introduced to the court as system on the one hand and individuals on the other well. I took the view, and indeed my colleagues did because one has to recognise that there may be a too that that was not desirable or, at least if it was, it situation where by some misadventure an individual should only be resorted to in emergencies, but I found judge may give rise to a complaint, and for reasons myself being leaned on to the extent to which I had to that are clear we try very hard indeed to avoid that. I allow this to happen and it has become a permanent really do not think there is a serious risk that the part of the structure of the court. That I thought was system as such would be challenged and I would be 9674042026 Page Type [O] 28-06-04 20:30:41 Pag Table: LOENEW PPSysB Unit: PAG5

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29 April 2004 Rt Hon Lord Hope of Craighead very surprised indeed if the European Court of serious problem from the point of view of simply Human Rights were to say that there was something managing the court and maintaining morale within fundamentally wrong, so long as the situation was the court. properly explained to it because it is a matter of explaining, particularly through the ministers and Q659 Lord Howe of Aberavon: I have two questions. those who provide briefs to the court, what the The first follows on from what you have been talking system truly is. With the advantage of the statement about to some extent, the question of whether the of 2000 and other evidence about what actually Law Lords or judges of the Supreme Court, whatever happens in practice, I think the court would refuse to they are to be or to be called, should at any stage in accept the argument that there was something their existence become Members of the House of fundamentally wrong. Our experience is that it is a Lords or belong to the membership of the House of very practical court. It tends to look at what actually Lords. Some of the evidence, and I think it was from happens rather than at theory and I think it would be CliVord Chance, suggests that they do not much impressed by what happens in practice. favour any of them arriving in the House of Lords but that if they do it should be after retirement and in Q657 Lord Lloyd of Berwick: I am not sure you have exceptional cases. Other people say that that would said anything this afternoon on the subject of the be an invidious discrimination and that there should location of the new Supreme Court if it is created. Is be a rule which enables them to pass peacefully in there a Scottish aspect to that? transit from being sitting Law Lords to retired and Lord Hope of Craighead: There is. I think we would be therefore entitled to participate in the proceedings. troubled if the Supreme Court were to find its home Do you follow the distinction I have made? The third in the Royal Courts of Justice in the Strand or indeed category is that they should, on appointment to the anywhere very close to the Inns of Court, simply on Supreme Court/House of Lords judiciary, become the view that would suggest that it was part of the Members of the House forthwith who are not entitled English system. The more one can detach it from that to vote while they are on the wrong side of the part of the City the better. The location we have here Bingham rule but entitled to speak. Would it not be is ideal, because everybody understands that the the most convenient form to adopt your advice which Parliament at Westminster, devolution included as would avoid any discrimination as people move from part of our structure, is a United Kingdom one category to another on appointment to the institution. We proclaim our decisions as HLUK on House, whether as Law Lords or as Supreme Court the website, and the geography fits exactly with that judges, their remaining Members of the House right presentation. From that point of view a location the way through on a non-discriminatory basis with closer to Westminster is desirable, I would have changes taking place only as they retire from being thought. working judges? Lord Hope of Craighead: There are two points to make. One is the retirement point, if I may pick that Q658 Lord Lloyd of Berwick: What about timing? one up first, and the other is the point about morale What would be your view if the provisions creating within the court which I was touching on earlier. the new Supreme Court were brought into force From my part of the country, if I can put it that way, before a building were available for the court to sit in? it is not a very attractive proposition to be told that Lord Hope of Craighead: I think there is a very real at the end of your career at the age of 75 you can problem about that. I am not aware exactly as to how become a Member of the House if your home is in the House would cope with that situation but one Edinburgh and you have just reached the point where problem that would emerge with us, and I am talking you are moving on to half pay and you realise that about human beings now, is the problem which is your flat in London is too expensive. It is not very created by some of us being peers and some of us not. helpful. We value the collegiate atmosphere, and we regard all ourselves as equals. Interchange between ourselves on an equal basis is a crucial part of the jurisprudence Q660 Chairman: You can claim allowances. that we develop, with mutual trust and all the rest of Lord Hope of Craighead: You can claim allowances, it. Once you develop a two-tier system, even if we indeed, my Lord Chairman, but it does not— follow Lord Carter’s advice and take the benefits which are on oVer, and if we could be here because Q661 Chairman: I was thinking of the overnight and that is where we are at the moment until the new subsistance allowance. building is found, then if new people come in they will Lord Hope of Craighead: The value of the flat is that feel, I am afraid, second-class people. They will be on you are here. If you are comparing yourself with a par with our legal judicial assistants, who have someone whose home is in London, you have got a passes which enable them to go to certain areas and base here and you can participate in the way the not to others. I think one has to regard that as a very House works and get to know it. If you only start that 9674042026 Page Type [E] 28-06-04 20:30:41 Pag Table: LOENEW PPSysB Unit: PAG5

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29 April 2004 Rt Hon Lord Hope of Craighead at the age of 75 you are going to start at the very Q663 Lord Howe of Aberavon: But in that respect beginning and I really do not think it is a very sensible you are diVerent from all the rest of us? way to proceed. The other end, of course, is a follow- Lord Hope of Craighead: Yes, but that is because we on from what I was saying in answer to Lord Lloyd’s are salaried. The position is that as a salaried Law question about the commencement problem. If we Lord all you can reclaim is your travelling expenses. assume that we have a building, and we commence I am not allowed to claim any daily allowances. without the problem of remaining on in this building, we would still have judges who are Members of this Q664 Lord Carlisle of Bucklow: For tax purposes House for quite a number of years. I have still got you are deemed to work in London. nine years to go before I have to leave. So, one faces Lord Hope of Craighead: I suppose that is right, but for the problem of the two-tier court. It is, I would travelling expenses I am allowed those free of tax. suggest, worth thinking about another solution, which is a third solution, which is to make all Q665 Lord Carter: A minister whose main residence members of the court Members of the House on is outside London and is salaried, can claim the commencement, but making it very clear what they overnight allowance, so I am surprised that if your can and cannot do. That would avoid the main residence is outside London you are not discrimination problem. If it is a question of allowed to claim the overnight allowance. perception, it can be addressed in a variety of ways. I Lord Hope of Craighead: I simply did what I was told have mentioned television. I am sure things could be I was allowed to do. done with an agile mind to make it clear to the public that the Supreme Court really is something quite diVerent. There are various ways in which that could Q666 Lord Carter: You should be allowed to claim be done: electronically by greatly improving the back pay. access to information which we provide at the Lord Hope of Craighead: The travelling expenses are a moment, by access to the building, which has been very important part of my life. discussed as an advantage, television I have Lord Carter: You can get those as well. mentioned and so on. These are ways which one Chairman: I think you had better be advised by might wish to pursue which might make it more Lord Carter! acceptable to the public in general to recognise that people also become Members of this House but on a Q667 Lord Falconer of Thoroton: To get it on the limited basis. They would then have at least the record, am I right in thinking, Lord Hope, that your advantage when they come up to retirement of view is, on the basis that there is a Supreme Court, having some familiarity with the House and they that it should hear civil appeals in Scotland but not would also know the people whom they meet. Much hear criminal appeals? of my pleasure here, quite honestly, has been not just Lord Hope of Craighead: Yes. in the building itself, but in observing individuals and recognising who they and hearing them speak and Q668 Lord Falconer of Thoroton: Have you got any admiring what they have to say. comments on the appointments procedure for Supreme Court judges, either as outlined in the Bill, Q662 Lord Howe of Aberavon: I did not quite follow which allows the minister to get a short list from an the whole nature of your economic diYculties on Ad Hoc Appointments Commission or that which arriving here as a Member of the House. Are you not has been adumbrated in the course of the discussions able to mitigate that by claiming expenses the way the of this Committee where the short list might be rest of us do? smaller and only one list is given to the minister? Lord Hope of Craighead: The position as presented to Lord Hope of Craighead: I prefer a shorter short list. I me was this, that you have to make a choice. You can think up to ﬁve is really too generous, particularly get a relocation allowance which allows you to when I am thinking of the Scottish angle. It really is relocate your residence in London. That is one impractical to think of ﬁve names. One might be able alternative. The other is to remain with your to suggest three, probably two, and I think a short list principal residence outside London and to claim of two in practice is the way to go. travelling expenses. I chose the latter, so I am reimbursed for travelling, for which I am extremely Q669 Lord Falconer of Thoroton: I do not know if grateful, but I am not reimbursed in any way for the you have had a chance to read the evidence put in on cost of providing my accommodation, which I have my behalf which described just that sort of approach. to have. I began by trying to get rooms in a club, but Were you happy with that approach? that is not really a way to live. So I have to pay my Lord Hope of Craighead: Yes. I have seen the way that rent and my Camden council tax, which is very steep, was worked out and that alternative I do prefer to out of earned income. what is in the Bill at the moment. 9674042026 Page Type [O] 28-06-04 20:30:41 Pag Table: LOENEW PPSysB Unit: PAG5

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29 April 2004 Rt Hon Lord Hope of Craighead

Q670 Lord Falconer of Thoroton: Could I deal with adiYculty in relation to the running of the Supreme your points about distinctions between as it were Court? non-Lord Members of the Supreme Court and those Lord Hope of Craighead: We have experience of this in who are peers? If we assumed that a Supreme Court the Judicial Committee of the Privy Council, because building was available and the Supreme Court sat we have visitors from other parts of the there, the initial members of the Supreme Court Commonwealth who sit with us. One is aware of the would be the current Law Lords, so in this building slight awkwardness if we head oV for the House for they would be separate from the House of Lords. various reasons, sometimes it is just to deal with Would you envisage any diYculties arising as correspondence or with meetings, and we leave the between members of the Supreme Court there, some individual behind. It is largely cured by tact and by being Law Lords and some not being? generosity from time to time. One is aware of the fact Lord Hope of Craighead: I am not quite sure of the they are not in the same position as we are. I do not geography you have in mind. Is it the assumption think one should overlook the risks which one would that we would still be within the Palace of run by having that as a permanent part of the Westminster? arrangements.

Q671 Lord Falconer of Thoroton: A separate Q675 Lord Falconer of Thoroton: The funding: You building from the Houses of Parliament. I am trying refer to your concern about the funding and you refer to explore whether your concern about distinction to the experience of the Lord Justice General in only arises if you are still here? Scotland in the model that you referred to, how would Lord Hope of Craighead: I am hesitating to answer the expenditure of the money be arranged? How your question because I have in mind a particular would arrangements be made for accountability? building, and I am not sure that I am allowed to LordHopeofCraighead:Iamnotanexpertonaccounts mention it. or accountability, which is a very complex subject. The area which would need attention, I suggest, is the extent to which a member of the Executive could start Q672 Lord Falconer of Thoroton: Might you be arguing about individual items in the presentation of hinting at the fact that it all depends on how close it the request for an annual budget or impose, shall one is to this building. say, saving elements on it. I was told I had to save 1.5 Lord Hope of Craighead: It is bound to be a factor. It per cent per annum each year, year-on-year and when is perfectly obvious that if the building is relatively I protested I had got as far as I could I was told there close there are attractions in coming here, for various was no relief: “you have to do it”. It is that kind of reasons. One of the problems one has to face up to is pressure that I would prefer not to see applied to the the problem of catering. If you are trying to provide Supreme Court. How it is to be done I am not catering for a small number of people, it can be done. equipped to say. All I can say is that under the existing But the quality of the result and the expense of the system, as I understand it, these pressures do not exist. result may be very diVerent from what occurs here. It I was very conscious when I came here of the sharp is just human nature that you have a better product diVerence between the atmosphere in Edinburgh, here—and I am talking about lunch in Strangers where I was having to make savings which aVected actually, not anything more than that—you would individuals and what they could and could not do, prefer to take that. It is that kind of thinking, the members of staV and what they could and could not awareness that some people can do this at will and do, whereas here these problems do not arise. I think others have to be invited, which may give rise to some one has to regard these as serious concerns which need diYculty. to beaddressed by people better equippedthan I am to provide answers to your point. Q673 Lord Falconer of Thoroton: Are there any other Y di culties, apart from the temptations of Strangers Q676 Lord Falconer of Thoroton: What importance canteen? do you attach to public access to the final Court of Lord Hope of Craighead: I think there is a point on the Appeal in this country? quality of life, really. This is back to those who come Lord Hope of Craighead: I think it is important. I would from smaller jurisdictions and have to give up the like to make the point that we receive many visitors in quality of life which one enjoys elsewhere. the course of our year from many places for a variety of reasons. I am not confident that we could not do Q674 Lord Falconer of Thoroton: I was rather more in the House to improve access. People have a focusing on the point you were making of the long way to go from the St Stephen’s entrance to get invidious distinction between members of the here, to the Committee rooms and I am not sure how Supreme Court—some who would be members of this much help they are given to find their way or how Houseand some who would not be—would that cause encouraged they are to come here. At our end what we 9674042026 Page Type [E] 28-06-04 20:30:41 Pag Table: LOENEW PPSysB Unit: PAG5

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29 April 2004 Rt Hon Lord Hope of Craighead do when people come here is provide them with a obligation on the Supreme Court to recover its costs summary of what the case is about, who the people from the court fees over and above the present levels are, who Counsel are and who the judges are who are prevailing in the Judicial Committee. Do you agree sitting. We often have students who come and we meet with that? them in our own corridor, in our little library and tell Lord Hope of Craighead: I would like to correct you on them about the day’s business, and they are brought a bit of language. The Judicial Committee to me along by the door keepers to sit in on the hearing of the means the Privy Council. I think you mean the appeal. As part of the education process we receive Appellate Committee. I raise that because the Judicial foreign visitors and we explain the system to them and Committee of the Privy Council charges very low fees the law to them, and this allows them to come and see indeed, because it deals with the Commonwealth and us as well. I am in favour of this. I think one has to some of these jurisdictions have very limited resources recognise that there is another aspect to it and it is this, and one has to bear in mind its fee structure. I hope if what they really get out of coming to a committee one is transferring the Judicial Committee work to the room and watching us is the atmosphere, rather than new building that it has to be appreciated that its fee the detail of the case. It is very diYcult, particularly in intake is very low. As far as the Appellate Committee an appeal, to understand the details of the argument. here is concerned, I would prefer to see the existing What you do get is a feeling for the atmosphere in the scale maintained with, no doubt, allowances for room, the size of the room, the scale of the room, the inflation, and so on.To try to recovereven the running seminar nature of the discussion. So far as is possible cost of the Supreme Court through our own fee one would want a new building to create an incomewould beabsurdlyexpensive. Ithink wewould atmosphere that was comparable. The seminar layout have to increase it by some 900 per cent, which could is an essential part of our working arrangement, and not be done. On the other hand I would not go to the one would have to have something done to ensure that other extreme which is suggested, which is to charge that kind of level, the space, and everything else, was no fees at all. I think that would be wrong. I think that reproduced. I also hope that one could reproduce the entire legal system in the United Kingdom benefits some element of the grandeur which we have here. I from the fact that you do face an expense coming to recently entertained a group of French judges. I am court and that there is a penalty if you take a case and very conscious that if you go to Paris and see the lose. Conseil D’E´ tat or the Court de Caissons they have magnificent premises. We can match them precisely Q678 Lord Kingsland: Richard Drabble did not go when we bring them their judges and they are very that far. impressed. One would want to maintain that kind of Lord Hope of Craighead: The level which is set is presentation, as they have a recollection not so much already fairly high, it is appropriately high, and to of the detail of the argument but of the place where raise itsubstantially beyond the presentlevel would be they have been. a great mistake. It would impair access to justice. Chairman: Lord Hope, can I thank you very much on behalf of the committee for coming this afternoon, it Q677 Lord Kingsland: I have one question and it has been a fascinating afternoon and you have really flows from something which Mr Richard enlightened us not only on the intricacies of the Drabble said earlier this week when he was giving Scottish system but you have expressed your views on evidence on behalf of the Bar Council. He said that it the Bill. Thank you very much. would be a condition for the establishment of the Supreme Court, as far as the Bar Council of England Lord Hope of Craighead: Thank you very much and Wales were concerned, that there should be no indeed. 9674042026 Page Type [O] 28-06-04 20:30:41 Pag Table: LOENEW PPSysB Unit: PAG5

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Examination of Witnesses Witnesses: Sir Thomas Legg, KCB, QC, former Permanent Secretary, Lord Chancellor’s Department, and Sir Hayden Phillips, GCB, Permanent Secretary, Department for Constitutional Affairs, examined.

Q679 Chairman: Gentlemen, can I thank you very tribunal service is created to a budget of between £3 much for coming this afternoon. I am sorry we have billion and £4 billion and staV over the next two been delayed, as you saw we were somewhat years getting nearer to 30,000, which is a major immersed. I wonder if you would be kind enough to department of state. Second, the Department has introduce yourselves formally for the sake of the become increasingly central to the delivery of record. ThenI understandSir Haydenyou wouldwish Government policy, especially in relation to to say something about the scope of what it is that you criminal justice and on asylum and immigration, want to give evidence about. Then, perhaps, either in indeed Lord Falconer is the Chairman of the turnoroneofyouorbothofyoucanopenuptheissues National Criminal Justice Board along with the as far as you see it and then we can pursue the issues Home Secretary, and that is quite a diVerence from that you would like to. the position it was or would have been when Tom Sir TomLegg:Mynameis TomLegg.Iwas Permanent Legg was there. Third, between 2001 and 2003 we Secretary to the Lord Chancellor from 1989 to 1998. were given a range of responsibilities from across Before that, rather unlike my colleague, I spent my other parts of Government for a number of sensitive whole oYcial career in the Lord Chancellor’s and complex constitutional issues—I will not go Department. I have been retired for six years and into the detail—and that added a whole new therefore I am appearing before this Committee very dimension to our work and to the Lord Chancellor’s much in a personal capacity. political importance. On a personal note, as some Sir Hayden Phillips: My name is Hayden Phillips, I of you know one of the principal reasons why I am the Permanent Secretary of the Department for agreed to stay on for 18 months beyond my normal Constitutional AVairs and remain the Permanent retirement date was to re-fashion the way the Secretary to the Lord Chancellor—the department Department was organised and went about its has been abolished but for the time being the Lord business in order to meet those challenges. My Chancellor remains. I am not the Permanent Secretary of State will have his view on whether I Secretary to the Secretary of State for Scotland and succeeded on those. In order to deliver that we had the Secretary of State for Wales although the Wales to change radically, and change I believe we have. OYce and the Scotland OYce are a part of my What else was happening during that time? Can I Department. So much for the exotica. Can I say one draw out two central stands that I observe were word at the beginning about scope and perhaps I taking place over those six years: As you know it can say a few words about my experience of what was increasingly diYcult for the Lord Chancellor to has been going on over the last six years insofar as sit as a judge, not just in terms of time but in the I believe it is relevant to your deliberations. It is very face of widespread criticism that he should not do rare for a serving Permanent Secretary to appear so. It was also increasingly diYcult to sustain the before a Committee of the House on which his position in which the judicial appointments system Secretary of State is a member. I have not checked was controlled by the Lord Chancellor. Lord Irvine whether for the Hare Coursing Bill of 1975 and the responded by creating the present Commission Government (of India) Act of 1919 my distinguished (which inspects and audits) and then before the predecessors did so. I hope they did not so this can changes of June 12, he announced he was open to be a ﬁrst. As a result of that you will all appreciate a Judicial Appointments Commission in a fuller in terms of the answers I give to your questions I sense. A great deal of preparatory work had been can give no evidence other than the evidence which done on that in the Department, started under my I can give in support of my Secretary of State. Do predecessor so conscious were we this was an area not press me too much on the powers of the Bill, of serious potential change, and work had been please, because either I will commit the sin of commissioned during my period on the creation of a repetition or even worse by the use of injudicious Supreme Court. The conclusions I draw from what I language open up an apparent divide between me have described of the nature of the Department and and the Lord Chancellor. What I can do is explain those changes in the role of the Lord Chancellor are how my experience of the last six years may help threefold: First, the demands on his role as a you to understand why this Bill is with us and why departmental and Cabinet Minister had grown we are here today. I will be quick. First, there has enormously during this last six years; secondly he been a great growth in the nature and the size of the sat less and less as a judge—Lord Irvine did not sit Department. You have heard evidence of this after 2001—and his sitting was the subject of before. We are moving from a staV now of 13,500, continuing controversy; thirdly it was clear that his which is already very large, to 23,500 by April next historic role in judicial appointments could not and year. It will grow beyond that when the uniﬁed would not be sustained. It seems, and it seemed to 9674042026 Page Type [E] 28-06-04 20:30:41 Pag Table: LOENEW PPSysB Unit: PAG5

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29 April 2004 Sir Thomas Legg, KCB, QC, and Sir Hayden Phillips, GCB me, once judicial sitting was impossible and once it never myself considered that the OYce of Lord was accepted that the role of the Lord Chancellor Chancellor is contrary in principle to our in appointments was going to be severely constitution, I could give reasons for that at greater constrained the position had in practice been length if you wanted, and if and when the OYce reached where the Lord Chancellor could no longer goes there will be a cost. I think it will remove one be a judge and head of the judiciary. If that was of the props of judicial independence, only one of right then the sustainable oYce in Cabinet was that them, there are others, and it will put a much greater not of Lord Chancellor but of a Secretary of State. burden on the post of the Lord Chief Justice. It will To sum up, I wrote in a recent article that “the have or could have an eVect on relations between creation of the Department for Constitutional the judiciary and the other branches of Government AVairs on 12 June 2003, was in one sense the which are not necessarily foreseeable now. On outward and visible sign of a process of change judicial appointments: I think a Judicial which had been gathering momentum in the former Appointments Commission is essential if the OYce Lord Chancellor’s Department”. I believe that story of Lord Chancellor is abolished. I think it has is consistent with the evidence of the Lord Chief become highly desirable even if the OYce were to Justice the other day from his very diVerent remain. I agree with the arrangements which are in perspective. One final point, if I may, if that analysis the Bill for the constitutional procedures of the of these developments is right it seems to me that Commission. However I would prefer to see the it is unrealistic and potentially damaging to try to Minister have more than one candidate to choose continue in some way with the title of Lord from in appointments in England and Wales as in Chancellor. I mention that because I know your the model for the Supreme Court because I for my Committee has been discussing it. This would not, part believe the appointment of judges is a political in my view, reflect the reality of what has occurred and governmental act in which the Executive should because it would imply something existed which has play a real, important and accountable part. If it is in fact gone. Equally importantly I think it would going to do that I think Ministers should have a undermine the clarity and weight of two very choice. Secondly, for my part while I agree with important roles which have now emerged, that of what is in the Bill in Clause 51(3) that the selection the Secretary of State for Constitutional AVairs as of judges should be on merit—I am sure that is a Cabinet minister for what is now a major right—I am concerned about what exactly merit will department of state on the one hand and that of the mean for this purpose and how it will interact with Lord Chief Justice, President of the Courts of the aim of social and professional diversification England and Wales, as the real professional head of and the composition of the bench. Finally, on the the judiciary. My Lord, Chairman, I am sorry to Supreme Court I fully support the Government’s have gone on for a bit. I hope that perspective of aims to establish a Supreme Court and I agree with my experience on developments over the last few the provision of the Bill to that end. To me this is years is of some help to the Committee. an item of long and outstanding unfinished business Sir Tom Legg: As I said earlier my view is inevitably from 1875 and I am sure it is a good move. Ideally a personal one and I do not claim to be as au fait I would prefer the court to have a uniform with current developments as my colleague Sir jurisdiction across the whole of the United Kingdom Hayden. However, my short view of the Bill which and to have the fullest control over its own case load you are considering is that if the decision is taken and to exercise that control in a similar way to the to abolish the OYce of the Lord Chancellor then I United States’ Supreme Court and for it normally to en banc personally welcome most of what is in the Bill. On sit . I recognise that those are controversial features which may have to wait until a future time. the abolition of the Lord Chancellor there has long The plan which is in the Bill now is a good one and been a case for abolishing the OYce and I think that I hope to see it implemented. case has become stronger in recent years, in large Chairman: Thank you very much indeed. part because of the increase of departmental responsibilities which the Lord Chancellor now bears. I fully agree that even if the OYce of Lord Q680 Lord Maclennan of Rogart: I have two points, Chancellor were to be retained he should no longer both to Sir Tom Legg, your concern which you have sit personally as a judge. I thought the opposite for expressed about the choice of judiciary basing it on many years but changing circumstances have made merit appears to be reflected to some extent in the me change my opinion of that. If the Lord evidence which we received that you do not favour Chancellor does go, as proposed in the Bill, then I the appointment of a lay chairman for the Judicial personally agree with the concordat about the Appointments Commission as proposed. Is that the respective roles of the judiciary and the Minister, case? I do not know whether you have seen the which is embodied in the Bill. I would add, however, evidence we have received from Baroness Hale of to that that there is another side to the coin. I have Richmond expressing her views, and I think they 9674042026 Page Type [O] 28-06-04 20:30:41 Pag Table: LOENEW PPSysB Unit: PAG5

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29 April 2004 Sir Thomas Legg, KCB, QC, and Sir Hayden Phillips, GCB reflect the views of a great many people that the assumption would be there would be an increase existing systems have produced a higher judiciary and they might need more. There is nothing more, which is highly meritorious but in which there has in my view, than that. not been a suYcient breadth of experience. The particular point we have to address is the question Q682 Lord Maclennan of Rogart: As a of the structure of the Judicial Appointments supplementary arising from the answer to the Commission and whether or not the chairman question may I probe you a little further about this should be a layman or not. That is the first question. view that there should be supplementary judges Sir Tom Legg: It is perfectly true that at an earlier dealing with the ebb and flow of business. Who stage of this discussion before the Bill was published should they be? I held and expressed publicly a preference for having Sir Tom Legg: In the past—and Sir Hayden may be a judicial chairman. I think ideally I would probably able to remind me because I cannot recall what the still hold to that. I do not myself regard it as a point Bill provides about this—the Law Lords have been of major importance provided that the judiciary able to call on retired members of their own have reasonable representation on the Commission. number. That is all I meant by that. I have been influenced in my changing opinion of the importance of this point by the publicly Q683 Lord Maclennan of Rogart: Is it your view expressed views of the Lord Chief Justice. that we should continue with this? Sir Tom Legg: In a perfect world perhaps one would Q681 Lord Maclennan of Rogart: Thank you. The not but in the world we have I think it is a second point relates to your reported preference for reasonable thing to do, it is just that it should be enlarging membership of the Supreme Court from kept to a minimum. 12 to 15, about which we have taken evidence earlier this afternoon, some of which you may have heard. Q684 Viscount Bledisloe: I would like to ask you Lord Hope of Craighead very powerfully argued a about judicial appointments, on the assumption smaller number because of the collegiality of the there is going to be a Judicial Appointments Supreme Court, per contra some of the Scottish Commission based on both of your experiences evidence suggested that two would be desirable from from the past and the present is it right that quite the Scottish point of view but to have three rather frequently to get the right candidate to become a than two judges if there were to be 15. Where do judge, particularly amongst the commercial and the you stand? Why have you come out for a rather other lucrative civil practitioners, your Department larger court because it does have expense has to make active advances to practitioners rather implications also. than sitting back and waiting for them to apply? Sir Tom Legg: I think my earlier expressed view Sir Hayden Phillips: That has been the case and to about the numbers was rather more of a shot at a some extent it remains the case. We have, of course, prediction than a strong feeling that this was changed the system for the High Court in terms of desirable. On the assumption that the Court is not applications now. My personal view is it is going to sit en banc because if it were going to do becoming increasingly diYcult to operate in any that then personally I would like to see us only have way which is seen to be, as it were, a tap on the about nine judges, like the Americans. Assuming shoulder in the night. It seems to me it is perfectly that practically it is not going to do that and it is legitimate—as in any other walk of life where you going to sit in panels, as it in eVect does now, then use head-hunters to recruit people—if you want you have to balance a principle and a practical need. people to come forward and apply you have to have The principle, which I think I heard Lord Hope a system which encourages those who might not express, which I am sure is right, is we must always apply but whom you would wish to apply. I expect keep the court as small with regular judges as it that will be the way we will go forward. It will be could be in order to do the business. No doubt you for the Judicial Appointments Commission itself to will need to have available a few part-timers to deal make a judgment about how it is going to operate. with the ebb and flow of business, but a smaller I think I reflect the reality of your time as well, Tom. number of regular judges is better. Having said that, Sir Tom Legg: I do not think a lot has changed. however, the amount of part-time judicial There is a lot of folklore at the Bar about people reinforcement at this level I think should be as small being unwilling but a very, very few in my as possible and therefore you have to makes a experience are not keen on becoming judges. Much judgment about the amount of business. I think I more often in practice, certainly in my time, and I am right in saying the present expectation of the expect now, the question in the mind of a really well Government, no doubt on the advice of the senior qualified candidate is not whether or not he or she Law Lord, is that the existing 12 will do. If that is wants to go on the High Court bench but when. right then I should be happy to see it continue. My What one tended to be involved in was negotiation 9674042026 Page Type [E] 28-06-04 20:30:41 Pag Table: LOENEW PPSysB Unit: PAG5

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29 April 2004 Sir Thomas Legg, KCB, QC, and Sir Hayden Phillips, GCB and conversation over some period of time about Chancellor himself or from those who support the when this might best happen. Government’s policy. My reference to it was to having commissioned work on the creation of a Q685 Viscount Bledisloe: That negotiation has to be Supreme Court and hereby to indicate we founded upon not a promise but a clear feeling that recognised that the changing balance of argument if you were to apply you would be likely to get it. was moving increasingly in the direction of Sir Tom Legg: Yes. separating the highest court in the land from the Sir Hayden Phillips: Every year I give evidence to legislature. Beyond that I hope I can hide the Senior Salaries Review Body about whether responsibly behind the fact that I really have evidence has grown of reluctance to join the High nothing to add to the evidence you have heard in Court or whether the quality has fallen every year. favour of it. I give them the evidence and give them the answer no. There are always going to be people who are Q688 Lord Goodhart: Could I ask one other going to say, “no, not never, that is not my life, I question to both witnesses, the role of the Secretary do not want to go on the bench”. We get some of of State as envisaged does include the protection of those, some of those who we would like to have had. the independence of the judiciary. We have had a We also find there are those, and these are the more good deal of evidence in support of extending that frequent, who say “no, not now, I need a bit more to covering the rule of law. There is nothing in here time to do this and that”. You were asking questions which restricts the holder of the OYce of the about the process and I just want to make a point Secretary of State, unlike that of the Lord about the substance. I do not think the changes we Chancellor under the existing arrangements, to have made or the changes the Judicial somebody who has a legal qualification. Is that Appointments Commission may make will lead to something which either of you feel able to comment any reduction of the quality we have had over the on? Would you feel that the role of the Secretary of last few years. State would be better fulfilled by someone who has legal qualifications? Q686 Viscount Bledisloe: Secondly, would I be right Sir Hayden Phillips: Tom should go first because he in thinking that it is absolutely vital if you are going was the last lawyer Permanent Secretary and I was get people to apply at all that the fact they have the first non-lawyer Permanent Secretary. I am sure applied and the identity of the applicant remains the lawyers for once should have precedence. absolutely confidential unless and until the fact that Sir Tom Legg: As Sir Hayden says I was indeed the they have been appointed is announced, otherwise last of those who was required by law to be a lawyer. if names are going to get out people will be much I was not only the promoter of the Bill which damaged and very reluctant to apply. enabled Hayden to take oYce but I was also and Sir Hayden Phillips: Yes, I entirely agree. In any remain a strong supporter of it. I am sure we were application system for any job confidentiality of the right to change the requirements for the post of identity of those who come forward should be Permanent Secretary. In the world which my old preserved whether it is in the judicial system, the department has now moved into it would be civil service or in public appointments generally, inconceivable to go back to such arrangements. The that must be the rule. We all know in life there are more important question which Lord Goodhart has (a) leaks and (b) gossip and those, I am afraid, the raised is about the post of Secretary of State. As he appointed authorities cannot always absolutely will know there has never been any formal control. I agree with the policy. requirement for the Lord Chancellor to be a lawyer.

Q687 Lord Goodhart: I have a question for Sir Q689 Lord Goodhart: There have been bishops in Hayden, in your opening statement you explained the past. the reasoning behind Parts I and III of the Bill Sir Tom Legg: One or two non-bishops and non- dealing with the OYce of the Lord Chancellor and lawyers. Of course there has also been a fairly strong with the Judicial Appointments Commission, you convention that the Lord Chancellor should either were rather more brief in dealing with Part II on the be a judge or a very senior lawyer. I think myself Supreme Court. I wonder if you can expand on that if the OYce of Lord Chancellor goes in what is the reasoning behind the creation of the selecting a Secretary of State for Constitutional Supreme Court? AVairs the Prime Minister will want to take into Sir Hayden Phillips: You are very generous, I was account, as in every other case, the qualiﬁcations of silent on the subject of the reasons for the Supreme candidates. All other things being equal for some Court. The reason I was silent is because I do not parts of the job, yes, it probably will be an think I have anything in particular to add or can advantage to be a lawyer but all other things are add to the evidence you have heard from the Lord unlikely to be equal and I would not regard that as 9674042026 Page Type [O] 28-06-04 20:30:41 Pag Table: LOENEW PPSysB Unit: PAG5

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29 April 2004 Sir Thomas Legg, KCB, QC, and Sir Hayden Phillips, GCB a very important feature. The diYculty which I am department and the permanent head of the sure is at the bottom of your question is the question department to be separated from their staV.Itisa of preserving the rule of law. It is a very tricky, matter of common sense. You would say, that is the slippery concept a lot of the time, at least in general way I would see it, would I not? That is the way that terms. My own feeling is there would not be very it is in Government. I am sure that distinguished much to be gained from the protection of the public former Secretaries of State here will understand by putting a requirement into statute that ministers, what I mean by that. There is an enormous and so on, should uphold the rule of law because in diVerence between when you have a problem and any given case people can have disagreement about you ring up and say, “Can Brown come round?”, what that means. I have to say I doubt whether and he is round in two minutes, to asking them to there would be anything very much to be gained by run down Victoria Street in a great hurry. That is a requiring the Secretary of State to be a lawyer very practical issue for us. I think when this change because you might just exclude from the occurs it will make a lot of diVerence. The way in Government and from that post some other well which Lord Falconer and I manage it now is that qualified people. we spend every morning in the Department and then Sir Hayden Phillips: I agree with what Tom said. I we are here in the House when the House is sitting think most people would agree that it is the when he has to be here and that way we are personality, temperament and clout of the beginning to build a new relationship with the rest individual who holds the job. I can think of many of the staV. From the point of view of managing the Secretaries of State over the years, and I will not Department as well, politically and administratively, name names, who were not lawyers who have been the abolition of the Lord Chancellor will be a very some of the best upholders of the rule of law and important step for us. that goes with personality and understanding and it does not go with legal qualification. I reach for the Q691 Lord Carlisle of Bucklow: I want to come Lord Chief Justice’s comments the other day about back to the appointment of judges, whether they are his doubts about my suitability, not personally, but started by head-hunters or a Permanent Secretary. professionally to do the job and his realisation if you You said, Sir Hayden, that you could not see it was are really in touch and understand what this is all possible that the system could in any way be about then legal qualification is not a necessary controlled by the Lord Chancellor any longer. Can condition to do the job. I ask you, do you accept, first of all, that High Court judges will be appointed by the Queen? Do you also Q690 Lord Carter: In your opening statement accept that therefore the Queen will make those today when you described the duties of Lord appointments on the advice of ministers? Sir Hayden Phillips: Chancellor you have not mentioned his role as I do. Speaker of the House of Lords. In fact this has hardly been touched on in the evidence that we have Q692 Lord Carlisle of Bucklow: Therefore the received. It is clear if the Bill becomes law that will minister is bound to be involved? have to change. From what you said it would seem Sir Hayden Phillips: Yes. that would have to happen anyway because of the increased burden on the Lord Chancellor and it Q693 Lord Carlisle of Bucklow: If you take Sir would make sense because there is no link between Tom’s argument. He would prefer to see three or the speakership and other things he does. It would four names going up to ministers rather than one. be helpful if you could comment. The minister is bound to be involved. That being Sir Hayden Phillips: I did not touch on that because so, what is your objection, particularly saying you that is not a matter for the Bill it is a matter for the cannot possibly see it any longer being controlled House. The House will decide how it wants to go by the Lord Chancellor, as against another minister about selecting its Leader and Speaker when the without legal experience sitting in another House? OYce of the Lord Chancellor is abolished. I think Sir Hayden Phillips: Lord Carlisle, I clearly did not a lot of people in Government, including the Prime explain what I meant by that. What I meant by it Minister, have been concerned for a while about being no longer possible to be in the position of a how the Department has grown and becoming more Lord Chancellor controlling the judicial and more central. It is very diYcult to see how it appointments system was the way we operated up makes logical or practical sense in the longer term to now and indeed still do in which the Lord for a major Secretary of State or a Lord Chancellor Chancellor governs the whole process, which runs to be separated physically from all the staV other to every aspect of how it is done, every appointment, than the Permanent Secretary and Private Secretary. the whole process. I totally accept, indeed it is in the Frankly it is not a good way to run a major Bill, and I would be in a very foolish position if I did department of state for the political head of the not answer your question positively. I share Tom’s 9674042026 Page Type [E] 28-06-04 20:30:41 Pag Table: LOENEW PPSysB Unit: PAG5

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29 April 2004 Sir Thomas Legg, KCB, QC, and Sir Hayden Phillips, GCB feeling, at the end of the day that the appointment Q697 Lord Howe of Aberavon: That was a of judges is a political act, a function of the State, subsidiary point. My main point comes back to the an Executive act which should be done by the question we looked at before and that is the survival Secretary of State for Constitutional AVairs and if role and title of the Lord Chancellor. Let me make necessary via the Prime Minister in giving advice to it clear that it seems to be common ground that the the Queen in the normal constitutional way. figure will no longer judge save in one respect—of which more later—he will be no longer be speaker Q694 Lord Carlisle of Bucklow: Or by the Lord of the House of Lords and therefore there is no real Chancellor if that post continues? need to be located here, except if he is a Member of Sir Hayden Phillips: Yes. It should continue to be the House in other respects. The greater part of the done by a minister whether it is a Lord Chancellor growing burden of judicial choice is rightly or the Secretary of State. What there is a growing transferred to the Commission as recommended by acceptance of is the inability of the Lord Chancellor Mr Justice Webster 100 years ago and Professor to control the whole process. The amount of work Robert Stevens 12 years ago. No problem about involved, as you know, is simply enormous, apart that. The Lord Chancellor himself was relieved of from the arguments about independence and that burden, save for the last step. Let us assume, transparency. I am quite clear that a minister at the although I do not conceive the point, the Supreme end of the day takes responsibility for the decision Court is established as well, that takes me to the to advise. position set out in the evidence we have had from the Odysseus Trust—Anthony Lester in disguise I think. Q695 Lord Howe of Aberavon: I have two separate Sir Hayden Phillips: points, the first is a narrow one for Sir Hayden, I Both your witnesses are well think we have been promised—it may be in our informed about this incognito. weekend pack—an analysis of the functions of the Department as it now is, identifying scale in terms Q698 Lord Howe of Aberavon: His document says of money, manpower of each of the functions and “we support the broad thrust of the proposal”, hopefully identifying the date at which they have which is roughly the position as I described it. Then accrued. under the heading, “Ministry of Justice: We strongly Sir Hayden Phillips: This is coming to you.. favour the creation of a powerful Minister of Justice with a legal statute and qualification of a traditional Q696 Lord Howe of Aberavon: I want to ask one Lord Chancellor with a specific duty to uphold the question about that aspect, the Welsh and the rule of law”, and so on. One of the features of the Scottish OYce or the bits and pieces of them that OYce of Lord Chancellor so described is that it is you have oversight of, would it not in respect of in the House of Lords. Another feature is that it is those be at least a possible alternative for them to be one of the pinnacles of the lega/politica career in whatever department it is that the Deputy Prime comparable to the Attorney General—the Lord Minister now presides over, John Prescott, certainly Chancellor would say a step above—and that is that need not be an aspect of your present comparable to the Lord Chief Justice. One of the department? Am I right in thinking that or not? incentives to fulfilling that OYce by a minister or Sir Hayden Phillips: That would be possible. You justice with legal statute and the qualifications of a know better than I do that machinery of traditional Lord Chancellor must be to retain the Government change is a matter for the Prime title of one man in this long line of traditional Lord Minister I cannot comment on those. I think the Chancellors and the likelihood is that he is going to rationale was the link between the growing batch of have statute and qualifications to have gone with constitutional issues which we have become that job. Do we not risk losing that if we sweep him responsible for, which included overall away, however grandly we describe the Secretary of responsibility by the Lord Chancellor for devolution State, and put him on parity with other Secretaries policy as a whole and the need to find a home for of State. Is that really the crunch of the case for the small Wales and Scotland OYces so they were maintaining the OYce of Lord Chancellor? not left floating freely. There is an argument which Sir Tom Legg: It seems to me that if the change says that the distribution of responsibility between which this Bill proposes is made, and in particular the OYce of the Deputy Prime Minister and my if the OYce of Lord Chancellor as we have known Department is not now right because surely the it is to go I confess I do not see a great advantage development of a regional assembly is a part of the or a great incentive for the point that you have in evolution of a general, national policy. You are mind Lord Howe, at least I think you have in mind, right to say there is an argument about that and the in retaining the title. It would be the same title for responsibilities could go either way and the Prime what has become a very diVerent post in the Minister of the day will make a judgment. Government, even to the extent that that post is in 9674042026 Page Type [O] 28-06-04 20:30:41 Pag Table: LOENEW PPSysB Unit: PAG5

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29 April 2004 Sir Thomas Legg, KCB, QC, and Sir Hayden Phillips, GCB a way similar to what the Lord Chancellor has done Sir Hayden Phillips: Can I add two points? I up to now then obviously there will be benefit in understand the argument which goes that it is doing it. increasingly diYcult for high quality barristers and solicitors in practice to combine their lives now with Q699 Lord Howe of Aberavon: Can I challenge the that work and membership of the House of scale of the diVerence? We will remain the final Commons. I have observed in my career over 37 chooser of judges. It is a very heavy responsibility, years it has changed markedly, the last two Attorney he is intended by the statute to remain the champion Generals have had to come from the House of of judges in Cabinet. Those are still two of the Lords. I understand the argument that if those in separate functions of the Lord Chancellor and they legal professions seek an interest in politics but also are probably the heartland of functions associated see it as a point in their career they might be able with the title of Lord Chancellor. The others come to aspire to the OYce which you describe and that and go and change, we are the final chooser of might encourage more people to act in the law and judges, the champion of judges for Cabinet, are not to play an active part in politics in the way we all those two functions better connected to the want to see happening. I understand that. My own traditional title than anywhere else? sense of this, my own feeling is—against all of the Sir Tom Legg: I suppose it becomes a question of other arguments that are around I would not see judgment about how far you think the preservation that being in itself persuasive in tipping the balance of those functions, important though they are, but into retaining a role which has had no substance left really much narrowed in relation to the way the in it and would undermine the role of the Lord Chief traditional Lord Chancellor has exercised them and Justice. The OYce, as I have tried to describe it, are suYciently nearer to what the traditional role seems to me had been traditional and had clout, that has been to justify the retention of the title. I must has gone. My experience leads me to believe from admit that I rather doubt if the OYce of the working with others in order to be a powerful and Secretary of State and Lord Chancellor, the new eVective Secretary of State in relation to the rule of oYce which is to replace that of Lord Chancellor, law legal qualification is not essential and I can will have the attraction for very senior legal think of many, many colleagues I have worked with, politicians that the post of Lord Chancellor has had Secretaries of State in the past, who would be highly in the past. The traditional OYce of Lord eVective Ministers of Justice or a Secretary of State Chancellor has always carried very great security for Justice even though they did not have legal and independence for good or bad and that will go qualifications. I hope I have explained that. I do under the Government’s proposal. very much understand the way the argument has developed, although I say that Government has not found it persuasive. Q700 Lord Howe of Aberavon: You need it to. Sir Tom Legg: It will frequently happen that the Secretary of State will be in the House of Commons Q702 Lord Crickhowell: Sir Hayden, Lord Howe and perhaps, more importantly, which ever House has dealt with many of the issues I wish to take up he or she is in it will not necessarily be the end of but can I reinforce his request that you could give the line as far as that person’s career is concerned. us a brief summary of the current duties of the It has been, as you know, a very important part of Department which, as you said, have grown vastly the Lord Chancellor’s ability to bring to the and some of us are not entirely familiar with them. traditional post normally and I think almost always The more I heard the exchange which has just been it has been perfectly clear they neither had nor could going on the more concerned I am for two reasons: have further ambitions for political advancement. my experience in Cabinet is that influence and weight that is borne has very little relationship with Q701 Lord Howe of Aberavon: The fact is that the the size of the Department. There was I think an Lord Chancellor’s position, whether for Lord implication from what you said earlier, because this Halsham or Lord Mackay or any other aspirator to is a big and complex and important appointment the the OYce, has almost always been regarded as the Secretary of State in the Cabinet would have an end of the line. You make it very clear that the authority, and so on. I sympathise with the views Secretary of State would be another station on the that I think the learned Lord, Lord Howe was line to who knows where. Is that not another reason expressing that if you could retain something from to remain Lord Chancellorship as the pinnacle, the the history and status and role of the Lord end of the line? Chancellor it would still have an aVect in Cabinet Sir Tom Legg: I agree with you that that point is Government. The fact of the matter is there are part of the case for keeping the OYce of Lord three or four historic roles in Government which Chancellor or at any rate part of the price for not have an authority which is very little to do with even losing it. the personality of the people. Therefore there is a 9674042026 Page Type [E] 28-06-04 20:30:41 Pag Table: LOENEW PPSysB Unit: PAG5

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29 April 2004 Sir Thomas Legg, KCB, QC, and Sir Hayden Phillips, GCB concern, can I put it to you, that because we are of the Lord Chief Justice as head of the judiciary it throwing this on one side we really are going to lose seems to me you could have a very eVective something in particular in the protection of the rule combination there of ensuring that the rule of law of law. In that context again what I think worries issues are properly played out between the judiciary, me about this Department is that, as you said, it is the Executive and within Government. I know that increasingly central to the delivery of Government is not your preferred solution. I think what I am policy and in some cases very sensitive and diYcult doing is I hope correctly explaining, which is meant areas of policy. We have recently seen a very to be my job, what the Government’s position is. obvious case, a question where Government policy was seen by the judiciary and many others as in Q703 Lord Crickhowell: Can I ask a conflict with the rule of law. How is this Department supplementary, Lord Howe talked about diVerent with these wide range of responsibilities actually departmental responsibilities and allegations and going to be an eVective defender of the rule of law questions have been raised about whether certain for both of these reasons, the nature of the things should remain in the Home OYce or not. Department as it has grown up and because it will This Department seems to have grown rather like not have the weight and authority than the Lord Frankenstein’s monster and bits have been added Chancellor for all of the historic reasons has at occasionally. If it is responsible for the courts and present? for the protection of the rule of law is it not going Sir Hayden Phillips: I understand that argument. to be rather necessary in future to try and make sure My own judgment is, as I said from the beginning, that there are some things it is not responsible for if it is accepted that the Lord Chancellor will no because there is going to be such a tension between longer sit as a judge and therefore he is no longer the two responsibilities that it is going to be very the head of the judiciary the heart of the OYce is diYcult to carry out both of them eVectively? taken away. It is from that heart that the traditional Sir Hayden Phillips: I personally do not think so. I clout of the Lord Chancellor in Cabinet seems to me think at the moment—although I hope it is not like to come from the OYce. I know other people Frankenstein’s monster, I would not like to find disagree with that but that is my perspective on myself in my declining months described in that what I have seen over the years. The second way—the fit we have of responsibilities for judicial comment I would make is that the most important matters and the responsibilities for the courts and thing here it seems to me is the experience, quality responsibilities for constitutional aVairs seems to me and character of the ministers who are chosen to quite a good fit and puts together a Department look after this area. The role of the Secretary of which seems to me to have a great deal of coherence State as envisaged by the Government of the day in and provides for the Secretary of State a challenging protecting the independence of the judiciary—I and interesting portfolio of responsibilities. I quite know there are discussions going on about points take the point that you would have to be careful being put to us about whether that might be about what you added to the load in a new world extended to cover in some way the rule of law beyond the Bill and that whatever happens to the function—will I think continue to be of value. The title of Lord Chancellor that you did not, as it were, fact that that will be associated with the so surround the Secretary of State with major responsibility for running all of the courts in distracting responsibilities that in relation to the England and Wales is very important. It seems to courts and the rule of law he was undermined. me it is very important, as is now occurring, to lock together the responsibility for the Lord Chancellor Q704 Lord Craig of Radley: Sir Hayden, you talked with that of the person who runs the courts because about the Lord Chancellor not being a judge, he the Department will remain unusual in one could not be head of the judiciary but I would like important respect from other departments in that all to point out that the Secretary of State for Health the staV of the courts throughout the country will does not have to be a doctor and the Secretary of be members of my Department, part of the State for Defence does not have to be a practising Executive but they will work each day and everyday serviceman. Why is it that a Minister who would be with the judiciary and for the judiciary. That is a responsible for the judiciary on the lines that Lord subtle relationship and an important relationship Howe has been suggesting cannot carry out that role which is understood by even our most junior staV even though he does not sit or may not even be a right across the country, not in high constitutional judge? terms but in terms of importance. I believe that if Sir Hayden Phillips: I think the proposal in the Bill you have a position in which the Secretary of State in the Government’s policy is what you suggest, for Constitutional AVairs with those court namely that the Secretary of State does not have to responsibilities and a particular responsibility in be a qualified lawyer but is entirely able if he is or relation to the judiciary combined with the new role she is an intelligent, sensible person to be able to do 9674042026 Page Type [O] 28-06-04 20:30:41 Pag Table: LOENEW PPSysB Unit: PAG5

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29 April 2004 Sir Thomas Legg, KCB, QC, and Sir Hayden Phillips, GCB what the Secretary of State for Defence and to the Supreme Court or appointments or whether Health do. the changes which were happening to the Department on the one hand, or whether changes Q705 Lord Craig of Radley: You are ruling out the that were happening to the OYce of Lord approach Lord Howe was advocating? Chancellor on the other in practice which led us to Sir Hayden Phillips: What I am saying is diVerent. a conclusion that major change was inevitable. I What I am saying is that if the OYce of Lord think my position over the years has become the Chancellor no longer exists, that person being a issue of not whether we should change, but when. judge or head of the judiciary, you have taken out In the course of that it has certainly not been in my the heart and therefore it seems to me to be mind we should be doing this for reasons of misleading and potentially damaging to retain a title symbolic impact. It is possible that other people that does not reﬂect the reality. I know there are may have a diVerent view about that but I can only diVerent views but that is my position and the tell you from my story of involvement, and that was Government’s position. not there at all. Lord Windlesham: Thank you. Q706 Lord Craig of Radley: My point is I do not see you rule out that he cannot be head of the Q708 Lord Kingsland: Most of the questions I want judiciary. I would accept the Lord Chief Justice as to ask have been covered by Lord Howe and Lord the operational head of the judiciary but as a Crickhowell. I have one supplementary to a ministerial head in the shape of Lord Chancellor question which evolved from Lord Howe to Lord under Lord Howe’s suggestion he could continue in Crickhowell. Sir Hayden thought that, although it that role? was not essential for a future Secretary of State for Sir Hayden Phillips: I think we are going to agree V V Y Constitutional A airs to be a lawyer, it was highly to di er here. I think it would be very di cult under desirable he or she should have clout. I think that the circumstances where the Minister was described was your answer? as head of the judiciary but would not have the title Sir Hayden Phillips: Yes. of the Lord Chancellor to be in a position in which he had given so much more responsibility to the Lord Chief Justice and it would undermine the Q709 Lord Kingsland There are, I suppose, in a position of the Lord Chief Justice and confuse the Cabinet minister two sorts of clout. One sort is matter and probably not work. where you are the master of a big spending department, for example education or social Q707 Lord Windlesham: I can best express my security; and the other is the sort of clout that gratitude, Chairman, by being extremely brief, my enables you to stand up to other members of the questions are really addressed to Sir Hayden, it is Cabinet in discussions about crucial issues. There about the process of policy development, especially would be new responsibilities in Clause 1 of the Bill in relation to the future of the OYce of Lord about the independence of the judiciary and the rule Chancellor. Many of the questions and answers and of law. Insofar as these are likely to become issues dialogue have been answered very eVectively in in the Cabinet they are likely to be conﬂicts between practical terms but it does seem to me, and I really whoever is responsible for the rule of law and the want to put this as an open question, not a hostile Home Secretary. In talking about clout in relation one to Sir Hayden, that the actual rational to the Secretary of State for Constitutional AVairs explanation which are given for the abolition of the do you mean the second sort of clout, the ability of OYce of Lord Chancellor seem to be one dialogue the Secretary of State to stand up to somebody of separate from another, which has not been the kind of status and political strength the Home mentioned yet at all this evening and that is the Secretary would have? concept of modernisation. There is symbolism as Sir Hayden Phillips: I mean not status but personal well as practical administration, I would like you strength and readiness to stand up. I think that both, especially Sir Hayden as you are the architect others who have experience of Government of the new department, to comment on as far as you recognise that most important quality and maybe feel able to do so? there are those in higher oYces who have not had Sir Hayden Phillips: In so far as the policy clout by virtue of the oYce but those who held small development in which I have been engaged is oYces had clout. concerned is I do not think the word “modernisation” has been used. I certainly did not use it in my opening statement. We have dealt I Q710 Lord Kingsland: It is desirable this Secretary think with each strand of these developments on the of State can match the Home Secretary in political merits of where we got to, whether it was in relation weight in the Cabinet? 9674042026 Page Type [E] 28-06-04 20:30:41 Pag Table: LOENEW PPSysB Unit: PAG5

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29 April 2004 Sir Thomas Legg, KCB, QC, and Sir Hayden Phillips, GCB

Sir Hayden Phillips: It will vary depending on the sensibly with their colleagues, whether Home OYce nature of the Cabinet at the time. Were I to be or with the Treasury. Some of the arguments with invited to advise the Prime Minister I would Treasury may be more important to the produce a list of personal characteristics for the Government than other arguments. Secretary of State for Constitutional AVairs and Lord Lloyd of Berwick: I had a very good question those responsibilities and I would hope the Prime for Sir Tom Legg on the Supreme Court but I shall Minister of the day could ﬁnd the right person. let him oV because of the time. Q712 Chairman: Can I thank you both very much Q711 Lord Kingsland: Should he carry weight in the for your evidence, it has been a fascinating Cabinet to match the Home Secretary? afternoon. Sir Hayden Phillips: I think that is very diYcult to Sir Hayden Phillips: Thank you very much. answer. One would hope that the Cabinet would Chairman: It is nice to be at the coalface from time consist of people all of whom add weight to argue to time. 9674042027 Page Type [SO] 28-06-04 20:40:52 Pag Table: LOENEW PPSysB Unit: PAG6

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TUESDAY 4 MAY 2004

Memorandum by the Judges’ Council Working Party on the Bill

Introduction 1. We are the members of a working party set up by the Judges’ Council. Our terms of reference require us to consider whether the Constitutional Reform Bill conforms with the Concordat presented to the House of Lords by the Secretary of State for Constitutional AVairs (“SoS”) and the Lord Chief Justice on 26 January 2004. The aim of this submission is to assist the Committee’s consideration of the Bill by identifying in the Appendix below the principal outstanding areas with which we are concerned and by setting out (in brief) our proposals for amendment. We would, however, record that we have had valuable discussions with the oYcials of the Department for Constitutional AVairs, for which we are most grateful. These are ongoing. We consider that the matters which we are drawing to the attention of the Committee are likely to be resolved by agreement and Government amendment. Where the DCA has already indicated its agreement in principle to a point made below, it is marked with a ??. 2. This submission does not contain a comprehensive list of the areas where the Bill, in our judgment, needs to be amended to conform to the Concordat. Moreover, we anticipate that there will be a substantial number of amendments for this purpose. The process of amending the Bill may bring to light other areas where further changes need to be made to bring it fully into line with the Concordat.

Conclusion 3. We will continue to monitor the Bill and to have discussions with the DCA about the respects in which it does not conform to the Concordat and on matters arising from the Concordat. We are grateful for the co- operation from the oYcials we have received. We do not underestimate the amount of work involved on all sides, but it is important to keep these points in perspective. The Judges’ Council and the working party accept the need for the Bill. It is a measure of long-term constitutional importance, particularly to the judiciary, and that is the goal to be kept in mind. 4. The Concordat is, so far as we are aware, a unique document recording an important constitutional settlement between two separate branches of the state. That settlement is to be implemented in large part by this Bill. Some parts of the Concordat, however, go beyond the Bill and the courts may in future regard the Concordat as part of the background against which the Bill should be interpreted. In those circumstances, we hope that the Concordat will in due course be referred to in at least the Explanatory Notes accompanying the Bill. We have yet to prepare the detailed comments on the Explanatory Notes.

April 2004

APPENDIX

Part 1—Arrangements to Replace the Lord Chancellor

Guarantee of continued judicial independence 1. The protection of judicial independence is the keystone of the new constitutional arrangements. Moreover, it is a principle of the Concordat that “the new arrangements should reinforce the independence of the judiciary”. Clause 1 embodies the constitutional principle of judicial independence in relation to Ministers of 9674042027 Page Type [E] 28-06-04 20:40:52 Pag Table: LOENEW PPSysB Unit: PAG6

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4 May 2004 the Crown and those members of the Executive who have responsibility for judiciary-related matters and the administration of justice. Clause 1 sets out the further responsibilities of the Minister. As Lord Woolf explained in his evidence to the Committee (Q527), a Minister who does not discharge his responsibilities under clause 1 will be answerable to Parliament and the public. It is the view of the working party and the Judges’ Council that, having regard to the constitutional importance of judicial independence, clause 1 should contain a further subclause which provides that all legislation should, so far as possible, be read, and given eVect, in a way which is consistent with the provisions of this clause. There is precedent for this. It would give enhanced status to the clause as drafted. It is not provided for in the Concordat, but is connected with it. 2. We also consider that judicial independence should be included in the title to this Part.

Clause 2(2)(c)—Deployment of the Judiciary

3. A key feature of the division of responsibilities between the SoS and the Lord Chief Justice is that the Lord Chief Justice is responsible in future for ensuring that appropriate structures are in place for deployment of individual members of the judiciary (Concordat, paragraph 4(c)). The Concordat also makes the Lord Chief Justice responsible for determining which individual judges should be appointed to committees, boards and similar bodies (paragraph 47). The DCA has identiﬁed a number of statutory references to the appointment of judicial oYce-holders to such committees and Schedule 1 amends these reference to give eVect to the Concordat. However, the working party believe that it is important also to refer to this new responsibility of the Lord Chief Justice in Clause 2 of the Bill. 4. In addition, the working party believe that, to enable the Lord Chief Justice eVectively to exercise his responsibility in relation to deployment, and to reﬂect the existing convention requiring the Lord Chancellor’s concurrence to the deployment of the judiciary, the Bill should provide that the concurrence of the Lord Chief Justice must be obtained to the appointment of judges to public enquiries, etc., being functions not covered by schedule 1 to the Bill. OYcials have indicated to us that there may be an alternative approach, which will be carefully considered by the working party when it is formulated.

Schedule 1 to the Bill

5. This is a complex collection of current functions of the Lord Chancellor which have to be transferred and redeﬁned on abolition of the oYce of Lord Chancellor. Some issues have yet to be resolved, but these are mainly issues of detail.

Part 3—Judicial Appointments and Discipline

Clause 51—Merit

6. The judiciary attach great importance to paragraph 128 of the Concordat, which states that “primary legislation should provide that the sole criterion for making judicial appointments is on merit”. The Bill as introduced into Parliament makes provision for this but also provides (at clause 51) that, in consultation with the Lord Chief Justice, the Minister may by order specify the considerations that are to be taken into account in assessing merit for this purpose. At second reading, Lord Falconer indicated that the Government would be tabling an amendment which would “ensure that the deﬁnition of merit should be for the Commission itself and not for Ministers”. We agree with this proposal.

Clause 52—Guidance by the Minister

7. Lord Falconer also indicated at second reading that an amendment would be tabled “to provide that the Lord Chief Justice be consulted about any guidance issued to the Commission and that guidance shall be set out in a statutory instrument subject to aYrmative resolution by both Houses. Such guidance will set out the expectation that the Commission should seek to encourage a more diverse pool of potential appointees and should take account of the need for expert judicial knowledge.” We agree that this amendment is required and consider that the Bill should make it clear that the guidance which the Minister can give under this power is limited to the appointments process. This is necessary in the interests of judicial independence. 9674042027 Page Type [O] 28-06-04 20:40:52 Pag Table: LOENEW PPSysB Unit: PAG6

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4 May 2004

“Vacancies” 8. A problem arises because there is no fixed number in relation to holders of certain judicial posts. Paragraph 119(a) of the Concordat states that, if a vacancy is not to be filled, both the Minister and the Lord Chief Justice must agree. Special provisions are needed to achieve this in the case of posts for which there is no fixed number.£ It is essential that the Minister is obliged to obtain the concurrence of the Lord Chief Justice before he decides that a vacancy of this kind should not be filled. The agreement of the Minister and the Lord Chief Justice should extend to the question whether the postholder is to have any special function, for example, in the case of a puisne judge, to sit as a judge of the Commercial Court.

Clauses 54, 60 and 67- one name only 9. A vital feature of the process for the selection of holders of judicial oYce by the JAC is that the JAC will recommend to the Secretary of State only one name for each vacancy. This is agreed in the Concordat, paragraph 120(a). It is crucial that the JAC should only be obliged to put forward one name per vacancy. The DCA provisionally considers that the Bill achieves this, but is consulting Parliamentary Counsel. We do not agree that the wording achieves the right result.

Clauses 57, 63 and 69—The Minister’s options 10. When the Minister receives the name of a person selected by the JAC from the JAC, the Minister has certain options which are precisely deﬁned in paragraph 120 of the Concordat. The Bill does not yet reﬂect these options as there agreed. For instance, the Bill does not set out the circumstances in which the Minister may ask the JAC to reconsider or reject a candidate. This was another issue referred to by Lord Falconer during the second reading debate.

Clauses 56(2)(b); 62(2)(b); 68(2)(f)—exercise of the Minister’s options 11. The Bill gives the Minster wide power to require the JAC to provide him with information when it reports to him on the selection process. This report should be expressly limited to information which the Minister reasonably requires for the purpose of considering any selection made.

Withdrawal of request (Clause 72) 12. The Concordat does not deal with this matter expressly. The Bill provides that the Minister may withdraw a request at any time before the making of the appointment for which the JAC was requested to make a selection. The power is in general terms. We propose that the Minister should be required to consult the Lord Chief Justice before he exercises the power to withdraw a request.

Part 4Chapter 3— Discipline

Clause 85—investigation of judicial conduct 13. The Concordat (paragraphs 73 and 80) provides that both the Minister and the Lord Chief Justice are responsible for the operation of the complaints system. Most of the work will be conducted by the Complaints Secretariat. However, the Secretary of State does have the power to decide with the Lord Chief Justice what, if any, action should be taken after any particular complaint has been investigated by a judge either informally (Concordat paragraph 88) or formally (paragraph 92). The complaints procedure will be set out in regulations under clause 85. Clause 85 establishes the scope of the power to make these regulations. It uses the expression “the investigation and determination by the Lord Chief Justice or the Minister of alleged misconduct”. For the reasons given, this formula does not reﬂect the subtle division of roles agreed in the Concordat with regard to the investigation, as opposed to the determination, of complaints. Accordingly we consider that clause 85 should be amended.

Part 5—General Clause 96 14. This is designed to reﬂect paragraph 145 of the Concordat. Statutory functions which are judiciary-related must not be capable of being transferred to another Minister by statutory instrument under the Ministers of the Crown Act 1975. Clause 96 disapplies that Act in relation to functions conferred on the Minister by any provision of the Bill, including any amendment made by the Bill to another enactment. However, many other 9674042027 Page Type [E] 28-06-04 20:40:52 Pag Table: LOENEW PPSysB Unit: PAG6

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4 May 2004 functions are being transferred to the Secretary of State otherwise than under the Bill or an enactment amended by it. We accept that the Concordat applies to judiciary-related functions but we are in the process of considering what other functions should be regarded as judiciary-related for the purposes of this clause.

Clause 102—Extent 15. We note that clause 1 of the Bill applies only to England and Wales. It should apply to actions of Ministers of the Crown wherever they take place. Moreover, the protection conferred by this clause should relate to the Justices of the Supreme Court: as a consequence of clause 102, it may only protect Justices of the Supreme Court in so far as they are acting as judges of the courts of England and Wales and in so far as they are sitting in England and Wales. Further thought needs to be given to the policy behind this clause.

Arrangements for the Appointment of Members of the Commission 16. These matters are dealt with in schedule 10 to the Bill. There are two tiers of arrangements to be considered. First, there are the arrangements for appointing the body which is to make recommendations for the appointment of the Commissioners (other than the three Commissioners nominated by the Judges’ Council). Second, there are the arrangements for appointing Commissioners. Paragraph 138 of the Concordat envisages that there will be an appointing panel to appoint the Commissioners (other than the three already mentioned). 17. However, in order to comply with Nolan principles, these particular proposals have had to be modified by agreement between the SoS and the Lord Chief Justice. The appointing panel will now be an advisory panel. It is important to ensure that the advisory panel is constituted in accordance with the arrangements agreed between the SoS and the Lord Chief Justice. These arrangements are not currently reflected in schedule 10. The Bill must, for instance, provide that the concurrence of the Lord Chief Justice is required for the appointment of the ‘first qualifying member’ of the advisory panel. That first qualifying member will nominate a second lay member, who may not be a member of either Houses of Parliament, the Government or a civil servant. The other members of the advisory panel will be the Lord Chief Justice himself and the chairman of the JAC. 18. Moreover, the Minister must recommend to The Queen for appointment a person whom the advisory panel recommends for appointment and we propose that the Bill should so provide. 19. As stated, the three most senior judges will be nominated as Commissioners by the Judges’ Council. Under paragraph 137 of the Concordat, the Judges’ Council are to provide information to the Minister on how the nominees meet the criteria for appointment. The Minister will not be able to reject these nominations and the advisory panel will not make any recommendations about them. These arrangements have yet to be reflected in the Bill.

Examination of Witnesses Witnesses: Rt Hon Lady Justice Arden, DBE, a Lord Justice of Appeal, and Rt Hon Lord Justice Thomas, Senior Presiding Judge, Royal Courts of Justice, examined.

Q713 Chairman: Thank you very much for coming for inviting me to come to give evidence. I am the this morning. We are most grateful to you for giving Chairman of the Judges’ Council Working Party on us the time. I wonder if you could do two things for the Constitutional Reform Bill and our terms of us, one being technically to introduce yourselves for reference require us to consider whether the Bill is the purpose of the record, and then we have had compatible with the Concordat. We have submitted certain pieces of paper and obviously our Clerk and evidence to this Committee which shows that there Adviser have given us some idea of what it is which are a large number of points which will have to be you might wish to say, but if you would care to open ironed out before we can say that we have completed it up for us, then that would be helpful and we could our task. We refer to four points in particular of pursue perhaps any issues which we want to deal which there is as yet no agreement between the with. I want to talk to Lord Justice Thomas about judiciary and the Department of Constitutional Wales, for example. AVairs. I want to say something very brieﬂy about Lady Justice Arden: Thank you, Chairman. My name each of these four points, but, before I do so, I would is Mary Arden and I am a Lady Justice of Appeal, like to make four introductory points. One, it is not that is, a member of the Court of Appeal of England possible to translate the Concordat word for word and Wales, and I would like to thank the Committee into statutory form; it is quite a complex process to 9674042028 Page Type [O] 28-06-04 20:40:52 Pag Table: LOENEW PPSysB Unit: PAG6

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4 May 2004 Rt Hon Lady Justice Arden, DBE, and Rt Hon Lord Justice Thomas reﬂect it in legislative drafting. Second, there is a role Interpretation Act 1978 where other certain for the Concordat even after the Bill has been meanings apply in later legislation unless the enacted. If it is the intention of Parliament that the contrary intention appears. Likewise, precedent may Concordat should pass into law, the intention of be found in the principle by which the courts Parliament in that regard should be made clear construe legislation implementing legislation of the either in the Act or in the Explanatory Notes. This European Union which is similar to section 3 of the point is very important to the smooth running of the Human Rights Act 1998. How the principle should Act in the years to come. Third, there is still a role be expressed is of course a matter for parliamentary for conventions, by which I mean rules of conduct counsel, but, in essence, the eVect would be that which a Minister is expected to follow, but which clause 1 would apply unless Parliament expressly do not, as such, restrict his statutory powers. stated to the contrary or clearly stated to the Fourth, for a legal structure to be eYcient and contrary in future legislation. The second major eVective, there has to be an appropriate set of checks point on which we have yet to reach agreement with and balances. Thus the Judicial Appointments the Department is the question of deployment of the Commission is to be an independent body judiciary in this regard: paragraph 4(1) of the responsible for selecting names of persons to be Concordat provides that the Lord Chief Justice is to appointed by the Minister or recommended for be responsible for deployment. Occasionally, judges appointment by him to the Queen. The Minister is are appointed to non-statutory positions or to to be accountable for these decisions and is, thus, positions where the appointment is not restricted to to have the powers to decline to accept the JAC’s the judiciary and, under the Bill, the Lord Chief selections, but this is only a reserve power where Justice would have no statutory right to be there is reason to believe that the Commission has consulted. Under the present system, the Lord got it wrong, and I will come back to that point in Chancellor would be appointed if, for instance, a moment. Now, to go back to those four particular another Department wished to appoint a judge to a points on the Bill which I mentioned, starting with non-statutory position. I can give two examples clause 1. The question of the enforceability of clause from my own career. I was the Chairman of the Law 1, the guarantee of judicial independence, is a matter Commission for England and Wales. This of legislative policy. It is not dealt with in the appointment is not restricted to a High Court judge, Concordat. My working party have questioned but is made by the Lord Chancellor and the function whether to say that clause 1 is only enforceable would be transferred to the Secretary of State for politically, if that be the case, is a suYcient the future, but there is no provision at the moment safeguard for judicial independence. We are for the Lord Chief Justice to be consulted even if a concerned, in particular, about implied repeal, that judge is appointed. A second example also taken is, repeal by the enactment of a general power in from my own career is that I was appointed a later legislation which seems, on the face of it, but member of the Department of Trade’s steering probably wholly unintentionally, to detract from group for the review of company law in 1998. This judicial independence. Since we are dealing with was a non-statutory body and, under the Bill, there fundamental value of our democracy, namely would be no requirement for the Lord Chief Justice judicial independence, we at least suggest that clause to be consulted about that kind of appointment. The 1 should be given some enhanced status to prevent third point I wanted to make relates to information, inadvertent implied repeal. It is not a question of that is, information in connection with the selection entrenching it because it would be open to made by the Judicial Appointments Commission. Parliament to depart from judicial independence if The Bill gives the Minister wide powers to require it wished to do so, although it would have to use information from the Commission when he receives clear language. The enhanced status would be a selection from them. It could be information, for achieved by imposing an interpretative obligation instance, that they have not themselves got. The along the lines of section 3 of the Human Rights Act Minister may want that information to enable him 1998. That provides that, so far as it is possible to to assess whether they considered a particular do so, primary and subordinate legislation must be candidate whom the Minister has in mind. We read and given eVect in a way which is compatible suggest that this provision should be restricted to with Convention rights. We suggest that that could information which the Minister requires for the be adapted to clause 1 of the Constitutional Reform purpose of considering the selection which the Bill, and what goes for the independence of the Commission has made. This issue also disguises a judiciary goes for the rule of law as well if much deeper question which concerns us and that Parliament thought it right to include that in clause is the nature of the Minister’s power to refuse to 1 or a similar clause. We suggest that there is plenty accept the Commission’s selection. The Minister’s of precedent for this approach. Precedents may be options, we understand, have been put in as a found either in the Human Rights Act or in the backstop. He will have options to reject, to require 9674042028 Page Type [E] 28-06-04 20:40:52 Pag Table: LOENEW PPSysB Unit: PAG6

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4 May 2004 Rt Hon Lady Justice Arden, DBE, and Rt Hon Lord Justice Thomas the Commission to reconsider, to accept and so on, of the Concordat. Can I, therefore, explain how the but we feel that it should not be in doubt that these position arose and how I personally believe that that powers are really reserve powers, that they are to be burden is manageable and he will in fact continue exercised only exceptionally and we feel that, if it to be a person who primarily sits as a judge because were possible, there should be a convention that is essential for the person who is to hold the established that the Minister will accept a selection post of the head of the judiciary. When examining made by the Commission, save in an exceptional the detail of what is now contained in the Bill case, and the convention would be established, as I relating to the various functions that the Lord understand it, by a formal statement by the Chancellor had, it became quite clear that if we were Minister. The fourth question is the question of to try and assign, for the purposes of the Concordat, withdrawal of a request to the Judicial the functions which the Lord Chancellor currently Appointments Commission. At the moment under has to specific members of the judiciary, the position the Bill, the Minister may withdraw a request for a would be too complex and too rigid. It was, selection at any time before the appointment for therefore, during the work which was done in the which that selection is required is actually made. period to January (a lot of very detailed work in Now, this power was not actually in the Concordat. which I was personally involved) that it became We do not want to see this power capable of being clear that we had to vest everything in the Lord used as a backdoor route to rejecting the selection Chief Justice and that is why the burden on him is made by the Judicial Appointments Commission. apparently so large. It was always envisaged that he We accept there may be cases where the Minister would never discharge all of them personally. When wishes to withdraw a request after he has received one goes through those various functions, what one a selection, for instance, because he has since learnt finds is that some of the functions in the Bill are that some other member of the judiciary has dormant functions, but all those which are active are indicated his wish to retire which makes it those which are generally currently the subject of appropriate to choose a candidate with diVerent consultation and discussion between the judiciary attributes. However, if this sort of flexibility is and the Lord Chancellor’s Department. What the desired, then there should be safeguards and we Concordat does and what the Bill, as introduced, suggest that the appropriate check and balance in does is to provide for a formalisation of the position this case would be a requirement to consult the Lord where some are transferred, some are subject to Chief Justice. In closing, may I mention two points. concurrence and some require consultation, but I do Firstly, may I mention a point with which we are not believe that, save in a few instances, there is not concerned, but which may have occurred to the anything outside the normal ambit of discussion. Committee. We have not asked for the Judges’ The way in which that discussion is dealt with and Council to be put on a statutory footing. It is clear the responsibilities which the Lord Chief Justice has that a definition can be devised by counsel which is are dealt with, is through the way the judiciary is built on the fact of the Judges’ Council existence and currently organised. For example, specific functions, we cannot at the moment see that it would need to such as authorisations to try a murder or attempted be embodied in statute. Finally, I understand that murder, are dealt with by the Deputy Chief Justice. you may have a question for us on the question of The day-to-day problems which arise in relation to permission to appeal being granted by the Court of organisation of civil and criminal justice and the Appeal to the Supreme Court and I would be happy relationship with the administration are dealt with to deal with that if you wished me to at any at a higher level through the Presiding Judges and convenient stage. Thank you very much. then at each town or Area, if as a criminal matter through the Resident Judges or, if it is a family Q714 Chairman: Thank you very much. Lord matter, through the designated family judges or if a Justice Thomas? court matter through the designated civil judges. Lord Justice Thomas: My name is John Thomas and There is a clear reporting line—I was going to say I am a Lord Justice of Appeal and I am also the almost “a hierarchy”—by which responsibilities senior presiding judge of England and Wales. I am trickle down and are dealt with and it is envisaged a member of the Judges’ Council, Chairman of the that some of the detail which is contained in the Executive Committee, and also a member of Lady Schedule to the Act would actually be dealt with at Justice Arden’s working party on the Bill. Could I quite a low level with delegation on both sides, but deal with two points relating to matters in general there was no other way the functions could be put and then one specific to Wales. The first point together, save by taking into account the existing relates to the burden which is to fall on the Lord structures and delegation being envisaged on each Chief Justice. It is quite clear, and has been for some side. We are strengthening our own organisation in time, that there is a concern as to the burden which three ways: first of all, there are going to be greater might fall upon the Lord Chief Justice as a result resources for the OYce of the Lord Chief Justice; 9674042028 Page Type [O] 28-06-04 20:40:52 Pag Table: LOENEW PPSysB Unit: PAG6

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4 May 2004 Rt Hon Lady Justice Arden, DBE, and Rt Hon Lord Justice Thomas secondly, we are actively refining the responsibilities administration, the work of the judges in liaising of the judiciary; and thirdly, the Judges’ Council is with magistrates is growing and will grow and that taking on a more important role. For example, we of the Presiding Judges the overall responsibility will have been recently concerned in implementing a also grow. In other words, it would seem that provision of the Concordat and that is looking at contact with the magistrates, particularly for liaison the Department’s SR2004 bid and for the first time on other matters relating to their judicial duties, will we are actively engaged in most detailed discussions be through the judiciary, but it will be a judge-based about the adequacy of resources. It is, I think, for contact, whereas, in contrast, the Lord Chancellor’s those reasons that I am fairly sure, seeing this from position has become such that, of necessity, his the inside, that the Lord Chief Justice will be able contact has to be through his oYcials. I think this to discharge all the functions and able to carry out contrast between what has grown up in the judiciary what is his paramount duty which is to sit in court with a much firmer organisation which is judge- and judge. May I mention something in contrast to based, is, because of the necessity from the growth that, the second point which I wanted to make, in the judiciary, very diVerent from the traditional which is the position of the Lord Chancellor. I think position of the Lord Chancellor of the 1930s and it is important that until relatively recently, if 1969 earlier. I wanted to make those two remarks and can is relatively recent in this context, the provision for I very briefly say something about Wales. Alongside the administration of the courts was basically local. the development of political devolution to Wales, The Beeching Commission changed that for the the legal system has been making its adaptations. higher courts. Until this year the administration of This began as a result of work done by Lord the magistrates’ courts has been local, but the Bingham and Lord Irvine in April 1999 by allowing Courts Act 2003 is changing that for the Magistrates the judicial review proceedings of decisions of the Courts. As a result of the Beeching Commission, it Welsh Assembly and Welsh local government to be was envisaged that there would be a working made in CardiV and the establishment of an oYce relationship between the judiciary and the for judicial review in CardiV. Over the period since administration. That has developed over the last 35 then there has been growing a stronger sense of years and it has gradually necessitated, for the Welsh legal identity, buried probably since 1830 and reasons given by the Lord Chief Justice in his maybe 1536. Similarly, devolution has been a evidence to you, the organisation of the judiciary in catalyst in seeking to put the way the Welsh the way I have described. Presiding Judges were language is used into greater context. It is used in originally envisaged by the Beeching Commission, Assembly legislation and is now used in court on a but the formalisation of Resident Judges’ position more systematic basis. However, if the experience of is more recent and the Designated Civil Judges, if the jurisdiction which has the closest similarities to we go back to Lord Woolf’s reforms of 1995. So this Wales is to be taken into account, and that is development of what I might call the ‘judicial probably the Canadian Province of New Brunswick, organisation’ has been necessitated by what has then I think it may be some years before the Welsh happened. I am personally involved now to a language would be used for legal argument on considerable extent of my time in the transition to anything like a regular basis. One wonders where a Unified Administration for all the courts and that one is going. I think that it really is diYcult to is bringing about further evolution and change contest that the current political system of which again has to be led through the judiciary for devolution for Wales cannot but develop. I have reasons which I can explain in a moment. Now, my always taken the view that it is too complex and, by perception is that the position of the Lord its inherent nature, too fluid. How it will develop is Chancellor has become very diVerent. Certainly entirely a political question and not one for me, but until the 1930s and 1940s it is clear that his own I have no doubt that the legal system must continue contact and that of his Permanent Secretary was to develop with it. The intensity of that development often personal and direct even with junior members will, I believe, depend entirely on the direction of of the judiciary, but over the period since then and the political development and will of course need to certainly by today that has become quite impossible be the greatest if the Assembly were to acquire with the enormous growth of the judiciary and of primary legislative powers, but, as I have said, that the tribunals and he has, of necessity, to work particular development, the way it develops through his civil servants. Can I, in concluding these politically is not really a matter for me. May I thank remarks, go back to the position of the magistracy. you very much indeed for listening to these remarks. For a long time the permanent judiciary had a Chairman: Thank you very much. I think it would responsibility for liaising with the magistrates, and be helpful actually if we heard from the Lord that was probably greater prior to the Beeching Chancellor right at the outset so that we can get Commission. But as a result of the changes brought some reaction at least to these points which Lady about by the Courts Act and the ending of local Justice Arden has made. 9674042028 Page Type [E] 28-06-04 20:40:52 Pag Table: LOENEW PPSysB Unit: PAG6

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4 May 2004 Rt Hon Lady Justice Arden, DBE, and Rt Hon Lord Justice Thomas

Q715 Lord Falconer of Thoroton: Can we just go is a drafting point rather than a point of principle, through your points, Lady Arden, and, ﬁrst of all, it seems to me, and then to put in a provision which independence. I do not think there is any doubt that says that that shall not be impliedly repealed may we entirely share the same outcome we wish to seek. be a bit redundant. Lord Woolf said in his evidence that for Ministers Lady Justice Arden: No, it is not redundant, and, if who failed to comply with clause 1, the response I may respectfully say, I was careful to say that what would be political and that is how it would be dealt we are concerned about is inadvertent implied with primarily. Do you agree with that? repeal because, by and large, it is inadvertent Lady Justice Arden: On the question of how clause implied repeal which causes the problem, ie, the 1 would be enforced in future, I think, in essence, it conferral of a very general power in some other is the sort of question which might very well arise provision or enactment which gives rise to the in the courts and, therefore, I would not want to be argument, and you know how fertile advocates can committed to a view. The wording of clause 1(1) is be in their arguments, that it impinges on judicial extremely general. independence and the court must, therefore, disregard clause 1 or it impinges on clause 1. Q716 Lord Falconer of Thoroton: According to Lord Woolf in his evidence to the Committee, a Minister who does not discharge his responsibilities Q721 Lord Falconer of Thoroton: I think we would under clause 1 will be answerable to Parliament and all agree that we most certainly would not want the public. That is your own summary of his inadvertent repeal of, or limitations on, that clause, evidence. Are you suggesting something diVerent? and I am simply making the point about whether Lady Justice Arden: I was not suggesting something we actually need a provision in the Bill to say that. diVerent. I was recapitulating what Lord Woolf has Lady Justice Arden: Yes, I think you do because of said, but I cannot now recall whether Lord Woolf the doctrine of the sovereignty of Parliament, and was putting that on an exclusive basis or on the because the new enactment, a separate enactment basis that that was, as you put it, the primary way which the court is construing, would have to be that the sanction would work. considered on its own.

Q717 Lord Falconer of Thoroton: I think it is important because the analogy you are drawing is Q722 Lord Falconer of Thoroton: In the context of the Human Rights Act which is explicitly envisaging a provision, and this provision refers to a continued enforcement in the courts. independence of the judiciary, in the context of it Lady Justice Arden: The analogy of the Human being accepted as being a constitutional bedrock of Rights Act goes to the interpretation of later our own judicial independence, you are worried legislation— about inadvertent repeal? Lady Justice Arden: Indeed because there is nothing Q718 Lord Falconer of Thoroton: Yes. in clause 1(1), as it stands, which tells the courts that Lady Justice Arden:—which is involving and it has that fundamental character. The way it is contemplating litigation in the future, but it is done in the Human Rights Act is through litigation about other legislation— interpretative obligation and may I stress that the courts have clearly said that that is not a licence to Q719 Lord Falconer of Thoroton: Yes, absolutely rewrite any legislation; it is only an interpretative right. obligation. Parliament can depart from the Lady Justice Arden:—in which it might be argued Convention on Human Rights and, thus, that a power was so wide that it, for instance, parliamentary sovereignty is preserved. impinged on judicial independence and the courts should have regard to that. What I was putting forward was a proposition that there was a Q723 Lord Falconer of Thoroton: As far as the provision in clause 1 which enabled the courts to say Concordat is concerned, you are keen that it should that unless Parliament has clearly expressed that be given eVect to? intention, we should construe the new legislation, Lady Justice Arden: Yes. the later legislation otherwise.

Q720 Lord Falconer of Thoroton: I think that is Q724 Lord Falconer of Thoroton: You think it is what we want. The wording of clause 1 is, right that the provisions of the Concordat should be “Ministers of the Crown and all with responsibility given eVect to as soon as it is reasonably for matters relating to the judiciary . . . must uphold practicable? the continued independence of the judiciary”. This Lady Justice Arden: Yes. 9674042028 Page Type [O] 28-06-04 20:40:52 Pag Table: LOENEW PPSysB Unit: PAG6

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4 May 2004 Rt Hon Lady Justice Arden, DBE, and Rt Hon Lord Justice Thomas

Q725 Lord Falconer of Thoroton: You were saying Q731 Lord Falconer of Thoroton: Are you happy it should have an eVect beyond simply the speciﬁc that he is consulted because that is obviously right, provision on an eVect and it should be referred to but your paper suggests concurrence? in a particular way? Lady Justice Arden: Forgive me, then the paper is Lady Justice Arden: Yes. correct and it should be concurrence.

Q726 Lord Falconer of Thoroton: What do you Q732 Lord Falconer of Thoroton: My own view have in mind? would be that consultation is enough on the basis Lady Justice Arden: I had in mind that not every iota that a judgment has ultimately got to be made and of the Concordat can be reﬂected in statutory there is a balance to be struck and, therefore, as long language. There are some matters which have to, as as there is appropriate consultation, that would be it were, survive within the Concordat and one way suYcient. What is your view on that? in which the Concordat may be relevant in future is Lady Justice Arden: Well, it is a consequence of the when the court is construing what will then be the Lord Chief Justice being ultimately responsible for Constitutional Reform Act. It may be necessary for deployment that he does have a say in whether a it to look at the Concordat. Now, it may not be judge is taken oV sitting, which is what it would possible for the court to do that unless there is a involve, to do an inquiry. clear indication that it was Parliament’s intention to implement the Concordat. Q733 Lord Falconer of Thoroton: A balance has got to be struck. This is not about judicial deployment, Q727 Lord Falconer of Thoroton: Why would it not although it involves judges, and a balance has got be an aid to construction? to be struck against the urgent demands of the Lady Justice Arden: At the moment it is not referred judiciary to do, as it were, ordinary judicial business to in the Bill or in the Explanatory Notes, I think against the public interests. For example, there have I am right in saying, so the court would have to ﬁnd been grievous losses sustained by the judiciary and evidence that it was Parliament’s intention to the current Master of the Rolls spent a very long implement the Concordat and the easiest way of and productive time looking into BSE, I think it doing it, I respectfully suggest, is for there to be a was, which resulted in a grievous loss to the statement either in the Bill or in the Explanatory judiciary while he was away, but obviously the Notes saying that is the case. public interest required that he do it. How is the balance to be struck? Q728 Lord Falconer of Thoroton: Of course there Lady Justice Arden: I agree that in the appointment was a Second Reading reference to it in my speech. of judges to public inquiries, there are additional Lady Justice Arden: I do not have the precise words policy factors which may mean that consultation in mind. is enough.

Q729 Lord Falconer of Thoroton: I referred to the Q734 Lord Falconer of Thoroton: That in public Concordat in saying that part of it referred to the inquiries consultation may be enough? political eVect and I think, for legal reasons, that Lady Justice Arden: Yes. would not be adequate. Lady Justice Arden: I think you need to go to the Q735 Lord Falconer of Thoroton: On the rejection later stages of the Bill. It may be a ministerial of judges by the Secretary of State for statement, but I respectfully suggest that now we Constitutional AVairs, you were saying that it have the mechanism of Explanatory Notes, that is should only be in exceptional circumstances. Does the convenient course. one need to formulate that in that particular way? It is perfectly plain that the Judicial Appointments Q730 Lord Falconer of Thoroton: I agree with you Commission should be in the driving seat and there that we are subject to what Parliament decides and needs to be good reason for rejection. Why do you it might change this, but we are trying to give eVect need to formulate it as exceptional circumstances? to the Concordat and, as a matter of commonsense, Lady Justice Arden: I would not accept that, as it in subsequent years it should be referred to as an were, the two propositions are exactly the same. The aid to construction. Public inquiries—I think your reason for having the Judicial Appointments position was that you would like the Lord Chief Commission or one of the reasons is to establish a Justice to be consulted about the appointment of body which is, without question, independent in its judges to public inquiries, whether statutory or not? operation and transparent in its processes and so on. Lady Justice Arden: Yes, so long as he inherits the It is of crucial constitutional importance that the existing convention that the Lord Chancellor is appointment of judges be apolitical, non-political. consulted about it. For my own part, when the consultations took 9674042028 Page Type [E] 28-06-04 20:40:52 Pag Table: LOENEW PPSysB Unit: PAG6

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4 May 2004 Rt Hon Lady Justice Arden, DBE, and Rt Hon Lord Justice Thomas place, I submitted, as my primary argument, that Lady Justice Arden: Yes, I agree. Ministers should not be involved in the process, but in my evidence and in my response I put in the alternative that if there was to be a power, it should Q738 Lord Falconer of Thoroton: And I think really only be used exceptionally and there would be a it is a question of definition, is it not? To use the parallel then between, for instance, the acceptance word “exceptional” starts to create additional by the Prime Minister on nominations for people’s hurdles. Why should one not leave it to the good peers or the acceptance of outside candidates sense of the Secretary of State? selected for senior Civil Service. In other words, it Lady Justice Arden: Well, with respect, I think it is seemed to me that the best route of retaining, the exceptional for the reasons I have given and that in best route of balancing the need for accountability order to secure the independence of the judiciary of the Minister in making recommendations to the which is of fundamental value in our democracy and Queen with the desideratum that appointments be also to ensure that there is no risk of political non-political is that the powers to reject should only involvement by the Minister, then the convention be exercised in exceptional circumstances and that should be clearly established from the start, as it is that should be the convention. I am not suggesting established in the other fields that I have mentioned. a provision in the statute, but a convention. Q739 Lord Falconer of Thoroton: Withdrawal—if you look at the Bill, there is consultation with the Q736 Lord Falconer of Thoroton: Can we just test Lord Chief Justice before a request is made. I think that taking three separate examples. One, when your position would be consultation whether to looking at the information on the other candidates, withdraw the request as well, and I am happy it is, as it were, apparent on the documents that an with that. apparently indefensible choice has been made, so Lady Justice Arden: Yes. suppose that there are five candidates and one is put forward to the Secretary of State, but if every single person said that this candidate was the worst Q740 Lord Falconer of Thoroton: You do mean candidate, that this candidate was unqualified and consultation and not concurrence? something had gone wrong, that is one position. The Lady Justice Arden: Indeed. second position, another example, is that the Judicial Appointments Commission says that they will only for the next six months appoint men to Q741 Lord Carter: If we can turn to the Concordat, judicial appointments. The third example is that a Lady Arden, there are examples of course in particular candidate has got a criminal oVence some legislation of codes of practice being laid before time back, but we believe that he or she is now Parliament which sometimes require the agreement adequately rehabilitated. Those are three areas of Parliament and sometimes not. That is a much where it might be that a Secretary of State might more flexible way of doing it of course than in quite legitimately think again. Would you regard primary legislation and that perhaps is the approach each of those as exceptions? of the Concordat. Secondly, a number of our Lady Justice Arden: May I say that I think yes, I witnesses have suggested that once the Bill goes would. On the first one, it seems to me that you are through, if it does, there should be a joint committee setting up a body of the highest calibre with access of both Houses to consider the whole issue. In its to the most progressive and the most informed terms of reference, for example, it is required to professional opinion on recruitment. On the second make an annual report to Parliament and in that one, I would have thought it unlawful for the report it actually reports, as it were, against the Judicial Appointments Commission and on the Concordat to show how it is working in practice. third one on criminal oVences, it seems to me that Do you think that would be helpful? the Commission will have to have a policy about Lady Justice Arden: Yes, I do. It seems to me that spent convictions and that is a matter on which they there is an interesting development in terms of a may well have received guidance from the Minister, dialogue opening up between the judiciary and but I would have hoped that the policy would have Parliament for the future and it seems to me that been thoroughly discussed and made known to the having an annual report of the nature you are Minister in advance. contemplating would of itself operate to ensure that the Concordat was observed. As you may know, I am very much involved in company law and the Q737 Lord Falconer of Thoroton: The second one is pressure to comply created by disclosure obligations the easiest one where the Commission has got an is one of the reasons for having a number of unlawful policy and it would be perfectly legitimate requirements in company accounts, for instance, for the Secretary of State to intervene. relating to the environment and so on. 9674042028 Page Type [O] 28-06-04 20:40:52 Pag Table: LOENEW PPSysB Unit: PAG6

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4 May 2004 Rt Hon Lady Justice Arden, DBE, and Rt Hon Lord Justice Thomas

Q742 Lord Carter: The third one is about the Lady Justice Arden: The clause which I was Concordat being laid before Parliament, but not contemplating is not addressed to an express and actually in primary legislation. clear incursion into the section. It was an Lady Justice Arden: Yes, it is possible to use a code interpretative obligation only. I agree with you that of practice and it is particularly useful to have a we would probably have a constitutional crisis, but code of practice where you wish to ensure flexibility that was not the point to which my answer referred. for the future or impose a requirement which may not necessarily be adhered to to the letter in a given Q745 Lord Crickhowell: I am not a lawyer, as will situation. If you want to give the person to whom quickly become evident, but I have been concerned it is directed a certain discretion, that would be one about clause 1 from the word go and with every of the factors favouring the use of a code of practice. passing session I tend to get more worried. We In the case of the Concordat, many of the provisions started by hearing, and everyone appears to agree, have to be dealt with in legislation because they that to use the words in your committee’s report, it relate to statutory powers. is the keystone of the new constitutional arrangements. But earlier on we heard from some Q743 Lord Holme of Cheltenham: I wonder if I very eminent sources that that keystone might not could press you, Dame Mary, on the issue of clause be enforceable in the courts and, to an innocent layman like me, that seems a worry. Then the Lord 1, the entrenchment or enhancement issue on the Chief Justice came to this Committee and said that independence of the judiciary. The exchange it would be answerable to Parliament and the between you and the Lord Chancellor a minute or public, a phrase again which you pick up in your two ago seemed to indicate that you thought the committee’s report. We have also heard that the problem was inadvertent trespassing on the clause is to be extended to cover the rule of law, or independence of the judiciary, but surely advertent their people would like it to be extended in that way, trespassing on the independence of the judiciary rather than just the independence of the judiciary. I would be far more serious, so if you are thinking of then began to be very worried because I am not sure the need to enhance the independence of the how Parliament is to do the job of making sure that judiciary in clause 1, you really strike, as you said this clause is an eVective protector of the rule of law. just now, the fundamental value of our democracy The House of Commons with a large government at the heart of what our constitutional arrangements majority is not in a very good position to challenge are which depended, according to Dicey, on both Executive action, and this House may not find it the sovereignty of the Parliament and the rule of easy, and Prime Ministers are free to appoint Y law, and it is di cult to think of a more additional members to this House, so it may become fundamental underpinning for the rule of law than even more diYcult. Therefore, I do have a question the independence of the judiciary. The point I want as to how in practice this business is to operate. to press you on is that you appeared in your Furthermore, if you had the clause extended to remarks to be fairly complacent that if Parliament cover the rule of law, and with the points you made knew what it was doing and it decided to reduce the earlier on about the Human Rights Act, surely there independence of the judiciary, that would be fine will be citizens outside who perhaps do not feel that and it is simply if it was inadvertent that it would Parliament is doing its job eVectively who will want be a problem. Is that not the wrong way round? to take the matter to the courts and to judicial Lady Justice Arden: Can I just say that I hope I did review or to seek in some other way to have it not say that that would be fine! What I was enforced as law. So is it in fact right that it will not intending to get across was that I would not expect have to go to the courts at some point and will the Parliament to be making advertent encroachment courts not have to be involved in the whole process? on to judicial independence, but there is always the We have got into a sort of circular position now risk that it does so inadvertently. The major risk is because we started with an unenforceable clause, that because of the generality of some other power, and then we were told that it is OK because there is alleged to be an encroachment on judicial Parliament will deal with it. If we extend the clause, independence. it becomes even more important. Parliament is supposed to do something about it for the people and the people’s only remedy is to go to the courts, Q744 Lord Holme of Cheltenham: Accepting that so surely the courts have got to enforce this there is a minor potential problem of inadvertent particular provision? trespassing, what about the far more substantial Lady Justice Arden: On the question of the question of advertent trespassing at which point the enforceability of clause 1, what I said was that this twin pillars of our constitutional arrangements come was a matter of legislative policy. If this Committee tumbling down, do they not? wished to see a clause which was enforceable, no 9674042028 Page Type [E] 28-06-04 20:40:52 Pag Table: LOENEW PPSysB Unit: PAG6

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4 May 2004 Rt Hon Lady Justice Arden, DBE, and Rt Hon Lord Justice Thomas doubt instructions could be given to parliamentary decision is taken by the Lord Chancellor”; and then counsel and an assurance given by parliamentary you go on to explain, “As I see it, he”, that is to counsel that that had been achieved. So far as my say, the Lord Chancellor, “is acting or eVectively own position is concerned, sitting here, I would not acting in his capacity as head of the judiciary, not wish to express a view either way on whether clause as a Minister of the Crown or as a member of the 1 would be capable of being relied upon by the Cabinet or as a member of the Executive. Only the citizen who wishes to take the matter to the courts Lord Chancellor is involved. He cannot delegate by judicial review. It is a complex question which it his responsibility for appointments to a junior would not be appropriate for me to deal with Minister”. Now, in responding to various questions because it is the sort of matter which might arise in this morning and also in other parts of your two the courts hereafter. extremely helpful papers, you have indicated that you would prefer an appointing to a recommending Q746 Lord Crickhowell: Can I ask one substantially Judicial Appointments Commission. I am correct in diVerent question and that is one which concerns the saying that, am I? Welsh Assembly and others. The clause starts with, Lady Justice Arden: Yes. For the record, the citation “Ministers of the Crown and all with responsibility you have made is from paragraph 5 of a speech for matters relating to the judiciary or otherwise . . . which I gave in Cambridge and which was an ” and so on. We have heard that it is going to attachment to my response to the Government’s concern the whole rule of law and, therefore, even consultation document on judicial appointments. without legislative powers, an organisation like the Could I say that in the same paper I went on to Welsh Assembly may have duties and contemplate the alternative possibility which I responsibilities which relate to this clause. Is the mentioned a moment ago in response to a question clause adequately drafted at the moment in giving put to me, that the alternative would be to have a these responsibilities to Ministers of the Crown or restricted power in the Minister, ie, one he would ought we to consider whether the Assembly in some only exercise exceptionally. form has responsibilities, or indeed other bodies? Is the protection adequate if it only applies to Q749 Lord Kingsland: As I understand it, your Ministers of the Crown? main objection to a recommending Commission Lord Justice Thomas: My own view would be that the rather than an appointing Commission is that the point which Lord Crickhowell has raised was not individual who is to become the equivalent of the necessarily at the forefront of the draftsman’s mind Lord Chancellor in the proposed new regime is the when this particular clause was drafted and it may Secretary of State for Constitutional AVairs who be that it should be revisited with the benefit of your will not be the head of the judiciary? remarks, Lord Crickhowell. Lady Justice Arden: Indeed, and, therefore, logically, it seemed to me, to replicate the existing system, you Q747 Lord Falconer of Thoroton: Do correct me if would have a Commission which is an appointing I am wrong, and I am sure you will, but this clause Commission, but I contemplated, as I say, the applies to England and Wales and Ministers of the alternative. Crown would not necessarily include AMs or Ministers of the Welsh Assembly, but insofar as Q750 Lord Kingsland: Supposing this Secretary of they had responsibility for matters related to the State for Constitutional AVairs, either by statute or judiciary or otherwise, they would be caught by by Constitution convention, was required to be a the clause? lawyer who had taken the judicial oath. Would that Lord Justice Thomas: I think so. I think the words change your view about whether the appointing “all with responsibility for matters relating to” may Commission should be a recommending be broad enough, but I think, in the light of Lord Commission or remain an appointing Commission? Crickhowell’s observations, it ought to be looked at Lady Justice Arden: Yes, it would. by parliamentary counsel again. Q751 Lord Kingsland: It would change your view. Q748 Lord Kingsland: Dame Mary, I have two lines Thank you. I have the second line of questioning of questioning for you. The first concerns paragraph now which, rather unoriginally, arises out of the 5 of your paper, the case for the appointments answers you have given on a number of occasions commission. You have, in answer to various of their this morning to questions about clause 1 of the Bill. Lordships’ questions this morning, stressed the fact If I understand your answers correctly, you have that the appointment of judges should be apolitical. suggested—and I fully appreciate you are in In paragraph 5, you say in the third sentence, “The diYculties in responding to some of the questions reason why the appointment of judges is presently which have been posed on the subject because you without political involvement is that the final may be faced in the future with an issue in the courts 9674042028 Page Type [O] 28-06-04 20:40:52 Pag Table: LOENEW PPSysB Unit: PAG6

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4 May 2004 Rt Hon Lady Justice Arden, DBE, and Rt Hon Lord Justice Thomas and, clearly, if you were on the record as saying of law is. Given that we do not have a Bill of Rights something deﬁnitive about this, it might prejudice which takes a view about all of these issues, would your opportunity to hear the case—but, as I your answer to my earlier question about treating understand it, you suggest that one way in which the rule of law in the same way as judicial the independence of the judiciary might be enhanced independence still be the same? would be to make an express reference to section Lady Justice Arden: Yes, it would be. There are times 3(1) of the Human Rights Act 1988 in what would when Parliament enacts legislation advisedly using become section 1(1) of the Constitutional Reform an expression without deﬁnition, such as it is doing Act? with judicial independence and such as it would be Lady Justice Arden: The drafting would be a matter doing, for example, with the rule of law. I say for counsel, but it seemed to me that it was not “inadvertently” because it enables the courts to necessary to refer to clause 3 of the Human Rights winnow out the true meaning of the expression on Act, but rather to replicate it, or the one way to do it a case-by-case method and that enables the courts would be to replicate the same kind of interpretative to do it incrementally and to do it by a very obligation by a further provision of clause 1. thorough process which sometimes Parliament does not think it can achieve itself. Q752 Lord Kingsland: What would lie behind the proposal would be the express reference in the European Convention on Human Rights to judicial Q756 Lord Goodhart: I am sorry to press on further independence, would it not? on clause 1, and this is something I would be happy Lady Justice Arden: No, the intention would be to to hear about from Sir John as well as from Dame have a new subclause, for instance, a subclause (5), Mary if he wanted to contribute, but it is clearly a saying that if a question arose as to the fundamental proposition in the British Constitution interpretation of any primary or subordinate that the courts cannot interfere with the legislation whenever passed, the courts should parliamentary process, so it seems, does it not, that construe it, so far as it was possible so to do, in it would be inconceivable that the courts could accordance with subclauses (1) to (4) of clause 1. restrain a Minister of the Crown from laying before Parliament a Bill which actually infringed judicial Q753 Lord Kingsland: I see. So there would be no independence? express reference to the European Convention on Lord Justice Thomas: Yes, exactly. Human Rights? Lady Justice Arden: Yes. Lady Justice Arden: No, it would be using the same technique. Q757 Lord Goodhart: When reviewing the Q754 Lord Kingsland: Now, in the light of that Executive action of a Minister, is there any reason answer, if Parliament were minded to include an why, as now drafted, the courts could not take into additional obligation in respect of judicial account clause 1 in determining whether the independence and also an obligation in respect of Minister was acting in breach of his powers? the rule of law, would you recommend the same Lady Justice Arden: In your question you are approach to protecting the rule of law? presupposing that it will be a critical factor in the Lady Justice Arden: Yes, because they are both courts’ determination of whether the Minister has fundamental values of our democracy and they are engaged in action which is unlawful. both matters to which one would want to give some enhanced status. Q758 Lord Goodhart: I was considering the Q755 Lord Kingsland: The only diYculty I see with situation whether the court could investigate the that is that in the Convention on Human Rights question of whether this was a critical element. we have a pretty clear and express commitment to Obviously the court may or may not reach that the independence of the judiciary; but where the conclusion. Would the Council seek to argue that rule of law is concerned, there are diVering point and be told, “It is a point we cannot consider opinions about what standards that protects, for whatever the circumstances”? example, I have had a recent diVerence of view with Lady Justice Arden: At the moment judicial the noble and learned Lord, the Lord Chancellor, independence is, at the very least, a constitutional about whether or not allowing propensity evidence convention, and the courts can take into account in criminal trials breaches the presumption of constitutional conventions in questions such as you innocence, and there are many other propositions are contemplating. I would not have thought that that one can think of where there might be the enactment of clause 1(1) would diminish that legitimate diVerences of view about what the rule convention. 9674042028 Page Type [E] 28-06-04 20:40:52 Pag Table: LOENEW PPSysB Unit: PAG6

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Q759 Lord Goodhart: That would apply capable of acting at least as a constitutional Head presumably to the rule of law—failure to uphold the of the Judiciary, even if not the professional Head role of law—if it was included in the Bill in the same of the Judiciary, which everybody is agreed should way as judicial independence? be the Lord Chief Justice? Lady Justice Arden: The courts now look at the Lord Justice Thomas: I think there are two answers general principle of the rule of law when interpreting to that question. The first is, to be Head of the legislation and do not need statute to tell them to Judiciary you must be an active judge, because your do so. very authority comes from the judgments you give; Lord Justice Thomas: I would agree with that. The you have no other authority. That is your principal answer is, “Yes”, to both your questions. authority. That is why it is so important that I began my remarks by saying that what the Lord Chief Q760 Lord Lloyd of Berwick: I want to leave clause Justice is having transferred to him will not change 1 of the Bill and ask, probably Lord Justice his essential position as being the principal judge Thomas, some questions about the Judges’ Council deciding important cases. The second is, I think it Paper of 22 April, number 59. At paragraph 3 you would be very damaging to the position of the Lord have made an interesting point. You say “ . . . Chief Justice in defending judicial independence if irrespective of the extent to which reform proposals there was any ambiguity about his position as Head are implemented, there is a pressing need for of the Judiciary. It is for those two principal legislation which enshrines the principles set out in reasons, in addition to the reasons given by Lord the Concordat”. I am entirely persuaded that the Woolf in his evidence, that I think one really has to Concordat must be given force in one way or accept that there will be a fundamental change in another, whether as part of the Bill or in any other the Lord Chancellor’s position, because you must way it may become necessary. Would it be equally have one person who is recognised in truth and in possible for the Concordat to come into force fact to be Head of the Judiciary, and he ought to Y without abolishing the O ce of the Lord be a sitting judge. Chancellor, but merely modifying the OYce of the Lord Chancellor? Lord Justice Thomas: It depends how you modify it. Q764 Lord Lloyd of Berwick: At the bottom of page You can modify something significantly and not 4 you say, “The judiciary took the view [on 12th June abolish it. I do not think it would be right to say 2003] that the abolition of the oYce of Lord that if you implemented the Concordat you would Chancellor would result in the loss of one of its not be making a significant modification to the checks and balances that had up until now existed OYce. Whether you wish to retain its title would be in the constitution. The ability of the oYce of Lord adiVerent question. I would have no views on that. Chancellor to act as a check and balance depended, I think implementation of the Concordat does very at least in recent history, on the fact that the oYce significantly alter the position of the Lord was occupied by individuals who were above the Chancellor in some considerable number of political fray, who had a lawyer’s understanding of respects. the justice system and who were not interested in political preferment”. That, you say, was the view Q761 Lord Lloyd of Berwick: It would work, would of the judges on 12th June. Is that still the view of it not, whether the Concordat is with the Minister or the judges? whether it is with the Lord Chancellor even though Lord Justice Thomas: To an extent, yes. The Lord modified? Chancellor’s position has been and remains a Lord Justice Thomas: Yes, but he would lose his cornerstone because of his position in providing essential characteristic of being the Head of the from the perspective of the Executive and his Judiciary in practice. position in Parliament, from Parliament’s position, and a guarantee of the independence of the Q762 Lord Lloyd of Berwick: That brings me to a judiciary. I think the view that has changed is that, second point you have made at the bottom of page when one has stood back and thought about it, what 2, where you say: “Once it was decided that the is in the Concordat provides a further reassurance Lord Chancellor would no longer sit as a judge, it of the position. became unacceptable for him to continue to be Head of the Judiciary”. Lord Justice Thomas: Yes. Q765 Lord Lloyd of Berwick: Why should that Concordat not be made with a Lord Chancellor of Q763 Lord Lloyd of Berwick: Why do you say that? this kind who had the additional advantage of being If, for example, Lord Mackay had said, “I will no able to stand up, as you put it, for the judges, in longer sit as a judge”, he would surely have been public? 9674042028 Page Type [O] 28-06-04 20:40:52 Pag Table: LOENEW PPSysB Unit: PAG6

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4 May 2004 Rt Hon Lady Justice Arden, DBE, and Rt Hon Lord Justice Thomas

Lord Justice Thomas: To go back to the two answers Lord Justice Thomas: It depends what you mean by I gave you, I think it would be or could be “discipline”. Can I deal with this in two ways: one potentially undermining to the position of the Lord of the problems that often used to arise, and was Chief Justice if you had two Heads of the Judiciary. referred to by Lord Mackay, was judges not getting Until now the Lord Chancellor has always been judgments out in time. That is a matter which will accepted as Head of the Judiciary. You could have in future be dealt with entirely by the Lord Chief a constitutional Head of the Judiciary, I accept, as Justice—the ordinary running of the system—that is long as it is purely a figurehead; but I still feel that actually what matters. As regards what I regard as would have dangers in their being looked on as two machinery to deal with what are serious complaints Heads of the Judiciary. Any organisation needs to in relation to judicial conduct, I do not believe you operate with one Head if it is to operate properly, could have a system where the judges were the sole in my view. judges of behaviour. The role of the Lord Chancellor here is not as a judge, but as representing Q766 Viscount Bledisloe: Just to follow that up, the public interest. It could have been done in a under the Bill almost all the powers of the Lord diVerent way. One could, for example, have had not Chief Justice can only be exercised with the the Lord Chancellor having this role; you could agreement of the Secretary of State, and in certain have an independent commission that had some role matters the Secretary of State may impose his will in discipline. Certainly my own view is, and having on the Lord Chief Justice; so there are, in fact, two talked to some in other countries, if judges are bosses. One may be the visible front but, put it how allowed to discipline judges there will come a point you like, the judiciary have got two bosses in time where their independence could be Lord Justice Thomas: I would entirely disagree with undermined because it is said, “Well, they’re just that proposition. The way in which the powers have looking after themselves”. One can point to gone through (and one would need to look at each examples in Europe where this has been the case. and every one of them) it was clear that the dividing His role then is not as a judge—it is, in a sense, as line was drawn taking into account a number of the guardian of the public interest; but it could have circumstances, the two most important of which been done in a diVerent way. were: one, who provides the resources—and that goes to the provisions that are reflected, for example, in the need for concurrence or, in some Q768 Viscount Bledisloe: You say in section 83(2) cases, consultation when new courts are built or new that the Lord Chief Justice cannot even give advice courts established (because one sees that as being to a judge without the agreement of the Minister? not purely a judicial matter, but one in which the Lord Justice Thomas: If that is what is intended then public has a vital interest) and, secondly, an area, that section may need revisiting, if that is what the again where one sees concurrence, is the area of section is about. discipline. Because the view was taken that although there are some countries in the world where the discipline of judges is left entirely to the judiciary, Q769 Viscount Bledisloe: On the Bill at the moment that does not always leave a happy result. The there are two bosses, are there not? You cannot even Concordat has what one would look at as a balance say “Pull your finger out and get out your between the power of the Lord Chief Justice and the judgments quicker”, without the agreement of the Lord Chancellor representing the interests of the Minister? You have got two bosses. public in Parliament. If one goes through these Lord Justice Thomas: If that is what this Bill means powers, as I see them, I think the judiciary has one that is not what was intended, I am absolutely sure boss—and one boss alone—in judicial matters and of that. Your questions, if I may say so, have been that is the Lord Chief Justice. Where the Lord very helpful in maybe elucidating another area Chancellor has a role, it is either because of the where we need to deal with the point. needs of resources or the public interest. I do not Lord Falconer of Thoroton: If one looks at clause 83, believe there are any real provisions where he has what one is talking about there is, at the conclusion an interest as a judge. Those were, I think, carefully of a disciplinary process, that a judge should be removed and transferred. given, as it were, formal advice about his conduct. It is most certainly not intended that the Lord Chief Q767 Viscount Bledisloe: Hiring is done by the Justice should not be able to have a quiet word, or Minister and not by the Lord Chief Justice; but even a noisy word, with a judge about particular regarding the power of disciplining, if the managing pieces of his or her conduct in particular director of a company can never act unless his circumstances. I think it is clear from the context chairman has said he may then they are joint bosses, of clause 83 that advice in that context is a formal are they not? disciplinary conclusion, as it were. 9674042028 Page Type [E] 28-06-04 20:40:52 Pag Table: LOENEW PPSysB Unit: PAG6

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4 May 2004 Rt Hon Lady Justice Arden, DBE, and Rt Hon Lord Justice Thomas

Q770 Viscount Bledisloe: Any colleague can say to by regulation, to define what they mean by “under you, “You’re not getting out your judgments very investigation for an oVence or subject to disciplinary quickly”. There are two other parts of section 83 procedures”? which I am very surprised have generated no judicial Lord Justice Thomas: The problem with defining hostility. Section 83(5) allows the Lord Chief Justice what an oVence is always causes diYculties in any and the Minister together to suspend for any period regulation because of the diYculties of somebody whom it is decided should not be distinguishing between various types of oVence, for removed from his oYce. That period could be the obvious reasons. Take, for example, someone who entirety of the remainder of his judicial career. was being investigated for a speeding oVence—I Surely that is wholly wrong? If you are going to would immediately say it would be a wrongful use have a suspension that should be in the persons, or of the power to suspend in such circumstances; but maybe Parliament, who have decided that he could it is expressed in these broad terms with two not be removed, so that they can say he should not safeguards: one, the Lord Chief Justice has to be removed but he ought to take garden leave for concur; and, two, any exercise of these powers six months? would be subject to judicial review. I would not Lord Justice Thomas: If the eVect of the suspension share your concern about those matters; but no was eVectively to suspend for the rest of your career doubt the matters you have raised will be considered that would be an unlawful use of this power. by Lady Arden’s committee to see if we ought to suggest any further modification to the Bill; and no Q771 Viscount Bledisloe: It could be two years out doubt your Committee will themselves consider it. of his remaining three? Lord Justice Thomas: The reason why I think it is Q775 Lord MacLennan of Rogart: I have two expressed clearly is, regrettably, we have got into a points on the issue of judicial appointments, the first state in most areas where disciplinary proceedings arising from the exchange between Dame Mary and take far too long. the Lord Chancellor about her third concern, as expressed in your opening statement, about the Q772 Viscount Bledisloe: This is after it has been power of the Ministers to reject exceptionally the determined that he should not be removed. recommendations. I remain unclear, I regret, as to Parliament has refused a power, a resolution for his what exactly is being proposed here; because it removal and that, having been done, the Minister appears that we have ended up with a statement that and the Chief say, “Alright you have got three years it would be desirable for there to be a convention; to go, you’re suspended for two of them”. but we cannot issue a convention by ministerial Lord Justice Thomas: No, and I cannot see that it ukase; a convention is normally something that would be lawful to use the power for that purpose. develops as a result of continuing practice. I do not think it lies within the authority of Parliament to Q773 Viscount Bledisloe: It is there. create a convention. Could you explain to me more Lord Justice Thomas: But powers that are put in are what you actually have in mind? often expressed in terms which are necessarily Lady Justice Arden: The point arises out of a broad, but you can only use the power for a proper provision of the Bill which enables a Minister to purpose. It would be the independent judiciary that seek information when selection is communicated to would be preventing the improper use of this power. him by the Commission. At the moment it is If this clause is thought to be too broad (and I expressed in extremely broad terms. I had put the personally do not think so) it could always been point that we had asked for it to be more restrictive, looked at again. My reading of this clause is that it so that it gave the Minister the right to ask for is a broad suspensory power because, regrettably, it information which is reasonably necessary for him does happen from time to time that the question to decide whether or not to accept the selection arises of a judge being suspended. I do not think made. I went on to say that there was a much deeper presently I can think of any case where a problem issue—namely, what is the nature of this power? I has arisen and a judge has not agreed to take a did indeed say in my opening statement, as you have voluntary position of not sitting; but the power has rightly recapitulated, that there ought to be a to be there in case someone did not behave convention; that the Minister would only honourably. exceptionally use what the Bill calls “the Minister’s options” to reject or cause reconsideration of the Q774 Viscount Bledisloe: Would you say the same selection. I am not suggesting it be a provision of the about subsection (7) which allows them to suspend, Bill, merely a convention, but it can be dealt with by again for any period, any judge under investigation a statement by the Minister in the course of the for an oVence, any oVence of any kind, or subject passage of the Bill, if that is what Parliament thinks to disciplinary procedures, and allows them, again that the position should be. That is why I am raising 9674042028 Page Type [O] 28-06-04 20:40:52 Pag Table: LOENEW PPSysB Unit: PAG6

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4 May 2004 Rt Hon Lady Justice Arden, DBE, and Rt Hon Lord Justice Thomas it now. It aVects one’s understanding of how Dame Mary to be under a false impression that we Ministers’ options are going to operate in practice; think that is the right decision. and how truly independent the Judicial Appointments Commission is going to be. We had Q777 Lord MacLennan of Rogart: Perhaps I could a concern when we saw the clause dealing with rephrase my question. I think the issue of substance information that could be required that the Minister remains which is: what are the considerations which, was thinking of using the power rather more broadly, ought to be in mind, and to what extent routinely and regularly than we ourselves had they need to be specified by statute? contemplated, and that is why I have addressed Lady Justice Arden: The critical sub-clause is clause the issue. 51(3), “Selection must be on merit”, which means must be solely on merit; and “merit” has its ordinary Q776 Lord MacLennan of Rogart: I am not entirely meaning of “best fitted for appointment”. In other comforted by that explanation. What one Minister words, it would not be possible to reject a candidate may say today, in the absence of a convention, may best fitted for appointment on the grounds that a be regarded as his or her utterance by a successor. particular candidate comes from a particular group. If the law does not provide that declaration, unless If you are going to have a provision which says that it is contended to be an expression of ministerial selection must be on merit, it means just that. The understanding of what the Bill provides, it would Judges’ Council has agreed with the Lord seem to have very little legal merit, or am I wrong? Chancellor that the question of what is merit should Lady Justice Arden: I hope that the way in which the not be defined in the Bill and should be left to the Judicial Appointments Commission is set up, and Judicial Appointments Commission itself. Those the basis upon which Parliament when passing the two sub-clauses will be removed, as we understand Bill contemplates it will operate, will be the way in it, but under clause 52 the Minister may give which it is in fact operated in the future by Ministers guidance, that is more like a code of practice to when the Bill has been enacted. I appreciate your which we referred earlier, as to the appointments point that, strictly, one Minister will not bind the process; and that would include guidance that the other. In the creation of a common understanding Commission should seek out a range of candidates as to how the Judicial Appointments Commission is which is reflective of the community. In that way, to be set up, it seems to me that for the Minister to there would be a range of candidates and diversity address that point when the Bill is going through would be achieved through a range of candidates. Parliament is at least the first appropriate That is one way. opportunity. Lord MacLennan of Rogart: Thank you. The second Q778 Lord MacLennan of Rogart: Is it your point relates to an issue that has not been alluded understanding then that the Judges’ Council and to in this session, but we have had evidence from, other representative judiciary are ad idem with the among others, Professor Robert Hazell(?) about the Lord Chancellor’s Department now? issue of appointments on merit alone, a point Lady Justice Arden: As to the meaning of “merit”? covered by clause 51. I wonder if you could tell us if the Judges’ Council is satisfied that adequate Q779 Lord MacLennan of Rogart: And how that is provision is made in the Bill, particularly in clause to be reflected in the recommendations of the 51(4) and (5) to secure that? The problem, as it has Judicial Appointments Commission? been expressed in earlier evidence, is that no-one Lady Justice Arden: The Lord Chief Justice on questions the merit of the appointments that have behalf of the judiciary has agreed with the Lord been made under our pre-existing system; but that Chancellor’s proposal, as he has just described it. other considerations, that might be borne in mind Lord Justice Thomas: A lot of work is proceeding at to distinguish between diVerent meritorious present to try and ensure that the appointments candidates, have not been held in mind in making process is kept up-to-date. If I could give two appointments. This appears to have been addressed examples: first, the Lord Chancellor’s Department by clause 51(5) where the Minister would by Order is looking at the provision of permanent part-time specify considerations. Are you satisfied as to the appointments to make it easier for those with a adequacy of that? family or for other reasons to come back into the Lord Falconer of Thoroton: Could I interrupt before profession at a circuit and district judge level in that Dame Mary answers to say, that is a particular way; secondly, the precise way in which the criteria clause we have indicated we are minded to change. for judicial appointments are being defined undergo We think it is wrong, on reflection, that the Minister a continual revision in the light of experience; and should specify what merit is. We take the view it is that normally takes place—and I would envisage it a matter for the Judicial Appointments Commission would continue to take place—by extremely close itself to determine what merit is. I do not want working relationships between the Department (and 9674042028 Page Type [E] 28-06-04 20:40:52 Pag Table: LOENEW PPSysB Unit: PAG6

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4 May 2004 Rt Hon Lady Justice Arden, DBE, and Rt Hon Lord Justice Thomas it will in future be the Commission) and the Lady Justice Arden: Yes. judiciary. At the moment that cooperation is very, very good indeed. Q787 Lord Howe of Aberavon: In both those cases the Secretary of State will in eVect be exercising Q780 Lord Howe of Aberavon: May I start with powers previously held by the Lord Chancellor? Dame Mary. Your original position I think, Dame Lady Justice Arden: Yes. Mary, was inclined towards an appointing commission rather than a recommending Q788 Lord Howe of Aberavon: Lord Justice commission? Thomas has pointed out the extent to which the Bill Lady Justice Arden: Yes. again spells out in statute a heavily increased involvement by the Secretary of State about the Q781 Lord Howe of Aberavon: You now broadly Lord Chief Justice in the management of the judges accept the provision in the Bill? in the courts. Lord Justice Thomas has also pointed Lady Justice Arden: Yes. out that in many, many, many of those areas the Lord Chief Justice will require the concurrence or Q782 Lord Howe of Aberavon: Because there consultation with the Secretary of State. That is needs to be a ministerial step between the right, is it not? recommendations of the Commission and Lady Justice Arden: Yes, it is. appointments. If one looks at the Government’s V response to the Constitutional A airs Committee Q789 Lord Howe of Aberavon: That also is a recommendations in paragraph 33, it says that the replication of the relationship that the Lord Chief appointment of the judiciary is a key function of the Justice has previously had with the Lord state with a minister accountable to Parliament who Chancellor, although the burden of work has been must ultimately take responsibility, and that is true shifted towards the Strand rather the Palace of for the Supreme Court as well. This is a Westminster? fundamental principle of our constitution. Thus far Lady Justice Arden: Yes, probably there was non- the Minister holding that responsibility has been the statutory consultation rather than statutory Lord Chancellor. Although there is no statutory consultation. position on it, it has been his position? You are nodding your head, Dame Mary? Lady Justice Arden: I was merely going along with Q790 Lord Howe of Aberavon: Yes, indeed. Based your question! on convention? Lady Justice Arden: Indeed. Q783 Lord Howe of Aberavon: Do you agree that the Lord Chancellor has been the Minister who has Q791 Lord Howe of Aberavon: Because the OYce held that responsibility until now? of the Lord Chancellor itself is not quite based on Lady Justice Arden: Indeed, but when making the convention, because that is based on prerogative, is appointments he has done so in his capacity as the it not? Head of the Judiciary, leaving aside any political Lady Justice Arden: Yes. consideration and dealing with it as purely a judicial matter in close consultation with the Head of Q792 Lord Howe of Aberavon: Almost the only Division. statutory obligation on the Lord Chancellor in its present form is the obligation to take the judicial Q784 Lord Howe of Aberavon: Yes, you are oath; but he is in fact a senior lawyer of distinction? perfectly right, and has done so as Lord Chancellor, Lady Justice Arden: Indeed. still Head of the Judiciary and occasionally a judgment-giving judge? Q793 Lord Howe of Aberavon: His engagement in Lady Justice Arden: Yes. the judicial appointments process has necessarily become reduced as the judges have bred and Q785 Lord Howe of Aberavon: The same sort of multiplied so dramatically for the last two or three role has been occupied by the Lord Chancellor in decades. On the other hand, his involvement with relation to disciplinary matters that have been the management of the court service has become discussed with Lord Justice Thomas? much, much greater—the task has got bigger. My Lady Justice Arden: Yes. question is this: insofar as the Lord Chancellor’s OYce has been the cornerstone on which the Q786 Lord Howe of Aberavon: Which are now principle of judicial independence has been upheld, embodied in the statute? that has been of enormous value? 9674042028 Page Type [O] 28-06-04 20:40:52 Pag Table: LOENEW PPSysB Unit: PAG6

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4 May 2004 Rt Hon Lady Justice Arden, DBE, and Rt Hon Lord Justice Thomas

Lady Justice Arden: Yes. something of which this country can be extremely proud. It is, I would have thought, better to have, Q794 Lord Howe of Aberavon: Although the nature in the position of the Minister receiving the of the job is changing, and I would not seek to argue selections from his Appointments Commission, a that the Lord Chancellor is not arguably the person who is not in the throes of a political career commanding oYcer of the judiciary, the Secretary and who, therefore, is concerned with more political of State would be occupying one of the commanding matters, the senior lawyer on your model, who is heights of the legal system? presumably at the pinnacle of his career and is not Lady Justice Arden: Yes, under this scenario. necessarily looking for a further career after that. When I said I was happy with the arrangement in Q795 Lord Howe of Aberavon: And would be the Bill, I am of course happy on the basis that the (although some people shrink from the name) power to reject the Judicial Appointments’ eVectively the Minister of Justice? Commission’s selections, is to be exercised Lady Justice Arden: Yes. exceptionally. It seems to me that is all part of the jigsaw of how it should work. I am, of course, unhappy with the present position about Q796 Lord Howe of Aberavon: In one piece of appointments of Supreme Court Justices, where evidence we have had from Lord Lester of Herne more than one name is currently to be tendered to Hill he says the following: “We strongly favour the the Minister and he will have between two and five creation of a powerful Ministry of Justice with the names; but I am pleased to see that the Lord legal stature and qualifications of a traditional Lord Chancellor, on Second Reading, said that this was Chancellor, and a specific duty to uphold the rule a matter to which he would give further of law and the independence and integrity of the consideration. judicial system”. Would you dissent from that as a requirement? Lady Justice Arden: No, I would not. Can I just say Q798 Lord Howe of Aberavon: Yes, that is a matter that one further factor occurs to me and that is to be discussed. I can understand your anxiety on borne of my experience in the Law Commission, that. The exercise of these powers by someone that it is very important that the Minister should be looking as much as possible like Lord Falconer and involved in civil policy, that is for civil law generally; Lord Mackay is what one would like? and that is part of the responsibility at the moment Lady Justice Arden: I think it would also have the of the Lord Chancellor, just as he is responsible for additional advantage, if such a person were the statute book. These are all important functions, appointed by the Prime Minister to the Cabinet, just as much as running the courts is an important that he would have obviously the experience of a function. Criminal policy is of course vested in the legal mind which he could bring to bear in an Home Secretary; but civil policy is another informal way in Cabinet discussions. important area of responsibility. In addition to the court service, he has of course in recent years had Q799 Chairman: Can you take the judicial oath if more and more responsibility, or a greater you are not a judge? responsibility, for the Legal Aid budget which has Lady Justice Arden: What Lord Howe was putting grown so exponentially. to me was the possibility of taking the judicial oath for the purpose of dealing with judicial Q797 Lord Howe of Aberavon: If we want to have administration matters. a character of the kind I have described, would it not at least be helpful if the conventional structure of the Lord Chancellor’s OYce, or the oYce-holder, Q800 Chairman: What does the oath say? Lady Justice Arden: It says that you will administer be that he should be a senior lawyer of distinction V and, if it is not fanciful, still be required to take the justice without fear or favour, a ection or ill-will. It judicial oath; because he is overseeing the seems to me, when we say the judicial oath it would disciplinary process over the entire judiciary and, to be possible to create an oath which was appropriate that extent, adjudicating? Is it not at least helpful if for the type of function which Lord Howe has in the Secretary of State did not exist, with the mind. functions and the oYces carried out by somebody still called the Lord Chancellor? Q801 Chairman: We can all take the judicial oath Lady Justice Arden: I see a great advantage, from the when doing anything in connection with the courts? perspective of the problem that concerned me and Lady Justice Arden: No, not everyone can take it. we were discussing a moment ago, of the oYce- Lord Howe is pinning it on the functions he would holder being a senior lawyer. I am concerned about have in relation to the administration of judicial the appointments process being apolitical, matters. 9674042028 Page Type [E] 28-06-04 20:40:52 Pag Table: LOENEW PPSysB Unit: PAG6

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4 May 2004 Rt Hon Lady Justice Arden, DBE, and Rt Hon Lord Justice Thomas

Q802 Lord Howe of Aberavon: One of the other that things will not change for the future. That propositions put before us in some of the evidence really is a political matter. It depends what happens for clause 1, and indeed it has been discussed in one and the extent to which the Chairman’s of the committees of the House, is that the clause recommendations, in his admirable report, carry the should also refer to the need to uphold the day or not. That is not a question which I can sovereignty of Parliament. Suppose one had answer. All I can say is, let us assume that Welsh adopted a clause requiring the judiciary to uphold devolution develops and the Assembly were to the independence of the judiciary and the acquire primary legislative powers. In those sovereignty of Parliament—is it further possible to circumstances much more serious devolution issue say that in the case of any conﬂict between the two questions could arise. I understand that could be the judiciary should prevail, or that Parliament dealt with under the proposals by those who have should prevail? held high judicial oYce who have a background in Lady Justice Arden: These are questions of legislative Wales being brought-on to the Supreme Court for policy, and it is for Parliament to say how it wishes that purpose. to design the legislation. Of course, there are many diVerent permutations which would be open to it. Q807 Lord Carlisle of Bucklow: Without being full- time members? Q803 Lord Carlisle of Bucklow: A number of Lord Justice Thomas: Without being full-time questions I wanted to ask Lady Justice Arden have members. There is a second question which arises, really been covered by Lord Kingsland and Lord which is the relative status of Wales, Scotland and Howe. You did refer to appointments made on the Northern Ireland. I spend quite a lot of my time in advice of the Lord Chancellor. You mentioned the Wales and there is always a feeling in Wales that Law Commission. How actually are you appointing Wales should at least be treated on an equal basis the Chairman of the Law Chairman? to Scotland, in due course, if devolution goes that Lady Justice Arden: At the moment, by tradition, the Y way. If one was looking, therefore, into the more holder of the o ce of Chairman has always been a distant future, there may come a time when the high court judge. constitutional arrangements were such that recognition of that factor had to be given account, Q804 Lord Carlisle of Bucklow: Appointed by? in the same way it is given account in Northern Lady Justice Arden: By the Lord Chancellor. The Ireland and Scotland. Act provides for appointment by the Lord Chancellor; but it does not stipulate that the Chairman must be a high court judge. Q808 Lord Carlisle of Bucklow: But Scotland has a diVerent legal system? Q805 Lord Carlisle of Bucklow: Derek Hodgson Lord Justice Thomas: But if Wales had primary was a high court judge? legislative powers it would develop its own Lady Justice Arden: Indeed. legislation. Whether that will happen or not really Lord Falconer of Thoroton: Derek Hodgson was not is not something I can answer. The only thing I chairman. Derek Hodgson was the legal lawyer and would say, Wales had its own legal system until 1536 not a high court judge. and it had its own courts until 1830. There is, as a result of devolution, a much stronger feeling of Welsh legal identity than there has been probably Q806 Lord Carlisle of Bucklow: Can I therefore since 1830, or certainly since the turn of the last turn to a Welsh question. In the setting up of the century when devolution was last thought about. I Supreme Court, it is said by the Department of V think one is looking more to the distant future than Constitutional A airs there is a long-standing the immediate future of this Bill. As I understand convention there should be two Scottish Law Lords, the Bill, the Bill does not contain any territorially there should also be a Northern Ireland Law Lord entrenched provisions. and such arrangements should certainly continue. If the court is to take on responsibility of devolution then some regard should also be had to ensuring Q809 Lord Carlisle of Bucklow: You could not say that the Welsh dimension of the England and Wales that for Wales, could you? judicial situation is respected. What does that mean? Lord Justice Thomas: Not at the moment. I think it There is no such thing as a Welsh judge, is there? would be very diYcult to say that at the moment, Lord Justice Thomas: Oh, I do not know! The court but that is looking at it today. This is a is of England and Wales. I think they are two constitutional settlement that one would hope distinct issues. First of all, devolution issues—at the would last for a very long time. One would, moment the courts are at a high level of not being therefore, need to guard against entrenching and troubled with any from Wales; but that is not to say anything of that kind. 9674042028 Page Type [O] 28-06-04 20:40:52 Pag Table: LOENEW PPSysB Unit: PAG6

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4 May 2004 Rt Hon Lady Justice Arden, DBE, and Rt Hon Lord Justice Thomas

Q810 Lord Carlisle of Bucklow: One needs a large Q812 Lord Craig of Radley: Nevertheless, if the Supreme Court with judges appointed as Welsh Lord Chief Justice is a professional Head the buck judges? would stop with him—no matter now much he has Lord Justice Thomas: I think the position would be managed the day-to-day business to devolve exactly the same as Northern Ireland. There would administration and responsibility. In a case where be virtually no diVerence between Wales and there are particular problems of such a nature and so Northern Ireland. important that they cannot really be delegated—they Lord Carlisle of Bucklow: Just one. have got to be dealt with by the Lord Chief Justice— it seems to me still that the Lord Chief Justice will not be able to sit as much as perhaps he should in order Q811 Lord Craig of Radley: One of the arguments to retain the professional title of Head of the about the Lord Chancellor not continuing as Head of Judiciary, and we may end up with another titular the Judiciary is that he does not sit as a judge—the Head, as we already have with the Lord Chancellor? professional responsibility must go to the Lord Chief Lord Justice Thomas: With the utmost respect, I really Justice; that titular responsibility must remain with do not share your views, because the person the Lord Chancellor. You said, Lord Justice appointed to the position of Lord Chief Justice is Thomas, that the Lord Chief Justice, with these new primarily a judge. If one just looks at the two recent responsibilities for administration, resources and so examples of the Chief Justices I have dealt with, they on, would still have time to sit as a judge; and if he have always primarily worked as judges. I cannot see does not sit as a judge he would hardly be a that that would change. professional player. Is there not in your mind any concern that the Lord Chief Justice, with these Q813 Lord Craig of Radley: But they do not have an increasing responsibilities, no longer supported by a administration responsibility which we now perceive Secretary of State—a Secretary of State who may not falling under this Bill? even be a lawyer, who may be a junior Minister—is Lord Justice Thomas: Some of it would be easier. As not getting the type of executive ministerial support the Lord Chief Justice tells you in his own evidence, he would have enjoyed with the Lord Chancellor? Is his responsibilities in respect of judicial appointments there, therefore, no fear in your mind that the Lord will actually become less; his responsibilities in Chief Justice will not get so burdened that he cannot discipline broadly will be clarified, but they are sit as a judge and, instead of being a professional broadly the same as they are now. As regards his Head, he will really become just a titular head? responsibilities for deployment, which are a crucial Lord Justice Thomas: No, I do not have that fear. matter, which must rest in the hands of the There is always a risk—particularly if the Minister professional judge, those are generally delegated— was a junior Minister—that the judiciary would not they have to be—but delegated to judges and not to be properly resourced. There is some protection in civil servants. If one looks from the inside as to what the Courts Act which provides an obligation on the he does and how he is organised, I really do feel (and Lord Chancellor to properly resource the courts. It from an examination I have done this and how we seems to me that the way in which matters are intend to structure it) I really am not worried. currently dealt with—and I could not foresee them being dealt with in any other way—is that the Lord Q814 Lord Craig of Radley: You have not Chief Justice would always wish to and should retain mentioned resources in your answer? his primary position sitting as a judge. I could take Lord Justice Thomas: The resources are two: one is the example of Ireland. In Ireland the courts are judicial resources—and there are at the moment administered by a board chaired by a judge. suYcient judges; and, the second the provision of his Although he is the President of the Board that looks OYce. The Concordat deals with the proper after the administration of the courts, the day-to-day provision of his OYce. I cannot foresee any Minister running of it is done by a more junior judge—the of the Crown—be he Lord Chancellor (which may be same way in this country that I have a significant a desirable title to retain) or be he Secretary of State, responsibility for administrative matters. I am I express no view on that—breaching what is a becoming a member of the Board of the Unified provision of the Concordat which is to resource the Administration and, as you know, the Deputy Chief OYce. With respect, it would seem to me that it Justice is becoming a non-executive director of the would be politically untenable for the Lord Chief Board of the Department. I would always envisage Justice to come to either your Lordships’ House or to within the judicial structure a heavy administrative the select committee (whichever arrangement you responsibility would be delegated to someone for a had) and say, “I am not being properly resourced”. I particular period of time. My job is for three years, would very surprised, however bad a person might and I do sit at least half my time as a judge now and be, if he would not resource the job properly. I am not I would not foresee matters changing. concerned. On the contrary, I see enormous 9674042028 Page Type [E] 28-06-04 20:40:52 Pag Table: LOENEW PPSysB Unit: PAG6

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4 May 2004 Rt Hon Lady Justice Arden, DBE, and Rt Hon Lord Justice Thomas advantages in there being a clear responsibility— Chairman: On behalf of the Committee, may I thank particularly for Listings (which the Lord Chief you very much for coming this morning. It has been Justice mentioned to you) deployment, and the a fascinating two hours and I think you have appointment to leadership posts—and of there being illuminated many matters for us, which otherwise one clear Head of the Judiciary, and that being the might have remained somewhat obscure. Thank you Lord Chief Justice. very much indeed.

Memorandum by the Faculty of Advocates Introduction

In principle, the Faculty would support the creation of such a Supreme Court, and it endorses the reasoning which is set out at pages 10 to 13 of the Consultation Paper. For the purposes of Scotland, however, it is necessary to emphasise that a Supreme Court which is created must be consistent with the Claim of Right of 1689 and the Act of Union of 1707. These instruments are fundamental parts of the constitution of the United Kingdom of Great Britain and Northern Ireland, and in the view of the Faculty any proposal for a Supreme Court which contravened any provision of these instruments would be unlawful. In particular, article XIX of the Act of Union states inter alia that “. . . no Causes in Scotland be cogniscible by the Courts of Chancery Queens-Bench Common-Pleas or any other Court in Westminster-hall; And that the said Courts or any other of the like nature after the Union shall have no power to Cognose Review or Alter the Acts or Sentences of the Judicatures within Scotland or stop the Execution of the same . . .”1 The eVect of this provision is that any Court exercising jurisdiction in Scotland, and in particular a Court with the power to review or alter the interlocutors of the Courts in Scotland, cannot be a part of the Courts of England and Wales. This means that in order to comply with the Act of Union, a Supreme Court would require to be set up as a Court independent of the Courts of England and Wales. In terms of how it was constituted, where it would sit, and how it was provided with administrative and support services, the Court could have no association with the Courts of England and Wales. Reference is made on this matter to the comments for the Faculty in relation to Administration, funding and support which are provided after the answer to question 23 below. The Faculty respectfully submits that the constitutional signiﬁcance of this cannot be overestimated. Any attempt to create a Supreme Court which did not comply with these requirements would be contrary to the constitution of the United Kingdom, and any purported act in or aVecting Scotland by such a Court would be unlawful and of no eVect in Scotland. All of what is said below should be taken as subject to the over-riding constitutional considerations which must apply to such a Court. In providing this Response, two questions have been addressed together where it has been appropriate to do so. Question 1 Do you agree that the jurisdiction of the new Court should include devolution cases presently heard by the judicial committee?

The Faculty agrees with this proposal and with the general considerations set out in paragraphs 20 and 21 of the Consultation Paper, subject to what is said in answer to the next three questions. Question 2 Do you agree that the number of full time members of the Court should remain at 12 but that the Court should have access to a panel of additional members?

Question 3 If there were such a panel, under what circumstances could the Court call on it?

The Faculty considers that the size of the Court, and how its numbers might be increased by a panel of additional members, must depend upon a proper appreciation of the functions of the Court in relation to all

1 As provided in these terms in Scots Statutes Revised. 9674042029 Page Type [O] 28-06-04 20:40:52 Pag Table: LOENEW PPSysB Unit: PAG6

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4 May 2004 parts of the United Kingdom. As the Court is intended to be the court of final appeal for all parts of the United Kingdom it will act as the final legal arbiter for the laws of each part of the UK. If it is intended that the Court should sit normally in panels of five, an intention which the Faculty would support and which would be consistent with what is said in paragraph 51 of the Consultation Paper, then it ought to be possible to derive a majority of members for any particular panel from permanent members of the Court having experience of each of the jurisdictions of the UK. This would mean that there should be amongst the full-time members of the Court at least three having relevant experience in Scotland, and the same in relation to Northern Ireland. Whether this could be accommodated within a total establishment of twelve full-time members would be a matter essentially for those involved in the likely caseload from England and Wales. The existence of a suYcient number of full-time members from Scotland would also mean that there would be a majority of Scottish judges available to sit in the devolution issue cases which are presently heard by the Judicial Committee of the Privy Council. It would be unfortunate if the perceived benefits of a single constitutional court were to be lost through an inadequate number of judges being appointed to hear devolved matters in the manner currently working in the Judicial Committee. The Faculty suggests that in the setting up of the Supreme Court it would be undesirable for any jurisdiction in the United Kingdom to be obliged to accept only a permanent minority of full-time members on any panel. If such a permanent minority were not seen to be acceptable for England and Wales, then there is no reason why it ought to be acceptable for the other jurisdictions. It is appreciated that this is the situation at present in relation to appeals in the House of Lords, but in the view of the Faculty that is not a justification for continuing with a practice which some regard as unsatisfactory when formulating proposals for a new Court of final appeal. The Faculty feels obliged to point out that support for a new Supreme Court might be aVected if it were known that it was intended that there could never be a majority of full-time members from Scotland. Whilst it would be possible to increase the number of members available to sit by the creation of a panel of additional members, the Faculty does not consider that this would be acceptable for the purpose of providing additional Scottish members who would be required for the hearing of every Scottish case, and a suYcient permanent membership would avoid the undesirable potential consequence of the panel of additional members becoming quasi permanent members of the Court. Subject to these considerations, the Faculty would have no objection to there being a panel of additional members who might be called upon on an occasional basis. Such a panel might be comprised of all of those holding high judicial oYce who have been made Privy Councillors, as is the case at present in relation to members of the Inner House of the Court of Session who may sit on the Judicial Committee of the Privy Council to hear cases concerning devolution issues, and the Faculty would therefore agree with the conclusion in paragraph 32 of the Consultation Paper. In saying this, the Faculty would wish to emphasise the undesirability of the regular use of temporary judges in any court. In principle, the judicial establishment ought to be suYcient for the actual workload of any court, and a Supreme Court should be treated no diVerently. The Faculty supports what was said by Lord Bingham of Cornhill as quoted in paragraph 1 of the Consultation Paper.

Question 4

Should the composition of the Court continue to be regulated by statute, or should it be more ﬂexible? It is the view of the Faculty that as a matter of principle, the Court should be regulated as little as possible by statute. If the intention behind the establishment of a Supreme Court, and the removal of the appellate jurisdiction of the House of Lords, is to provide a Court of ﬁnal appeal which has the greatest independence, and appearance of independence, from the other organs of the State, then that Court ought to be subject to as little regulation as possible. Having said that, the Court will require to be established by legislation, and the Faculty does not see any reason why the composition of the Court, both in relation to full-time and additional members, should not be the subject of legislation.

Question 5

Should there be a Deputy President? The Consultation Paper has provided no detailed explanation of the functions of the President and Deputy President of the Court. It is assumed that they would chair the ﬁrst and second panels of the Court, but it is also assumed that there might need to be other panels which would require to be chaired by other members. 9674042029 Page Type [E] 28-06-04 20:40:52 Pag Table: LOENEW PPSysB Unit: PAG6

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In the event that a formal senior member of the Court and a deputy are necessary, the Faculty suggests that consideration be given to the appointment of these either by the vote of the members of the Court, or by seniority of appointment. Such methods of appointment would avoid the perception of outside interference in the conduct of the Court. The alternative would be to involve a form of judicial appointments body which is discussed in relation to the succeeding questions. The election of the senior members of the Court by the members of the Court would mean that there could be no perception of external interference in the process. It is also the case that the process for the appointment of the Senior Law Lord is relatively recent, and before that the matter was simply one determined by length of service as a Lord of Appeal in Ordinary.

Question 7

Should the link with the House of Lords and the Law Lords be kept by appointing retired members of the Supreme Court to the House? This, and the succeeding questions, raise issues related to the relationship which ought to exist between Parliament and the judiciary. The Faculty respectfully suggests that this is a very important topic which requires greater consideration than is aVorded in the Consultation Paper. The Faculty does not necessarily agree that there needs to be a fundamental separation between the two in the case of the House of Lords, but it is sympathetic to the considerations put forward and will attempt to address the relevant questions as they are raised. The primary imperative for the formation of a Supreme Court as set out in the Consultation Paper is the separation of the judiciary from the legislature. If that proposition is accepted as necessary and beneﬁcial, particularly to the public and public perception of the judicial process, then it may be argued that any connection between the House of Lords and members of the Supreme Court ought permanently to be severed. Even if that is so, however, the Faculty can identify no particular diYculty with this proposal contained in question 7, so long as it is recognised that once a retired member of the Supreme Court had been appointed to the House of Lords, it might be argued that he was no longer available to sit as an additional member of the Court, even if it were conceivable that he could declare an interest in a particular case as suggested in paragraph 37 of the Consultation Paper. If any member of the House of Lords were to be barred in principle from sitting in the Court, the membership of the Supreme Court and any associated panel of additional members would have to take account of the fact that retired members of the Court who had become peers could not, on this model, be called upon if the need arose to participate in an appellate panel.

Question 8

Should the bar on sitting and voting in the House of Lords be extended to all holders of high judicial ofﬁce? The logic of the approach of the Consultative Paper is that no member of the judiciary should be entitled to participate in the legislative process. Whilst the Faculty does not necessarily agree that this is necessary, it would seem anomalous if judges sitting in the highest court in the land were barred from voting in the House of Lords, whilst their more junior colleagues retained such a right. If the desired aim is separation of the judiciary from the legislature, then such separation should apply across the board.

Question 9

Should there be an end to the presumption that holders of high judicial ofﬁce receive peerages? If members of the judiciary, whether in the Supreme Court or in a lower court, are to be barred from participating in the proceedings of the House of Lords, then there is no reason why they should be made members of that House of the legislature.

Question 10

Should appointments to the new Supreme Court continue to be made on the direct advice of the Prime Minister, after consultation with the First Minister of Scotland and the First and Deputy First Ministers in Northern Ireland and with the profession? 9674042029 Page Type [O] 28-06-04 20:40:52 Pag Table: LOENEW PPSysB Unit: PAG6

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Question 11

If not, should an Appointments Commission recommend a short-list of names to the Prime Minister on which to advise The Queen following consultation with the First Minister of Scotland and First and Deputy First Ministers in Northern Ireland? Or should it be statutorily empowered to advise The Queen directly?

The terms of these questions suggest that appointments might be made either upon the recommendation of the Prime Minister, or upon the recommendation of an Appointments Commission, or upon a combination of the two. If the intention in setting up a new Supreme Court is to demonstrate the separation between the executive and the judiciary, then it would be illogical for the Prime Minister in eVect to be appointing the members of the Court, including the President and Deputy President as envisaged by question 6 above. This means that the direct recommendation by the Prime Minister as suggested by question 10 could not be supported by the Faculty, although that does not mean that the participation of an Appointments Commission is the only other possibility. If a form of Appointments Commission were to be considered desirable, it is the view of the Faculty that the recommendations made by that Commission should be determinative. This means that the second option in question 11 would be preferable, with the Commission making a recommendation to The Queen directly. Were there to be an opportunity for the Prime Minister to exercise a discretion in relation to membership of the Court, even if it was only to reject a name which had been put forward by the Commission, this could give rise to the possibility that the membership of the Court had been inﬂuenced by political factors, or a perception to that eVect. As an alternative to such a Commission, the Court could be empowered to appoint its own members. Following the initial appointments, which will be of those already holding the oYce of Lord of Appeal in Ordinary at the time of the setting up of the Supreme Court, this system would require no machinery to operate it. Persons to be appointed could be subject to approval by both Houses of Parliament in order that the members of the Court were subject to some supervision in the process of appointment. Having said this, the Faculty would not support a form of conﬁrmation hearing for members of the Supreme Court. The Faculty respectfully suggests that these are matters which require further consideration.

Question 12

If there is to be an Appointments Commission for Supreme Court appointments, how should it be constituted? Should it comprise members drawn from the existing Appointments bodies in each jurisdiction?

The Faculty considers that if there were to be an Appointments Commission for the Supreme Court, then it and its members should be entirely separate from all of the jurisdictions within the United Kingdom. In principle, this is because of the eVect of article XIX of the Act of Union referred to in the Introduction above. Any appointments process to the Supreme Court which involved participation by those who were a part of the judicial process in England and Wales could be argued to be in breach of the part of that article which is quoted above. In any event, the Faculty considers that it would be a good thing if membership of the Appointments Commission for the Supreme Court were to be separate from membership of the individual judicial appointment bodies. Members of the individual appointment bodies would be likely to have considered candidates who had been appointed to the highest courts in each jurisdiction. The Faculty suggests that it would be desirable if candidates for membership of the Supreme Court could come before an Appointments Commission whose members had not already ruled upon their ﬁtness (or otherwise) for high judicial oYce. The Faculty would also support the view that there should be a signiﬁcant lay membership on such an Appointments Commission. Experience in Scotland has suggested that the presence of members of a judicial appointments body who are not members of the legal profession is an advantage in the assessment of candidates. 9674042029 Page Type [E] 28-06-04 20:40:52 Pag Table: LOENEW PPSysB Unit: PAG6

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Question 13

Should the process of identifying candidates for the new Court include open applications? The Faculty considers that if the appointment process is to involve a body such as an Appointments Commission, then it would be desirable that the widest possible pool of candidates be available. The Faculty would endorse the reasoning set out in paragraph 44 in relation to the possible shortcomings of a system based entirely upon open application. The Faculty suggests that an Appointments Commission should be able to receive applications for membership of the Court, as well as to canvass opinion and make approaches in respect of those who have not applied. The Commission ought to be able to devise procedures which dealt most eVectively with each type of candidate. In other words, it should not be necessary for every possible appointee to the Supreme Court to go through the same procedure. Given the degree to which candidates and their qualities are likely to be known as discussed in paragraph 44, the Faculty does not consider that the principles of transparency demand a strict and uniform procedure in each case given the status and place in the judicial hierarchy of a Supreme Court.

Question 14

Should there be any change in the qualiﬁcations for appointment, for example to make it easier to appoint distinguished academics? Or should this be a change limited to lower levels of the judiciary, if it is appropriate at all? Despite the perceived beneﬁts in terms of diversity, such an advantage would be outweighed by the necessity at the level of the highest court in the land for practical experience of court work to be gained prior to appointment as a member of the Court. Such experience would be held by an existing member of the judiciary, or by a senior practising advocate who had displayed the qualities appropriate for appointment to the judiciary at the highest level.

Question 15

Should the guidelines which apply to the selection of members of the new Court be set out administratively, or through a Code of Practice subject to Parliamentary approval, or in legislation?

Question 16

What should be the arrangements for ensuring the representation of the different jurisdictions? The answer to these questions in detail will depend upon the method of selection chosen. In order to ensure the proper representation of the diVerent jurisdictions (and reference is made to the answers to question 2 and 3 above), the Faculty considers that the criteria for appointment of members of the Court with relevant experience of each jurisdiction should be set out in the legislation which establishes the Court.

Question 17

What should be the statutory retirement age? 70 or 75? The Faculty would favour 75, or perhaps 72. The Faculty does not support judicial retirement at 70, and considers it to be notable that in recent years the customary judicial retirement age has been reduced to 70 just when life expectancy has been rising, and the appreciation of the contribution of older people to society has been increasing. Question 18

Should retired members of the Court up to ﬁve years over the statutory retirement age be used as a reserve panel? The Faculty considers that there could be no objection to this, although if the maximum retirement age were to be 75, the Faculty would accept that there may be less justiﬁcation for allowing retired members to sit up to the age of 80. The Faculty also refers to what it said in answer to question 7 above in relation to retired members of the Court who had become members of the House of Lords. 9674042029 Page Type [O] 28-06-04 20:40:52 Pag Table: LOENEW PPSysB Unit: PAG6

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Question 19 Should the Court continue to sit in panels, rather than every member sitting on every case? The Faculty sees no good reason for altering the present arrangements which apply in the House of Lords, and it has answered several questions above upon the assumption that the Court would sit in committees or panels, generally of five members. The Court of Session is a collegiate court which might in theory sit en banc, but it does not do so. The sitting of the Supreme Court in committees or panels would therefore be consistent with the position in Scotland. It is also understood that the High Court of Australia sits in committees. The example of the United States Supreme Court would in the view of the Faculty require much more consideration before it could be taken as a model for the United Kingdom. In particular, its position is as the ultimate court of constitutional appeal from individual states in a federal system, which states have their own systems of appeal, and also given that the United States has a written Constitution in which the regulation of the relationships between the executive, legislature and judiciary are formally set out. It is believed that there is more weight given to political considerations in the making of appointments to the United States Supreme Court than is the case in the United Kingdom, and it may be that the reason for the Court to sit en banc is to ensure that the political balance is the same in every case. Question 20 Should the Court decide for itself all cases which it hears, rather than allowing some lower courts to give leave to appeal or allowing some appeals as of right? Question 21 Should the present position in relation to Scottish Appeals remain unchanged? These questions raise significant issues for Scotland, and they have been the subject of divided views within the Faculty of Advocates. They arise in relation to the three elements of the jurisdiction in Scotland which might be the subject of appeals to the Supreme Court. The first element concerns civil appeals from the Inner House of the Court of Session which currently proceed to the House of Lords. There has been little debate that these appeals should be transferred to the Supreme Court, but the diYculty which arises is in relation to the possibility that leave to appeal might be required as a rule. At present, any party may appeal a final interlocutor of the Inner House of the Court of Session to the House of Lords without leave. This is said to be based upon the Claim of Right which provided a “right and privilege of the subjects to protest for remeed of law to the King and Parliament against sentences pronounced by the Lords of Session . . .”. A requirement for leave to appeal could be said to oVend against that entitlement, and it is worth noting that in appeals from Scotland, two counsel must certify that the point at issue is one which justifies an appeal to the House of Lords. The Faculty would suggest that this is an important constitutional issue, and it would not support any change in relation to Scottish civil appeals without further consideration. It therefore agrees with what is said on this issue in paragraph 56 of the Consultation Paper. The second element of the present jurisdiction relates to appeals to the Judicial Committee of the Privy Council on devolution issues arising under the Scotland Act 1998. This element has given rise to least debate because such appeals are already subject to a requirement that leave normally be obtained, 2 and the Faculty has already stated in answer to question 1 above that such appeals should come before the Supreme Court. The third, and perhaps most diYcult issue, relates to criminal appeals. Whilst appeals to the House of Lords in criminal cases from Scotland were not prevented or otherwise regulated by the Act of Union, such appeals were finally determined to be incompetent in 1876 in the case of Mackintosh v Lord Advocate 3 which was decided upon the basis that since as a matter of history there had been no right of appeal from the Court of Justiciary to the Parliament of Scotland, no such right of appeal had been created by the Act of Union. Any such appeal has been prevented formally by statute since 1887. 4 It may be that it would be logical for there to be a right of final appeal to the Supreme Court in criminal matters from Scotland, equivalent to the right in criminal cases from other parts of the United Kingdom. This would also be consistent with the fact that where a devolution issue arises in a criminal case in Scotland, that may

2 Scotland Act 1998, Schedule 6, paragraph 13. 3 (1876) 3 R (HL) 34. 4 Criminal Procedure (Scotland) Act 1887, section 72; presently the Criminal Procedure (Scotland) Act 1995, section 124(2). 9674042029 Page Type [E] 28-06-04 20:40:52 Pag Table: LOENEW PPSysB Unit: PAG6

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4 May 2004 already be the subject of an appeal to the Judicial Committee of the Privy Council. Given that there is no appeal as of right to the House of Lords at present in a criminal case, and given that the requirement for leave to appeal already exists in relation to an appeal concerning a devolution issue, such an appeal to the Supreme Court from the High Court of Justiciary could be made subject to requirement that leave be obtained without removing any entitlement currently secured by reference to the Claim of Right. On the other hand, there is support for retaining for the High Court of Justiciary the right of final appeal in criminal cases which has been the position since before 1707. Those who take this position point to the fact that it will tend to maintain the purity of the criminal law of Scotland which is distinct from the criminal law of England and Wales and the other common law jurisdictions. Anxiety about the consequences for the criminal law of Scotland might be alleviated if any committee of the Supreme Court always had a majority of members with Scottish experience, as discussed above in relation to questions 2 and 3, but nevertheless the granting of a Scottish criminal jurisdiction to the Supreme Court would represent a fundamental departure from the principle which has regarded criminal law as a matter ultimately for the High Court of Justiciary. Taking all of these elements together, therefore, it is the position of the Faculty that whilst there might be reasons for innovating upon the present jurisdictions of the House of Lords and the Judicial Committee of the Privy Council, the justification for doing so in any particular case has not been made out. Question 22 What should the existing Supreme Court be renamed? In Scotland, the expression Supreme Court is used informally, but it has no technical significance as paragraph 58 of the Consultation Papers confirms. This is therefore essentially a matter for those engaged in practice in England and Wales and Northern Ireland. Question 23 What should members of the new Court be called? The Faculty suggests that because the Supreme Court is to be the single final court of appeal for all of the jurisdictions of the United Kingdom, a title should be chosen which demonstrates that its members are not to be confused with members of the judiciary in any jurisdiction. For the reasons explained in the Introduction above, the Faculty also considers that it would be desirable that the members of the Court do not have a title which appears to be similar to one in use in England and Wales. The Faculty therefore does not favour any title using or containing the word “Justice”. In the result, the Faculty favours the formal title “Lord of Appeal”, with the individual bearing the title “Lord” or “Lady”. The title “Lord” may be a courtesy title and does not inevitably denote a member of the House of Lords. Alternatively, the designation Judge of the Supreme Court (“JSC”) would raise no diYculty, although it might suggest to the uninformed that the holder was of less status than a judge having the title Lord Justice or Lord. Administration, funding and support The Faculty would wish to comment on this issue which is discussed in paragraphs 63 to 66 of the Consultation Paper. It is proposed that administration and resources would come under the control of the Department for Constitutional AVairs. The Faculty would not agree with this proposal for the following reasons. In the first place, it is respectfully suggested that this proposal is contrary to the apparent aim of the creation of the Supreme Court, namely separation of the judiciary from the legislature and the executive. In order to achieve this separation it would be desirable for the administration of the Court to be placed at the greatest distance from political interference, so that not only its members, but also the institution of the Court itself, may be seen to be truly independent. The Faculty would suggest that there should be established a distinct Supreme Court Service, funded by a block grant from Parliament, and subject to the ultimate control of the Court. Such an approach would guarantee the actual and apparent independence of the Court and those by whom it is administered. The Faculty does not consider that the factors set out in paragraph 65 of the Consultation Paper, including reference to economic considerations and the desirability of creating a career structure, would provide suYcient justification for compromising the independence and apparent independence of the Court and its administration. In the second place, the Faculty does not agree that such arrangements as are suggested in paragraph 64 would be compliant with the Act of Union, in particular article XIX. Given that the Department for Constitutional AVairs is responsible for the administration of the court service in England and Wales, but not in Scotland, 9674042029 Page Type [O] 28-06-04 20:40:52 Pag Table: LOENEW PPSysB Unit: PAG6

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4 May 2004 were that Department to be responsible for the administration of the Supreme Court, then that would give the appearance that the Supreme Court was part of the courts of England and Wales. The existence of responsibility for the courts of England and Wales and the Supreme Court within the same Department would inevitably result in the two jurisdictions being regarded together for administrative purposes. The Faculty considers that it is very important that in the setting up of a new Supreme Court for the United Kingdom, including Scotland, that Court and its administration should respect, and be seen clearly to respect, the separate jurisdiction of the Courts in Scotland which was enshrined in the Act of Union. The view of the Faculty is consistent with the Supreme Court being a United Kingdom Court in the sense that it would be the ﬁnal court of appeal for the three separate jurisdictions of the UK.

Accommodation The Faculty would also wish to comment on this issue which is considered in paragraph 67 of the Consultation Paper. First, the Faculty would suggest that the Court should be based in premises which are not used by the courts of England and Wales. Once again, this is necessary because of the provisions of the Act of Union, but in any event such separate premises would emphasise the nature of the Court as one distinct from the domestic courts of each jurisdiction. Secondly, thought might be given to the Court being based outside London, away from the legislature and emphasising its role for the entire United Kingdom. Locations such as a city in the north of England, or CardiV or Belfast, as well as Edinburgh are obvious possibilities. Thirdly, wherever it is based, the Court might sit on circuit to hear cases which relate to the area in question. This is what occurs in the case of the High Court of Australia.

6 November 2003

Examination of Witness Witness: Mr Roy Martin, QC, Vice Dean of Faculty, Faculty of Advocates, examined.

Q815 Chairman: Mr Martin, thank you very much are restricted to Scotland and do not have more for coming this morning and for giving up your time widespread implications. The Faculty generally to help us. Would you introduce yourself formally for supported the reasons for creating a Supreme Court the sake of the record, and then perhaps be kind set out in the Consultation Paper and in the Bill, but enough to open up the discussion on the basis of your the view of the Faculty was that the case for a paper, and then we will follow as we think fit. Supreme Court was by no means overwhelming. Mr Martin: My Lord, thank you for the welcome. Following publication of the Bill I can identify three My name is Roy Martin. I am a Queen’s Counsel in principal remaining concerns. The first, and I think Scotland, and I am Vice Dean of the Faculty of the most important, is the control of the Court’s Advocates. I have held that post since 2001. On resources by the Department for Constitutional behalf of the Faculty, I would like to thank the AVairs and the Minister (I am referring in particular Committee for the opportunity to provide such to clauses 38 to 43 of the Bill). The Faculty takes issue assistance as we can on the Bill. I should tender the with this from the point of view of Article XIX of the apologies of the Dean of Faculty who would also Act of Union, but I think it stands consideration have been present, had he not had a pre-existing from a much more general perspective because, as my court commitment. My Lords, the concerns of the submission stated, it would be inadvisable if there Faculty of Advocates relate entirely, from our point were to be the appearance that the Court, albeit of view, to Part 2 of the Bill, that is to say the independent in its judicial functions, was not proposals for the creation of a Supreme Court— independent in its resources, accommodation and so although I am aware, through your Lordships’ on. My Lords, I am aware that in other contexts Assistant, that there may be questions to me on other similar representations have been made, for example matters, and I shall certainly do my best in relation to by the Lord President of the Court of Session, Lord those. The Faculty submitted a response to the Cullen of Whitekirk. There has been a proposal, Consultation Paper of the Department of which the Faculty would support, that the Supreme Constitutional AVairs, and I hope copies have Court Service should be an independent body under reached your Lordships; they were submitted to the the control of the President of the Court and Assistant. The Faculty has expressed its concerns, provided for by a one-line budget in Parliament. This significantly based upon particularly Scottish is a model which I think exists elsewhere, in particular considerations; but I would emphasise that I do not the High Court of Australia which is a court of regard the particular Scottish elements upon which similar significance, including constitutional we have relied as suggesting that the considerations significance and a reasonable parallel. From the 9674042030 Page Type [E] 28-06-04 20:40:52 Pag Table: LOENEW PPSysB Unit: PAG6

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Faculty’s point of view, my Lords, I have to say that sympathetic to that point and again I say no more if the purpose of creating a Supreme Court is to about it, but it is something which we submit is very overcome a perception of a lack of independence in important. The second and final general concern, my your Lordships’ House—and there is certainly no Lords, is that if a Supreme Court is to be created the evidence of any lack of impartiality there—then, opportunity should be taken for a much wider logically, we do not understand why there should be consideration and debate of the consequences of such created in its place a perception of a lack of a new court of final appeal, such as the total number independence in the resourcing and administration of of judges, indeed the titles of the judges and even the the Court. The second principal matter which title of the court, where the court might sit, whether concerns the Faculty is that there should be the it might sit on circuit and, perhaps most importantly, establishment of a panel of Scottish judges who may what its jurisdiction ought to be. That is a form the majority of any panel or committee hearing particularly Scottish element because, as I am sure a Scottish appeal. The Faculty has a diYculty with my Lords are aware, in Scottish cases there are temporary appointments. My Lords may be aware distinctions. Scottish civil cases come to the House of that in Scotland the incorporation of the European Lords in general without leave either of the Court of Convention on Human Rights first began under the Session or the House of Lords and that is diVerent to Scotland Act on 1 July 1999. The Faculty is other jurisdictions. In contrast, Scottish criminal concerned that temporary appointments should not cases do not come to the House of Lords at all, that be part of the expected establishment of the Court. It position having been slightly blurred in recent years is not appropriate for it to be anticipated that in by the introduction of devolution issues which may normal circumstances there will be reliance upon arise in Scottish criminal cases and come to the temporary judges. That is not to say that temporary judicial committee of the Privy Council and its judges are not entirely appropriate for genuine proposed incorporation into the Supreme Court. All emergencies, illnesses or unforeseen circumstances I would suggest, my Lords, is that time and debate but, in our view, in providing for the establishment of would be appropriate on all of these matters, not just a Supreme Court as the ultimate jurisdiction at least in Scottish terms but also in terms of many other in civil cases in Scotland, it is inappropriate to place issues which have arisen and to this extent the reliance on temporary appointments. We also take Faculty would tend to support the thrust of the the view that any establishment of Scottish judges report by the House of Commons’ Select Committee and, with respect, I would say the same in relation to which reported earlier this year and I know there is judges for Northern Ireland and, indeed, Wales now a response from the Government and a perhaps ought to be in the Statute and not left to Consultation Paper recently published. I should say informal or other arrangements. The third concern that I gave evidence to that Committee also last year. which the Faculty expressed was the scope of the My Lords, I hope that has given a flavour of the discretion available to the Minister in relation to the particular concerns of the Faculty and I shall be very appointments procedure provided by clause 21 of the happy to do my best to answer any questions on what Bill, and the Faculty noted that the discretion I have said or on the original consultation response available to the Minister in relation to Supreme or, indeed, on anything else. Court appointments appeared to be somewhat Chairman: Thank you very much. Since you have greater than the discretion available in relation to raised some matters of detail on the Bill and the court appointments in England and Wales under Part drafting I think I will ask the Lord Chancellor to 3, Chapter 2 of the Bill. I am aware that that is a reply on those issues first and then we can move to a matter which may have been the subject of general discussion. reconsideration or further reflection and I say no more about it. These, my Lords, are the three Q816 Lord Falconer of Thoroton: The Scottish principal concerns, but if I may just add two further courts, not the House of Lords, get their money concerns. The first has been the recognition all along from the Scottish Executive. That is correct, is it of the need to protect the particular position of the not? law of Scotland, that is to say as a law separate from Mr Martin: That is certainly my understanding. the law of England and Wales and, indeed, of Northern Ireland. That has been identified as being Q817 Lord Falconer of Thoroton: The English provided for by the principle which already exists in courts get their money from English Ministers in relation to judicial proceedings in the House of Lords eVect. I do not think there is any question of any whereby a decision made in any one of the perception that the Scottish courts are not jurisdictions of the United Kingdom is binding only independent. in that jurisdiction and there is considerable debate Mr Martin: There is not, my Lord, but if I may say about persuasiveness and so on in other jurisdictions. two things. The first is, and it is perhaps a reflection I understand that the Government has been of my final concern, that if one is to rely upon the 9674042030 Page Type [O] 28-06-04 20:40:52 Pag Table: LOENEW PPSysB Unit: PAG6

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4 May 2004 Mr Roy Martin, QC status quo one would leave the House of Lords well those responsible for the administration of the alone because there is no active debate based upon courts, is reasonable. dissatisfaction with it. If one is to create a Supreme Court, a new institution, it seems to me that one Q820 Lord Falconer of Thoroton: Would that be the must look anew at all of the assumptions that lie case for the Supreme Court as well? behind the creation of that. Mr Martin: That would be our position, yes.

Q818 Lord Falconer of Thoroton: The main point Q821 Lord Falconer of Thoroton: Are you saying in your paper—and one never knows if one has got the Supreme Court should put its budget to a all of your papers, this is not a reference to you but Minister who should satisfy himself that it is there are so many knocking around—not the point reasonable before it is put to the Treasury? you were making just then, which is it should be free Mr Martin: My Lord, what I am saying is that we of ministerial involvement, is that the Supreme have no objection to a Minister moving the one-line Court has got to be clearly separate from the budget. The precise mechanism would depend upon English and Welsh courts’ administration and we more detailed consideration. For example, in the fully accept that. I thought your main issue was if High Court of Australia situation, I personally do the Department for Constitutional AVairs is not know precisely to what extent the Minister who involved that might lead to people thinking there moves that budget in the Parliament can scrutinise was a confusion between the English and Welsh or interfere in the requirements identiﬁed by the courts in terms of administration and the Supreme President of the Court. Court administration, but in fact your remarks this morning were making a wider point, that is there Q822 Lord Falconer of Thoroton: Would you expect should not be any ministerial involvement at all, the Minister in the example you have given to satisfy were they not? himself that it was reasonable? Mr Martin: In a sense, perhaps quite inadequately Mr Martin: I would expect the Minister to satisfy on my part, that was highlighted by my initial himself that it was reasonable, but I would also comment that although we based our submissions expect there to be very stringent restrictions on the on particularly the Scottish concern, that is not to extent to which the Minister could intervene. say that the Act of Union and the need to separate any Supreme Court from the courts of England and Wales is not constitutionally very important. I think Q823 Lord Falconer of Thoroton: Would you expect that has developed into what I know has become a that Minister to be accountable to Parliament for much more wide-ranging debate, but it is consistent the budget? with it that there should be independence of the Mr Martin: Only in the sense that he had exercised court constitution generally. I do accept my Lord’s whatever discretion was available to him because point that in a sense they are two separate issues but clearly he could not ultimately be responsible for I would suggest with the same theme. I wonder if I something that by Statute he was simply obliged may just say the second thing I was going to say in to accept. response to the previous question. There has been a debate in Scotland about the desirability of Q824 Lord Falconer of Thoroton: I am not quite separating the courts in Scotland and their sure I know what you are saying. Could you resourcing from the Executive and the Faculty has describe to us what his discretion would be in your in public, the Dean and I both, expressed the perfect world? desirability of resourcing the courts in general Mr Martin: In my perfect world, my Lord, I do not independently of the Executive. know what his discretion would be, but it would be a discretion that was very limited and did not give Q819 Lord Falconer of Thoroton: There is a school the perception that the Minister in some way of thought that says the courts should have a direct indirectly could be seen to be, because it is a matter relationship with the Treasury without any Minister of perception, inﬂuencing the Court, for example, intervening. Do you support that overall approach by starving it of resources, but if he had an auditing V not just in relation to the Supreme Court but function then that is an entirely di erent thing generally? because auditing is a properly perfect thing to be Mr Martin: I support the overall approach. I am not achieved in any situation. sure whether it needs to go so far as not having any contact with a Minister at all. I think the mechanism Q825 Lord Falconer of Thoroton: If there is no whereby a Minister proposes the one-line budget in Minister or a Minister with very limited function, Parliament, obviously with some responsibility for would you be concerned if it was the Secretary of satisfying himself about what he has been told by State for Constitutional AVairs? 9674042030 Page Type [E] 28-06-04 20:40:52 Pag Table: LOENEW PPSysB Unit: PAG6

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Mr Martin: I may not adequately have understood Q833 Lord Falconer of Thoroton: If there are 12 the question— full-time Supreme Court justices, are you suggesting that a quarter of them be Scottish? Q826 Lord Falconer of Thoroton: I understand your Mr Martin: My Lord, the consequences of the basic premise to be as little ministerial involvement number of members of the Court is a matter that I as possible. Is that a fair comment? have referred to as perhaps generally requiring Mr Martin: Yes. further consideration. Clearly there might be diVerences if there were to be the creation of a criminal appeal jurisdiction. The point we are Q827 Lord Falconer of Thoroton: If there has to be putting forward, my Lord, is simply based on the a Minister, would you be happy if it was the principle that if there is to be a Scottish appeal, if Secretary of State for Constitutional AVairs? the committee is to be five, then there ought to be Mr Martin: My Lord, the Faculty itself has given a permanent establishment which can create a no specific consideration to that matter. Expressing majority of Scottish judges in that situation. I regret a personal view, in a situation where it was merely to say that I have not had the benefit of reading the a financial accountability on the part of the Minister evidence of Lord Hope and I therefore hesitate to I would prefer that it would be a Treasury Minister. disagree with him to any extent, but that is our position, my Lord. What other consequences may Q828 Lord Falconer of Thoroton: A Treasury follow is entirely a matter for diVerent Minister? considerations in a sense. Mr Martin: A Minister who was not perceived as likely to influence judicial aspects of the system. Q834 Lord Falconer of Thoroton: Have you considered the slightly wider picture? Q829 Lord Falconer of Thoroton: Do you have any Mr Martin: Yes, we considered it in the views on what eVect that might have on the amounts Consultation Paper. I think the view is that if you of money? are creating a new institution then it is not suYcient Mr Martin: I certainly profess no expertise or simply to rely upon what has happened in the past. authority to comment on the financial consequences of this, my Lord, and I would be very happy to leave Q835 Lord Falconer of Thoroton: Has there been that to others. any diYculty with the fact that there is not a majority of full-time members on the Appellate Q830 Lord Falconer of Thoroton: Two of the 12 Committee of the House of Lords who are Scottish judges are Scottish at the moment and the House of when hearing civil appeals? Lords deals with Scottish civil appeals. I think the Mr Martin: My Lord, I can speak only for my own position of the Faculty of Advocates is they are experience in that committee and I have not seen happy for civil appeals to continue to go to the such diYculty. Supreme Court and they are happy with the conclusion that has been reached, that criminal Q836 Lord Falconer of Thoroton: Is there a appeals should not go there. Is that correct? perception of diYculty amongst the Faculty? Mr Martin: That is correct. There is certainly a Mr Martin: There is no such perception of diYculty debate and that is recognised in the paper, but in about that or the functioning of the existing House principle we accept that. of Lords as a judicial committee.

Q831 Lord Falconer of Thoroton: Does the Faculty Q837 Baroness Gibson of Market Rasen: Good agree that if 12 remains the complement of the full- morning, Mr Martin. I, too, want to rely upon your time Supreme Court of Justices then to go above Scottish experience, if I can put it that way. We have two is very diYcult? had a number of witnesses now, some in favour of Mr Martin: My Lord, I am not sure why it would the appointment of a Secretary of State for be diYcult other than in the resourcing sense. Constitutional AVairs and some not so keen. One of the things that have exercised us is the question Q832 Lord Falconer of Thoroton: It is the view of of whether or not the Secretary of State should have Lord Hope that it would be very diYcult to go a background in law. Obviously up to the present above 12, that was the evidence he gave to us last time that has been so and that has been the same week, that has always been his position. Do you with the Lord Chancellor. I wonder if you could agree with that? share with us, because as I understand it the Scottish Mr Martin: With respect, the Faculty does not. The Executive does not require the Minister for Justice Faculty believes there should be a minimum of three to have a background in law, the Faculty’s thinking Scottish appointments. in that area. 9674042030 Page Type [O] 28-06-04 20:40:52 Pag Table: LOENEW PPSysB Unit: PAG6

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Mr Martin: There has been no particular thinking appeal can contain a majority of Scottish judges and about that because clearly it was not a matter that there should not be reliance upon temporary directly at the root of our concerns over the appointments to achieve that purpose. The answer Supreme Court, but I am obliged to the is that in a particular situation where there was a Committee’s assistant for prior knowledge of that UK-wide issue in a Scottish case, no, the Faculty is question and I shall do my best from a personal certainly not saying there must be three Scottish point of view to answer it. The setting up of the judges. Scottish Executive has resulted in the appointment in Scotland of the Minister of Justice and there have Q839 been two holders of that oYce since it was set up in Lord Goodhart: Would the same apply if you 1999, the first of whom was a member of the Faculty had three Scottish judges on the Supreme Court but of Advocates, that is a practising advocate or one of them was ill and had to take a break for two barrister, and the second of whom is not legally or three months? You would not expect the Scottish qualified. I think it is fair to say that from my own appeal to have to wait until that one judge point of view the Faculty’s dealings with each have recovered, would you? Mr Martin: been entirely satisfactory. Clearly we have had our Not at all. That is where temporary diVerences of opinion, but I would not regard the appointments are quite legitimate, to cover illness or position having become compromised as a matter of accident or other unforeseen circumstances. fact by our experience with either of those Ministers and that obviously cuts both ways, I do not think Q840 Lord Goodhart: So you would be prepared to it made a particular diVerence when the Minister envisage temporary appointments to cover illness or was a lawyer, nor does it make a particular other absences? diVerence when the Minister is not. I would say, to Mr Martin: Yes. the extent that I might have been able to assist the Committee on the position elsewhere, I am not sure I can do so in practical terms. I certainly should say, Q841 Lord Holme of Cheltenham: I would like to having discussed this particularly with the Dean of press you a bit more on this numbers question where Faculty and with other senior members of the I think you are posing Government and Parliament Faculty generally, that I think it is a very important quite a problem and I understand your position. I point which perhaps has been overlooked in think you are saying pari passu the same quota Scotland. I am not sure the extent to which this should apply to Northern Ireland as applies to Committee can address that directly, but it is Scotland in your evidence and that would, out of something we will be thinking about. I have to 12, give us six bespoke places for Scotland and confess, I have been extremely informed by the high Northern Ireland. The population of Scotland and level of debate already this morning with the two Northern Ireland together amounts to about 15 per Lord Justices of Appeal on this and similar matters, cent of the UK so you would then have a situation, but it is certainly something the Faculty will think if you took it in purely representative terms, where about. I regret to say that I do not think from a 15 per cent were getting on a 12 member court 50 Scottish point of view I can assist the Committee by per cent of the places and on a 15 member court 40 giving any practical experience. per cent of the places. I know your argument is not primarily a representative one, it is one about the majority of Scots on a panel dealing with Scottish Q838 Lord Goodhart: You say that you think there matters. Would it not be sensible—and I notice your ought to be three Scottish judges of the Supreme evidence is almost identical with that of the Law Court on any appeals from Scotland. Would that Society of Scotland, there is impressive unanimity apply even to a case that involved the interpretation between the two bodies—to look at the question of of a Tax Act where there were no specifically additional members? You have called them, in Scottish features? slightly pejorative terms, temporary, but it is not Mr Martin: My Lord, this is one of the diYculties suggested that they should be temporary, I think it when one tries to define a jurisdiction by reference is suggested they should be members of a panel to practical particular examples because, if I may available not on a temporary basis but on a part- say, the answer to your question is probably no, time rather than a full-time basis. Thinking about there would be no such need. Our concern is not what I said about the mathematics and I see you with how the court might be comprised in specific attach a lot of importance to this, you are implying cases, our point is with the principle of how the that Scotland might not support a Supreme Court Court might be composed in Scottish appeals. We unless it had adequate representation on the panels. are not saying that every Scottish appeal has to have Given the exigencies of the mathematics, should you three Scottish judges, what we are saying is that not be thinking harder about the concept of a panel there ought to be an expectation that each Scottish of additional members? 9674042030 Page Type [E] 28-06-04 20:40:52 Pag Table: LOENEW PPSysB Unit: PAG6

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Mr Martin: I used the word temporary judges five, there ought to be a permanent establishment because that is the technical phrase in Scotland and which can provide a majority on that. Whatever I certainly do not mean it pejoratively in any sense. may be the case in any particular litigation is My Lord, these are practical considerations which another matter. the Faculty recognise and they were the subject of our debates leading to our response to the Q843 Lord Lloyd of Berwick: I think you said that Consultation Paper. As a Scot, one is always aware it was the view of the Faculty that the case for a of the fact that one is only ten per cent of the overall Supreme Court was not overwhelming and then, in population and that in many practical examples answer to the Lord Chancellor, that there was no informs what one thinks ought to be reasonable. I dissatisfaction with the way that the House of Lords quite understand the practical implications, my is currently working. Of course, moving the Law Lord. The diVerence here which the Faculty would Lords out from the House of Lords will obviously emphasise is it is not a representative matter. If this be a very expensive business both in capital terms Court is to be the court of final appeal for the law and in regional running costs. What, in your view, of Scotland, and it is, then logically in cases which is the strongest argument in favour of creating this are of importance to the law of Scotland the new Supreme Court? establishment of the Court ought to have a majority Mr Martin: My Lord, I do not think there is any of lawyers from that jurisdiction. My Lord, I do not doubt that the strongest argument is the doctrine of mean in any way to minimise our position, but it is the separation of powers. I think on the face of it no more or less than that. Obviously there are one cannot argue with the fact that it is desirable practical consequences, the population proportion that the judiciary, and in particular the final court imbalance is an immediate one and the question of of appeal, are both separate from the legislature and resources generally is another perfectly reasonable separate from the Executive, and seen to be so one. I think the Faculty took those into account and separate. The question in the United Kingdom is the ultimate view was that if one was creating this whether, given that there is no active dissatisfaction new institution, if it was to have confidence in with the present arrangements, the desirability of Scotland, what we have suggested is that the the purity of separation is suYcient, but suYcient establishment of Scottish judges ought to undoubtedly the separation of powers is a be recognised, but I recognise that there are justification for it. countervailing arguments. The only thing I would say, my Lord, is that I do not mean in any sense to Q844 Lord Lloyd of Berwick: That is the theoretical speak either for those in Northern Ireland or against argument with which we are very familiar. Do you Northern Ireland. The law of Scotland is diVerent feel there is any argument based on the perception from the law of England and Wales in ways that I that the House of Lords are not independent or are understand the law of Northern Ireland is not. It politically motivated or in some way biased in may very well be that the consequential arithmetical favour of Parliament? Does such a perception exist calculation that three plus three makes six would in Scotland? not necessarily apply in the case of Northern Ireland Mr Martin: I am sure my Lord is aware of the judges. I merely put that forward as a possibility. I suggestion that there is a double perception, that is certainly do not mean to undermine any argument the Government’s perception of the public’s that might be put forward by my brethren in the perception. Leaving that aside, which in itself Province. suggests a fairly lengthy causal chain of perception, if I may put it that way, as a matter of fact I can Q842 Lord Holme of Cheltenham: So you would state quite categorically that so far as the Faculty is not, although you regard it as less desirable, concerned and as far I am concerned, there is no absolutely rule out a panel of additional members dissatisfaction with the functioning of the House of to ensure that when the Scottish matters were dealt Lords in its judicial capacity or any of the criticisms with there was an appropriate Scottish majority? It that your Lordship suggested. would be second best in your view? Mr Martin: We would not rule it out because Q845 Lord MacLennan of Rogart: Mr Martin, I ultimately there has to be a function and design for wonder if I might return to the issue of the costs of this court to be created. We would regard that as the Supreme Court, the position in Scotland being undesirable because we think reliance on temporary a little diVerent from the rest of the country. How judges or part-time judges or ad hoc appointments did you the Faculty see an equitable solution being or whatever one calls them is potentially found to the proposition that costs will be undermining to the independence of the judiciary apportioned between the litigants in the Supreme and that is why, if you have a court, and it is Court and those engaged in civil litigation in the exercising a Scottish jurisdiction sitting in panels of lower courts as the appellants are excluded in 9674042030 Page Type [O] 28-06-04 20:40:52 Pag Table: LOENEW PPSysB Unit: PAG6

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4 May 2004 Mr Roy Martin, QC criminal litigation and have a diVerent position in rights being withdrawn of those Scottish judges who respect of civil? have been made life peers? Mr Martin: My Lord, the Faculty has not given any Mr Martin: I imagine, my Lord, by some form of detailed consideration to these various permutations primary legislation, if that were to be done. whereby the costs of a court to provide for English criminal jurisdiction, as I understand my Lord’s Q850 Lord Carlisle of Bucklow: You would de-law suggestion, might fall upon those in Scotland in civil them, de-peer them, would you? litigations but would not be counter-balanced by Mr Martin: One would have to follow the logic. It criminal jurisdictions to make up for that. I can only is not a matter of procedure which the Faculty has oVer a personal view because these are matters considered in any detail. which we have not considered in detail. I think in principle I would feel uneasy about apportioning the Q851 Lord Carlisle of Bucklow: Is there any costs of this ultimate Court of Appeal to litigants perception in Scotland that people such as Lord generally, whether it be civil or criminal. One feels Mackay and others—and I mean Lord Mackay, the that when the vast majority of cases are never going judge of the Court of Session, not the previous to take advantage of this court there is a certain Lord Chancellor—are in any way lacking in illogicality in making the litigant at the most basic independence? level, who wishes to settle a very simple dispute and Mr Martin: No, not at all. It is simply following does so expeditiously in the courts, in some way to through the purity of the argument that we took fund the advancement of the law through a Supreme that position. There is no evidence of any perception Court in a situation which he is never going to take that they are in any way compromised by their advantage of in any case. Instinctively my feeling is position. that I would be unhappy if the funding of the Lord Carlisle of Bucklow: So you mean changing the Supreme Court were to rely upon contributions name, having to do something which would cause from litigants generally. further trouble, getting rid of those who are already peers— Q846 Lord Carlisle of Bucklow: When the Bar Chairman: That is not the proposal. Council gave evidence to us they said that their Lord Falconer of Thoroton: To be fair to the witness, support for the idea of a Supreme Court was the proposal, as Lord Carlisle knows, is that whilst dependent on the additional costs being paid by the you are a member of the Supreme Court, if you are Treasury rather than the Civil Advocate. a peer, you cannot vote or take part in the Presumably, although you may not have discussed proceedings of the House; it is not de-peering. it fully, that is likely to be the view in Scotland. Mr Martin: It would be, my Lord. I see no reason Q852 Lord Carlisle of Bucklow: Clearly at the to disagree with it. moment a similar commitment, if it is to be a commitment, not to sit and note to vote would have Q847 Lord Carlisle of Bucklow: Secondly, you have to apply to the judges against as well. said twice that the Bar has no evidence of a lack of Mr Martin: That was particularly our position in independence in the judicial committee of the House the paper, that the suggestion that all members of of Lords. Have you any evidence even of the the judiciary should be in the same position, perception of a lack of independence? whatever that position might be, is perhaps a matter Mr Martin: As my Lord asked the question I was of judgment, yes. going to say we do not even have any evidence of perception. Q853 Viscount Bledisloe: If, contrary to your wish, part of the costs of this Supreme Court is to be recovered from litigations in other courts, should Q848 Lord Carlisle of Bucklow: A ﬁnal point the proportion borne by Scottish litigants be related to the present situation. I am right, am I not, proportionate to the amount of time taken up by in saying that several members of the Court of Scottish appeals or to the number of Scottish judges Session of Scotland are in fact in their own right on the panel? life peers? Mr Martin: I have the feeling that that is going to Mr Martin: Indeed. be a diYcult question to answer. Again, I have no particularly strong view about such matters as that Q849 Lord Carlisle of Bucklow: You said in your proportion. One would be looking for an equitable written evidence that it would be illogical for them settlement. I suspect it would not depend on the to remain life peers with the rights in this House if number of cases because one cannot predict that those rights were to be withdrawn from those which and it goes up and down in all jurisdictions from act in the Supreme Court. How do you envisage the year to year. I can understand why my Lord 9674042030 Page Type [E] 28-06-04 20:40:52 Pag Table: LOENEW PPSysB Unit: PAG6

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4 May 2004 Mr Roy Martin, QC suggests it might be based on the number of judges. be, any additional costs should be met simply from Well, that is, with respect, a fair point of view. I the Treasury at large there would need to be a would be attracted by a settlement that was based balance between Scotland and England. upon an equitable distribution of the costs of Lord Howe of Aberavon: I refrain from suggesting resources amongst the United Kingdom. Clearly that it should be based upon the Barnett Formula! population is the one thing that is often the basis of that, although not always. Q855 Chairman: We would have to reverse Barnett because we would have to come back from Scotland Q854 Viscount Bledisloe: Population applies to the down to England. Thank you very much indeed for payment but not to the number of judges. coming, Mr Martin. We are very grateful to you. Mr Martin: My Lord has anticipated perfectly what Mr Martin: Thank you very much indeed, my Lord I was going to say to excuse myself from that Chairman. observation. I understand the diYculty because Chairman: You have exposed a number of issues we clearly if, as the Bar Council’s proposal appears to have not really thought about. Thank you. 9674042031 Page Type [SO] 28-06-04 20:54:07 Pag Table: LOENEW PPSysB Unit: PAG7

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THURSDAY 6 MAY 2004

Present Bledisloe, V Holme of Cheltenham, L Carlisle of Bucklow, L Howe of Aberavon, L Craig of Radley, L Kingsland, L Crickhowell, L Lloyd of Berwick, L Falconer of Thoroton, L MacLennan of Rogart, L Gibson of Market Rasen, B Richard, L (Chairman) Goodhart, L Windlesham, L

Memorandum by Lord President of the Court of Session and the Senators of the College of Justice

Constitutional Reform Bill 1. This paper has been prepared in response to the call for evidence by the House of Lords Select Committee on the Constitutional Reform Bill. It sets out the views of the Lord President of the Court of Session and the other Senators of the College of Justice who sit as judges of the Court of Session and the High Court of Justiciary. Reference may be made to the Appendix for previous public statements of the Lord President on the subject of the Bill.

General 2. The proposal for a Supreme Court of the United Kingdom has important constitutional implications. It is thought that the consultation process has been approached in an unfortunate manner for a change of this magnitude. It remains our view that a Royal Commission would have been an appropriate means to investigate whether any change is necessary and, if so, the merits of the various options for change. It is unfortunate that the question of the compatibility of the proposal with the Treaty of Union between England and Scotland and the Claim of Right has not been addressed. 3. The arguments for a Supreme Court of the United Kingdom are not convincing. First, they are concerned only with matters of perception, and appear to be technical and theoretical. Secondly, the proposal would involve the loss of significant benefits which flow from the fact that the members of the Appellate Committee are members of the House of Lords, these being benefits to them and to the House. Thirdly, the establishment and running of a Supreme Court would impose unjustifiable financial burdens, whether on the public purse or on individual litigants. 4. Under the Appellate Jurisdiction Act 1876, which would be repealed by the Bill, the Appellate Committee of the House of Lords is not a United Kingdom court but sits at times as a Scottish, and at times as an English, court of final appeal. Its decisions are of binding eVect only in the jurisdiction from which the appeals have originated and are only persuasive in the other jurisdictions of the United Kingdom. Despite assurances from the Secretary of State for Constitutional AVairs that this would apply in the case of the proposed Supreme Court, there is no provision to this eVect contained in the Bill. 5. This is part of a more general concern. In the past, and in particular in the 19th century, there was a tendency for members of the House of Lords whose experience was of English law, to assume that what was right for that law must be correct for Scots law. This led to the importation into Scots law of a number of doctrines of English law which were not consistent with the principles of Scots law. Despite the introduction of Lords of Appeal drawn from Senators of this College of Justice there have still been occasions when Lords of Appeal appointed from other jurisdictions have shown themselves to be unsympathetic to diVerences between English and Scots law. There is a clear risk that the creation of a Supreme Court of the United Kingdom may foster an attitude among the members of the court that the respects in which Scots law diverges from English law are of less importance than the perceived need to provide a solution to a particular issue that can be applied throughout the United Kingdom. Hence there is a risk of the progressive “anglicisation” of Scots law. 6. It is also proposed that the devolution jurisdiction of the Judicial Committee of the Privy Council should be transferred to the Supreme Court. This jurisdiction already results in anomalous situations in which judges whose training and experience have been in England have to make decisions relating to Scottish criminal trials. The transfer of this jurisdiction to the Supreme Court could result in devolution issues on matters touching 9674042031 Page Type [E] 28-06-04 20:54:07 Pag Table: LOENEW PPSysB Unit: PAG7

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6 May 2004 on Scots criminal law being decided by a majority composed of English judges, and a growing inﬂuence of English law on its reasoning. We remain of the view that jurisdiction should remain with the Judicial Committee. It may be noted that in 1998 the policy of the Government was the devolution jurisdiction should be assumed by the Judicial Committee of the Privy Council rather than by the Appellate Committee of the House of Lords. 7. Our view is that, if there is to be a Supreme Court of the United Kingdom, it should have full corporate independence. The Supreme Court must be seen to be, and must act as, a court of the United Kingdom rather than a regional court. It is undesirable that it should be funded and administered by the Department for Constitutional AVairs, which is responsible for the funding of the English Court Service. This could lead to the Supreme Court being perceived as an English court. In addition, we are of the view that control over the administration of the Supreme Court by an arm of the executive would not assist in protecting the judiciary from any possible executive pressure: it would be at odds with the guarantee of judicial independence in clause 1 of the Bill. The proposal to increase fees throughout the lower courts to part-fund the setting up of the Supreme Court has implications for access to justice. We are not convinced that this is the appropriate approach. On the contrary, there is a serious risk that the administration of justice in the lower courts will suVer as a consequence of funds being taken away from them.

Comments on Clauses

Clause 1 (guarantee of continued judicial independence)

8. Clause 1(1) imposes an obligation upon Ministers of the Crown and “all with responsibility for matters relating to the judiciary or otherwise to the administration of justice” to uphold the continued independence of the judiciary. Several particular duties in that respect are also set out. 9. By virtue of clause 102(1), clause 1 applies only in England and Wales. This would lead to a rather strange situation in which the Scottish Ministers, who are Ministers of the Crown by virtue of section 117 of the Scotland Act 1998, would be under an obligation to uphold the continued independence of the judiciary of England and Wales, but they would not be under a similar obligation in respect of the Scottish judiciary. Similarly, UK Ministers of the Crown would not be under any obligation to uphold the continued independence of the judiciary in relation to anything done in or as regards Scotland. 10. We are of the view that an amendment is required to extend the application of clause 1 to Scotland.

Clauses 6 (powers to make rules)

11. The Committee may wish to consider whether the rule-making powers to which this clause and Schedule 2 relate concern rules that would apply only in England and Wales. If such rules could apply in Scotland, Part 1 of the Schedule would require to be amended in order to give a role to the Lord President.

Clause 7 (powers to make directions)

12. Similar considerations may apply, as in relation to clause 6.

Clause 17 (the Supreme Court)

13. This clause establishes the Supreme Court and provides that it is to have a maximum number of 12 judges. This reﬂects the current composition of the House of Lords. By long-standing convention, two of the Lords of Appeal in Ordinary have held high judicial oYce in Scotland. 14. We are of the view that this clause should be amended to provide that the composition of the Supreme Court is to include at least two judges who have held high judicial oYce in Scotland. Where a Supreme Court judge who has held high judicial oYce in Scotland resigns, retires or dies, he or she should be replaced by another judge who has held high judicial oYce in Scotland. In our view such an amendment is necessary to protect the administration of justice in Scotland and the distinctive principles of Scots law. 15. There is a case that the Supreme Court should consist of 15 judges (with a consequential increase in the Scottish membership). This would assist in maintaining the collegiality of the court. 9674042031 Page Type [O] 28-06-04 20:54:07 Pag Table: LOENEW PPSysB Unit: PAG7

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16. On any view there is a need for the Supreme Court to have the participation of a suYcient number of judges who have been trained in and gained experience of Scots law to deal with devolution issues from Scotland. 17. The title of “Supreme Court” is perhaps not appropriate, having regard to the diVerent functions which the new court would exercise.

Clause 19 (qualification for appointment) 18. This clause provides that a person who has been a qualified practitioner for at least 15 years can be appointed as a judge of the Supreme Court. We appreciate that this reflects section 6 of the Appellate Jurisdiction Act 1876. However, in modern conditions the basic requirement for qualification to the Supreme Court should be that the candidate has held high judicial oYce. The Appellate Committee delivers judgments of the highest quality, which are read and respected throughout the world. We do not consider it to be appropriate that cases which reach the highest court of civil appeal in the United Kingdom should be decided by persons without any practical experience of decision-making at an appellate level. There is a strong argument that 2 years service in high judicial oYce at an appellate level should be an additional requirement. We are opposed to the provisions of clause 19(1)(b) and (2).

Clause 21 (selection of candidate) 19. The manner of appointment of judges is of primary importance to judicial independence. Sub-clause (2)(a) refers to “prescribed criteria”, which are to be prescribed by the Secretary of State for Constitutional AVairs. We are concerned that, without there being any clear explanation for it, these criteria are not set out on the face of the Bill. The Bill is also silent as to whether the Commission will only be able to include in its list of candidates those who have applied for appointment or whether it will be able to include candidates whom the Commission itself has approached. This is an important issue for the Committee to address. 20. Sub-clause (2) requires the Commission to consult the “senior judges”. The Lord President is the only Scottish-based “senior judge”. If the Lord President were to be a candidate for appointment this would lead to a rather odd situation. We are of the view that the Lord Justice Clerk should be added to the list of people to be consulted. Moreover, where Scottish candidates are being considered, it seems somewhat anomalous that the Lord Chief Justice, the Master of the Rolls and the Heads of Divisions are to be consulted, whereas the only member of the Scottish judiciary to be consulted is the Lord President of the Court of Session. 21. Sub-clause (5) provides that the Minister, having been provided with a list of between 2 and 5 candidates, is to decide which of them “is the most suitable”. It is undesirable that the ultimate choice between those who have been selected should lie with a politician, and hence be subject to being inﬂuenced by political considerations. Appointments to the Supreme Court are of such importance that any decision should be taken by the Prime Minister.

Clause 29 (acting judges) 22. Clause 29 provides that a person who holds high judicial oYce or is a member of the Privy Council and of the supplementary panel may, at the request of the President, act as a judge of the Supreme Court. 23. We consider that it would be preferable to increase the numbers of permanent members of the Supreme Court to minimise the use of the supplementary panel.

Clause 31 (jurisdiction)

Sub-clause (1) 24. Clause 31(1) states that the Supreme Court is “a superior court of record”. This is not a term which has any recognised meaning in the law of Scotland. We are of the view that it should be made clear that clause 31(1) does not relate to the jurisdiction referred to in sub-clause (3).

Sub-clauses (2) and (3) 25. Sub-clause (3) states that an appeal will lie to the Supreme Court from any order or judgment of a court in Scotland if an appeal lay from that court to the House of Lords at or immediately before the commencement of the clause. This will mean that an appeal will lie to the Supreme Court from any ﬁnal decision of the Court of Session unless the appeal is otherwise excluded by speciﬁc statutory provision. 9674042031 Page Type [E] 28-06-04 20:54:07 Pag Table: LOENEW PPSysB Unit: PAG7

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26. Although the Bill sets out the appeals which are to be considered by the Supreme Court it does not currently seek to set out how those appeals are to be dealt with. Similarly, clause 35(1) provides that rules governing the practice and procedure to be followed by the court are to be made by the President of the Supreme Court. The Supreme Court, as a new statutory body, will therefore be empowered to determine how it will deal with appeals falling within its jurisdiction and the practices and procedures to be followed. There will be no statutory compulsion upon the Supreme Court either to determine appeals in a particular manner or to follow the previous practices and procedures of the House of Lords. The only matter which is determined by reference to the pre-commencement position is the jurisdiction of the court. 27. There are two important features about the way in which the House of Lords currently operates which are thought to provide a safeguard to the continued separate existence of Scots law. The ﬁrst of these is that where the House of Lords is dealing with an appeal from the Court of Session it has been historically regarded as sitting as the Court of Session ie as a Scottish court (see, Elphinstone v. Campbell (1787) 3 Pat 83; Forbes v. Macpherson (1790) 3 Pat 177; and Dewar v. Mackinnon (1825), 1W & S 167). Accordingly, when determining an appeal from the Court of Session, the House of Lords applies Scots law. 28. The second of these is the fact that the decision of the House of Lords on an appeal from a particular jurisdiction is only binding in that jurisdiction. Thus a decision in an appeal from the Court of Session is binding only in Scotland although it may be of persuasive value in the English Courts. Similarly, a decision of the House of Lords in an English Appeal is not binding on the Scottish courts (see, for example, McDonald v. Secretary of State for Scotland 1994 SLT 692). This enables the inferior courts in the separate jurisdictions within the UK to continue to apply the law of their particular jurisdiction. 29. It is our view that there should be a provision in the Bill which will require the Supreme Court to determine Scottish appeals by reference to Scots law and to provide that a decision of the Supreme Court in an appeal under sub-clause (3) from a particular jurisdiction will only be binding in that jurisdiction. This protection is thought necessary to protect the separate identity of Scots law. In addition, the Bill should contain a provision that, in the determination of any appeal, the Supreme Court will respect the continuing separate identities of the diVerent legal systems within the United Kingdom.

Sub-clause (4)(b) 30. This provides for the transfer of the jurisdiction of the Judicial Committee of the Privy Council in devolution issues. In regard to this jurisdiction also, the Bill should provide that the Supreme Court is to respect the continuing separate identities of the diVerent legal systems within the United Kingdom.

Clause 94 (parliamentary disqualiﬁcation) 31. We remain of the opinion that judicial membership of, and participation in, the proceedings in the House of Lords is beneﬁcial to all concerned. We do not wish to rehearse our views on this matter and refer to our earlier comments. 23 April 2004

APPENDIX

Previous Statements The Lord President has made the following statements on the subject of the Constitutional Reform Bill: (i) Letter dated 5 November 2003 to Department for Constitutional AVairs in response to its consultation paper “Constitutional Reform: a Supreme Court for the United Kingdom”. Link: http://www.dca.gov.uk/consult/supremecourt/responses/sc043.pdf (ii) Oral evidence to the House of Commons Constitutional AVairs Committee on 9 December 2003. Link: http://www.publications.parliament.uk/pa/cm200304/cmselect/cmconst/48/3120901.htm (iii) Speech in the House of Lords in the debate on the Supreme Court and judicial reforms on 12 February 2004 (Hansard Col. 1229). Link: http://www.publications.parliament.uk/pa/ld199900/ldhansrd/pdvn/lds04/text/40212-05.htm (iv) Speech in the House of Lords on the Constitutional Reform Bill (second reading) on 8 March 2004 (Hansard Col.1073). Link: http://www.publications.parliament.uk/pa/ld199900/ldhansrd/pdvn/lds04/text/40308-18.htm 9674042031 Page Type [O] 28-06-04 20:54:07 Pag Table: LOENEW PPSysB Unit: PAG7

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(v) Oral evidence to the Justice 2 Committee of the Scottish Parliament on 9 March 2004 (OYcial Report Col. 587). Link: http://www.scottish.parliament.uk/justice2/or/j204-0902.htm

Examination of Witness Witness: Rt Hon Lord Cullen of Whitekirk, a Member of the House, Lord Justice-General of Scotland and Lord President of the Court of Session, examined.

Q856 Chairman: Lord Cullen, thank you very much amended. I have to say at this point that I am grateful indeed for coming this afternoon. We are grateful to to the Secretary of State for Constitutional AVairs you for the piece of paper from you and the Senators. and Lord Chancellor for his indicating in written I wonder if you could do two things—first to evidence to this committee that he intends to bring introduce yourself formally for the sake of the record forward amendments to the Bill which would put it and secondly to introduce the subject so that we can “beyond doubt” that decisions of the Supreme Court pursue such matters as we feel will be helpful. would not be binding on all courts in all cases or Lord Cullen of Whitekirk: Thank you, my Lord which would at least, decrease any temptation Chairman. I am Douglas Cullen. I am Lord President already present in the House of Lords to extrapolate of the Court of Session and Lord Justice General of for one jurisdiction a precedent decided in an appeal Scotland. I have held that oYce since November 2001 arising from and examined in the context of a and before that I was for over four and a half years diVerent jurisdiction. These indications are certainly Lord Justice Clerk. I would like to thank the helpful and as far as I am concerned go a significant committee for the invitation to express views to it and distance in allaying some of the concerns which I I refer, of course, to the written submission which has have raised in the paper before you. been made by me on behalf of myself and the other Senators of the College of Justice. I should perhaps explain that in the ordinary course of my work I do Q857 Chairman: Thank you very much indeed. I have to speak on behalf of the senior judiciary of wonder if I could press you a little on the Scottish Scotland. In this present case more is involved than fear, if I can put it that way, that somehow or other that because, as from July of last year, at judges’ the Supreme Court is going to make the position of weekly meetings the subject matter of the Scottish law or the Scottish judiciary more consultation paper was under review. I decided to threatened than it is at the moment. As I understand appoint a small group of judges who would assist me your position, you feel that the House of Lords itself in framing a response to that consultation paper on has been somewhat unsympathetic to Scottish law on the Supreme Court of the United Kingdom. In due occasions in the past. course, in October, a draft was prepared and issued Lord Cullen of Whitekirk: Of course, there is a very to all members of the court inviting comments and long history of problems going right back. In any comments that were made were taken into particular, in the 19th century there was a account. Therefore, what is said in the submission to considerable tendency amongst English judges to try this committee goes back to what was said by myself to apply to Scotland what they thought it should have on behalf of the judges of the court in response to that simply because it seemed best in England. That was consultation paper. As far as the proposal for the remedied to some extent by the introduction of the Supreme Court is concerned, you will see that I have Scottish Lords of Appeal. I recognise and accept that, advanced two reservations. One is of a general kind but this problem continues to cause diYculties from and is concerned with the justification for change and time to time, even in this century. Recent cases—for the disadvantages of change. These matters are not example, one was concerned with trying to relate specific to Scotland. The other matter is specific to floating charges to the Scots law of property—have Scotland and raises two concerns in particular. One caused problems. These problems exist and one has is to do with the binding eVect of decisions, that is to to reconcile oneself to that. The concern that I say, binding only in the jurisdiction from which the express is that if one is moving to a United Kingdom appeal has come, and secondly, concern about a court there might be a tendency to take the view that tendency that a United Kingdom Supreme Court because it is a United Kingdom court now perhaps might tend to subordinate the distinctive character of what really matters is a solution right for the United Scots law to an English approach in finding a Kingdom and hence a tendency to find an easy way solution for the United Kingdom. Arising out of that, to avoid applying by Scots law. My concern with the the paper suggests in paragraph 29 two amendments amendments is to try to make sure that it is quite clear that might indicate the way in which the Bill might be that the two jurisdictions should be respected for 9674042032 Page Type [E] 28-06-04 20:54:07 Pag Table: LOENEW PPSysB Unit: PAG7

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6 May 2004 Rt Hon Lord Cullen of Whitekirk their separateness: a separate legal system and a Lord Cullen of Whitekirk: I simply mean as a body, as separate judiciary. an entity, it should be as independent as possible from the executive. The other was concerned with funding. I am afraid I have lost track of what your Q858 Chairman: I do not quite follow your fear, if I question was. may say so, that in a Scottish appeal in the Supreme Court somehow the Supreme Court will produce a solution which is Scottish law diluted in the direction Q862 Lord Holme of Cheltenham: The question on of UK law, whatever the UK law might be. funding was, accepting that we want the court to be Lord Cullen of Whitekirk: I do not think I can as independent as possible, how far does that relate to elaborate on what I have said. My concern, and I the issue of funding and in particular your dislike for think it has been articulated also by Lord Hope of part funding by fees? Craighead, is that there may be a greater tendency Lord Cullen of Whitekirk: I think these are separate than before to subordinate the specific characteristics issues. I do not see them as connected. I see the of Scots law. That is why I thought it was important funding proposals as open to objection on quite that there should be certain safeguards which are diVerent grounds. spelt out in the Bill. Q863 Lord Holme of Cheltenham: Other witnesses Q859 Chairman: But you are happy with two have characterised this issue of independence, at least Scottish judges amongst the 12 justices of the partially and sometimes almost wholly, in terms of Supreme Court? financial independence, of not being dependent on a departmental Minister for approval of budget and Lord Cullen of Whitekirk: Yes. finding some system of financing which is more ringfenced, but that is not for you the key issue of Q860 Lord Holme of Cheltenham: On another point, independence? Lord Cullen, I think I am right in saying that it is your Lord Cullen of Whitekirk: When I was talking of preference that if there is to be a Supreme Court it administration, of course I was talking about the should have full corporate independence and that is money to run the court. That of course is a matter a point that other witnesses have made to us as well. where I would hope that the court should be as What I would like to understand is what you mean by independent as possible of Ministerial or executive “full corporate independence”, in other words a bit pressure. more detail, and, to the extent that it relates to funding, could I ask a supplementary question? You Q864 Lord MacLennan of Rogart: Lord Cullen, I do not like part funding by court fees, for reasons you wonder if I might ask you about paragraph 6 of your give. How far is your position about corporate written evidence on the transferring of devolution independence related to the funding issue and how jurisdiction issues to the Supreme Court simply to far are there other constitutional dimensions in it? clarify what you are actually recommending. It Lord Cullen of Whitekirk: There are two quite appears that it is already the case that there is not separate points. So far as independence is concerned, necessarily a Scottish majority in the Judicial I am not advocating any particular model. All I am Committee for considering such cases. Are you concerned with is that there should be as little risk of recommending that there should be? interference with the independence of the court as is Lord Cullen of Whitekirk: Not as a matter of rule, no. possible, and I think that is an important point for the Supreme Court. I recall when I was looking at the consultation paper last year that it was said that the Q865 Lord MacLennan of Rogart: If not as a matter Appellate Committee might lack the appearance of of rule you would not wish to see any provision in the independence both from the legislature and from the Bill dealing with this matter? executive. I must say I was a bit mystified as to the Lord Cullen of Whitekirk: No, I am not suggesting basis for the latter statement, but if independence that every case that comes from Scotland ought to be from the executive as a matter of perception is heard by a majority of three but that is subject to the important then I would have thought that in both the point that where you have a case which plainly does reality and in the matter of perception it is important raise questions concerned with the understanding that the Supreme Court should be as independent as and interpretation of the common law of Scotland or possible from the executive. its criminal law then it would be highly desirable that there should be three Scottish members there, simply in order to make sure that there is as wide a range of Q861 Lord Holme of Cheltenham: May I as a non- expertise as is available. I am not suggesting that it lawyer ask what the word “corporate” means? Can should be mandatory. I think that would be going you help me with that? too far. 9674042032 Page Type [O] 28-06-04 20:54:07 Pag Table: LOENEW PPSysB Unit: PAG7

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Q866 Lord MacLennan of Rogart: You are the actions of the Scottish Parliament, as the case recommending that there should be a retention of a may be. It is a diVerent question in the end of the day. Judicial Committee for devolution cases? Lord Cullen of Whitekirk: Yes. Q870 Lord MacLennan of Rogart: How diVerent from the question that would be asked if the issue Q867 Lord MacLennan of Rogart: Do you see any were not the actions of the executive but the actions possible danger in there being the development of of a member of the United Kingdom Government? It two parallel courts at the apex of our system does not seem to me, with respect, very diVerent. interpreting the law, for example on human rights, V V Lord Cullen of Whitekirk: It may have very di erent di erently? results because, as you will appreciate, in regard to Lord Cullen of Whitekirk: I know that others have the devolution settlement and devolution issues we raised this question about whether one could avoid are concerned with vires. conflict by having a single body. I think one has to bear in mind that the personnel who compose the Judicial Committee on any given case are likely to be Q871 Lord Craig of Radley: I wonder if you could Members of the House of Lords as matters stand. say, Lord Cullen, what value Scotland attaches to the Obviously, there are additional judges drafted in. Lord Chancellor’s OYce. That is the first point. Secondly, my impression is that Lord Cullen of Whitekirk: That is a very interesting diVerences of opinion depend not so much on the question. Technically speaking, the Lord Chancellor institution or body that is making the decision but on has had no oYcial role in Scotland or to do with the the views of the individuals, so that if you did have a Scottish legal system. I appreciate that he has certain Supreme Court which covered both civil appeals on UK functions which apply in Scotland. That is not to the one hand and devolution cases on the other you say that in the past it should be assumed that the Lord might get conflict because a case coming from Chancellor has had nothing to do with, let us say, the Scotland had a certain result and a case coming from independence of judges in Scotland because it may England had a diVerent result. Just because it is one very well be that in Cabinet discussion in the past the court does not mean that there may not be a Lord Chancellor has had to deal with questions of diVerence of view with possibly a diVerent result. independence of judges whether they happen to be Scottish or English. I completely understand that Q868 Lord MacLennan of Rogart: Is not the happening in a context to do with, say, matters of proposition that there should be two courts sitting immigration law, but he has no technical function as side by side delivering parallel judgements on cognate matters stand. I do not know if that answers your issues of law rather diYcult to justify? question. Lord Cullen of Whitekirk: With respect, they would perform rather diVerent functions. The Judicial Q872 Lord Craig of Radley: I am just interested to Committee is a United Kingdom court which was hear your view about it. In your submission you talk invoked specifically in order to deal with issues about the arguments for a Supreme Court of the arising out of the devolution settlements. It is a very United Kingdom as not convincing and you say that peculiar form of jurisdiction. It of course does they are concerned “only with matters of perception, involve to some extent knowledge and application of and appear to be technical and theoretical”. I the domestic law of the country from which the wondered about the technical and theoretical particular case comes. Of course, the members of the aspects. Perception I can understand but I was not Judicial Committee cannot themselves decide what, quite clear what you meant by “technical and say, Scots criminal law is on this subject. All it can do theoretical”. is address the diVerence in its proper context. That is Lord Cullen of Whitekirk: I would say it is theoretical very diVerent from the general appeal to the House of because I do wonder whether there is any basis for Lords in a civil case when it comes from Scotland or saying that members of the Appellate Committee or from England. It is a diVerent type of situation. the Appellate Committee as a whole would be likely to be perceived by members of the public as lacking Q869 Lord MacLennan of Rogart: It would be the independence. It seems to me, with respect, just V same personnel sitting with di erent hats on. theory. Lord Cullen of Whitekirk: Very often the same but the question is not the same. I appreciate that a human rights question may be involved in a case in the House Q873 Lord Carlisle of Bucklow: Lord Cullen, we of Lords and it may be involved in a case in the Privy have had conflicting evidence as to whether or not it Council, but the end question in the Privy Council is is appropriate for judges to sit in this House. As I to do with compatibility with the Human Rights Act understand it, you yourself in your own right were so far as the actions of members of the executive or made a life peer as Lord President in Scotland. 9674042032 Page Type [E] 28-06-04 20:54:07 Pag Table: LOENEW PPSysB Unit: PAG7

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Lord Cullen of Whitekirk: I assume that I was made a Lord Cullen of Whitekirk: You mentioned two points. life peer because I was Lord President of the Court The first is to do with the number of members of the of Session. Certainly that has happened to my Supreme Court. You will have seen from the paper predecessors. that I mentioned in argument that the number should be 15 and originally I thought that had something to be said for it in assisting a situation in which the Q874 Lord Carlisle of Bucklow: And also several of Supreme Court would do the vast bulk of its work by the Scottish Senators to my knowledge are in fact its own membership without having to rely on ad hoc Members of this House in their own right. members. I thought that might encourage Lord Cullen of Whitekirk: Absolutely. consistency and also collegiality, but I have read with care what Lord Hope of Craighead said when he gave Q875 Lord Carlisle of Bucklow: One of whom I see evidence quite recently expressing concern that the is sitting here as a witness today. In your paper you number of 15 might in fact detract from collegiality say twice over, just taking paragraph 31, “We remain and I am sensitive to the fact that he is in a far better of the opinion that judicial membership of, and position to judge a question like that than I am. I participation in, the proceedings in the House of have great respect for his views and so as far as I am Lords is beneficial to all concerned.” Have you ever concerned I would not press that argument on this felt in any way your independence being unduly committee in favour of 15. So far as the criminal influenced by your membership here and, secondly, jurisdiction is concerned, this has a long history, of could you expand on what you see as the advantages course, as you can imagine. There were various of the fact that you are here? attempts to bring criminal cases before the House of Lord Cullen of Whitekirk: I have never felt that Lords and that eventually was put a stop to in 1876. diYculty but of course it may be said immediately by The matter of course is now regulated by statute. I those present that I have only had membership since think that it is best to respect the long-standing June of last year. However, I really cannot imagine tradition in this matter. The Scots law and the how I would ever be in that situation. If you ask me Scottish procedures so far as criminal cases are V what the value of my membership is or the concerned are very di erent from English law, very V membership of somebody in my position, I would say di erent indeed. In a situation where on any view the that I think it is extremely important that the head of Scottish members are going to be in a minority, two the senior judiciary in the constituent jurisdictions out of 12, it creates an awkward situation if one is should be able to attend the House and to alert the going to require that court to undertake criminal House to any matters aVecting the administration of matters. That is quite apart from any arguments (and V justice which he considers appropriate, and, of no doubt there are arguments) to the e ect that to do course, what has happened since June of last year is this would have no proper basis in law. There are perhaps an admirable example of this, but that is arguments no doubt going back to the Act of Union fortuitous. as read with the Claim of Right, because the foundation for there ever being appeal to the House of Lords is the old Scottish procedure for protest “for Q876 Lord Carlisle of Bucklow: And that is what you remeed” of law. Many gallons of water have passed mean by that phrase “beneficial to all concerned”? under the bridge since that time, of course, but that is Lord Cullen of Whitekirk: Yes. I do not limit it to the original foundation for it. The explanation in myself or somebody in my position because I think 1876 for there being no right of appeal in criminal that persons like Lord Mackay of Drumadoon from matters was specifically based on the Act of Union as his own experience as a former law oYcer would have read with the Claim of Right, so there is an important been of great assistance to the House and I do not see point there. any convincing reason why he should be disqualified, or someone else in the judiciary. Q878 Lord Carlisle of Bucklow: But in the civil law there could be a degree of diVerence in both Q877 Lord Carlisle of Bucklow: If one were to create procedure and law. a new court, the Supreme Court, and were one to Lord Cullen of Whitekirk: That is true but in many have a membership of 15 with three judges from areas of English and Scots law there is a great deal of Scotland, is it not rather strange that one should similarity and many of the decisions are very closely continue a situation where that court should have examined. English decisions are examined in jurisdiction over civil matters in Scotland but no Scotland and possibly the other way round as well, jurisdiction over criminal matters in Scotland? If you but in the criminal law it is only very rarely that the are creating a new court would it not be better that it Scottish criminal courts look at English criminal should have the same jurisdiction as it has in other decisions simply because the background, the context parts of the United Kingdom? and everything else are so very diVerent. 9674042032 Page Type [O] 28-06-04 20:54:07 Pag Table: LOENEW PPSysB Unit: PAG7

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Q879 Viscount Bledisloe: Lord Cullen, can I ask you Q883 Baroness Gibson of Market Rasen: Iam two minor but specific points on your paper? In concerned with matters of diversity. paragraph 20 you point out, seemingly to me if I may Lord Cullen of Whitekirk: Could you perhaps give me say so quite rightly, that it would be odd if the only an example of diversity and then I will comment on person who could be consulted from Scotland about it? an appointment to the Supreme Court was the Lord President if he was a highly likely candidate for Q884 Baroness Gibson of Market Rasen: Yes. I am appointment, and you suggest that there should be an thinking of diVerent backgrounds. I am thinking of alternative of the Lord Justice Clerk, but if the Lord people of colour, hopefully, and I am thinking also of President is not solely the candidate then is not the women. You want to stick to (1)(a), the qualification Lord Justice Clerk likely to be number two in the for appointments, a person is not qualified unless he running and would it not be better to word it slightly has held high judicial oYce for a period of at least two more generally so that they could approach a very years (and that is high judicial oYce), and you say senior Scottish appellate judge whose hat was not you do not agree with (1)(b), which then brings in a available to be thrown in the ring? qualified practitioner for a period of at least 15 years, Lord Cullen of Whitekirk: In this paragraph I am but I would have thought that that gave us a more trying to follow the spirit of the Bill by keeping to diverse qualification to serve in the court. Y specific o ce holders and so this was the modest Lord Cullen of Whitekirk: I may sound a trifle amendment which I was suggesting. traditional but I think that the best way of fitting oneself for appellate work is to have some experience Q880 Viscount Bledisloe: It would be quite odd to at first hand of trial work, in other words to work ask the Lord Justice Clerk what he thought of the oneself into the system and then demonstrate that Lord President and the Lord President what he maturity of approach, that intellectual ability and thought of the Lord Justice Clerk because they would one’s sensitivity to the relevant law which would fit be the only two horses in the race, would they not? one for being an appellate judge. I think it is quite Lord Cullen of Whitekirk: That can happen. diYcult to pluck somebody straight from practice and put them into the highest level. I appreciate Q881 Viscount Bledisloe: In paragraph 18 you say entirely what was said about Lord Reid and Lord that it would not be right for anybody to sit in the Macmillan but nowadays I would have thought that Supreme Court unless they had had practical it is a particularly testing and diYcult decision to experience of decision making at appellate level. Was make if it was suggested that that should happen. not Lord Reid rather a good Lord of Appeal? That is why I tend to the view that simply to take over Lord Cullen of Whitekirk: I thought you might ask into this Bill the provisions of the 1876 Act as to this. Yes, and so was Lord Macmillan. These were qualifications is perhaps not really in accordance splendid examples of exceptions but in a way they with modern reality. In other words, somebody stand out because they are exceptions. should demonstrate a proven track record bringing out qualities that show he or she is suitable for Q882 Baroness Gibson of Market Rasen: My promotion to an appellate job. In other words, I see question follows on very well from the last one this as a promoted post. because I too wanted to ask you about Clause 19 which relates to the qualification for appointment of Q885 Baroness Gibson of Market Rasen: I would judges in the Supreme Court. You seem to be very agree with you but where I would disagree is that strong indeed on your position that anyone where a person has been a qualified practitioner for appointed should have held high judicial oYce and at least 15 years I would have thought that would you do not agree with most of Clause 19. Indeed, you have been a good background for promotion to this agree with 1(a) and not the rest of the clause. We have post. I am wondering why you have cut out (1)(b) and heard from other eminent witnesses, including you are opposing that. Professor Stevens and Baroness Hale of Richmond, Lord Cullen of Whitekirk: I have because I take the about this clause and about the Supreme Court and view that appellate work, particularly appellate work what its constitution could be. They have argued, and at this very high level, is work that requires to be I have to say that I have tended to agree with them, based on judicial experience. You should that a top level court requires a broad range of skills demonstrate first that you can acquit yourself well as and a wide range of expertise and diversity. If we were a trial judge and then that you have those special to stick to the group that you are proposing would qualities that would justify promotion. That is the they all be all-white males of similar experience? way I see it. I am not concerned what the colour is or Lord Cullen of Whitekirk: I am not quite sure what whether there are women. I am totally in favour of you are asking me to comment on. Are you broadening the bench in that sense but what I am concerned with matters of colour or something else? sticking to is previous judicial experience. 9674042032 Page Type [E] 28-06-04 20:54:07 Pag Table: LOENEW PPSysB Unit: PAG7

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Q886 Lord Kingsland: I was going to ask the noble Lord Cullen of Whitekirk: One has to got to take a Lord Lord Bledisloe’s second question. The noble view about this. There may be a risk that one cuts out and learned Lord, Lord Cullen, has already people. They may come up some other way. It is not responded to it; but I wonder if I could press him a bit after all about cutting them out. further. No judge of the Judicial Committee of their Lordships’ House could possibly be described as run of the mill; but Lord Reid was arguably the greatest Q892 Lord Kingsland: Professor Robert Stevens, administrative judge of the 20th century. He was a who gave evidence to this Committee in April, giant in his field. Would it not have been a shame if suggested that some suitable candidates for the your rule had applied just before Lord Reid was Supreme Court might come from the academic going to be appointed? world. Again, your formulation would exclude such Lord Cullen of Whitekirk: Yes, I take that point, but candidates. Do you feel equally about academics as on the other hand he was appointed in rather you do about the Bar? diVerent times. Lord Cullen of Whitekirk: Yes, I do. I share the reservation. I would think about it but, having thought about it, I would not be in favour of it. What Q887 Lord Kingsland: But the problems that he I wonder about is this. If you look at the opinions of was confronted with were very similar to the House of Lords today you will see to what extent the contemporary problems with which all members of the Appellate Committee show their administrative judges have to deal. interest in and knowledge of academic writings and Lord Cullen of Whitekirk: They are immensely more involved. no doubt they are capable of bringing up a wider horizon of thought, but would you want to have an academic not just simply as a source of material for Q888 Lord Kingsland: Are you suggesting that Lord consideration but as a colleague? It could be quite Reid would not match up to that? diYcult for an academic who has pursued a certain Lord Cullen of Whitekirk: You are testing me on a very line in his research to apply himself dispassionately if diYcult example, but I think one has simply got to it came to a process of being a judge among judges. I take a view about this. do not know. I just wonder whether some might find that diYcult. Q889 Lord Kingsland: The more general point I am Lord Kingsland: I am very tempted to ask further trying to make is this. Another fine Judicial V questions in that regard but I shall resist that Committee judge, Viscount Radcli e, was promoted temptation for reasons which many members of the straight from the Bar. He brought a very important committee may know. dimension to the committee during a decade and a half in the House. I now widen the argument slightly to include a very senior judicial appointment which is Q893 Lord Lloyd of Berwick: If there is to be a not a Supreme Court appointment, but in other Supreme Court, and I understand your arguments respects, is of equal importance. Many Attorneys against that suggestion, what is your view about General in the past have gone straight to the position funding the operation of the Supreme Court out of of Lord Chief Justice of England and Wales, making fees? You did just touch on this earlier. Could you hugely valuable contributions to our common law develop that a bit more? jurisprudence. Would you wish to exclude that in Lord Cullen of Whitekirk: I appreciate what I have the future? heard so far as to the extent to which there will be Lord Cullen of Whitekirk: That type of promotion is funding otherwise than from the fees levied from one which excited some concern in Scotland some those who appear, in other words, funding across the years ago on the ground that the appointment was United Kingdom, and it does seem to me to be seen to be political. somewhat diYcult and potentially unfair to levy fees across the United Kingdom from litigants who Q890 Lord Kingsland: Once all these great men who perhaps could not ever appeal to the House of Lords hold appointments of that sort moved to the court or who might be prevented from doing so. There are there was never, as far as I am aware, a breath of a certain types of cases that cannot go to the House of suggestion or even a perception, to use a word which Lords and so the same would apply no doubt to the is much used in this committee, that they were Supreme Court. I have some reservations therefore anything other than wholly apolitical. about the idea of making litigants across the board Lord Cullen of Whitekirk: That is because of the man. pay to any extent for this when they are not I quite agree. necessarily going to avail themselves of the benefits. I appreciate the point that is made that decisions of the Q891 Lord Kingsland: Are you suggesting we could Supreme Court are valuable not only for the not find men—or women—like that in future? immediate parties but also for development of the 9674042032 Page Type [O] 28-06-04 20:54:07 Pag Table: LOENEW PPSysB Unit: PAG7

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6 May 2004 Rt Hon Lord Cullen of Whitekirk law. That is a diVerent point, I think, from applying Lord Cullen of Whitekirk: Yes, of course, there are a charge across the board. alternative ways but do they replace this House as a means of doing so? I would say no. Q894 Lord Lloyd of Berwick: You did touch on the Q897 Lord Goodhart: Let me put to you this. The problem of criminal appeals from Scotland to the most obvious problem with membership of this House of Lords. The other problem, which may be House is that you are speaking to this House and not much less important, is the question of civil appeals to the House of Commons, which is the more with or without leave. We know, for example, that important of the two Houses, so you have no direct from Northern Ireland they require leave, and they link with the House of Commons. Also, you have to require leave in England. Is there any real reason why wait for an appropriate debate or occasion on which they should not require leave from Scotland apart you can speak. You cannot simply ask to make a from the tradition of the thing? statement about anything in practice. Might there Lord Cullen of Whitekirk: If one were starting with a not be an advantage therefore in having as a channel completely fresh slate without the history of the of communication between Parliament and the matter I dare say one would say, “Why should there V judiciary a joint committee of both Houses? be a di erence?”, but we are looking at a situation in Lord Cullen of Whitekirk: I can see some value in that. which leave has not been required for many cases for I am not sure whether that means that the judge who centuries. The system which the House of Lords wishes to speak can address Ministers directly. I am instituted for cases where no leave was required was not quite sure if that happened how we would to require counsel to certify that leave was organise it or whether you would simply be talking to reasonable. That applied to both English and members of the committee. One of the advantages of Scottish appeals, I understand, until the matter was appearing in the House is that one can address not innovated upon in England, leaving the Scottish only the House at large but also the responsible system as it is. I notice that the responses by the then Minister. Law Lords were rather mixed on this point. I notice that some of the Lords, for example, Lord Bingham Q898 Lord Goodhart: But you can of course always of Cornhill and others, took the view that this was a write to a Minister if you have something of concern. comparatively small problem and, having regard to Lord Cullen of Whitekirk: Of course there are lots of the long history of this matter, it was probably better alternatives but the question is, do they really match to leave that matter alone and the Government I up to the one we are talking about? think have taken that particular line, so I would say, it is there; it is not ideal, it is not perfect perhaps, it is Q899 Lord Howe of Aberavon: This is the ﬁrst of two not perfectly symmetrical, but it is a small point. questions. The ﬁrst one may require a degree of insight beyond the call of duty. It seems as though the Q895 Lord Lloyd of Berwick: You appeal to history Scottish judiciary are the only judicial group who but the whole object of the Government, they tell us, take a unanimously disapproving view of is to modernise the system, to bring it up to date. establishing a Supreme Court. Is there any special Lord Cullen of Whitekirk: If you look at the reason why there should be this outbreak of consultation paper and at the Bill, it does rather unanimity amongst you and your colleagues but not resemble simply shifting things from one place to elsewhere? another and making minimal changes. It is almost a Lord Cullen of Whitekirk: I do not know but I would kind of pantechnicon approach to getting a court to suspect that it is because of the Scottish aspect as it take on jurisdictions. The pantechnicon calls at this were of the proposals in the consultation paper. I Palace, it calls in Whitehall and delivers the think that must be it. You said “unanimity”. All I can jurisdictions and so on somewhere else with minimal do is describe the process of sending out the draft. I change and that is done deliberately but that is the did not ask each and every one, “Do you agree way the matter is done. The break with history is expressly with what is in this?”, but there was no moving it from the umbrella of this building. dissension and certainly nothing to suggest divergence from the general views we have expressed about the Supreme Court. Q896 Lord Goodhart: Lord Cullen, you have said in response to a question from Lord Carlisle that one of Q900 Lord Howe of Aberavon: The second question the reasons that you felt your membership of the is this. Given that the Law Lords sit in the House of House of Lords was valuable was that you were able Lords and not the House of Commons and that the to alert the House to matters you considered House of Lords is in this Parliament the chamber that appropriate. Do you think there are alternative ways plays the lion’s share in supervising, amending, in which that should be done? scrutinising legislation, do you think that the 9674042032 Page Type [E] 28-06-04 20:54:07 Pag Table: LOENEW PPSysB Unit: PAG7

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6 May 2004 Rt Hon Lord Cullen of Whitekirk presence in its present form of the judiciary in the Q906 Lord Falconer of Thoroton: But why? It is a Upper House is a unique eccentricity or a unique United Kingdom Parliament. advantage? Lord Cullen of Whitekirk: Because it is a single court, Lord Cullen of Whitekirk: It is certainly eccentric in albeit it is exercising separate jurisdictions, there may the sense that I do not think you will ﬁnd a similar be a tendency for that to increase. I cannot elaborate arrangement anywhere else but I think at the same on that. time it has a very special advantage, which has been articulated by others. I do not need to go into it in any Q907 Lord Falconer of Thoroton: Independence: you detail but I think it is both diVerent and unusual but have expressed a view in your written evidence that also advantageous. you would like a similar requirement to Clause 1 to Chairman: Lord Chancellor, reassure your apply in Scotland as well. Is that correct? compatriot. Lord Cullen of Whitekirk: Yes.

Q901 Lord Falconer of Thoroton: I think Lord Cullen, we are in complete agreement on the Q908 Lord Falconer of Thoroton: You say, “Amend importance, whatever new arrangements are being the Bill to do that”. Do you have a view as to whether made, of preserving the separate identity of Scottish that is more appropriate for the Bill to be amended or law. You made that point clear in the Second whether it is a matter for the Scottish Parliament to Reading and I entirely agree with it. You have deal with because of the fact that the Scottish legal implied, but do make clear, that you would be much system is devolved? happier if something to that eVect was put on the face Lord Cullen of Whitekirk: That is a serious point. I of the Bill. think that the preferable course is for it to be in the Lord Cullen of Whitekirk: Yes. Bill for this reason, that the powers of the Scottish Parliament are circumscribed and the Scottish Parliament could not impose a duty on a Minister of Q902 Lord Falconer of Thoroton: I think it is your the Crown in regard to non-devolved matters. position, though correct me if I am wrong, that broadly, at least in recent times, the House of Lords Appellate Committee have very much respected and Q909 Lord Falconer of Thoroton: Even though a understood the distinctions between the two, and you Scottish Parliament could not impose an obligation have referred to ﬂoating charges, but quite frankly on a UK Minister of the Crown or a Scottish Minister even an English court would have diYculty with of the Crown? ﬂoating charges, so I am not sure that is a Lord Cullen of Whitekirk: We are talking about a UK tremendously good example. Minister, for example, a Minister responsible, let us Lord Cullen of Whitekirk: The general answer to your say, for immigration. The Scottish Parliament could question is yes. not place any duty as I see it on that Minister because it does not relate to a devolved matter. Q903 Lord Falconer of Thoroton: Your evidence refers to there being problems in the 19th century in Q910 Lord Falconer of Thoroton: No, but I thought this respect. Would you agree that in recent times it your concern and that of the Senators was that has been quite diYcult to identify diYculties in that Clause 1 does not apply. It applies in England and respect? Wales. You end up with a situation where Scottish Lord Cullen of Whitekirk: From time to time even Ministers of the Crown are prevented from nowadays there is a situation in which there may be interfering with the independence of the English a degree of impatience perhaps on the part of English judiciary but not the Scottish judiciary and that is an Lords of Appeal that Scotland is diVerent. anomaly, which I agree with you on. Lord Cullen of Whitekirk: It does not protect, so to Q904 Lord Falconer of Thoroton: I understand that. speak, the Scottish judiciary because the clause only I would not disagree with that analysis. Do you think applies to England and Wales, so how do you protect that English impatience is going to get worse in the the Scottish judiciary? I can see that to a certain Supreme Court? extent the Scottish Parliament could legislate, but Lord Cullen of Whitekirk: My concern is that it will. what I am saying is that I do not think it could legislate in regard to non-devolved matters. Q905 Lord Falconer of Thoroton: Why is that? Lord Cullen of Whitekirk: Coming back to the line of Q911 Lord Falconer of Thoroton: I see, so that is all? questioning by the Lord Chairman, because it is a Lord Cullen of Whitekirk: And therefore it is better to United Kingdom court there might be a tendency for put it in the Bill and then cover the matter by a that to increase. suitable motion. 9674042032 Page Type [O] 28-06-04 20:54:07 Pag Table: LOENEW PPSysB Unit: PAG7

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Q912 Lord Falconer of Thoroton: Can I turn to Q916 Lord Falconer of Thoroton: As far as the independence in terms of money as far as the Scottish courts are concerned their budgets are dealt Supreme Court is concerned? I am not into this idea with presumably by Scottish Ministers. of a corporate identity. I do not quite understand Lord Cullen of Whitekirk: The way it is dealt with is what you mean. The critical issue as it appears to me this. For judicial resources I would have to go direct is how the court gets its money. Does a Minister to the executive. For the running of the courts there interpose who has got to satisfy himself that the bids is an executive agency which submits bids to the being made for its resources are reasonable before it executive for the money required and that agency, the goes to the Treasury or is there a direct relationship Scottish Court Service, would reflect any views I had between the court and the Treasury and once the as to what needed to be done. money has been made available by the Treasury in eVect it is for the judges of the Supreme Court to Q917 Lord Falconer of Thoroton: Does it report to a determine how they spend it? On the latter I think it Minister? is agreed by everybody that once a sum of money is Lord Cullen of Whitekirk: Yes. The money is fed out identified for the Supreme Court it should be for the as it were through from the executive so my link is Supreme Court, a chief executive reporting to the with the executive either directly or indirectly. judges, to determine how that money is spent. The only area it seems to me contentious is the extent to Q918 Lord Falconer of Thoroton: There is absolutely which a Minister interposes before the bid is put to no sense, is there, and I say this just for the record, the Treasury and I would be interested in your views that the Scottish courts are anything other on that. completely independent? Lord Cullen of Whitekirk: The phrase “special Lord Cullen of Whitekirk: That is perfectly true but corporate entity” possibly was not well chosen. What there are some who would advocate a diVerent I am concerned about is that the court as a court arrangement. should be as independent in financial terms of the executive as is possible. That is really all I am saying. Q919 Lord Falconer of Thoroton: Are you advocating a diVerent arrangement? Q913 Lord Falconer of Thoroton: I assume that if Lord Cullen of Whitekirk: I am not advocating that. I that becomes the proposition, once the sum of money am saying that there are some who do. All I am is assigned it is for the court to determine how it is saying is that I can see a strong argument for this spent? court, upon which such store has been set, with Lord Cullen of Whitekirk: Yes, of course. regard to the matter of independence, being as independent as possible of the executive. That is all I am saying. Q914 Lord Falconer of Thoroton: It has got to be ring-fenced. Government departments will not be Q920 able to take the money away and give it to some Lord Falconer of Thoroton: Devolution issues other pot. are dealt with currently by the Judicial Committee of Lord Cullen of Whitekirk: That is part of it but it is not the Privy Council. You said the critical thing is the all of it. What I am concerned about is lest there be a personnel, the people who sit on the court. You know situation in which the President of the Court or the that the arrangements in the Bill allow broadly the chief executive of the court needs money which is same personnel that currently sit in the Privy Council considered to be necessary but finds himself unable to to sit in the Supreme Court, some as full members, make progress in this because of some negative others as additional members of the Supreme Court. reaction from the executive. What I am saying is that The original reason why in part the Privy Council did I think it is desirable if at all possible that the court it rather than the Appellate Committee of the House should be able to get the resources which it requires of Lords was that the issues would in one sense be and not have to go cap in hand. between the UK Parliament and the devolved parliaments or assemblies. Once you have got a Supreme Court then you have a separate body from Q915 Lord Falconer of Thoroton: At some stage even both parliaments that can resolve those issues. Does a Supreme Court has got to go to the Treasury and it not seem more sensible to have one court dealing ask for the money somehow or other. Are you saying with those issues rather than two bodies? that their demands must be met without demur? Lord Cullen of Whitekirk: I can see that the Privy Lord Cullen of Whitekirk: No. What I am suggesting Council, because it is eVectively a UK body, seems is that there should be as little Ministerial the natural body to be transferred to the United involvement as possible. I do not know exactly how Kingdom Supreme Court. I understand that entirely. it might be set up but I am in favour of maximising All I am concerned with is that, whether one looks at the amount of independence. devolution cases or at civil appeals, there is a concern 9674042032 Page Type [E] 28-06-04 20:54:07 Pag Table: LOENEW PPSysB Unit: PAG7

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6 May 2004 Rt Hon Lord Cullen of Whitekirk lest there be greater pressure as it were on Scots law Lord Cullen of Whitekirk: But times change. for a tendency to change to an English solution. That is all I am concerned about. Q930 Lord Carlisle of Bucklow: You also had Scottish judges who were members of the Judicial Q921 Lord Falconer of Thoroton: So your point is Committee of the House of Lords. the same one as on, for example, Scottish civil Lord Cullen of Whitekirk: Yes. appeals? Lord Cullen of Whitekirk: It is essentially the same Q931 Lord Falconer of Thoroton: Is that one way it point. was done, that you get members of the Judicial Committee and the House of Lords to do it? Q922 Lord Falconer of Thoroton: I turn to the Lord Cullen of Whitekirk: Yes, it could be done that presence in the House of Lords. You have been Lord way I suppose. President since 2001? Lord Cullen of Whitekirk: Yes. Q932 Lord Falconer of Thoroton: My ﬁnal point, the point about only appointing people who have trial Q923 Lord Falconer of Thoroton: You came here on experience, we have a few names of people who have 24 June 2003? been very distinguished Members of the House of Lord Cullen of Whitekirk: Yes. Lords, Lord Nolan, was he a Lord Advocate who went straight in? Q924 Lord Falconer of Thoroton: Although there Lord Cullen of Whitekirk: No, I think I am right in were very many eminent Scottish jurisprudents in the saying he went straight from practice, he had a very House of Lords, like Lord Mackay of Drumadoon, heavy Parliamentary practice and he went straight like Lord Hardie, like Lord McCluskey, all of whom from there to replace Lord Sumner. are here because they are former law oYcers of the Crown, you were not here. I think the practice looks Q933 Lord Falconer of Thoroton: Lord RadcliVe historically as if one becomes a life peer if one is a amongst others. In any case you will ﬁnd they have Lord President some time after one has been made all been pretty spectacular successes, would you Lord President. agree? Lord Cullen of Whitekirk: That seems to have been the Lord Cullen of Whitekirk: Yes, of course. practice in the past. Do not ask me why.

Q925 Lord Falconer of Thoroton: Are you urging a Q934 Lord Falconer of Thoroton: Are you still of the diVerent practice? view we should possibly exclude ourselves from Lord Cullen of Whitekirk: Consistent with what I have having these people? said before, I would suggest that logically it makes Lord Cullen of Whitekirk: These men could have V sense to be made a peer on appointment. become judges had matters turned out di erently. They would not necessarily have been lost. It is Q926 Lord Falconer of Thoroton: How did Lord wrong to assume they would never have got to the Presidents in the past deal with issues of expressing House of Lords, it just so happens they went straight their views when there was an issue of concern to raise from practice. in the past when they were not in the Lords? Lord Lloyd of Berwick: That is not true of Lord Lord Cullen of Whitekirk: I am sorry. I cannot answer Simon. that question. It is too far back in time. Q935 Lord Falconer of Thoroton: He became Q927 Lord Falconer of Thoroton: We could ask Lord President of the Family Division. Would that be right Mackay of Drumadoon if he were here. of Lord Dilhorne? Lord Dilhorne became a full-time Lord Cullen of Whitekirk: He might give you his views Member of the House of Lords? Is your answer, yes, in writing. they should become a puisne judge ﬁrst? Lord Cullen of Whitekirk: That is correct. They are not Q928 Lord Falconer of Thoroton: You can see the necessarily cut out of it. As brilliant as these men were point I am getting at. they would have got to the top fast. Lord Cullen of Whitekirk: Yes. Q936 Chairman: Thank you very much indeed. You Q929 Lord Falconer of Thoroton: The system have exposed the Scottish position extremely well appears to have worked perfectly sensibly without and we are grateful to you for it. Thank you very Lords President being in the House of Lords for much. signiﬁcant periods of their presidency. Lord Cullen of Whitekirk: Thank you very much. 9674042033 Page Type [O] 28-06-04 20:54:07 Pag Table: LOENEW PPSysB Unit: PAG7

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Memorandum by the Commission for Judicial Appointments The Commission for Judicial Appointments (CJA) was created by the Judicial Appointments Order in Council 2001. There are eight Commissioners appointed by the Queen. Their functions are to promote fairness and eVectiveness in judicial appointment procedures; to audit such procedures to ensure the principle of selection on merit is being applied; and to investigate complaints made to them by dissatisﬁed applicants. The Commissioners bring a wide range of backgrounds and experience to this task. None of them is, or has been, a practising lawyer or a holder of any judicial oYce. Their experience over the last three years has provided them with exceptional access to the judicial appointment processes, allowing them to gather detailed evidence from the wide range of people involved. This has enabled them to develop a uniquely informed and entirely objective perspective on how judicial appointments are managed and what lessons should be learned and put in place for the future.

The Judicial Appointments Commission (JAC)

The CJA welcomes the Government’s decision to create an independent Judicial Appointments Commission (JAC). A fundamental purpose of creating this must be to safeguard the independence and high calibre of the judiciary, both in terms of ability and integrity. The CJA therefore welcomes the Government’s confirmation that merit will remain the overriding principle in the selection of judges. The Government’s aims are to maintain the independence of the judiciary, encourage greater diversity and increase public confidence in the administration of justice. To achieve this, the JAC must of course have the confidence of the judiciary and both branches of the legal profession. But it must also command the confidence of the widest range of potential candidates, including those who currently feel disadvantaged (women, ethnic minority candidates and solicitors) and of the public, including all those who use the courts. It was the absence of such confidence that was a major driver behind the creation of the present CJA in 2001.

Judicial Appointments Processes

Over the past three years the CJA has studied a number of the existing judicial appointment processes in detail and has drawn on this experience first in commenting to the Government on its proposals and now in formulating this evidence. (A detailed account of the CJA’s findings is contained in its two annual reports and in its individual audit reports, all of which are available on its web-site at www.cja.gov.uk.) To achieve public and professional confidence the CJA regards it as fundamental that appointments at all levels of the judiciary must be based on: — clearly defined criteria and competencies, forming the basis of a job description and a person specification; — objective, evidence-based methods of assessment (for example, use of an assessment centre, and of appraisal of performance in judicial posts); and — a process which reflects modern best practice in professional recruitment and selection. Particular consideration will need to be given to the most eVective ways of including appropriate judicial input at senior levels. In the CJA’s experience the current system of “automatic consultation” does not meet the requirements of an objective, evidence-based method of assessment. Significant further action is also needed to increase diversity in the judiciary. In the CJA’s view the changes outlined above would themselves be a major step towards encouraging diversity and would do much to address the perceptions of unfairness, which may inhibit some potential applicants. In addition the CJA considers that encouraging earlier entry to, and progression within, the judiciary, in parallel with more traditional entry routes after a period in practice, also has a role to play in encouraging diversity. The JAC will need to lead and actively manage these changes to achieve a successful outcome over a period of years to come.

Achieving Real Change

All this amounts to a substantial change agenda. The proposal to create an independent JAC oVers the possibility of a vehicle for delivering these substantial benefits to the administration of justice and to public confidence. But the CJA see a significant risk that these benefits will not be realised unless every possible step is taken to ensure that the new JAC is an independent, eVective and influential body, with the ability to bring about real change in the arrangements it will necessarily inherit. To achieve this it will be essential that 9674042033 Page Type [E] 28-06-04 20:54:07 Pag Table: LOENEW PPSysB Unit: PAG7

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6 May 2004 significant good quality resources are made available to the JAC and in good time to enable it to manage the transition carefully. The Government’s present proposals, as set out in the Constitutional Reform Bill, go a good way towards delivering the kind of JAC that the CJA believes will be essential if these tangible improvements are to be delivered. The CJA also welcomes as an essential improvement those changes to Part 3 of the Bill, which the Lord Chancellor has already announced on Second Reading that he intends to bring forward. It is pleased that the Bill is to be amended to reflect that merit will be a matter for the JAC to determine, and that statutory guidance to the JAC will reflect the expectation that it will work to encourage a more diverse pool of candidates. But the CJA believes there are a number of respects in which the arrangements proposed in the Bill still fall short of ensuring an eVective independent body and that they must be strengthened still further. These are set out below.

Audit The role of the CJA in auditing judicial appointment competitions will be lost under the present Government proposals. The new arrangements do not provide for any proactive audit of judicial appointment competitions. The CJA regrets this. The proposed new Judicial Appointments and Complaints Ombudsman will only be able to respond to complaints and to any other matter referred to him / her by the Secretary of State or the Lord Chief Justice. S/he will not, as things stand, have any ability to initiate scrutiny of competitions as a whole. Nor will the function be given to any other existing body such as the OYce of the Commissioner for Public Appointments (OCPA). Judicial appointments will then, uniquely in the public sector so far as we know, not be subject to external scrutiny for their compliance with Nolan principles. The Lord Chancellor’s evidence has commented that the National Audit OYce could conduct a Value for Money study, which is true, but for an appointments body this is no substitute for enabling an external body to carry out a full and systematic scrutiny. This situation would be likely significantly to diminish public confidence, especially since, although the JAC will be a non- Departmental Public Body, it will under present proposals not have a lay majority, but will be dominated by serving judges and practising lawyers. In contrast the audits that the independent CJA have carried out over the last two years have been key in enabling them to highlight some of the worst of the previous and present appointment practices and provide the arguments and evidence for changing them. (For example, it was the CJA’s original concerns about the 2001 Silk competition that led to the last Lord Chancellor’s initial decision to suspend that competition in its previous form. The CJA’s full audit of the 2003 Silk competition then reached the conclusion that the previous process could not be altered in such a way as to be demonstrably consistent with the principle of selection on merit.) It will therefore in the CJA’s view not be a suYcient safeguard on the system and will be insuYcient to provide public confidence, simply to hand over judicial appointments to the new JAC. A key principle of genuine audit is that an independent body, separate from the body responsible for the process that is being audited, should carry it out. Without genuine audit the public cannot have confidence that the judicial appointments system will become fully transparent, fair and accountable. Both the present Lord Chancellor and his predecessor have previously publicly acknowledged this.

Lay Majority on the JAC The present proposals for lay representation on the JAC are also insuYcient. Although there will be a lay chair, those who exercise a judicial function (7) and those who are practising lawyers (2) will have a clear majority on a JAC of 15 members. This will not give the public the assurance that is needed that the Commission will be able vigorously to take the lead in changing the existing appointments culture in the system it will necessarily inherit. The CJA believes that, in the interests of delivering public conﬁdence through transparent openness and fairness, there should be a clear lay majority on the JAC. For comparison the Judicial Appointments Board for Scotland comprises 10 members with an even balance of lay and legal (including judicial) members and a lay Chair. In particular the JAC will need to put much eVort into continuing the process that has begun of moving away from appointments made in practice largely or solely on the basis of responses from “automatic consultees”. At its worst, this has in the past given every senior judge a black ball. The public needs to be sure that the JAC will instead have a strong lay majority which possesses the commitment and Human Resources expertise to 9674042033 Page Type [O] 28-06-04 20:54:07 Pag Table: LOENEW PPSysB Unit: PAG7

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6 May 2004 bring in the best modern Human Resources practices, in order to deliver a fair, transparent and accountable system. This is especially important for ensuring both the delivery of much greater diversity in appointments, and that the JAC can be relied on always to act ﬁrst and foremost in the public interest.

ARecommending JAC The Government has decided that the new JAC should only make recommendations for appointments to the Secretary of State, who will have the discretion to reject them. The Lord Chancellor’s argument for this is that accountability to Parliament for the appointments system must be retained through the Secretary of State. His discretion to reject recommendations put forward by the JAC will, however, be significantly circumscribed and his use of the power will become public knowledge through the JAC’s annual report. The CJA accept that there is an argument for this additional level of accountability with the small number of senior appointments at High Court level and above. It does not, however, otherwise seem justifiable. First, providing this power to the Secretary of State for the 2,000 plus appointments made each year up to Circuit Bench level creates in theory an opportunity for massive political patronage. Secondly, if it were to be operated properly for this substantial number of appointments, this process would require the wasteful duplication of virtually all of the existing bureaucratic arrangements within the DCA, at significant extra cost to the taxpayer, in order to double-check these large numbers of recommendations. The DCA has clarified its intention that the Secretary of State will in every case be sent not only the name and details of the one candidate recommended for appointment. He will also receive an account of the selection process and the names of any other candidates who were assessed as meeting the required standard, but were not selected, together with any other information he may require about them. This indicates their intention is to have a fairly significant and resource intensive exercise to second-guess the JAC’s recommendations. The substantial majority of these would presumably at the end of this process still then just be pointlessly rubber-stamped. If in contrast any significant number of the recommendations were not in practice rubberstamped, there would then be a real danger that this would come quickly both to undermine the integrity of the JAC and ultimately to threaten its independence. This is because the JAC would inevitably soon become focussed more on second guessing the likely reaction of the Secretary of State to its recommendations than on making those recommendations on the basis of merit alone. The CJA therefore continues to believe the new JAC should make (or recommend directly to the Queen, as appropriate) all appointments up to Circuit Judge level.

Supreme Court Appointments Commission (SCAC) Some similar concerns apply to the SCAC. The CJA welcomes the Lord Chancellor’s stated intention to amend the Bill to bring the SCAC appointments procedure more in line with that for appointments covered by the JAC. It agrees the SCAC should put forward only one name in relation to each vacancy rather than the minimum of two proposed under the Bill as it currently stands. It questions, however, the need to provide for the Secretary of State to consult again all those bodies whom the SCAC will only just have consulted. In practice it seems likely this would be another example of wasteful duplication. Secondly, under the Bill as presently drafted the SCAC must consider candidates “according to prescribed criteria”—prescribed that is by the Minister in regulations. The CJA hopes, from what the Lord Chancellor has now put in his evidence to the Committee, that this provision will also be amended to ensure that the SCAC alone will determine issues of merit and will be responsible for devising its own fair, transparent and accountable selection process. The CJA further expects that the only guidance it will now be open to the Secretary of State to give to the SCAC will relate to the need for the court to achieve an appropriate balance across all three jurisdictions. Thirdly, under the present proposals, the SCAC could comprise 5 judges, if the three national appointing bodies for E&W, Scotland and Northern Ireland each chose a judge to represent them. The judicial members of each (who with the legal members may be the dominant group on the E&W JAC) may well try to insist on this. The Lord Chancellor has indicated to the CJA his intention to amend the Bill, so the Secretary of State will have a “long-stop” power to require at least one SCAC member to be a lay person. He has, however, given no assurance that or how this power will be exercised. Since there might therefore be neither any disinterested lay, nor any professional human resources, input on the SCAC, these arrangements might well, therefore, not be suYcient for the SCAC’s recommendations to command public conﬁdence. 9674042033 Page Type [E] 28-06-04 20:54:07 Pag Table: LOENEW PPSysB Unit: PAG7

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Accordingly the CJA believes there should be a requirement for the three national appointing bodies to be represented by a lay (ie non-judicial, non-legal) member on the SCAC. (In the two cases of Scotland and England & Wales at least this could perhaps most readily be achieved by providing that the Chairs of the Judicial Appointments Board for Scotland and the JAC respectively, who are both to be lay, should normally be their territorial representatives on the SCAC.) This requirement would ensure a lay majority (3 out of 5) on the SCAC. 21 April 2004

Examination of Witness Witness: Professor Sir Colin Campbell, First Commissioner for Judicial Appointments, examined.

Q937 Chairman: Sir Colin, thank you very much for We like to think we have had a constructive influence. coming this afternoon I am grateful to you and There are three areas we would like to draw your looking forward to hearing your evidence. Can you attention to where we are at variance with the current formally introduce yourself for the sake of the record Bill. The consultation paper from the Government and for the sake of me would you speak to your paper asked if the JAC should be appointed by and introduce the subjects for us and then we will recommending or hybrid. It is our view that the JAC pursue such points as we might think are helpful. should be a hybrid, appointing candidates for up to Professor Sir Colin Campbell: Thank you very much, the Circuit Bench and then recommending Chairman. My name is Colin Campbell and I am the candidates for the High Court and above. We can see Chairman of the Commission for Judicial the point about public accountability for the High Appointments. Court and above, so there should be a carefully circumscribed Ministerial check. We think the idea of their being a Ministerial check on the appointments Q938 Chairman: There is one other thing. below that, some 2,000 a year, could lead to wasteful Professor Sir Colin Campbell: Speak up. Thank you very much for the invitation to attend. I am here in bureaucracy or be a rather hypocritical rubber my capacity as Chairman of the Commission for stamp. Secondly, we believe, quite strongly, there Judicial Appointments. We have been in existence for should be a lay majority on the Judicial three years. One of my members Urmila Banerjee is Appointments Commission and some of the also present. We have submitted written evidence to arguments for this are very obvious. It is normal in you and I think speaking on behalf of the public life in this country in the last ten or 15 years if Commission we do have unique insight into the you want to supervise medical academia, or process of appointments because as non-involved lay whatever, you have a lay majority because it increases people we have total access to all processes and all of or boosts public confidence. I will not rehearse these the papers, everything we have been asked for has arguments because they are fairly obvious. The other been revealed, firstly by the Lord Chancellor’s strong argument for having a lay majority based, in Department and secondly by the Department for my experience, with this Commission over three Constitutional AVairs. Chairman, I have been years is the immense value these men and women abroad for the last couple of weeks and I may have bring by coming from diVerent walks of life, having missed the more current debates but it seems to me human resource and management skills, which they some of the press coverage focuses on exciting can put into the pot of discussion and come up with matters, like the abolition of the Lord Chancellor and superior answers, in my judgement, than if we have a Supreme Court accommodation. These are not legal and judicial majority. The third, and last point, matters on which my Commission have views to I wish to make is that as drafted the current audit oVer, we would like to confine ourselves to some function which the CJA possesses would not aspects of the Judicial Appointments Commission continue. There is no self interest for us and this and the Supreme Court Appointments Commission. would be a serious mistake. You can get some things Broadly speaking, Chairman, my Commission from investigating complaints for three years but you welcomes the Government’s proposals. We would do not get other things and systemic audits done from like to think that in our audit and complaint reports time to time can throw up findings that individual we have done something to influence their thinking. complaint investigations would not. For example our We have submitted two Annual Reports, a number of investigation of Silk found the old process so flawed audit reports, we have upheld over 50 per cent of the that we still have not managed as a country to come complaints we have investigated and the Department up with a new version. Our audit of tribunal and through LCD and DCA have either accepted, gone Deputy District Judge competitions also encouraged along with or failed to reject anything we have said. the Department to proceed in one way rather than 9674042034 Page Type [O] 28-06-04 20:54:07 Pag Table: LOENEW PPSysB Unit: PAG7

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6 May 2004 Professor Sir Colin Campbell another. We are now trying to complete our audit of odd if judges’ appointments alone were not subject to High Court appointments which, again, will show independent audit. things that no one has previously seen, and some of them are quite disturbing. This is not a plea for my Q942 Lord Goodhart: You would regard it as Commission to continue to audit, it is a plea for suYcient if the oYce of the Commissioner for Public somebody to continue to audit because even the JAC Appointments was to undertake reviews of the might develop bad tendencies which somebody might process whenever it thought it necessary rather than be able to flush out. Thank you. having a standing body like yourselves? Professor Sir Colin Campbell: We are agnostic on that. Q939 Chairman: Thank you very much indeed. I If the Government felt we should continue with wonder if I can start oV with your views on how the slightly amended powers to do the audit we would do Judicial Appointments Commission should operate: it. If they felt it would be neater and more congenial “Clearly defined criteria and competencies, forming to allocate it to some other body we would be happy the basis of a job description and a person with that as well. specification; objective, evidence-based methods of assessment (for example use of an assessment centre, Q943 Lord Goodhart: Is there a role, as provided in and of appraisal of performance in judicial posts); the Bill, for an Ombudsman to deal with complaints and a process which reflects modern best practice in about appointments? professional recruitment and selection”. What Professor Sir Colin Campbell: There must be clearly defined criteria and competencies would you complaints. My colleagues and I do not feel very be looking for? strongly about where the complaints should go or Professor Sir Colin Campbell: It is not terribly diYcult where the audit should go as long as the function to define, but please do not ask me to do it just now exists. We have existed for just over three years. We because it would be imperfect and boring, if you look have some complaints outstanding but of the ones we at the attributes you are looking for in a judge and have finished we have upheld slightly more than half. compare it with the list Scots come up with, the I know from interviewing some of the people who Northern Irish come up with, the Canadians come up have complained the enormous satisfaction they have with and the Americans come up there is a 90 per cent felt, whether their complaint was upheld or not, that overlap. You are looking for certain intellectual they had their day when what concerned them would abilities, some emotional abilities, integrity and be investigated. judgement, and so on. I would say the Department made a lot of progress on competencies because in the Q944 Lord Goodhart: Do you think it is appropriate Pilot Assessment Centre they have tried to articulate to have one ombudsman dealing with complaints objective criteria against which people’s performance about appointments and complaints about Y can be judged. I do not think it is di cult, Chairman. misbehaviour? Professor Sir Colin Campbell: Probably not. Q940 Chairman: You do not think it is diYcult. Professor Sir Colin Campbell: No. Q945 Viscount Bledisloe: On the question of lay majority you say that with seven judges and two Q941 Lord Goodhart: Your concerns are that the practising lawyers the body will be dominated by audit functions of the present CJA would not serving judges and practising lawyers, do you continue, what do you think should happen? Should contemplate this body having frequent vote splits of the CJA continue as it now is? 8/7 or do you imagine consensus will emerge after Professor Sir Colin Campbell: We are not trying to debate? keep a job. We would redefine the boundaries Professor Sir Colin Campbell: Some people attach a diVerently. We think the JAC, the Judicial great deal of importance to numbers and imply there Appointments Commission, should recommend to have to be frequent votes. Like you, if I may say so, the Secretary of State for the High Court and above, I have chaired many bodies and I have been a it should be trusted to make appointments below and member of many bodies. I have chaired a number of not have another bureaucracy within the public bodies and I cannot think I have ever had a Department and then somebody—which could be vote in my life. The important thing, as the chairman, the oYce of the Commissioner for Public in my view, to try and build a consensus. Therefore Appointments or some other body—should then the argument about lay people is not about the audit what the JAC does because we ought to allow majority vote. The argument, which my Commission that all men and women are fallible, not just the ones has illustrated, is to have people from a variety of that have recently been criticised. The JAC could backgrounds, people from British Telecom, the conceivably develop bad tendencies which should be National Health Service, journalism, economics, the flushed out by an independent body. It would be very Civil Service and media with 20 or 30 years 9674042034 Page Type [E] 28-06-04 20:54:07 Pag Table: LOENEW PPSysB Unit: PAG7

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6 May 2004 Professor Sir Colin Campbell experience in diVerent organisations, diVerent ask you to what extent you think it would be right for cultures, diVerent management appointing and your Commission to take what is thought to be the promoting people— have a huge expertise to bring demands of public opinion into account when you that in my opinion a concentration of judges could are making appointments? Should there be a degree not bring. of aYrmative action for women or for racial minority candidates if these are supported by very strong vocal Q946 Viscount Bledisloe: When the numbers are groups but they also raise wider issues? Do you virtually equal it is the strength of the argument and regard that as the type of issue which should be in the strength of the expertise rather than the number your minds or do you put that on one side and say, of votes which will dominate—if you want to use that “we have our own criteria, we have published the word, I would hope you are not going to—it is who criteria and we stick to that”. can persuade the rest of the body and who is Professor Sir Colin Campbell: I think there is a high producing the cogent argument and the cogent degree of agreement in this country at the moment experience which is important, is it not? that while we must continue to dogmatically insist on Professor Sir Colin Campbell: I repeat what I said, the high merit of the judiciary things would be better there are more than enough judges to bring judicial if we had greater diversity. Therefore it follows—that expertise to bear. What this Commission will need is everyone seems to agree—we have a high quality enormous organisation, management and HR skills. judiciary and we must protect that and equally their It is important, if I may say so, to remember that independence. I accept that entirely. That is not the while the exciting material might be appointed to the end of an argument that is the beginning of a High Court and above actually the most material, the discussion. It is perfectly normal to choose grind going on day after day for 2,000 inferior candidates and agree they are all meritorious and appointments is much more likely to be well then go on to secondary consideration. At that stage organised by the people I have met rather than by it does seem to me the arguments that there should be senior judges. more women on the bench and more ethnic minorities is certainly a healthy argument as long as Q947 Viscount Bledisloe: I would agree with you you do not use these arguments to compromise the that it is equally important they are the ordinary merit principle. people they meet day-to-day when they go to court. Professor Sir Colin Campbell: It also makes a contribution to public conﬁdence. Q950 Lord Windlesham: It is a diYcult thing to do, is it not? Q948 Viscount Bledisloe: It might be said there are a Professor Sir Colin Campbell: No, sir, I do not think majority of lay people on bodies supervising, taking so. medicine as an example, if you are deciding who to have as your new consultant paediatrician in so and Q951 Lord Windlesham: Would you like to expand so hospital is that decided by a majority lay body? on that? Professor Sir Colin Campbell: No. What I am asking Professor Sir Colin Campbell: We do it quite for is a marriage between lay expertise and public successfully in other sectors. It is perfectly normal if accountability and the indispensable judicial you are appointing a consultant paediatrician or a expertise. If you are choosing a consultant professor of geospatial mechanics to look at 30 paediatrician then the panel may be chaired by an ex people, look seriously at ten people, interview four banker and there may be one or two local representatives but you will make sure you have people and decide that two are outstanding and you somebody from the Royal College or you have some can appoint either. At that point it is entirely relevant utterly distinguished paediatrician to check that, of to say, “the age structure of the department requires the three people you have looked at, that one is this”, this happens in the current system. Somebody intellectually the best from a paediatric point of says, “he is very good but he is 61”, and “she is very view1. good and she is 52”. That is relevant consideration and that does not breach merit. You have all of the Q949 Lord Windlesham: The reference to public criteria, you have all of the competencies, you have conﬁdence which has just been made by Lord had a standardised process, you have the evidence Bledisloe in its rather wider question prompts me to base and objective and then you can take these things into account. Chief Justice Beverley McLachlin from 1 Sir Coliin Campbell wrote to the Select Committee on 7 May providing further evidence (which is published with this Canada was here last summer talking about the evidence). The additional evidence discusses how the Canadian experience and I think she convinced most commissioners for Judicial Appointment see the respective roles people that she spoke to that the Canadians have of lay and legal/judicial members on the Judicial Appointments Commission, and expands on the resaons why the achieved this greater diversity without reducing the Commissioners believe that a lay majority is required. merit principle, but it has taken them ten or 15 years. 9674042034 Page Type [O] 28-06-04 20:54:07 Pag Table: LOENEW PPSysB Unit: PAG7

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Q952 Lord Windlesham: Would you have targets? Professor Sir Colin Campbell: I think we all suVer if Professor Sir Colin Campbell: No. there is not a high degree of confidence in the judiciary. I think there have been quite a number of Q953 Lord Windlesham: It would be on an controversies in the last five or ten years. I individual basis, candidate by candidate. respectfully agree with Viscount Bledisloe it is not Professor Sir Colin Campbell: Yes. going to be a 8/7 vote every two or three weeks but my argument is the symbolic importance of doing it and the fact that in my judgement we need more of the lay Q954 Lord Windlesham: Without any form of quota expertise from diVerent walks of life than we do of or target? judicial because that is already well represented. Professor Sir Colin Campbell: No. Q958 Lord Carlisle of Bucklow: Can I come back to Q955 Lord Lloyd of Berwick: As the Bill is drafted— Lord Lloyd’s first question, as I understand it your I may have misunderstood this, Professor position is quite clear, up to and including circuit Campbell—the selection of Lord Justices of Appeal judges you should be the appointee and the is dealt with in Clauses 59 to 64. Then you come to a Committee should be the appointing body, either cross heading in Clause 65 “puisne judges and other directly or by recommending one name to the Queen Y o ce holders”, and they are set out in Schedule 12. to appoint. What I am not clear about, and we have As I understood your evidence, your view would be had conflicting evidence, is what should happen quite strongly expressed that puisne judges should be, beyond that? Some have said, I think you would so far as possible, grouped with Lord Justices of probably share this view, that only one name should Appeal and subject, whatever it may be, to the same be on the list; we have had other arguments from selection procedure and leaving circuit judges and academics that three names or more than one name others on the other side of the dividing line. Is that should go on the list and we have had one person who your view? I happen to agree with that view, can you argued it should be entirely up to the Appointments explain you why think that? Committee itself to decide whether they should have Professor Sir Colin Campbell: I would say simply one, three or four. because we have been persuaded by Lord Chief Professor Sir Colin Campbell: The last is our view. Justice Woolf and his senior colleagues, who have That was our view when we wrote to the Government been kind enough to come to the Commission, that originally. We think, why should we exercise the High Court is the keystone to the health of our ourselves a priori about unpredictable circumstances legal system— because the High Court does not just and say it must be one or it must be two or it must be undertake judicial work they give leadership, they three because we know that vacancies come in give training, they give role models. At the same time unpredictable numbers? Why not leave it to this I can understand the Government’s argument that highly professional, well structured JAC to do what there is a public interest in who is appointed to the is normal in many walks of life and look at the field High Court and it does seem to me that a and say, “on this occasion this man here is so Commission then should put their arguments, their outstanding we are only putting his name up” and in nominations to the Secretary of State, whose powers other circumstances, which I have been involved in are circumscribed but they are there, and he can 100 times already, we say, “there are three super challenge because, and I am repeating myself, even people here, two men and one woman, two women the JAC might become a little eccentric. However, and one man and they are diVerent, one is an apple, below that there is such an amount of grinding work one is an orange and one is a pear, we will put the to be undertaken I cannot see the point of that going three up”, and that might be for one vacancy or that to the Secretary of State because he either rubber might be for two vacancies? Leave it to the Judicial stamps it, and why bother, or else he has to have Appointments Commission. Why specify primary another rather expensive bureaucracy to replicate legislation, which is so diYcult to change, why not the JAC. entrust it to the Commission you are establishing?

Q956 Lord Lloyd of Berwick: I entirely understand Q959 Lord Carlisle of Bucklow: That does of course the importance of the lay element on the JAC, what increase potentially the Minister’s discretion if you I do not quite understand is why they need to be the were putting up that number of names? majority? Professor Sir Colin Campbell: It seems to me it Professor Sir Colin Campbell: I think that is substantially increases the amount of trust you are symbolically important. giving the Commission. If the Commission feel strongly they may say to the Minister, “we are only Q957 Lord Lloyd of Berwick: It is a question of putting up one name”. The Commission may on symbolism. other occasions say we are put up the 52 year old and 9674042034 Page Type [E] 28-06-04 20:54:07 Pag Table: LOENEW PPSysB Unit: PAG7

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6 May 2004 Professor Sir Colin Campbell the 61 year old because they have diVerent attributes, appoint on merit, end of argument, because I find we are not going to say one is better than the other, that quite spurious. I think merit is a threshold and and the Minister might decide on the grounds of age anyone who confidently says about 100 QCs or 100 or even of geographical background. professors “he is 96 and he is definitely not 95” loses my support. It is quite frequent in many specialties, Q960 Lord Carlisle of Bucklow: The work you whether you are looking for judges, consultants or envisage is a Minister in many cases having to decide fellows of the Royal Society, to know that you have on a list of more than one name? passed the merit threshold but then the judgement Professor Sir Colin Campbell: I say leave it to the you use after that is very, very finally grained. If you Commission to decide. If the Minister, God forbid, look at the legal profession in this country more were to begin to abuse his power then the Judicial women apply to go to law school than men, they are Appointments Commission could react to that as all very clever because it is so diYcult to get into law well. school. If you then look at calls to the solicitors’ bench and to the Bar there is a majority of women. Q961 Lord Carlisle of Bucklow: What role, if any, do Twenty years later the women are down to 20 per cent you see for the Judicial Appointments Commission because the dynamics of the profession— it is not in discipline if they are appointing up to the level of necessarily male chauvinist bias—are not at all circuit judges? sympathetic to women. We have suggested in Professor Sir Colin Campbell: I am not so confident on parallel, and the Lord Chancellor has accepted this, that. I would be happier to drop you a note on that. with the traditional system of Silk and then on to the We would not want the Judicial Appointments bench we should have a system that announces to Commission to be involved in the question of young women and men, study at law, do your legal conduct or discipline of judges, that is something that practice course, become a solicitor or barrister and judges should deal with.2 after ten years apply for the more junior position which might see another couple of promotions or if Q962 Lord Carlisle of Bucklow: Even the ones you you are not quite so good you might stay there. That have been responsible for appointing yourselves? is much more family-friendly. We are not using the Professor Sir Colin Campbell: Once the judges are talented women, we know they are very clever, we appointed they should be dealt with and controlled by know they are people of integrity, we know after ten the judges. years they have carried significant professional Lord Carlisle of Bucklow: Yes. Thank you very much. practices, probably bigger that the court’s Chairman: Lord Holme. jurisdiction they are going into and that way we can avoid losing the vast quantities of female talent we Q963 Lord Holme of Cheltenham: May I ask you two are going to lose.3 questions, the first reverts to Lord Windlesham’s question about merit versus diversity. I think it is Q964 Lord Holme of Cheltenham: That is obviously quite common in the sort of situations you have an extremely important aspiration. I look forward to described in other bodies to believe that by for receiving the letter you mentioned. You refer to instance having a lay majority and having a wider objective evidence based methods of assessment, that circle of consultees the pool in which you will fish for might be a better way of expressing a point I am the final candidate will be enlarged and by having a trying to make than merit. If you are trying to wider pool from which to select you can still make objectively arrive at assessment that does imply at the your decisions on merit but it is more likely in the end end of the day that through that objective assessment to produce diversity of result. You got me quite one candidate is rated more highly than another or worried at one point, the diVerence between a bigger the situation you gave of equal potential who have pool to select from—in which personally I have every diVerent attributes you want to put forward. It is sympathy—a rather more blurred decision of quite diYcult in my mind to combine objective whether the final conclusion is one of merit simply. I assessment, however arrived at, with balancing wonder if you can just enlarge on that again? attributes. I still find myself a lot easier with the idea Professor Sir Colin Campbell: What I would like to do of increasing the pool, increasing the circle of is, if I can get Lord Mayhew’s permission, is send you consultation to make sure you have a wider range of a letter I wrote to him when we did a briefing on some candidates then combining it with what you call peers to try to explain our point of view, I am bound objective assessments, it seems an easier combination to get it badly wrong if I just try now. I have to say I even in terms of the public confidence that you am little bit suspicion of people who say we only spoke about. 2 Sir Colin Capmbell wrote to the Select Committee on 7 May 3 Sir Colin Campbell wrote to the Select Committee on 7 May providing further evidence that confirmed his view that it would providing further evidence. 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Professor Sir Colin Campbell: I agree with the Chief appraisal of your candidates in the judicial Justice of Canada that if we set up this Judicial appointment to which they were appointed? Appoints Commission we will see a reformed judicial Somehow marrying up the way you did it with how community of just as high a standard as now but with good they were at their jobs? much greater diversity in about ten or 15 years. Professor Sir Colin Campbell: I think that would happen informally and would be extremely Q965 Lord Holme of Cheltenham: That is an instructive. If you were to introduce—and I am admirable aspiration. confident it will happen—this system whereby Professor Sir Colin Campbell: We have to, incredibly, woman and men can get a judicial post at the age 34 tell the underepresented groups that we mean it, they I can bet you by the time they are 44 people will be are going to get in and then we have to design a making commentary on how they behalf and system which calibrates candidates with one another. performed compared to the old system. I would We monitored the assessment centres which have formally marry the functions. been piloted by the LCD and the DCA and we were able to say to the Department we thought they were Q969 Lord Craig of Radley: Can I deal with the superior, and the Department felt they were superior, selection of candidates? I am interested in whether to the traditional method. That does not mean there is suYcient knowledge within the Commission everything is perfect. It means over the next two, to identify all possible candidates or whether there four, six or eight years one will try to improve the should be some form of advertisements for assessments and make sure the calibration, candidates—as the Commons Select Committee appraisals and all the other things are optimised. suggested, although I think the Government was not in favour of it—I am wondering whether you have Q966 Lord Holme of Cheltenham: Thank you. any view about advertising for candidates as opposed Perhaps I can ask you the other question which to relying on internal knowledge? relates to the point about the audit, I suppose if you Professor Sir Colin Campbell: Our view, which I think are trying to evaluate the performance of a body like is quite a common view, is modern, good practice yours there are two questions, one is, are you says that all posts should be advertised. That does observing the objectives and process you set yourself? not, of course, prevent sophisticated, informal head- The other part is, have you been successful in doing hunting, it just means that everybody has a chance to what you set out to, have you improved the quality of apply if they want and it means that if people are the judiciary? Is it part of your hopes for the audit head-hunted or encouraged to apply nevertheless that it would look at the performance of people in they have to go through the same process, so the judicial posts subsequent to their appointment? thing is seen to be fair and accountable. This happens Professor Sir Colin Campbell: No. in the private sector, it happens in the public sector, it happens in education, it is very normal and it does mean that one has to be enormously careful in Q967 Lord Holme of Cheltenham: You would not encouraging somebody to apply because you expect that? Yet in your evidence you talk about probably do not want to wreck somebody’s life or appraisal and performance in judicial posts? reputation. The Commission would have to be Professor Sir Colin Campbell: Most people, certainly extremely sophisticated in its approach to the HR in the judges have now come out in favour of appraisal advertising and head-hunting and trying to and promotion, which would be run by the judges not encourage people to apply. It is done successfully in by the Auditing Commission. The Auditing big companies and corporations, universities and the Commission would look at processes. I think that in National Health Service. our audits so far we have managed to identify fairly substantive defects which the Department has accepted, so the processes are now safer. We are Q970 Lord Craig of Radley: Even at the Supreme doing an audit now about High Court appointments. Court level you do not see any diYculty about that Although it is not finished yet it should be finished approach? shortly, before the Bill goes through Parliament, and Professor Sir Colin Campbell: No. that will point out other lessons which must be Lord Craig of Radley: Thank you. learned in making judicial appointments.4 Q971 Lord Crickhowell: I want to raise a question on Q968 Lord Holme of Cheltenham: You would not Clause 21 which lays down that the “Minister”, not think there is a case at some point for marrying up the Commission, should consult with “the first good process with good results in terms of internal Minister in the Scotland” and “the First Minister and deputy First Minister in Northern Ireland” and with 4 Sir Colin Campbell wrote to the Select Committee on 7 May providing further evidence, which referred to the importance of the Welsh Assembly before taking a decision. 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6 May 2004 Professor Sir Colin Campbell is desirable, necessary, what it achieves and what that two or three individuals dead heat you then problems there might be about it? move into secondary considerations, such as age, Professor Sir Colin Campbell: I think the Secretary of gender, perhaps ethnicity, and so forth. That was my State talking to one or more first Ministers might be understanding of your response to Lord realpolitik, which is not my business. Talking to an Windlesham. When you responded to Lord Holme I assembly does seem to me to be a bit tricky. understood you to say that the primary consideration Chairman: Sorry, I have been obsessed with this of merit was in the form of a threshold and that recently, there is a problem with the Welsh Assembly, anyone who passes that threshold was then taken which Lord Crickhowell knows, which is eVectively it into secondary level and considered in relation to is a corporate body. That is absurd under the existing gender, ethnicity or age. I wonder whether I Government of Wales Act, it should never have misunderstood you—whether you were actually been that. saying the same thing in a slightly diVerent way or whether there really is an important distinction here Q972 Lord Crickhowell: This does raise the crucial which needs to be discussed? question of confidentiality. I think it was implicit in Professor Sir Colin Campbell: I think I would say this: an earlier answer you gave to Lord Craig of Radley my Commission is persuaded that our legal system about the way you sought people out that really we would be a healthy legal system if we had greater must retain confidentiality about people who have diversity at all levels. applied. Professor Sir Colin Campbell: I feel that very, very Q975 Lord Kingsland: I think there is no argument strongly. I was at a seminar chaired by the Lord about that. Chancellor seven or eight months ago when the view Professor Sir Colin Campbell: If the JAC is set up on was expressed by somebody that they thought it the basis that as a country we would like to encourage would be a good idea for perspective judges to be greater diversity then it would bear that in mind. I do scrutinised by some Parliamentary committee. The not think that it would bear that in mind on a allegation was made that American judges quite mechanistic, quota or target basis. appreciated that. I think that is tosh and I think that you would very, very soon run out of judges. Q976 Lord Kingsland: I understand that. Lord Falconer of Thoroton: I made it clear I oppose the Professor Sir Colin Campbell: Let me ask a rhetorical idea of judges being, as it were, examined by question. Who do you think is the better senior committees in advance. partner, the senior partner of Linklaters & Paines, the senior partner of Allen & Overy or the senior partner Q973 Lord Crickhowell: Can I come back to the first of Lovell, White & King? I cannot tell you the answer answer you gave to my question before the Chairman to that, they all pass the excellence threshold. of the Richard Commission intervened on this question. I want to go back to the answer you gave Q977 Lord Kingsland: If you have a threshold test; about realpolitik. Earlier you referred to then three or four may pass that test but it might be geographical distribution perhaps being a factor in relatively easy for a professional to rank them. choice when you submitted your list of two or three. Nevertheless— Apart from realpolitik, I am not quite sure what the Professor Sir Colin Campbell: That is why I have asked implication of that might be. With all of your you that diYcult question. experience, does and the Appointments Commission see good and valid reasons for consulting first Q978 Lord Kingsland: I just want to be clear, first of Ministers or the Welsh Assembly if you could do it? all, what your answer is to my first question and then Professor Sir Colin Campbell: That is why I said it may I will respond to yours. Is what you are saying that be realpolitik but it is something that I do not there will be a sort of common denominator; and understand. anybody who rises above that— Professor Sir Colin Campbell: No, there is— Q974 Lord Kingsland: Sir Colin, I apologise for returning to some questions to which you responded, Q979 Lord Kingsland: Can I just finish this question. first of all, to Lord Windlesham and then Lord Anybody who rises above that common Holme. I apologise for bringing us back to that denominator, whether they are two, three, four, five area. In response to Lord Windlesham you talked or six, will then be subject to the secondary about primary considerations and secondary considerations. Is that what you are arguing for? considerations in the context of selection. If I Professor Sir Colin Campbell: The problem with the understood you correctly I think you said that first of word “threshold” is that it might imply it is lower all you look at the candidates’ professional expertise than I want to say. I want to say at least as and compare their merits on that basis. If you find meritorious as the current bench. It is a merit 9674042034 Page Type [O] 28-06-04 20:54:07 Pag Table: LOENEW PPSysB Unit: PAG7

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6 May 2004 Professor Sir Colin Campbell principle of outstanding excellence. If you have got legislation. In clause 51 he may specify that then, yes, informally on a case-by-case basis you considerations in an order, I am not quite clear what say, “He has got these attributes, how attractive. She sort of order, and in clause 52 he may give guidance. has got these attributes, how attractive. He has got I think those are the three areas where this is referred these attributes, now what will we do?” to. Do you have any general views where and whether criteria should be given at all? If so, should they be Q980 Lord Kingsland: What do you mean by “these prescribed by the Minister for Parliamentary attributes”? approval or without Parliamentary approval or even Professor Sir Colin Campbell: Personal characteristics. in primary legislation? Do you see what I am getting Not boxes or quotas. at? The Bill visualises some pattern of formulation but I am not quite clear where the ideal provision is. Q981 Lord Kingsland: In other words, you could Lord Falconer of Thoroton: The section that Lord have a situation where the professional advice of the Howe is referring to is the Supreme Court section. V V committee was that although A and B were excellent, There is a di erent section laying out a di erent A was better than B; but the committee would end up approach in relation to the Judicial Appointments choosing B because of these non-professional Commission. characteristics. Is that the position? Lord Howe of Aberavon: Yes, that is right. Professor Sir Colin Campbell: No, I do not think that Lord Falconer of Thoroton: We have indicated, and I you do say that A is better than B. I think you say, indicated at Second Reading, we would make “We have got 3 A candidates, which one do you changes to clause 21, the method of selection for the want?” The attributes would include age, gender, Supreme Court. It is up to Sir Colin to answer on V experience, area of practice, things of that sort, and it clause 21 but the more reliable stu may be on the is always complex. Judicial Appointments Commission for England and Wales. Q982 Lord Kingsland: I put it to you that these extra non-professional attributes should only be relevant Q984 Lord Howe of Aberavon: Focus on that only. if, professionally, it was impossible to distinguish Professor Sir Colin Campbell: My view is that the between the three candidates. Judicial Appointments Commission should Professor Sir Colin Campbell: When you articulate the criteria and get on with the job. I think operationalise this you have to come up with some that the Judicial Appointments Commission should, categories or bands and the bands are the moment of course, publish an annual report which can be are A, B, C and D. It is only if you get into A, unless scrutinised in these Houses. The Secretary of State something goes wrong and somebody says there is a unavoidably may give guidance from time to time, mis-categorisation, that you are subjected to but that should be generic guidance and not related substantive consideration. In the system that we to individuals in any way. imagine, you somehow get into A and then you go through processes that are carefully controlled and Q985 Lord Howe of Aberavon: That would mean quality controlled, which is a big diVerence. really clause 51 governing. Do you regard the initiative as being with this Commission? Q983 Lord Kingsland: So your evidence is that for Professor Sir Colin Campbell: I read in the newspapers everybody who gets into band A professionally, the that the Lord Chancellor had indicated that the Bill secondary considerations kick in? was going to be amended in a number of ways but I Professor Sir Colin Campbell: All their attributes are have not seen the redrafting of it. considered carefully against objective criteria. Lord Falconer of Thoroton: What I indicated to the Lord Howe of Aberavon: May I explain that my Committee and at Second Reading was that it is for marriage to a former Deputy Chairman of the Equal the Commission to determine those sorts of things on Opportunities Commission would not have survived equal merit and not the Minister. The Minister would for 50 years if I had any diYculty about diversity. have to do two things, saying “We need a commercial Starting from that premise, I wonder if you can help judge for this job or we need a mercantile judge for me because I am not quite clear to what extent you that job”, and he would suggest the following would favour any prescription by the Minister or by processes to be followed, but it is for the Commission legislation of objectives or criteria for diversity. We to determine equal merit because they are the people were given the Northern Ireland example as who are making recommendations which eVectively “reﬂective of society”. If one looks at the Bill, and I determine who are appointed judges. may have got an incomplete picture of it, in clause 21 the Secretary of State may prescribe criteria. That is Q986 Lord Howe of Aberavon: I think it is best left to for the general provision. In clause 21 he may further discussion. 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6 May 2004 Professor Sir Colin Campbell diVerent functions of selection of appointment and attributes, you have to ask a genuine expert, a judge, conduct of complaints where the Ombudsman looks is he or she good enough? As I have said before, you a bit like the third wheel on a bicycle. There is some do not appoint a paediatrician by asking a objection to having an Ombudsman but you appear sociologist, you ask a paediatrician. What has got to to have a rather open mind as to how those functions happen is that the outstanding judicial and legal should be distributed. Can you help the Committee expertise has got to be put in the context of first class further on that? human resource practice. Professor Sir Colin Campbell: I have an open mind, and forgive me for that, because I do not know how Q990 Lord MacLennan of Rogart: I am asking on some of the other arguments about structures and the internal dynamic of the Commission, how you functions will play out. We are totally supportive of would envisage operating it. You referred earlier to a Judicial Appointments Commission protecting the the concept that the merit test is the threshold, but highest levels of merit, protecting the independence that is not the only way of viewing merit. Those who of the judiciary and being a strong, well organised, have legal experience may well be able to judge, or well managed and courageous body, well resourced think they can, the relative merits of the senior to do a very important job immediately and over a partners of Allen & Overy, Linklaters or whoever long period of time. However, one should accept that else, and have a view about how they would rank. Is even such a well structured body can make mistakes, that debate in your mind not one that should go on or can be thought to make mistakes, and there should inside the Judicial Appointments Commission, who be a complaints function, that is simply good is the best on merit grounds? practice. Judging by our experience, there should be Professor Sir Colin Campbell: I am usually a bit pretty regular audits because that is healthy in public nervous about people who confidently rank life. When you do an audit you do find things that everybody one to 15 because my experience of people you will not pick up with a complaint but actually is that they all have strengths and they all have slight they can be complementary. All I am saying is we weaknesses. The diYcult choice you have in want the JAC to audit and do complaints but how appointing a Fellow of the Royal Society or a you define the boundaries between existing bodies, paediatrician, or whatever it might be, is looking at whose remits I have not checked, is pragmatic. extremely good people and deciding who you want. If it was so easy as to say “who is the best” that would Q987 Lord Howe of Aberavon: One could possibly be easy. Sometimes it happens but very frequently lump them altogether in a kind of Ofcom, FSA thing. you are faced with three outstanding candidates. I From what you are saying, it sounds as if the function have been at discussions about who to appoint to the of the JAC should stand apart from audit because the High Court and there are really quite a lot of JAC will be auditing itself? outstanding people that the senior judiciary would be Professor Sir Colin Campbell: Yes. You have got the very pleased to have, but it is impossible for them to JAC and then you have got one or two external say, or far less agree, that one is number seven and bodies looking at complaints from others. one is number 11.

Q988 Lord Windlesham: Why do you need to be Q991 Lord MacLennan of Rogart: That may be so courageous? but it also seems to me at least possible that the Professor Sir Colin Campbell: To deal on equal terms minority of legal members on the Commission could with the very impressive senior judiciary. take the view that there was on merit grounds a candidate who was superior to others who were Q989 Lord MacLennan of Rogart: Sir Colin, is it meritorious. If that were the case, are you saying that your view that the majority of non-legal members of judgement should be set aside by the majority who the Judicial Appointments Commission would be as think that other considerations should be brought capable of assessing the merit test as the legal to bear? members? Professor Sir Colin Campbell: No, I am not saying that Professor Sir Colin Campbell: No, they are at all. Any sensible Chair looking at this for a complementary. I said earlier that I think the decision making purpose would say, “We have ﬁve Commission that I chair is hugely impressive because people in front of us but the top judges say that A is they bring from diVerent walks of life many years of the best and E is not up to it”. experience of tackling human resource questions. That is why I think intellectually, and from an Q992 Lord MacLennan of Rogart: With respect, that experience point of view, they are so important to the is reductio ad absurdum in reality because we have Judicial Appointments Commission, but there does agreed that the probability is that there will be seven come a point when apart from realising that these very able candidates, not one of whom is not up to it. people you are considering are possessed of There are seven who are up to it but one who is 9674042034 Page Type [O] 28-06-04 20:54:07 Pag Table: LOENEW PPSysB Unit: PAG7

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6 May 2004 Professor Sir Colin Campbell perceived by the legal members of the Commission to whether it could be the conduct Ombudsman that is be the best. created by the Bill? Professor Sir Colin Campbell: If they said that he was Professor Sir Colin Campbell: I do not have a strong the best I would expect that to be accepted. I was not view on that. trying to take issue with you, I was trying to add if these senior judges, having looked at all the process, said “Listen, this man, this woman, is absolutely the Q997 Lord Falconer of Thoroton: You heard what I best” then I would expect that to be accepted. said at one stage in the debate talking with Lord V Equally, if earlier in the process they said about a Howe, merit to be deﬁned, in e ect, by the Judicial candidate, “They are very attractive in some ways Appointments Commission. Is that an approach that but, frankly, intellectually they are not up to it”, I you would be happy with? would expect that to be accepted as well. Professor Sir Colin Campbell: Yes.

Q993 Lord Falconer of Thoroton: In terms of the Q998 Lord Falconer of Thoroton: In relation to High practicalities, you say you have been present at Court appointments and above, I think you are discussions in relation to the appointment of High saying that, yes, the Minister should have a role in Court judges. Let us take a hypothetical example. My relation to that. What do you see his or her role experience of these discussions is they could go as being? follows: X is absolutely outstanding, he or she will be Professor Sir Colin Campbell: I think it should be fairly appointed a judge, we have got two other gaps to fill circumscribed. The Commission should decide and here is a range of seven or eight people, none of whether to put up one name or more than one name, whom are quite as outstanding as X but all depending whether there is one vacancy or more than appointable. What sort of person are we looking for? one vacancy, whether there is one outstanding Extreme legal learning may be one aspect but there candidate or three very good candidates. I think that would be other aspects that we could consider. the Minister’s power should be circumscribe. He or Would that be the way to go? she should not be able to supplant a new name. He or Professor Sir Colin Campbell: Yes. she should be able to ask for it to be reconsidered, which is sending out a very strong signal that this Q994 Lord Falconer of Thoroton: Have you could probably still be done protecting experience of appointments in other fields apart from confidentiality. One should think long and hard the judiciary? about the Minister being able to reject. There is an Professor Sir Colin Campbell: I do this every week. argument in favour, which is Parliamentary Going back to Lord Maclennan’s point, and it is sovereignty and accountability. There is an argument actually a very important point, when you get into against, which is the systemic damage that will be sophisticated areas of knowledge, anything esoteric, done if very distinguished people are publicly you eventually have to go to the expert peer group. If humiliated. you are trying to appoint a professor of particle physics you actually go to the best professors of particle physics in Moscow, in Harvard , in UCLA, Q999 Lord Falconer of Thoroton: On that last point, in Oxford and so on, and they will tell you which would you agree that as much as possible you must particle physicists to choose. keep the identity of people who have applied or are being considered confidential? Q995 Lord Falconer of Thoroton: Thank you. Just to Professor Sir Colin Campbell: Entirely, I do agree. be clear on your evidence about the audit. I think you are saying that there needs to be a body separate from Q1000 Lord Falconer of Thoroton: From reading the Judicial Appointments Commission that could your written evidence I think you would agree that look at individual complaints, the Ombudsman can for Parliamentary accountability as opposed to do that, but you are also saying there needs to be sovereignty reasons the Minister does have a role in somebody who can look at the system, not by those appointments to High Court or above. reference to individual complaints but to audit Professor Sir Colin Campbell: Yes. aspects of the system. Professor Sir Colin Campbell: I think that is perfectly healthy. I may be misleading myself but I think your Q1001 Lord Falconer of Thoroton: Presumably that Department finds it pretty healthy as well. is because you think it is right that somebody is there to say “This is not an individual appointment, this is Q996 Lord Falconer of Thoroton: Yes. You are how the appointments system works and the Minister saying you are agnostic as to what body does that, it thinks it is okay”. That is the sort of accountability could be an existing body. Do you have a view about you have in mind, is it? 9674042034 Page Type [E] 28-06-04 20:54:07 Pag Table: LOENEW PPSysB Unit: PAG7

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6 May 2004 Professor Sir Colin Campbell

Professor Sir Colin Campbell: Yes, and also one something in respect of which there is Ministerial imagines parliamentarians in the other House saying accountability as well? “We are not passing all the power over to another Professor Sir Colin Campbell: Because the High Court faceless quango”. and above are more important. There will be accountabilities for these people but they will all Q1002 Lord Falconer of Thoroton: So the Minister is work in diVerent ways. there accountable to Parliament? Professor Sir Colin Campbell: Yes. Q1005 Lord Falconer of Thoroton: What sorts of ways? Q1003 Lord Falconer of Thoroton: The reason you Professor Sir Colin Campbell: The way the judge is draw the line at High Court—the circuit judges and controlled in their— other judges have got a signiﬁcant role to play—is because of burden of administration but if it could be Q1006 Lord Falconer of Thoroton: Judges are done there would not be an objection? independent. Once appointed they must be Professor Sir Colin Campbell: If you are going to set up completely independent. the Judicial Appointments Commission, make it Professor Sir Colin Campbell: They must be strong and independent and trust it, but have the independent but I understand it has been widely senior appointments go to the Minister and an accepted that they should be appraised and there may annual report to— be possibilities for promotion. At the moment there are possibilities for promotion and the people who Q1004 Lord Falconer of Thoroton: I am not clear advise you on that are the senior judges. why you accept accountability for the High Court Lord Falconer of Thoroton: Thank you very much. and above but the Circuit Bench, for example, which Chairman: Thank you very much, Sir Colin. I found has the major number of criminal judges in the that a fascinatingly exposing evidence session. Thank country, why their appointment is not to be you very much indeed.

Supplementary memorandum by Commission for Judicial Appointments

Introduction 1. This note clariﬁes the views of the Commissioners for Judicial Appointments on a number of issues raised during oral evidence from Sir Colin Campbell (Her Majesty’s First Commissioner for Judicial Appointments) to the House of Lords Select Committee on the Constitutional Reform Bill on 6 May 2004. 2. The Commission for Judicial Appointments would be grateful if the Select Committee would consider this note alongside other evidence submitted in connection with the Bill.

Complaints about Judicial Conduct 3. Sir Colin Campbell promised to conﬁrm the Commissioners’ views concerning the interface between the Judicial Appointments Commission and the body dealing with complaints about judicial conduct. The Commissioners take the view that the appointment process and the investigation of complaints about judicial conduct are two totally diVerent functions. The new Commission will be accountable to Parliament for its actions whereas members of the judiciary are accountable for their conduct to the head of the judiciary. It would be inappropriate for the Judicial Appointments Commission to have any role in the investigation of complaints about judicial conduct. This applies regardless of whether the judicial oYce holder was appointed by the Commission or under the arrangements in force before the Commission comes into being. It would be anomalous if any aspect of the chain of accountability for judicial conduct was to depend on the date and method of appointment.

Auditing the Appointments Process 4. In their written evidence the Commissioners for Judicial Appointments set out the beneﬁts that have arisen from their scrutiny of the current judicial appointment process and explained why it is essential that the work of the Judicial Appointments Commission is subject to regular, independent audit. Sir Colin Campbell emphasised the importance of this on 6 May. 9674042035 Page Type [O] 28-06-04 20:54:07 Pag Table: LOENEW PPSysB Unit: PAG7

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Merit and Judicial Appointments

5. Sir Colin Campbell also promised to provide the Committee with further thoughts how the new Judicial Appointments Commission can achieve enhanced diversity amongst judicial appointments whilst maintaining the principle of selection on merit. He mentioned that he had written to Lord Mayhew of Twysden QC about the matter. 6. The Commissioners for Judicial Appointments fully endorse the principle of selection on merit as the overriding criterion for judicial appointments at every level. They are, however, concerned that there is substantial evidence that, although current procedures achieve the appointment of candidates of high calibre to the Bench and the exclusion of poor ones, there may be other good candidates who are being missed. 7. The Commissioners therefore believe that further action needs to be taken to increase the supply of a diverse pool of candidates of the first rank, who are available for judicial appointment. They do not see any conflict between achieving enhanced diversity in appointments and maintaining the appointment of only those candidates who most merit appointment. Appointment should continue to be only of the most meritorious. Where a single candidate is clearly more meritorious than their rivals they should, of course always be appointed (or recommended for appointment). However, the Commissioners for Judicial Appointments’ extensive experience of both judicial and other appointment processes suggests that in practice it is extremely rare, when making appointments at the high level that the Judicial Appointments Commission will be doing, for such diVerentiations to be clear. In most cases therefore secondary considerations such as age, gender, ethnicity and social or educational background necessarily come into play. It is essential that these considerations are exercised in accordance with modern best HR practice. The Commissioners therefore agree with Lord Falconer’s view, expressed in the House of Lords on 26 January when announcing the Government’s proposals for a new Judicial Appointments Commission, that: “My Lords, on the first question about criteria for appointment, it is made clear in the document— and indeed in my remarks—that the sole criterion for the appointment of judges will be merit. That does not mean that there are not other factors we would like to see promoted; for example, in relation to diversity, but there is no dilution of the principle. It will be enshrined in statute that merit is the principle.” (Col 26 HOL OYcial Report, 26 January 2004) 8. The Commissioners believe that creating a professional appointments system, which is demonstrably open, fair, appropriate and accountable would itself be a major step towards encouraging diversity. Such a system would clearly assess applicants against objectively justifiable criteria or competencies, with an audit trail of evidence of their performance against each. 9. An important step in this regard is removing the historical heavy reliance on so-called “automatic consultation”. Its removal would also do much to address the perceptions of unfairness, which may inhibit potential applicants from applying. 10. The key attributes of best practice are clearly defined criteria and/or competencies for each and every level of appointment. These would reflect a job description (setting out the nature and requirements of the job) and a person specification (setting out the skills, qualities, experience and abilities that successful candidates need to demonstrate). Selection should be solely against these criteria/competencies, which may well vary for diVerent posts. It would obviously be up to the Judicial Appointments Commission to determine criteria/ competencies in each case and there are a number of examples that could be followed. For example, the Commissioners note that the Department’s criteria for many posts require candidates to demonstrate specialist expertise in diVerent areas of the law. They also note that advisory committees assessing candidates for federal appointment in Canada are encouraged to reflect diversity, give weight to all legal experience (including non-mainstream legal experience) and recognise social awareness factors as important7. 11. There would need to be objective evidence-based methods of assessment, eg appraisal, self-assessment, references/consultation and interviews. The Commissioners have also indicated in their second annual report (paragraph 3.41) that they see merit in the assessment centre approach recently piloted in the Deputy District Judge competition. All methods need to be open, systematic, comparable and with an adequate audit trail. Such a process would also itself help assessors to guard against bias, whether conscious or unconscious, or based on assumptions as to the “type” of person who was likely to possess the required qualities and experience.

7 See remarks by the Rt Hon Beverley McLachlin PC, Chief Justice of Canada, to the Association of Women Barristers, 2 July 2003. 9674042035 Page Type [E] 28-06-04 20:54:07 Pag Table: LOENEW PPSysB Unit: PAG7

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12. Such an approach should help both to encourage prospective candidates to come forward and to persuade those going through the system that they will be assessed fairly. It would also command the conﬁdence of the public that the candidates best ﬁtted for the job will be impartially selected.

Roles of Lay and Judicial Members 13. There are two main reasons why it is essential for the Judicial Appointments Commission to have a lay majority: — To ensure that the Judicial Appointments Commission is informed by the widest possible range of appointments and HR expertise. — To enhance public confidence in the independence and impartiality of the judiciary and the appointments process. It would symbolise that the appointments process is led by HR expertise. 14. The judiciary clearly have a central role in the appointments process, providing input into the formulation of job and person specifications. The judiciary are also likely to be an important source of information about candidates’ ability to perform in post. The Commissioners see the role of the judicial members as ensuring that the Commission access this expertise (although it is likely that the judicial members of the Commission will have detailed knowledge of all candidates in only a minority of competitions). 15. However, evidence from the judiciary, along with all other evidence about candidates needs to be against the criteria/competencies for the post, and therefore relevant to ability to perform in oYce. The Commissioners’ work has demonstrated a number of problems with the current reliance on automatic consultation, which should be ended. For example, the Commissioners have observed, despite improvements, that a significant proportion of consultees fail to provide evidence-based comments against the criteria. They also have concerns that inappropriate prejudices about the ‘type’ of person who should be appointed may influence some responses, even though such prejudices are not clear from the material submitted. 16. Therefore it is essential to have a selection process run in accordance with modern best HR practice. The role of the lay members is to ensure that the process is a fair and transparent mechanism that demonstrably provides objective evidence-based assessment against criteria/competencies that eVectively measure ability to do the job. This will include ensuring that judicial input is particularised and addresses the criteria/ competencies for the post. It will also be essential to ensure that the selection process is fair to candidates who, for whatever reason, are not visible to the judiciary by ensuring that members of the Judicial Appointment Commission as a whole have access to in-depth independent legal and judicial expertise from outside the jurisdiction to which they are appointing. 7 May 2004

Examination of Witness Witness: Rt Hon Sir Brian Kerr, QC, Lord Chief Justice of Northern Ireland, examined.

Q1007 Chairman: Sir Brian, can I thank you very safeguarding the independence of the judiciary. I am much for coming this afternoon. We await what you aware that Lord Woolf in his evidence to this have to say to us with anticipation. First of all, Committee has emphasised the central importance could I ask you to identify yourself for the purpose of the judiciary’s independence, and I am content to of the record. Secondly, if you would be good echo the view that he expressed upon that subject. enough, so to speak, to open up the discussion for I am also anxious to ensure that whatever is decided us and we will pursue it afterwards. upon is workable and takes account of the changed Sir Brian Kerr: Thank you, my Lord Chairman. My and changing times that we inhabit. In that context, name is Brian Kerr. I was appointed Lord Chief it is perhaps pertinent that I should say that judges Justice of Northern Ireland in January of this year. in Northern Ireland, and I am quite sure also in I was going to say that I am grateful to the Great Britain, recognise the need to be more open, Committee for inviting me to give evidence today not only in the manner that they are appointed but but having heard Lord Cullen and Sir Colin cross- also in explaining their decisions and by being more examined with such skill, I am not sure that I should ready than perhaps they were in the past to take not temper that remark somewhat. I am, of course, account of public concerns and views. That said, by happy to respond to your questions on the way of background perhaps I might make a few Constitutional Reform Bill as it extends to Northern brief comments. The ﬁrst is that, as the Committee Ireland. Naturally, I view the issues that arise from will know, I have agreed evidence with the Lord a judicial perspective and with a view to Chancellor and this should be before the 9674042036 Page Type [O] 28-06-04 20:54:07 Pag Table: LOENEW PPSysB Unit: PAG7

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Committee. We thought that this might assist the consistency in such an important matter. Thank Committee’s work and I believe that it represents a you, my Lord Chairman. sensible way forward. I might just take the opportunity to say that I think this demonstrates the Q1008 Chairman: Thank you very much indeed. close working relationship that my predecessors and You have told us that the Judicial Appointments I have enjoyed with respective Lord Chancellors and Commission in Northern Ireland will be up and which I hope will continue under the new running in spring next year. arrangements, whatever they may be. Secondly, I Sir Brian Kerr: That is the plan. think it is important to take account of the fact that in respect of appointments, and in particular the Q1009 Chairman: I am sure I should know but can introduction of a Judicial Appointments you briefly tell us what the composition of that is? Commission, we in Northern Ireland are ahead of Sir Brian Kerr: Yes, indeed. It is provided for in the the proposals in this Bill to some extent. Indeed, the Justice Act as amended by the Justice Bill. Section Government is moving towards the implementation 3 of the Act provides that the Commission is to of the Judicial Appointments Commission in consist of a Chairman, who will be the Lord Chief Northern Ireland and, as you will have noticed, it Justice, 12 other members appointed by the First is hoped that the JAC will be functioning in spring Minister and Deputy Minister, but that, by the of next year. That is because the Justice (Northern Justice Bill, will be a function transferred to the Ireland) Act 2002, which will be amended in a few Secretary of State for Constitutional AVairs. The respects by the Justice (Northern Ireland) Bill, composition is provided for in section 3(5): five which passed through your Lordship’s House last persons nominated by the Lord Chief Justice, Thursday, sets out the way forward on this and referred to as judicial members; a barrister other important issues. Both of those items of nominated by the General Council of the Bar of legislation, that is the Justice Act and the Justice Northern Ireland and a solicitor nominated by the Bill, were introduced by the Government following Law Society, who will be referred to as the legal recommendations by the Criminal Justice Review professional members; and five persons who do not Body which was set up in consequence of a hold and have never held a protected judicial oYce recommendation in the Belfast Agreement, the and have never have been barristers or solicitors. Good Friday Agreement, and subsequent political talks. It is important to recognise, therefore, that the Q1010 Chairman: You will be the Chairman? background to the provisions that apply in Sir Brian Kerr: I will be the Chairman, yes. Northern Ireland is diVerent and reflects local circumstances and priorities. The Justice (Northern Q1011 Chairman: Will that Commission decide the Ireland) Act 2002 was, of course, and is, aimed at a definition of “merit” that satisfies Northern Ireland post-devolution situation. That means that we have itself? How will you approach that? already had to grapple with some of the issues on Sir Brian Kerr: I rather think that it will refrain the removal of the role of the Lord Chancellor from attempting a definition of “merit” because my which the Constitutional Reform Bill addresses for personal view is that it is extremely diYcult to be England and Wales. That is because the Act prescriptive of all the qualities that are required to envisages some of the Lord Chancellor’s functions be a successful judge. Under current arrangements, transferring to the First Minister and Deputy First those who wish to apply for appointment to the Minister in a devolved administration. Indeed, you High Court have to complete, first of all, an may have noticed that the Justice Act has an entire application form and they are subject to comment schedule devoted to this issue, Schedule 5. by consultees. The consultees will be the members Therefore, we already have a template in place and of the Supreme Court, in other words the members the Government, in looking at the application of the of the Court of Appeal and the members of the High Bill to Northern Ireland, has obviously taken that Court, also the Chairman of the Bar Council and into account. That has meant some variation from the President of the Law Society. The consultees are the approach proposed for England and Wales. invited to make comment about the legal acumen, Finally, if I may say so, in so far as it falls for me the legal knowledge, of the applicants, their integrity to say it, I am in agreement about this, that the and their understanding of society, but I rather Government believes that refinements to our doubt that that is exhaustive of all the qualities that legislation would be beneficial. An example is the are required for a successful High Court judge. I was proposal to extend the provision relating to the duty interested to hear Sir Colin talk to the Committee to uphold judicial independence in Northern Ireland on the threshold—I think he was rather reluctant to to mirror that in England and Wales. On one view adopt the rubric “threshold”—but my experience there is not a great deal that turns on the diVerence has been, and it is perhaps reflective of the fact that but there is, I think, a strong argument for I come from a relatively small legal community, that 9674042036 Page Type [E] 28-06-04 20:54:07 Pag Table: LOENEW PPSysB Unit: PAG7

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6 May 2004 Rt Hon Sir Brian Kerr, QC it is not, in fact, diYcult to decide which is the most young man has challenged what he says is the state’s meritorious candidate. Recent experience of the failure to institute an Article 2 compliant appointment of the High Court judges has investigation into the circumstances of the death of illustrated that there is an ample number of his father. As it happens, there was not a Northern candidates who would comfortably pass any Irish representative on the Appellate Committee threshold test. Indeed, just today as it happens, this because it was an appeal from the Court of Appeal, morning, a new High Court judge was appointed chaired at that time by Lord Chief Justice Carswell, and, as the Lord Chancellor will know, there were who has recently been translated to the Appellate a number of candidates whom we would have been Committee. I do not wish this to be taken as a happy to appoint as a High Court judge. As it suggestion that the outcome of the appeal would happens, the candidate who was appointed was have been any diVerent if there had been a unanimously agreed by the consultees and I think representative from Northern Ireland, but it does will be acclaimed by the legal profession in general seem to me that the Committee would want to bear as being the outstanding candidate. in mind closely two things. First of all, this decision, which is by no means untypical, will be of enormous Q1012 Viscount Bledisloe: I just would like a little impact to the practice of law in Northern Ireland. enlightenment, Sir Brian, about Northern Ireland There is already quite a substantial backlog of cases, law. As I understand it, there is quite a lot of judicial review applications, which challenge the legislation which is passed specifically for Northern failure of the Government to institute an Article 2 Ireland but the model of the statute, the way it is compliant inquiry. Those are going to be directly drafted and the way it is interpreted, is the same as aVected by this decision. Not only that, but the in England, or the UK. Does Ireland have a coroners in Northern Ireland have to confront a common law which diVers substantially from very substantial number of inquests in which next- England, like it does in Scotland in property law or of-kin claim that they should be conducted criminal procedure in terms of art which are according to Article 2 of the European Convention diVerent from England? on Human Rights. If there had been a representative Sir Brian Kerr: In a word, no. Obviously there are of Northern Ireland on the Appellate Committee in diVerences to reflect local circumstances and, as you that case it seems to me to be clear that he or she rightly say, legislation is passed for Northern could have contributed substantially to the Ireland. On the whole that reflects legislation that understanding of the committee of conditions that has been passed in England and Wales, but there are apply in Northern Ireland. some minor diVerences. So far as the common law is concerned, we share common law with England Q1015 Lord Carlisle of Bucklow: Are you saying and Wales, we are not like Scotland. that should apply on the face of the Bill, that one of the judges of the Supreme Court should be from Q1013 Viscount Bledisloe: There may be statutory Northern Ireland? provisions which are only for Northern Ireland, but Sir Brian Kerr: I am agnostic about that. Provided if one was going to interpret those one would it can be achieved, whether it is by convention or approach it in exactly the same way as a judge statutory requirement— interpreting the English Act? Sir Brian Kerr: Absolutely. Not only that but we Q1016 Lord Carlisle of Bucklow: At the moment it apply precedent from England and Wales on a is by convention. regular basis. Sir Brian Kerr: That is perhaps not a terribly well established convention. Again, I was interested to Q1014 Viscount Bledisloe: Does that not rather hear the discussion with Lord Cullen about whether weaken your comparative case with Scotland for one ought to be a member of the Court of Appeal always having a Northern Irish judge in the House before appointment to the Appellate Committee of Lords, on the Supreme Court, or whatever it is because one of the most distinguished members of going to be? the legal community in Northern Ireland was, of Sir Brian Kerr: I think not, and let me tell you why. course, Lord McDermott, who was appointed There are a relatively small number of cases that directly from the High Court in Northern Ireland to come from Northern Ireland to the House of Lords, the Appellate Committee and then returned to but it would be diYcult to overestimate the impact Northern Ireland to be a very distinguished Lord that the decisions of the Appellate Committee have Chief Justice. After he returned to Northern Ireland in Northern Irish cases on the practice of law in there was no representative from Northern Ireland Northern Ireland. If I can take a recent example: the on the Appellate Committee for quite a substantial House of Lords recently gave a judgement in the time until eventually Lord Lowry was appointed, I case of Jonathan McKerr. That is a case in which a think 17 years after— 9674042036 Page Type [O] 28-06-04 20:54:07 Pag Table: LOENEW PPSysB Unit: PAG7

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Q1017 Chairman: Thirty-seven years. time that I have been a practising lawyer and a judge Sir Brian Kerr: Seventeen years after he was in Northern Ireland that has never been something appointed— that has been diYcult to achieve. We do, however, have a major problem, and let me be upfront about Q1018 Chairman: Lord McDermott, I think, went it. We have no women on the High Court or Court back to Northern Ireland in 1951 and Lord Lowry of Appeal in Northern Ireland. I do not want to was appointed in 1988, so it was 37 years. appear to defend that too defensively, but when I Sir Brian Kerr: Seventeen years after he was was called to the Bar in 1970 there was one woman appointed Lord Chief Justice he was appointed to at the Bar. I am told this year, for instance, 73 per the Appellate Committee in the House of Lords. cent of the entrants to the Bar will be women. I have absolutely no doubt that the time will come, and I Q1019 Lord Falconer of Thoroton: Did he ever sit personally hope that it will not be long in coming, in the House of Lords when he was Lord Chief when women of conspicuous ability will be Justice of Northern Ireland or not? appointed to the High Court. It is not simply a Sir Brian Kerr: Yes, he did, because he was made question of the two communities, we do have a a life peer to enable that to happen but he sat as an problem in relation to the under-representation of ad hoc member of the committee. women.

Q1020 Lord Holme of Cheltenham: Can I just ask Q1021 Lord Holme of Cheltenham: Thank you for you, Sir Brian, about the words “reflective of society” that. I am grateful for the response and, from my which appear in the Judicial Appointments own observation of Northern Ireland, what you say Commission for Northern Ireland. There have been people saying that those words might apply in the about appointments to the judiciary is demonstrably legislation to England and Wales. What I wanted to true. I take from what you say, and I hope I am press you on is this: I would take it that they have right, that probably the primary purpose of those specific meaning in a Northern Ireland context where, words was the representation of the communities in as we all know, there is, as it were, a negotiated the way that you described it but it could be prayed settlement between the two major communities. I in aid for greater diversity on the bench. Is that would take it in a Northern Ireland context to be a correct? tactful way of saying that the two major communities Sir Brian Kerr: I think it would be presumptuous should be reflected in the judiciary. I would take that of me to say what the primary purpose was. In fact, to be the case, and, if so, it would not have any it is quite diYcult to find in the text of the legislation necessary implicationforEnglandand Wales. Is that a itself an indication of what the purpose was. right assumption or a wrong one? Perhaps it is best to be found in Schedule 2 of the Sir Brian Kerr: Well, of course Northern Ireland is 2002 Act, paragraph 5(3). This deals with the annual a divided community and I think it would be report that the Judicial Appointments Commission unrealistic not to recognise that the aspiration of must make to the Secretary of State each year. It those who have included this in the legislation is to says that the information to be included about any ensure that both communities are properly persons in an annual report must include represented. I do not think that is comprehensive of information about their gender, age, ethnic origins the aspiration. Before I go on to develop that, can and community background. I think it does go I just say this: one of the aspects of the legal rather further than simply the two communities in community in Northern Ireland that has been held Northern Ireland. up, and which I think almost universally we have cherished, is the good relations that exist between those who hail from either community in Northern Q1022 Lord Lloyd of Berwick: I am not sure Ireland. I cannot begin to say how well respected whether the current Judicial Appointments the judiciary is in the broader community, but I take Commission in Northern Ireland is functioning yet. leave to say, and to claim, that within the legal Sir Brian Kerr: No, it is not functioning yet but we community itself, the appointments to the bench do have a Judicial Appointments Commissioner. from whatever side have been universally respected. Of course, while it is desirable that the judiciary should be reflective of the community in the sense Q1023 Lord Lloyd of Berwick: As I understand it, that, and let us be blunt about it, there should be when it is functioning it will have a majority of those who come from a catholic background, those judicial members because there will be you as Lord who come from a protestant background, those who Chief Justice and five judges, making six, and only come from a nationalist background and those who five lay members. come from a unionist background, certainly in the Sir Brian Kerr: And two legal members. 9674042036 Page Type [E] 28-06-04 20:54:07 Pag Table: LOENEW PPSysB Unit: PAG7

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Q1024 Lord Lloyd of Berwick: As far as we are between the Lord Chancellor and the Lord Chief concerned, the Bill is rather the other way round, as Justice of Northern Ireland. It seems to me that a joint you know, there are going to be ﬁve judicial committee of both Houses of Parliament inviting members and six lay members. You heard what Sir representationsfrom theLordChiefJustice is oneway Colin had to say on that point. of achieving that. I have some slight reservations Sir Brian Kerr: Yes. about the eYcacy of that. It seems to me that it is perhaps a rather elaborate mechanism for receiving Q1025 Lord Lloyd of Berwick: What is your view? views that, for instance, the Lord Chief Justice may Can you see any real reason why there should be any wish to communicate regularly or on an ad hoc basis. diVerence between the Judicial Appointments I am anxiously awaiting the proposals as to how that Commission in Northern Ireland and in England? could be achieved. Of course, it does have a Northern Sir Brian Kerr: I would be hesitant to be critical of Ireland dimension as well in that post-devolution the legislation that applies in Great Britain but, again, I duty of the Lord Chief Justice to represent the views of was very interested to hear Sir Colin in a the judiciary will extend to representing them to the characteristically forthright way defend his view that Assembly and the opportunity to be a member of the there should be a lay majority. I hope I do not do him Assembly clearly does not arise as it would in an injustice but it seemed to resolve to a question of representation of the House ofLords. One will have to symbolism. I take leave to question whether it is work out how that is done. It does seem to me that necessary that we have a symbolic majority. Certainly speed of communication is essential. I just wonder I think it is vital that we ensure that the conﬁdence of whether a joint committee of both Houses of the public is inspired and maintained by the way in Parliament is something that would achieve that. which we set about judicial appointments, but I rather doubt that it is a prerequisite to that laudable aim that Q1027 Lord Lloyd of Berwick: Could you say there be a majority of lay members. I think that a anything more generally about your views on the distinction has to be drawn between, for instance, the proposed Supreme Court? As you know, the appointment of someone to the Royal Society from Government’s case is based on a perception that the the business of appointing a judge. As I said, in our Law Lords are thought to be in some way biased or in recent experience, and it is something that I think has some way politically motivated or under the shadow been the common experience of all judges involved in of Parliament in some way. On Tuesday, the Faculty judicial appointments, the best candidate emerges of Advocates expressed the view that they had not with reasonable clarity on each occasion. Especially in come across any such perception in Scotland.I am just a small legal community like Northern Ireland, it does wondering whetheryou could say what the perception seem to me that those who are acquainted with the is in Ireland. Have you come across such a perception? candidates, who have had an opportunity to evaluate Sir Brian Kerr: I do not have any empirical data on it. their ability on a day-to-day basis, should be in the Personally I have not encountered such a perception majority. That is not to say that I believe for an instant or bias, nor have I had it expressed by anyone either that there is going to be a strict demarcation of the lay within the legal community or without it. I certainly membersagainstthenon-laymembers.Itdoesseemto would not claim to be in a position to be able to say me that if there is to be any dispute, surely those who with complete authority that that perception does are best placedtomake ajudgement asto the calibre of not exist. the candidate should be in the majority. Q1028 Chairman: We have got a piece of paper here Q1026 Lord Lloyd of Berwick: Secondly, in which says the Northern Ireland Human Rights paragraph 18 of the Lord Chancellor’s paper, which I Commission are very much in favour of the Supreme thinkis64,youjustmightnot haveitthere,hesaysthat Court and it is imperative to cut links between any the Government proposes that you should represent branch of the judiciary and the legislature. I think the the views of the Northern Ireland judiciary to Bar Council said that they found the arguments in Parliament. I just wonder how you envisage that favour of the SupremeCourtcompellinglyirresistible. happening. Is that the general view of the legal profession in Sir Brian Kerr: I understand that the Lord Northern Ireland? Chancellor, the Secretary of State, is going to discuss Sir Brian Kerr: Not in my experience. As I say, I this and then come up with proposals. It does not could not claim to speak with authority for all of happen at the moment because, unlike the Lord Chief the members of the legal profession but I think there Justice of England and Wales and the Lord President is a certain element of symbolism here, is there not? of Scotland, the Lord Chief Justice of Northern One view might be that the Appellate Committee of Ireland is not a member of the House of Lords. The the House of Lords has discharged its functions with way that it has happened in the past has been because commendable, if not to say admirable, ability in the of the good and close regular working relationship past. 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6 May 2004 Rt Hon Sir Brian Kerr, QC broke, why fix it? At the same time there is a view in the judicial strength in Northern Ireland and that that there should be a clear demarcation between is a desirable thing. Certainly, I personally would the judicial functions that the members of the take it amiss if I were subject to a headcount as to Appellate Committee discharge and that confusion what my background was and, therefore, while I should be avoided by having them completely think that this is something that we should aspire to, separate. we need to deal with it very carefully. You may be Chairman: I apologise for my intervention. Lord aware that in the Justice Bill, the Judicial Windlesham? Appointments Commission is enjoined to embark on Lord Windlesham: No need for an apology, my Lord a programme of action to ensure that candidates are Chairman, you have been very moderate in your not discouraged from coming forward and that the interventions. diversity that we hope to achieve in judicial Chairman: I shall view my position silently in the appointments (and which I believe has already been future. achieved), should not be discouraged by what is described sometimes as the “chill factors”. I think that is a much healthier way of approaching the Q1029 Lord Windlesham: I want to go back to the question; in other words before you embark on a same ground as Lord Holme because it is of system of selection of judges you investigate how fundamental importance. I think you said in answer people may be discouraged from coming forward, to his questions that the judiciary were regarded as a people of a certain tradition in Northern Ireland for reflection of society in Northern Ireland, and of instance. If we identify what the deterrent factors are, course that has a fine ring to it, nevertheless Northern if they exist, and seek to eliminate those rather than Ireland is still, alas, a politically divided society and when we get to the stage of appointing judges saying historically has been one for a very long time. Can I “That person is a catholic, that person is a ask you, if it is not indelicate to do so, about the protestant” and appointing that way, that is sectarian balance of the judges. You did say in answer preferable. to an earlier question that you have got a general understanding between the parties, the various Q1030 Lord Kingsland: I think it would be fair to interests in Northern Ireland, as to higher judicial say, Lord Chief Justice, that the philosophy that you appointments, maybe all judicial appointments but have just outlined in response to Lord Windlesham is certainly higher ones, and yet in the Good Friday well reflected in the current Bill which is about to Agreement for the legislative convenience of the become law, the Justice (Northern Ireland) Bill 2003. Government and the Province in Northern Ireland The basic principle for selection is merit in its the balance was most carefully contrived. I served in unqualified form; but a programme will be Northern Ireland for a time early on after direct rule institutionalised by the Judicial Appointments and I am aware that professional relationships were Commission, when it comes on stream, to, over a extremely good, including amongst the police, for period of time, ensure that the pool of candidates is example, which a lot of outside observers found very widened in every respect so as to be more reflective of hard to believe, there was a professionalism there and Northern Ireland society. presumably that applies in the law as well. Do you Sir Brian Kerr: If I might add a slight qualification to think there will be the need to have some sort of that. I entirely agree with that exposition subject to understanding and balance in judicial appointments this very minor qualification: in the new section 5 of between the parties? After all, in the Good Friday the 2002 Act, substituted by clause 3 of the Bill, Agreement each political appointment was fought subsection 8 provides the selection of a person to be over most tenaciously. appointed, or recommended for appointment, must Sir Brian Kerr: Yes, of course, each Ministerial be made solely on the basis of merit. The achievement appointment. I know that the D’Hondt principle is of this diversity is catered for in subsection 10 which one that I do not begin to fully understand and, sets out the programme of action which must be fortunately, have not had to comprehend so far. I undertaken. think it would be very, very unwise to import the political analogy into the judicial appointments procedure. Obviously it is a desirable thing that the Q1031 Lord Kingsland: I am most grateful. I had judiciary should reflect the community, that all of the meant to say exactly what you said and to the extent institutions of government should reflect the that I did not, I apologise. community, but I think it is invidious to require Sir Brian Kerr: Not at all. judges to be representative of a particular community or background. Although I cannot claim to know the Q1032 Lord Kingsland: It is not often I get the aYliation or religious background of all of the opportunity to compliment the Government on a judges, as it happens I believe, and I put it no higher piece of legislation; but I think the Government has than that, the two communities are well represented got it right in this particular respect, at any rate. My 9674042036 Page Type [E] 28-06-04 20:54:07 Pag Table: LOENEW PPSysB Unit: PAG7

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6 May 2004 Rt Hon Sir Brian Kerr, QC question to you, Lord Chief Justice, is this, and in Q1033 Lord Kingsland: There have been a large answering I want you to put aside your evident natural number of them. modesty. Some of us believe that, irrespective of the Sir Brian Kerr: I think that certainly there is a case to fate of the Appellate Committee of their Lordships’ be made for that for the reasons I expounded earlier. House, it is highly desirable that the Lord Chief Justice I am content to leave it at that. of England and Wales, the Lord President of the Chairman: Thank you very much. I can only say in Court of Session and the Lord Chief Justice of answer to the last point that if all the countries of the Northern Ireland are Peers of the Realm so that they United Kingdom were represented except for mine, if can best represent the views of the judiciary in their you get one I want a Welsh one. Can I thank you very respective areas of responsibility. Do you agree? much indeed for coming, it has been a very helpful Sir Brian Kerr: I cannot quite remember the name of and interesting afternoon. the television programme, but there was a politician portrayed in it who said “I could not possibly comment”. 9741051001 Page Type [SO] 28-06-04 21:04:08 Pag Table: LOENEW PPSysB Unit: PAG1

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TUESDAY 25 MAY 2004

Present Bledisloe, V Goodhart, L Carlisle of Bucklow, L Holme of Cheltenham, L Carter, L Howe of Aberavon, L Craig of Radley, L Lloyd of Berwick, L Crickhowell, L Maclennan of Rogart, L Elder, L Richard, L (Chairman) Falconer of Thoroton, L Windlesham, L Gibson of Market Rasen, B

Memorandum submitted by the Rt Hon Dame Sian Elias

1. Reasons for Setting UpofNew Zealand Supreme Court

The overall purpose described by the legislation is: (i) to recognise that New Zealand is an independent nation with its own history and traditions; and (ii) to enable important legal matters, including legal matters relating to the Treaty of Waitangi, to be resolved with an understanding of New Zealand conditions, history and traditions; and (iii) to improve access to justice.

2. Creation of a New Court

With those objects, the Act ends appeals to the Judicial Committee of the Privy Council from New Zealand Courts. The Supreme Court is set up principally to replace the Privy Council. The establishment of a new court has been the focus of the reform. It is therefore to be contrasted with the current proposals in the United Kingdom which seek to reform an established Court with a reputation second to none. For that reason there is little common direct experience to share. Rather, in both countries the restructuring of the ultimate appellate court has required acknowledgement that constitutional values are engaged. The identiﬁcation of what those values are and how they can best be protected is not easy in countries in which the constitution has evolved through historical accommodations. New Zealand has inherited the United Kingdom constitutional system in pared down form. Because the substitution of a new Court for the Privy Council has been the focus to date, wider constitutional issues of legitimacy and independence have not been greatly developed as yet. They will have to be addressed. The responses being considered by this Committee are likely to be inﬂuential in New Zealand.

3. Judicial Appointments

The creation of a new Court highlighed concerns about political appointments. The sensible solution taken in respect of the initial Supreme Court appointments was to appoint the senior members of the New Zealand Court of Appeal (all Privy Councillors). But the wider issue remains. In New Zealand appointments to the higher courts have been made by the Governor-General on the advice of the Attorney-General. By convention such appointments are not discussed in Cabinet. The Royal Commission on Court Structure in 1978 recommended that appointments be made on the recommendation of a Judicial Commission. The present government has this month put out a discussion paper proposing the establishment of a broadly representative Commission to recommend candidates for appointment to the Attorney-General, maintaining the existing formal responsibility. The benefits hoped for include a fairer and more transparent process in which the community has confidence, removal of the risk that appointments may be perceived to have been influenced by political considerations or made by a self-perpetuating judicial oligarchy, and more diversity on the bench. 9741051001 Page Type [E] 28-06-04 21:04:08 Pag Table: LOENEW PPSysB Unit: PAG1

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A parallel strategy to make judicial work attractive to a wider range of suitable people is the availability of part-time appointments contained in legilsation enacted this month. Academics and lower court judges have been appointed to the High Court. And direct appointments to the Court of Appeal have been made four times since the permanent court was established in 1957.

4. Budget and Accommodation for Supreme Court There was no consultation with the judiciary before the indicative budget for the Court was set. That seems to have been a consequence of the political controversy surrounding the decision to set up a Supreme Court in replacement for the Judicial Committee but may also reﬂect a greater suspicion of the judiciary in the development of government policy. We have yet to address the best mechanism for the communication of judicial views and information to the Executive and to Parliament. The budget for the Supreme Court seems to have been based on the operating and library establishment costs of the Court of Appeal. There are some obvious omissions in the budget and no apparent consideration, by reference to other ﬁnal courts, of the way in which the Court may diVer in its operation from the Court of Appeal. At an early stage it was decided, without discussion with the judiciary, that the permanent home of the Court would be a refurbished disused High Court. The building has severe limitations. It may well be that further consideration of the best permanent home for the Court is necessary. If so, we are likely to be in temporary accommodation for some years. That may be the better outcome.

5. Integration of the Judicial System One of the concerns expressed by the New Zealand judiciary in the reforms was the need to ensure that the judiciary is not fragmented by the establishment of a Court which is unconnected with the wider judiciary. That is achieved in our jursidiction (which does not have any federal or devolved dimenstion) through the requirement that all judges of the Supreme Court remain High Court judges and the fact that the Chief Justice heads the judiciary in New Zealand.

6. The Supreme Court is a Court of General Appellate Jurisdiction The general jurisdiction of the Privy Council is continued and expanded. The Court is not a constitutional court. And explicit references both to the rule of law and parliamentary sovereignity are included in the legislation. The jurisdiction conferred does not suggest a more “activist” role for the Court.

7. Relationship Between Judiciary and Executive and Parliament Important issues raised by the reforms but not yet addressed include the appropriate communication channels between the judiciary and the Executive and Legislature and the institutional independence of the judiciary. Developing community expectations of some separation of the functions of government and the impartiality of the judiciary may suggest that more formal and open processes need to be adopted. In our institutional arrangements we may be lagging behind jurisdictions we would prefer to measure ourselves against. The Deprtment for Courts (which aimed, not particularly successfully) at a “partnership” between the Department and the judiciary, has now been collapsed into the Ministry of Justice (which has major policy responsibilities, including in relation to criminal law). It is important that judicial function is not compromised, but it is as important to ensure that the independence in judicial function is not compromised, but it is as important to ensure that the independence in judicial function is not constrained by lack of support and facilities and control over immediate judicial support. A half-way house may be to establish a one-line budget for secretarial, clerical, library, and judicial operations, leaving the provision of courts as the responsibility of the executive. Judicial independence is the independence of each individual judge and requires freedom in judging from judicial management as well as executive direction. For that reason, we are acutious about imposing statutory powers of management or discipline upon the Chief Justice. May 2004 9741051002 Page Type [O] 28-06-04 21:04:08 Pag Table: LOENEW PPSysB Unit: PAG1

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Examination of Witnesses Witnesses: Rt Hon Dame Sian Elias, Chief Justice of the Supreme Court of New Zealand, Rt Hon Thomas Gault, Judge of the Supreme Court of New Zealand, and Rt Hon Sir Kenneth Keith, Judge of the Supreme Court of New Zealand, examined.

Q1034 Chairman: Good morning. I wonder if you budget and the accommodation issues for the would, first of all, be kind enough to identify Supreme Court. They are very much work in progress yourselves and then I wonder if you would be kind in New Zealand, I hope, probably because of the enough to open up the discussion for us. We are very controversy surrounding the initial decision. There interested in the process of creating the Supreme was not any judicial input into the budget and there Court in New Zealand, the sort of problems that you are some real deficiencies there. I think that also may had in creating it, the diYculties which emerged and partly arise out of the fact that in New Zealand, really whether you overcame them and then perhaps although Sir Kenneth might have a slightly diVerent we could pursue individual issues. take on this because he has always been more Chief Justice Elias: Well, I am Sian Elias and I am the involved in the Executive than some of us, but there Chief Justice and with me is Tom Gault who is a is perhaps a slightly suspicious attitude towards the member of the Supreme Court and Kenneth Keith judiciary on the part of government in developing who is also on the Supreme Court. As for the New policies, so the judiciary have not really been part of Zealand reforms, I have done a short paper just so the proposals to date. Then I have touched on one of that you have got some background on what has the things we were very concerned about which was happened, just a couple of pages. The main impetus the maintenance of integration of the judicial system for the reform in New Zealand, as you will know, was in New Zealand, not fragmenting the Court, not to establish a final appellate court so that we could setting up a smug court which looks after itself and is move away from appeals to the Privy Council detached from the rest of the judiciary. It is easier for because until now we have not really had the judicial us in New Zealand because we do not have the quasi- resources or it has been felt that we have not had the federal system which you operate here and we do not judicial resources to have a second tier of appeals in have the Scotland dimension, so that is achieved New Zealand. I think it has to be said that although pretty much through the Chief Justice and through the plans to abolish appeals to the Privy Council were the fact that all the members of all of our higher first mooted in 1904, it has been a long time coming. courts are High Court judges. Then it is a Court of That has not only been because of a lack of resources general jurisdiction since it is not proposed that the in New Zealand, but I think it is fair to say that it has jurisdiction of the Court will change and it is not been because of the appreciation we have had of the proposed that it will be a constitutional Court. There service which we have had from the Privy Council, are of course anxieties, there always are, about and on this occasion I would like to acknowledge that whether it is going to be a green light for judicial and to express my gratitude for all those years of activism, but we get that in eVect thrown up at us service. There has been a lot of sentiment also in the anyway, and there are a few pointers in the legislation maintenance of those links, so it has been a decision which suggest that there is some curb on that. I think which we have had diYculty coming to in New the really interesting issues are the relationship Zealand and it has been controversial. Because of between the judiciary, the Executive and Parliament that, the reform has really concentrated on the initial which a reform of this sort throws up and we are very question of whether we should set up a final appeal interested in what you are looking at here. As I court in New Zealand and sever the links with the mentioned, I think we have got quite a suspicious Privy Council, and I think it is true to say that a lot attitude in New Zealand in terms of the role of the of the issues which you are grappling with are ones judiciary which I think is perhaps not so much the which we have yet to address. They have been stirred case here, but I think it is probably time to set up a by the debate surrounding the setting up of the new more formal mechanism for channelling the views of Court, but I think it is very much a work in progress, the judiciary both to Parliament and to the so we hope to benefit from the deliberations of this Executive. Finally, I am a little worried, but very Committee. What in the paper I have done is just set interested, to read your Concordat which deals with out the reasons for the setting up of the Supreme very important matters. I am concerned about Court taken from the legislation, the fact that really getting the balance right between not going too far in our experiences, because we have been focused on the terms of managerial justice, and I am nervous about replacement issue, may not be of huge help to you. I the Chief Justice acquiring statutory powers in have touched on judicial appointments because we relation to other judges because I think independence too realise that in taking this step, we need to address of the judiciary to achieve impartiality depends also the way in which we make appointments and I have on independence from judicial management, so I set out something of that. I have talked about the think there is a balance there. On the other hand, I 9741051002 Page Type [E] 28-06-04 21:04:08 Pag Table: LOENEW PPSysB Unit: PAG1

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25 May 2004 Rt Hon Dame Sian Elias, Rt Hon Thomas Gault and Rt Hon Sir Kenneth Keith think we are at a position now in New Zealand where Justice Keith: I think it has probably in the last 20 things are almost intolerable in terms of our direct years become much more popular and much more judicial support and that it is time for us at least to common too to include them and it does relate to the take responsibility for our secretarial arrangements, fact that since almost the beginning, since 1851, I our IT arrangements, the security of our oYcers and think, our Interpretation Act required courts, in the matters such as that because at the moment we are event of ambiguity, to try to find a purpose and to totally dependent on a Ministry of Justice. We do not interpret legislation consistent with the purpose, so even have now a stand-alone department for the we have had a purpose of approach over a longer courts and of course the Ministry of Justice has major period possibly than here and certainly it has become policy responsibilities, including criminal justice common to include provisions like this. This matters. Sorry, that is a fairly lengthy run-down on particular one was partly just historical and it states where I think we are at the moment and my reasons rather than setting out much more than that, colleagues might like to add to, or disagree with, that. but just looking at it, there is the very interesting Justice Gault: I think we feel very much in a transition provision in subsection (2) about the rule of law and phase, first, in relation to the Government and the the sovereignty of Parliament without any Legislature. The debate which occurred over the recognition that there is a tension between them, enactment of legislation establishing the Court was which has been discussed at least since Dicey, which unfortunate in many respects. It led to comments has not been resolved. Then I think in some ways too which long-term I think may have damaged public paragraph A with its emphasis on New Zealand as a confidence in the judiciary and I think for that reason country alone denies our history and denies our was less than responsible, and we will need to take economy, but that cannot be escaped either, so I some time to re-establish that confidence as between think this purpose provision has real limits, but I the organs of government and with the public. That think it is probably not a bad idea for legislation has been unfortunately, I think, a downside of the sometimes to indicate where it came from and debate which we were engaged in or the country was subsection (2) does reflect part of the debate on the engaged in, the judiciary staying right out of it. The Bill which was directed at so-called “judicial other thing was that the planning for the new Court activism”. was done primarily in the bureaucracy and that was partly because no appointments were made or known, save that the Chief Justice would head the Q1037 Viscount Bledisloe: Until you abolish the Court, and, therefore, there was not a judiciary with Privy Council, you have the Privy Council sitting on whom to discuss the planning. As a result, we have a which there might occasionally be a judge from New Court which is in business, but which is still very Zealand, but certainly not more than one and often much in the planning phase for premises, for systems, none and you had legal matters peculiar to New for support and even furniture and that sort of thing, Zealand. You set out in the purpose of the Act legal so we are very much in a development phase. matters relating to the Treaty of Waitangi, for which I have some personal enthusiasm, but that is a problem totally peculiar to New Zealand with its Q1035 Chairman: Thank you very much indeed. interpretation of the original treaty between the There really are two points I would like, if I may, to settlers and the Maoris, is it not, and it is something ask, firstly, on the purpose clause in the Bill itself. which it would be very diYcult for a non-New How common are purpose clauses in New Zealand Zealand court now to understand, would it not? and what do you think this one actually achieves? Chief Justice Elias: Well, of course there have been Chief Justice Elias: Do you mean the recognition of cases which have been taken to the Privy Council and New Zealand as an independent nation, that the access to the Privy Council by Maori was one of provision? the factors in delay in the abolition of appeals to the Privy Council and there was a lot of aVection for that Q1036 Chairman: I was thinking that one of the partly because it was seen as a personal compact in purposes of this Act is to establish that in New the Treaty, with the Crown, and the Privy Council Zealand the Court of final appeal comprises New was seen as the Queen’s Court. It is quite a diYcult Zealand judges, so a purpose clause at the beginning, issue in New Zealand too, so at diVerent times in our which is really what I think I am asking, how history it has been thought that the detachment of enforceable do you think the purpose clause will be? London has not been a bad thing and certainly in the Chief Justice Elias: Well, purpose clauses are quite 19th Century there was a time when the settler judges, common in New Zealand. Sir Kenneth is really our if I can refer to them as such, needed reining in and expert on legislation. He wrote the New Zealand were reined in by the Privy Council. Things have Interpretation Act, so he could probably answer that fluctuated, but I think what we are seeing is a better than me. recognition that now this is a large part of New 9741051002 Page Type [O] 28-06-04 21:04:08 Pag Table: LOENEW PPSysB Unit: PAG1

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Zealand’s society and that it is not possible for judges Q1040 Lord Howe of Aberavon: It is a unicameral in London to have the context and that is obviously system with 120 Members of Parliament and you one of the reasons for the reform. have, aside from the Ministry of Justice, an Attorney General who is chosen from those 120 Members of Parliament? Chief Justice Elias: Yes, that is right. Q1038 Viscount Bledisloe: What I am really getting at is that there was an overwhelming case for a Supreme Court in New Zealand is really neither here Q1041 Lord Howe of Aberavon: And the Attorney nor there, but whether the House of Lords and the General advises on the Supreme Court appointments Supreme Court need to be separated in England. and on most other judicial appointments? Chief Justice Elias: Yes. Chief Justice Elias: Yes.

Q1042 Lord Howe of Aberavon: And the Attorney General is, by convention, required to act Q1039 Lord Carter: Also on the purpose clause, I independently of party-political considerations? was struck by the need for the purpose clause and the Chief Justice Elias: Yes, although— fact that it is not unusual in your legislation. They are not favoured in this country, parliamentary Q1043 Lord Howe of Aberavon: He may waiver a draftsmen do not like them, government departments little bit? do not like them because they are concerned about Chief Justice Elias: Well, although we have had judicial review and also of course with enforceability. Attorneys General outside Cabinet at diVerent Business managers do not like them because at the periods of our history, that has not been usual and beginning of committee stage there is another Second our current Attorney General maintains significant Reading debate you have another Bill. Is it anything other government responsibilities, so it is a to do with the fact that you have a unicameral vulnerability in our constitutional arrangements, I system? Does that have any bearing on it? think. Chief Justice Elias: I think it may have something to do with our traditions in the sense that perforce in a colonial state, you are much more reliant on Q1044 Lord Howe of Aberavon: But the Attorney legislation because you do not have the infrastructure General is the Minister who does have that obligation for the development of law in other ways, and I think to recommend and advise on those appointments? Chief Justice Elias: we have always had a less suspicious view of Yes. legislation in the judiciary and a more co-operative attitude and I think that may be one of the reasons Q1045 Lord Howe of Aberavon: And the Attorney why Parliament has been willing to explain what it is General is normally or has in recent years normally doing so that the judges get on the same wavelength. been a lawyer, provided you can find a lawyer out of Would you agree? 120 Members of Parliament? Justice Gault: They may be unpopular with some Chief Justice Elias: Yes. sectors, but my impression is that they are popular with the judges because they do assist in diYcult Q1046 Lord Howe of Aberavon: The proposed interpretation circumstances and an overall Judicial Appointments Commission, under the statement of the legislative intent can help very present proposals, is expected to make three materially in diYcult interpretation areas. suggestions for the Attorney General then to choose Justice Keith: I would also add that I think they have between them? Is that right? the advantage, and I think it is an advantage, of Chief Justice Elias: Yes. controlling the judicial function because they do indicate what the purpose is, subject to the problems Q1047 Lord Howe of Aberavon: Does it follow that of how that might be written and, therefore, the it is much better to have a lawyer in that position than judges are confined to their statement and they not have a lawyer? cannot scout around in a lot of other places or make Chief Justice Elias: Well, I am a lawyer and I would their own use of a particular policy to look for other say yes, but whether the wider community would purposes. I agree with the Chief Justice’s point about share that confidence, I am not sure. the co-operative approach. I think that that has been Justice Keith: I think we have only once had an so and, as I said earlier, there has been a purpose of Attorney General who was not a lawyer and I think approach, well, variations at diVerent times which that may have been for the reasons you were probably completely contrasted with some of the indicating, that there just were not appropriate approaches here, say, a century ago. lawyers in the Government party, but that was in 9741051002 Page Type [E] 28-06-04 21:04:08 Pag Table: LOENEW PPSysB Unit: PAG1

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1930, I think, and, apart from a very short time, we Q1056 Lord Goodhart: So does the Minister for always have had a lawyer, I think. Courts report to the Minister of Justice or is he or she a separate member of the Cabinet? Chief Justice Elias: A separate member of the Cabinet, Q1048 Lord Howe of Aberavon: And the Attorney but there are protocols for co-ordination which General, I should also add, is a member of the include all the justice sector Ministers, including the Cabinet? Minister of Police. Justice Keith: Almost always, yes.

Q1057 Lord Goodhart: Could I just shift to the main Q1049 Lord Howe of Aberavon: Although the thing I want to raise with you which is the question of Cabinet also contains a Minister of Justice who is the funding and the control of the Court. Now, given more like the Minister of the Interior who is that the Court is due actually to start sitting on 1 July, responsible for criminal law? obviously funds must already have been provided to Chief Justice Elias: Yes. a considerable extent or committed. Justice Keith: Yes. Chief Justice Elias: Yes.

Q1050 Chairman: Is he responsible for the police Q1058 Lord Goodhart: Where do they come from, too? through which Department? Has this created Chief Justice Elias: No, there is a separate Minister diYculties and, if so, what kind of diYculties has it for Police. created? Chief Justice Elias: The money is appropriated to the Q1051 Chairman: There is a Home Secretary-type Ministry of Justice, but the operations budget is, I Minister, the Attorney General and the Minister of think, $900,000 and then there is an establishment Justice? cost as well. There has been no judicial input into that Chief Justice Elias: Yes. at all. That was, I think, a policy decision taken by the Cabinet before it decided to run with the Supreme Court legislation and that is really the work in Q1052 Chairman: What does the Minister of progress that I am talking about because it needs to Justice do? be further considered. I think what they did, and I put Chief Justice Elias: Well, the Minister of Justice has this in the note, was that they just assumed the responsibility for criminal law reform and for Treaty operating costs of the Court of Appeal and of Waitangi settlements and for collection of ﬁnes. It transferred that to the Supreme Court and the is a bit of a ragbag at the moment, but really it is the question is whether there are additional functions or engine for law reform in New Zealand, so it ranges community expectations that the Supreme Court across, depending on the policies of the Government needs to meet, which it is not being resourced to do. and the priorities of the Government. The real query in my mind is as to the adequacy of the library budget in particular. I am not one of those Q1053 Chairman: And there is a Law Commission, who is terriﬁcally fussed about housing, though I is there not? know it looms very large here, but that is because Chief Justice Elias: There is a Law Commission. your Court is already housed. It will not bother me if we are in temporary accommodation for a very long period of time, as long as the temporary Q1054 Chairman: You were Chairman of it, were accommodation is all right because it is the mental you not? focus, your mind, which has to be free and you need Chief Justice Elias: Yes, Sir Kenneth was Chairman. to be able to be resourced to produce high-quality product. The US Supreme Court and the Australian Q1055 Lord Goodhart: I have one follow-up from High Court waited a very long time for their that. Is the Minister of Justice also responsible for the permanent homes and it would not dismay me if we administration of the court system? had to wait. Chief Justice Elias: Yes. Well, we have got associate Ministers of Justice, so there is a Minister of Justice Q1059 Lord Goodhart: For the future, how would and some associate Ministers, one of whom is the you like to see the funding provided? Do you think, Attorney General and one of whom is the Minister for example, that the Chief Justice should have a for Courts, so the administration of the courts is the direct line to the Treasury? responsibility of the associate Minister for Justice, Chief Justice Elias: Yes, I do, but not necessarily to who is the Minister for Courts, but the Ministry, the run the Court. Again I personally would not like to oYcials, are all part of the Ministry of Justice. see, and I think I disagree here perhaps with Justice 9741051002 Page Type [O] 28-06-04 21:04:08 Pag Table: LOENEW PPSysB Unit: PAG1

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Gault who should speak on this, I would not like to think it is intolerable, the present system which we see a diVerence between the Supreme Court and the have, and one of the reasons is that because we are other higher courts and I think you should deal with wholly supported by a Ministry of State in the judiciary as a whole. My preference would be to everything, in the provision of our secretaries, go to the halfway house of all matters of direct everything, in the privacy of our IT communications, judicial support being the subject of a one-line matters such as that, I am quite worried about the budget, but leaving the Executive with the implications in terms of the OYcial Information Act responsibility for running the courts, partly because dimensions of it. I take the view that any I do not want to see the sort of conflict which can communication I have with the Ministry is actually arise if you are making allocation rationing decisions amenable to the OYcial Information Act and an in managing the courts and you are also faced with awful lot of confidential information, and you need judicial determinations as to whether, for example, to to have confidence in whoever is supporting you, has stay a case for delay. I think there are diVerent in fact been leaked from time to time, has been the functions and my preference would be that in matters subject of OYcial Information Act requests, so that of our direct support, including libraries, IT, travel is part of the reason why I think it is important for us and contact with the wider community because we now to get our lines of communication a bit better have no funding for that sort of thing at all, we should established. Although I agree that we do not have have a one-line budget. separation powers and you do not have separation powers in the strict sense, I think there are sound reasons why we have to do rather better in defining Q1060 Lord Goodhart: What do you mean by a the areas of particular responsibility and indeed I “one-line budget”? think that is a growing public expectation too. Chief Justice Elias: A budget agreed with Treasury every year and administered then by the—well, in the High Court of Australia it is the Court, not just the Q1061 Lord Craig of Radley: Thank you for your Chief Justice, and I think eVectively it is the same note on the New Zealand reforms and perhaps I may thing because the view I take is that the Chief Justice just quote the last couple of sentences from operates with the consent of the judges and that is paragraph 7 where you say, “Judicial independence is another reason why I do not like to see statutory the independence of each individual judge and it duties and powers imposed on the Chief Justice requires the freedom of judging from judicial because I think it is important to maintain that management as well as the Executive direction. For system. Justice Gault, I think, particularly with that reason”, and this is the point I want to come to, experience of running a smaller Court of Appeal, “we are cautious about imposing statutory powers of feels that probably we should go to a one-line budget management or discipline upon the Chief Justice.” for running the Supreme Court. Would that be right? Now, in the perfect world no judge will ever Justice Gault: Not necessarily, no. I am very reluctant misbehave, but in the real world it could happen. to have judges engage in administration and I do not Chief Justice Elias: Yes. think they are necessarily very good at it and these days you need expert administrators for that, but it is Q1062 Lord Craig of Radley: What I was not clear more a matter as to whom they are responsible. I on from this bit in your submission is how have a concern as matters are developing in New disciplining would take place in the event that it was Zealand of the need to emphasise the independence necessary. and autonomy of the Supreme Court in particular Chief Justice Elias: Well, you would have three and for that reason I perhaps feel that the further one choices, it seems to me. One is that you stick with the can go in assuring that independence and autonomy Act of Settlement accommodation and that means by the provision of funding and the provision that unless it is behaviour which justifies removal, generally of resources, the better. At the same time I that is it in terms of any formal process. Secondly, do not criticise the administrative support the Court you can operate an informal system, which is what we so far has had and it has had a great deal because it have been doing in New Zealand under a protocol is the new game on the block and it is getting a lot of adopted by the previous Chief Justice which attention, but I am concerned longer-term that the eVectively is a mechanism for channelling complaints increasing trend for the suspicion as between and for obtaining an appropriate response from the government and the courts and the importance of the judge concerned and complained about, and that is rule of law are such that we should be emphasising what we have been operating in New Zealand, or you the autonomy of the final Court. can go to a much more formal arrangement and then Chief Justice Elias: It is a bit like the cat’s cradle once you have got to decide who has got the power to you start pulling a string in the Constitution and you discipline. I am cautious about that step because I are not quite sure what is going to move. I said that I think I said when it was being considered in New 9741051002 Page Type [E] 28-06-04 21:04:08 Pag Table: LOENEW PPSysB Unit: PAG1

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Zealand that it was a slippery slope and Sir Kenneth wonder if you would like to comment on that. What Keith pulled me up and said, “It’s not a slippery I have in mind is this: that on the question of slope, it’s a cliV”, so he might like to comment. communication between the judiciary and the Justice Keith: Well, it seemed to me that there is the Legislature, for example, currently on questions of choice that the Chief Justice has mentioned and it judicial independence or the rule of law, the Lord does seem to me that the independence of the Chief Justice can come down to the House of Lords judiciary means that there is the Act of Settlement and express his feelings publicly. On questions of law procedure, there is the dismissal possibility, and reform, we have had the presence of the Lord anything less than that which has some kind of Chancellor and we have had the presence of the Law formal statutory backing undermines the Lords and retired Law Lords. I am wondering how independence of the judiciary and can lead, I think, as much value, from your experience of sitting in the the Act of Settlement in Canada, in eVect to wrongful Privy Council, admittedly not in the House of Lords, resignations. The Canadians set up a judicial you would attach to those two features. commission which had the power, it thought anyway, Justice Gault: Well, it is an observation from some to say of a particular judge, “This is not a sacking distance, but it is a mechanism of communication matter, but we consider that you have misbehaved and it is a very vital one, but it is a matter of whether and you should apologise”, and the judge in question there are substitutes or alternatives which could be felt he had no option but to resign, so that was over equally useful. We are struggling to find appropriate the cliV in terms of that metaphor. In fact Parliament protocols or levels of consultation between the has just in the last few weeks adopted that position judiciary and the Government in areas of and passed legislation setting up a mechanism which development of the law and of law reform because would support, in the unlikely event of it being again it is important to preserve the judges from any necessary, a dismissal process through the Act of perception of involvement in the law-making process Settlement provisions, but they have rejected the in respect of which they must exercise judicial argument which was made by one party on the Select functions, but at the same time they have quite a Committee for a formal process of rebuke and contribution to make through their experience in consideration under a statutory procedure. New development of the law in various areas. My South Wales has that and, as far as we can see, the observation is that it has worked very eVectively here, experience there does not show it is a good idea, so but we must find a way of doing it diVerently and I the Chief Justice and the other heads of bench have suppose that is something you will have to consider, Y been left with the very di cult task of operating the what substitute there may be. I know this is a informal procedure which does, I think, produce problem which the Chief Justice feels particularly in satisfactory outcomes, although it is a lot of hard developing that relationship. work for the judges, for the heads of bench. Chief Justice Elias: I feel that communications Chief Justice Elias: The New South Wales system is between the judiciary and the other branches of also extremely expensive. I have a terrible head for government have to be open and have to be formal figures, but I think it was something like $8 million a and I do not see that the ability of the Lord Chief year to run it. Now, they do judicial education as Justice to come to a committee in appropriate cases well, but if you look at the number of complaints and is something that you need to forgo if there is reform if you look at the results, it is hard to escape the along the lines which are proposed at all. Sir Kenneth conclusion that it is a bit of a sledgehammer to crack and I were recently invited by our parliamentary a nut. On the other hand, there is a lot of public Select Committee considering the Judicial Matters anxiety on this topic which needs to be responded to. Bill, which was dealing with part-time judges and the I think the informal system has worked, though I do provision for parliamentary removal, to go and speak not like it particularly, but I think I prefer it to the to them. We had already put in a written submission alternative. on it because again that was open and publicly available and we went along. It is unusual, but I think Q1063 Lord Lloyd of Berwick: This is a question for there are cases where you have to do it. What I would Judge Gault. I am sure you remember the article be particularly concerned about are sort of random written by Lord Cooke which appeared in the Law soundings from various people because then you are Quarterly Review a year or so ago, a typically not necessarily getting the view of the judiciary. The trenchant argument in favour of retaining the Law Chief Justice does have an obligation to consult the Lords as members of the Upper House. There is one judiciary and to put up the views, including all the particular sentence on which I would very much shades of view, and we have in the course of the value your comment where it says, “The House of Supreme Court debate put up a paper in which we Lords”, meaning the Chamber of the House of indicated some divergences of view, but at least it was Lords, “is more than a chamber of a Legislature”. I there and it was not whoever was chatting to 9741051002 Page Type [O] 28-06-04 21:04:08 Pag Table: LOENEW PPSysB Unit: PAG1

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25 May 2004 Rt Hon Dame Sian Elias, Rt Hon Thomas Gault and Rt Hon Sir Kenneth Keith somebody, and I think it is quite important to be Chief Justice Elias: The judiciary took no part in formal in these communications. Do you have a advocating any view on the abolition of appeals to comment? the Privy Council because that was seen very much as Justice Keith: My stand on that is that every so often a policy decision for the community to make, so it of course there can be judges, particular individual was not a judiciary versus politicians thing, no. The ones, formally involved in the law reform process and parties did divide on that issue and it was to do with we have always had judges on our Law Commission, quality of service from the Privy Council and fears of for instance, so there are those opportunities as well. political stacking in terms of the appointments and It is not all that common, but there must be several matters of that sort. times a year, I suppose, that the head of bench appears before a parliamentary select committee ordinarily on legislation, but occasionally on other Q1067 Lord Maclennan of Rogart: Has that all been matters, so there are those formal occasions and then laid to rest now? they do get appropriate publicity and so on. I agree Chief Justice Elias: Not entirely laid to rest and, for with the Chief Justice that it is important to have the reasons which Justice Gault indicated, it has been those formal processes and I would hope it would quite damaging and it will only be laid to rest by work a bit harder in developing clearer ideas about performance by the Supreme Court, I think, and that how that works. On that last particular occasion, as is the challenge for us. we arrived across the road in Parliament, we met a Justice Gault: Perhaps I could add to that that much former Prime Minister who was actually teaching a of the vocal opposition to the proposal was generated class there, GeoVrey Palmer, and he, in his typically by concerns that the Government of the day would be robust way, thought that we should not be there and appointing all of the members to the new Court. It is told us that. I later remonstrated with him and told one thing as vacancies occur in an ongoing court for him that we had been asked and it was very sensible one appointment to be made, but for the whole court that we had been invited because we had provided to be appointed, there was concern that this would be written submissions and I think he was partly stacked. Interestingly, when finally the appointments persuaded, but there are obviously those serious were made and, in addition to the Chief Justice, the questions about how you properly formalise the four most senior judges in the appellate court were process for communication. appointed, all went quiet and it is only now the ongoing concern, which is the same as everywhere, whether it should be by independent commission or Q1064 Lord Lloyd of Berwick: It is one thing to put by the Government of the day, which remains and out a paper, but it is another thing, is it not, whether that is directed to future appointments not just in the you feel you are addressing Parliament itself and, through Parliament, addressing the nation? Supreme Court, but throughout the court system. Justice Keith: Well, if it is a matter of importance to the judiciary, then it is hard for me to see how we can Q1068 Chairman: One of the points which interested avoid that. In that case, the issues about judicial me in your answer to Lord MacLennan is that the discipline and about part-time judges and so on were judiciary stay, and tend to be, out of the argument. ones which were important for the operation of the Chief Justice Elias: Yes. Well, I would think that it is judiciary, important in a much wider sense too for the not appropriate for the judiciary to have a view on Y independence of the judiciary and for the whole o ce that because it is a matter of responding to of judge, and we thought that we did have a community expectations and we are sort of aVected contribution to make which was beyond that and parties by that, but explaining why some V di erent from that which could be made by others. constitutional principles might be engaged is a diVerent matter because we have reflected on a lot of Q1065 Lord Maclennan of Rogart: Chief Justice, in those things and we give a perspective which the your opening remark and again in the paper which community needs to be informed about. I would say you have kindly circulated, you referred to the that I do not see a tension between the judiciary and political controversy which surrounded the decision the Legislature or diYculties in terms of informing initially. the Legislature of matters on which the judiciary has Chief Justice Elias: Yes. a legitimate perspective. I think the much more diYcult relationship is the Executive and the Q1066 Lord Maclennan of Rogart: Can you say judiciary. I think in a way the Executive has beaten whether it was a controversy between the political up the anti-democratic, unelected angle, in other parties or between the judiciary as a whole and the words, inflamed legislative suspicions of judicial Government proposing this and what were the over-aggrandisement. I do not believe that is a real principal disagreements? constitutional risk, but I think— 9741051002 Page Type [E] 28-06-04 21:04:08 Pag Table: LOENEW PPSysB Unit: PAG1

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Q1069 Chairman: But what is interesting to me is Chief Justice Elias: We are all High Court judges. that you did not in New Zealand feel it necessary to get a concerted view of the judiciary on whether Q1076 Lord Carlisle of Bucklow: So you are you should support the Supreme Court which you actually part of the High Court really? would then put to Parliament and make known to Chief Justice Elias: Yes. the public and generally enter into the discussion. Chief Justice Elias: No, but we did respond to the Q1077 Lord Carlisle of Bucklow: And you are Executive formally saying that we must not funded by government? destabilise our institutions in this, and we put Chief Justice Elias: Yes. forward the view that they had to take senior judges from the Supreme Court because that, we felt, was Q1078 Lord Carlisle of Bucklow: Through the a proper thing for the judiciary to be advocating. Minister of Justice? Chief Justice Elias: Yes. Q1070 Lord Carlisle of Bucklow: Can I come back to one of the very basic questions. Prior to the Q1079 Lord Carlisle of Bucklow: And appointed by setting up of the Supreme Court, all of your appeals the Attorney General in the way you have went to the judicial committee, the ﬁnal court of described? appeal of the Privy Council. Was that in all criminal Chief Justice Elias: Yes. and civil matters? Chief Justice Elias: It was, but civil cases went, as of Q1080 Lord Carlisle of Bucklow: So in fact really right, if there was a dispute involving $5,000, and what you have done is made the ﬁnal appeals more all other cases went, including criminal cases, only easy to take? by special leave and the reality is that the Privy Chief Justice Elias: Yes, although we have imposed Council entertained special leave applications in leave requirements which did not apply before, so criminal cases only in a minute number, and I think some cases which found it easy to go to the Privy probably only half a dozen, maybe a little more, in Council will probably not be entertained by the our whole history, so it is a very small number. Supreme Court.

Q1081 Lord Carlisle of Bucklow: And you have a Q1071 Lord Carlisle of Bucklow: But the eVect unicameral form of government all of course really was taking your final court of appeal back elected? home? Chief Justice Elias: Yes. Chief Justice Elias: Yes. Q1082 Lord Carlisle of Bucklow: And no equivalent Q1072 Lord Carlisle of Bucklow: And setting up the to an appointed House of any kind in which the Supreme Court which has now the same Supreme Court service might or might not find a jurisdiction— place? Chief Justice Elias: Yes, but it would be more Chief Justice Elias: No. accessible. Q1083 Lord Holme of Cheltenham: May I refer to the purpose clause, clause 3 of the Supreme Court Q1073 Lord Carlisle of Bucklow:—on the other side Act. I think I am probably rather more enthusiastic of the world. about such clauses than some of my colleagues Chief Justice Elias: Yes, and also because it will because they do allow for better post-legislative entertain the full range of law by leave and the scrutiny, whatever disadvantage they may have for reality is that family law and criminal law did not business managers. What I wanted to ask you is get much of a look-in. particularly about subclause (2) of clause 3, which is interesting in the sense that it is a negative purpose Q1074 Lord Carlisle of Bucklow: So the Supreme and it commits New Zealand’s continuing Court is the final court of appeal in the New commitment to the rule of law and the sovereignty Zealand judicial system? of Parliament. What I wanted to ask you is very Chief Justice Elias: Yes. simple: is that commitment written down somewhere or is it an assumed part of, if I dare call it, the Westminster model? Q1075 Lord Carlisle of Bucklow: Are you part of Chief Justice Elias: Yes, the latter and what is the High Court or are you separate from the interesting about this clause is that we have not High Court? generally tried to capture in writing some of these 9741051002 Page Type [O] 28-06-04 21:04:08 Pag Table: LOENEW PPSysB Unit: PAG1

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25 May 2004 Rt Hon Dame Sian Elias, Rt Hon Thomas Gault and Rt Hon Sir Kenneth Keith elements of our unwritten Constitution; this is a think it is very important always to remember these departure from it. For example, our Constitution other ways of insisting that the constitutional Act simply, in very unvarnished terms, identifies the principle be followed. legislative Executive and judicial branches of government and does not say anything really more, but it says that Parliament continues to have full Q1085 Chairman: Chief Justice, can I just follow up power to make laws for New Zealand. This is much this point. If you, as Chief Justice of New Zealand, more dogmatic and of course it invokes Dicey. It thought that there was some issue on which the was a reaction to a much more specific proposed Legislature was going wrong and you felt that, on clause. It was inserted at select committee stage and behalf of the judiciary, you ought to express it, how it was in reaction to a proposal that the judges would you do it? should be warned oV in much more explicit terms Chief Justice Elias: You mean like the immigration that it is not for them to make law, but it is for clause here, something like that? Well, I do think Parliament to make law, and this was the that there is ultimately an obligation to warn if a compromise, to go back to the rule of law and basic constitutional principle is being aVected. That parliamentary sovereignty, and, as Sir Kenneth is not anti-democratic because what you are doing says, there is a whole world in that. is putting that view out there for consideration by the Legislature and the electors, so if there was a proposal which would impede access to the courts, Q1084 Lord Holme of Cheltenham: So do you and an example, I suppose, is court fees, the judges envisage that it is possible that at some time in the in New Zealand, as here, are very concerned that future the Supreme Court might find itself wrestling barriers to access to the courts should not be with constitutional issues precisely in the balance imposed and we do see access to the courts as an between these two important principles? important part of our Constitution and the rule of Justice Gault: I think it is very likely, but it would, law. Now, if there was a proposal which really did I suspect, be more a manufactured situation than a throw a substantial impediment in terms of access crisis which gave rise to it. to the courts, I would feel able to say so. Chief Justice Elias: I do not see it as a huge risk really because parliamentary sovereignty is part of the rule of law and judges are subject to the rule of law, so Q1086 Chairman: But how would you do it? that is our Constitution. Now, everyone likes to Chief Justice Elias: Well, I would either do it by speculate about these blue-eyed babies and so on public statement or I would do it, if there was a and maybe there is an area of manner and form and select committee considering the matter, by supervision of the electoral processes which submission to the select committee, or by writing to ultimately might require the courts to say whether the Attorney General, who is my point of reference a law was properly passed or something like that, in the Government, in the knowledge that any and it excites people, but it is all very theoretical. communication I have with her is amenable to Justice Keith: I agree with that. I would just add that OYcial Information Act disclosure, so it is all on manner and form since 1956 we have had in our public. Electoral Act a requirement that certain basic elements of the electoral system, the voting age, the voting system and universal suVrage and the like, Q1087 Chairman: But you do not feel a need to be that those basic parts can be altered only following in the Legislature in order to make a point? a referendum or by a three-quarters vote of Chief Justice Elias: No. Parliament. In practice, that has always been followed and the House has actually said that requirements like that can be introduced only, say, Q1088 Lord Carter: On that very point, an by a three-quarters vote, that if you require a three- extremely important point was made by Lord Lloyd quarters vote, Parliament has to say that. Now, about communication between the judiciary and there is a lot of argument of course that in the end Parliament. As you probably know, we have had it is not legally eVective, but the convention, a lot some strong evidence that there should be a of people would say now, has been established that parliamentary joint select committee of both Houses those sort of changes will be made only following a if these reforms go through and indeed some people referendum for really important changes to the would argue that even if they do not go through, it electoral system or following essentially agreement would still be an extremely good idea to have a between Members of Parliament, as has happened, formal mechanism by which the judiciary could for instance, when the number of seats has been relate to Parliament. Has any consideration been increased or the voting age has been dropped, so I given to that as a result of your changes to this? 9741051002 Page Type [E] 28-06-04 21:04:08 Pag Table: LOENEW PPSysB Unit: PAG1

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Chief Justice Elias: A standing committee to keep been able to identify what our final appeal court was aspects under review? when we had appeals to the Privy Council before the current debate. It is interesting to look at the Q1089 Lord Carter: Yes, that is right. extent to which the High Court of Australia is Chief Justice Elias: No, there has not which does not appreciated even when its decisions are disagreed mean to say that particularly if you adopted some with. There is a sense that the community is proud sort of proposal like that, it might not be one which of their constitution. I hope that the visibility of the we would consider. final Court will aid a public understanding of the balances in the constitution, but at the moment I Q1090 Lord Carter: If you had a situation where think there is a lot of ignorance in New Zealand. there was a point which you wished to make in Parliament, would that not be a good mechanism Q1092 Lord Crickhowell: That is a very interesting for doing it? comment. Clearly we have been concerned about Chief Justice Elias: Well, it may, although if it is a the departure of the Lord Chancellor who has been matter of government policy which is being seen as a protection and we have a clause which we developed, surely it may be more appropriate, have heard in evidence is unlikely to be enforceable rather than to escalate the matter prematurely in the but rather a clause setting out the importance of the House, simply to raise it with the Executive. I think independence of the judiciary. Paragraph 2, the there are a variety of responses and it is quite purpose clause, is the New Zealand legislation important not to raise the temperature. I do not see referring to a commitment to the rule of law. Presumably the commitment to the rule of law these diVerent agencies as in competition. I wish the should be a commitment to the independence of the press and others would stop portraying this and it judiciary. Did you say that this is not widely is a terrible shame that we are trapped into understood and that you have real concerns about supremacist language and I do not like the name the matter? “Supreme Court” because I think it encourages us Chief Justice Elias: Yes. to look for who is trumping, and I do not think Justice Gault: I really do share those concerns. My constitutions work like that; I think they are about anxiety is that the independence of the judiciary is dialogue and information flows. most at risk through the politics of the country. In a way we have not had the checks and balances that Q1091 Lord Crickhowell: Most of the discussion we you have had with a second chamber and the Lord have been having concerns the sovereignty of Chancellor and so on. I do not feel confident that Parliament, sort of not permitting judges to go too our politicians grasp the constitutional significance far or in any way threatening it. We have not heard perhaps as they should. I can recall a very much about the other possibility which is interesting situation not long ago where one of them attempting to interfere with the independence of the chose to criticise a judgment of the Court which was judiciary or the Executive trying to bully the not particularly popular with the Government and judiciary. The Bill which we are actually considering to my surprise and joy the editors throughout the starts with a clause which sets out the need to country rose up and wrote strongly in favour of the protect the independence of the judiciary. How has independence of the judiciary and the importance of that been done in the past and how do you see the it. It is underlined there but it is very seldom independence of the judiciary protected in the New articulated and that was interesting. Zealand situation? Lord Crickhowell: You referred to the balance of Chief Justice Elias: Well, I think it is a real risk in arrangements that we were having here. I noted the our country because I think our constitutional remark of the Chief Justice earlier about pulling the arrangements have been very obscure and I do not string on a cat’s cradle and the cat’s cradle falls think it is good enough that the initiates think they apart. I think that was a phrase which very fully know what the system is. It is one of the reasons sums up some of the anxieties that we have about why I would like to see better, more formal our situation here. Thank you very much. communication with the Legislature because I think we are very vulnerable on this question of Q1093 Chairman: Can I thank you very much independence because it is not well understood in indeed for giving us your time. I think it has been the community as a whole. One of the things that I a fascinating morning so far and I am very grateful hope we will achieve with our Supreme Court is to you for coming. better visibility of the place occupied by the courts Chief Justice Elias: Thank you very much. It has in the system because most people would not have been a pleasure. 9741051002 Page Type [O] 28-06-04 21:04:08 Pag Table: LOENEW PPSysB Unit: PAG1

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Memorandum by the Scottish Ministers

Background 1. The purpose of this minute is to provide written evidence on behalf of the Scottish Ministers in relation to that part of the Constitutional Reform Bill proposing the establishment of a new UK Supreme Court which is the subject of consideration by this Special Select Committee of the House of Lords. 2. The Secretary of State for Constitutional AVairs and Lord Chancellor provided written evidence to the Committee and gave evidence on 1 April. Given the particular implications of the creation of the new Court in Scotland and the Scottish legal system, the Scottish Executive hope that it is helpful to the Committee to set out their view in relation to the proposals of the UK Government for the creation of the new Court.

View of the Scottish Executive 3. In its response to the DCA consultation document issued last July proposing the establishment of the new Court, the Scottish Executive welcomed the proposals. The Executive agreed that the right of appeal to the House of Lords on civil matters which exists at present has served the Scottish justice system well, building up a tradition of high quality and durable decisions ensuring valued and valuable consistency throughout the UK. It also noted the existence, since 1 July 1999, of a UK wide jurisdiction in devolution issues for the Judicial Committee of the Privy Council, deriving from the Scotland Act. 4. The Executive agrees with the DCA that, as a point of principle, the separation of the roles of the Law Lords as judges and legislators should be made explicit. This is consistent with Lord Bingham of Cornhill’s view as to the importance of establishing a Court visibly separate functionally, institutionally and geographically from either House of the legislature. 5. That separation should be transparent and be suYcient to eliminate any concerns—whether real or perceived—that Judges are not independent, impartial or free from prejudice or bias. 6. The Executive has made clear (and in doing so agrees with DCA) that there is no suggestion that the independence of the Law Lords has been compromised. However, having Law Lords sitting both as judges and as legislators gives rise to a risk that the separation of their roles may not be perceived or property understood. 7. The Scottish Parliament had the opportunity on 29 January to debate the proposals on an Executive motion and voted to support the establishment of the Supreme Court.

Implications for Scotland 8. The Scottish Executive has given close scrutiny to the proposals, having regard to their implications on the Scottish legal system and to the need and desirability of preserving the independence and integrity of Scots law. 10. The Executive believe that the Constitutional Reform Bill properly respects the separate nature of Scots law and the protections set out in the Act of Union. The Executive agrees with the analysis by the Lord Advocate of the assertion that the establishment of a Supreme Court would not infringe the Claim of Right and/or the Treaty of Union. His views were set out in a lecture to the Law Society of Scotland on the 21 January. 11. There are two strands to this which are of particular importance. Firstly, the Scottish Executive has carefully considered the administrative structures proposed with a view to ensuring that, in terms of legal analysis, Scots law does not become subservient to the law of England and Wales by virtue of these proposals. 12. A concern has been raised in this respect in connection with governance arrangements for the court proposed by the DCA. This concern arises at a general (as opposed to a peculiarly Scottish) level and was addressed by the written and oral evidence given by the Secretary of State and Lord Chancellor to the Special Select Committee. 13. The DCA has responsibility for the administration and ﬁnancing of the court system for England and Wales but as the Secretary of State and Lord Chancellor has made clear in his evidence to this Committee, the separate governance arrangements for the Supreme Court do not, on any assessment, have the eVect of placing the Supreme Court (and so Scots law) subservient to the court system for England and Wales. For that reason, the Scottish Executive do not consider that the proposals, in relation to governance, are contrary to the Act of Union. 9741051003 Page Type [E] 28-06-04 21:04:08 Pag Table: LOENEW PPSysB Unit: PAG1

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14. Secondly, the Scottish Executive is alert to the fact that, as a general proposition, the current civil jurisdiction of the Appellate Committee is not a uniﬁed jurisdiction throughout the whole of the United Kingdom but comprises three separate jurisdictions—Scotland, England and Wales, and Northern Ireland— dependent on the court from which the appeal to the House of Lords is taken. 15. In view of the Scottish Executive, the transfer of the jurisdiction of the Appeallate Committee to the new Supereme Court does not in itself have the eVect, as a matter of law, of merging those streams of jurisdiction. Accordingly, in future, it will remain the position (to the same extent as at present) that a decision in a case emanating from Scotland wil be binding in relation to Scotland but only persuasive in relation to England and Wales (and vice versa). 16. As a transfer of the existing jurisdiction in itself would not, in the view of the Executive, impact or impinge upon those jurisdictions, the Bill does not at present have or require an express provision preserving the current position. 17. Concerns have, however, been raised that the creation of a Supreme Court will create a momentum towards the idea of a uniﬁed body of UK law which will be inconsistent with the maintenance of those two independent streams of jurisdiction. The Secretary of State and Lord Chancellor, therefore, in his evidence to the Committee has indicated his intention to bring forward an amendment to entrench the current degree of separation of jurisdictional streams. The Scottish Executive support that proposal.

Number of Scottish Judges 18. Moving on from constitutional issues, the Scottish Executive would wish to address one further issue concerning the way in which Scottish cases are to be dealt with by the new Supreme Court. This issue relates to the number of Scottish Judges who would sit as Supreme Court Judges and the question of whether there should or could be a Scottish majority in all or some Supreme Court panels hearing cases emanating from Scotland. 19. At present, by convention no fewer than two of the Judges appointed to the House of Lords are Judges who have held high judicial oYce in Scotland. 20. It is entirely a matter for the Government (subject to the agreement of Parliament) to determine the number of Judges sitting in the Supreme Court from time to time having regard to the level of judicial business. The Scottish Executive are content with the proposal that at commencement the number of such Judges is to be 12 comprising the existing Lords of Appeal in Ordinary. The Scottish Executive agree that, on that basis, there should be no fewer than two suitably qualified judges from Scotland. 21. The Scottish Executive considers that it is important that, for so long as there are 12 permanent judges in the Supreme Court, the convention should be that at least two should have held judicial oYce in Scotland. Were the qualifications and practices to allow for lawyers who have not held judicial oYce being appointed to the Supreme Court, then the requirement would be for someone qualified in Scots Law who has practised and was familiar with Scots Law. In any event the convention should be that there were at least two (out of 12) identifiable Scots lawyers. Were the number to increase then consideration should be given to increasing the number of permanent Scots judges. 22. While the Executive does not consider it necessary to set out a minimum number on the face of the Bill, the Executive is concerned to establish a proper mechanism for continuation of the convention. The Executive notes and welcomes the commitment from the Secretary of State and Lord Chancellor that the convention will be respected. The Executive is in discussion with the DCA about the mechanisms for enshrining the convention. 23. In most, though not all, cases before the Privy Council a majority of the Board have been Scottish judges. This arrangement is a product of the devolution settlement which recognised the importance, and political sensitivity, of devolution issues. The Executive believes that this system has worked well. 24. Accordingly the Executive would wish to see a continuation of the arrangements whereby, where appropriate, a majority of the court hearing a devolution issue, could be Scottish judges. Where appropriate this can be extended to other Scottish cases. 25. However, the Executive believes that it would be inappropriate to have a rule requiring that Scottish cases always had a majority of Scottish judges. First the Executive recognises that this has not been the rule to date. Secondly it would, in eVect, divide the court with the possibility that diVerent approaches were taken by diVerent majorities of Scottish and English judges. Thirdly it would be very diYcult to arrange where the court sat in larger panels of seven, nine or even 11 judges. 9741051003 Page Type [O] 28-06-04 21:04:08 Pag Table: LOENEW PPSysB Unit: PAG1

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26. So far as the appointment process is concerned, the Executive agrees that appointment must be on merit. The Executive agrees that the appointment process must be more open and transparent and based on recommendations from an independent appointments board. The Executive considers that it is vital that there should be a consultation with the senior judiciary in Scotland (ordinarily the Lord President of the Court of Session) and, at the appropriate point in the process, with the First Minister. The Executive is in discussion with the DCA on the detail of the mechanism, particularly on the issue of ensuring a continuation of the convention on the minimum number of judges, referred to above.

Sewel Motion 27. The DCA proposals in relation to the creation of a new Supreme Court impinge on the regulation of the Scottish legal system insofar as they modify the appeal jurisdiction from the Inner House of the Court of Session. Accordingly, the relevant provisions of the Bill require the agreement of the Scottish Parliament in accordance with the Sewel convention. The Executive is awaiting the outcome of the Committee’s consideration of the Bill before seeking the consent of the Scottish Parliament by means of a Sewel Motion.

Conculsion 28. Subject to that, the Scottish Executive reiterate its support for the creation of a Supreme Court as an eVective measure of reform, modernising the court system and reaYrming the independence and integrity of Scots law.

Examination of Witnesses Witnesses: Rt Hon Colin Boyd QC, Lord Advocate, and Mr Paul Cackette, Scottish Executive Justice Department, examined.

Q1094 Chairman: Thank you very much for coming. Executive welcomes the plans to create a new We are much obliged to you. I wonder whether you Supreme Court. It seems to me that Lord Bingham of would be kind enough ﬁrst of all to introduce yourself Cornhill captured the essence of the argument when formally for the purpose of the record and then, he spoke in response to the consultation paper that he secondly, to open up the situation as far as the regarded the functional separation of the judiciary at Scottish view of what we are trying to do here is all levels from the legislative and executive as a concerned. cardinal feature of a modern, democratic state Mr Boyd: My name is Colin Boyd, Lord Advocate governed by law. From the Scottish perspective it and I am supported by Paul Cackette from the also provides an opportunity to combine the Scottish Executive Justice Department. Can I ﬁrst of jurisdiction of the Appellate Committee of the House all thank you for the opportunity to be here today of Lords with the Judicial Committee of the Privy and to give evidence on the proposals for the creation Council in devolution issues. I accept that that arose of a new Supreme Court. In giving evidence I am out of the Scotland Act very recently, but I think it is speaking in my capacity both as Lord Advocate and worthwhile bringing those two jurisdictions together. as a member of the Scottish Executive. The views of From the Scottish perspective there are one or two the Executive were contained in the written concerns that have been expressed and it is right that submission to this Committee which was delivered they should be properly examined. First of all, it was last month. You will be aware that the Scottish said that the proposals ran counter to the Claim of Parliament debated the proposals on 29 January and Right of 1689 and the Treaty of Union. How far the endorsed the principle of a Supreme Court on a Claim of Right is still a relevant constitutional division of 62 votes for, 18 against and 27 document is debatable. I believe that when the abstentions. The vast majority of the proposals fall proposals are properly examined they are not counter within the reserved area, there is only one aspect to either of those documents. I also know that Lord which would require a Sewel motion in the Scottish Cullen of Whitekirk and Lord Hope of Craighead Parliament. The procedure now is that the Executive have given evidence that a new Supreme Court for will prepare a memorandum to go to the Parliament the United Kingdom might open an argument that a and there will be a further vote on the Sewel motion. decision on a case from one jurisdiction is binding in I think you will also be aware, my Lord Chairman, the other jurisdiction, perhaps creating a British that the Justice 2 Committee of the Parliament has jurisdiction in the image of English law. That is not been taking evidence on the proposals and will report the Government’s intention, we do not see that as very shortly. As you will be aware, of course, the being a real risk, but I have noted and welcome the 9741051004 Page Type [E] 28-06-04 21:04:08 Pag Table: LOENEW PPSysB Unit: PAG1

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Lord Chancellor’s proposals to bring forward an Scotland? Should there be a similar statutory duty amendment to put that matter beyond doubt. We imposed on ministers in relation to the Scottish believe it is vitally important that the Court be seen judiciary and, if so, should it be enacted by the UK as truly a Supreme Court for the United Kingdom Parliament or by the Scottish Parliament? and not tied to any one jurisdiction. If it is seen to be Mr Boyd: Can I just go back to what I understand tied to one jurisdiction then, frankly, it will lose was the reason for putting it in in the first place and credibility. One of the features which I think is that is because of the abolition of the post of Lord important in maintaining that credibility in Scotland Chancellor which, in terms of England and Wales, is the continuation of the convention that two was seen as an important protection of the judiciary. members—assuming the number stays at 12—are My understanding is that this has been put in in order Scottish lawyers. These are the main features. There to take account of the fact that there is no longer a are other aspects which have been addressed by Lord Chancellor fulfilling the traditional role, as has others and I am more than happy to answer questions been seen by the judiciary, there has been no on these and any other matter. equivalent in Scotland and I think that is the first Chairman: Thank you very much. reason why it was not considered for Scotland. It would be within the competence of the Scottish Q1095 Baroness Gibson of Market Rasen: I would Parliament to impose such an obligation on Scottish like to ask you about something that we have been ministers and arguably on UK ministers at least tussling with during our deliberations and that is the insofar as it related to devolution issues. We have question of whether or not the Minister of State taken the view so far that the Sewel motion will not should be a lawyer, whatever that Minister of State is encompass a similar provision so far as Scottish called. As I understand it there is no requirement ministers are concerned, in other words at the under the Scottish Executive for this to happen. moment we are not inclined to say to Westminster Could you talk to us about this, please, and tell us the that they should impose a similar duty on Scottish pros and cons in relation to whether or not the ministers and I can go into some of the reasons for minister should be a lawyer? that if you wish. We might change that view Mr Boyd: The first Minister for Justice was a lawyer, depending on the report of the Justice 2 Committee Jim Wallace; Cathy Jamieson is not a lawyer. I think and we will also take account of the views of this it is fair to say that the role of the Lord Advocate is Committee as well, although the Justice 2 Committee also important in this because I speak regularly to would be the important one. Cathy Jamieson and if she has concerns of a legal nature then she would normally come to me or seek Q1097 Lord Windlesham: Is it not a matter of such advice from the solicitors in the Executive. I do not overriding importance that it would be worthy of a see that as being a problem from a Scottish Executive place in the opening clause of the Bill? It does seem perspective. It possibly puts more of an onus on the curious—this is United Kingdom legislation—that Lord Advocate and, for that matter, the Solicitor only one part of the UK should not be subject to this General, but we have two law oYcers out of 22, some particular overriding matter of principle. might say that is too many, nevertheless we have an Mr Boyd: All I can say to you is that, first of all, it has adequate number of lawyers. So far as judicial not been thought necessary so far in Scotland. I think appointments are concerned, we have our own I am right in saying that it was considered at the time Judicial Appointments Board now. It used to be the of the Scotland Bill whether or not there should be a case that the Lord Advocate appointed the judges, provision in the Scotland Bill, but that was not put in but that is no longer the case. They report to the First the Scotland Bill, so this is a fairly recent Minister and the First Minister is obliged by law to consideration. I would also wish to consider just how consult the Lord President. So there are various ways that would operate in Scotland. For example, clause in which the Executive can get legal advice and I have 1(4) relates to specific duties on the Secretary of State not seen it as being a problem. If there was a for Constitutional AVairs, but I do not think it would particular issue that was concerning this Committee be appropriate to include that so far as the Scottish I would certainly be happy to respond to it. judiciary are concerned because eVectively the Scottish judiciary are devolved and it would then be Q1096 Lord Windlesham: Can I draw your attention a matter for Scottish ministers. We would have to to the all-important first clause of the Bill, which is consider whether or not that would be a duty which the guarantee of continued judicial independence. was imposed on the Minister for Justice or on the That imposes duties on ministers to uphold the First Minister. We will consider it, but at the moment continued independence of the judiciary. Similar we are not persuaded that it is necessary. duties are established in relation to Northern Ireland by a separate statute, the Justice (Northern Ireland) Q1098 Lord Windlesham: But your mind is still Act 2002. 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Mr Boyd: Yes, indeed. Q1102 Lord Maclennan of Rogart: The second Lord Windlesham: Reluctantly by the sound of it, but question that I asked was whether the device that was it is still open. suggested by a professor from Aberdeen might be used, which is that cases which did not have a UK Q1099 Viscount Bledisloe: What about UK element should be excluded in a sense by the refusal ministers influencing Scottish judges? Let us suppose of a right to appeal. there is an important tax case in front of a Scottish Mr Boyd: It would be diYcult certainly in common judge and the Chancellor of the Exchequer says to the law cases sometimes to determine whether or not judge, “Come on, you’ve got to decide that in favour there is a truly UK element or not. The example that of the Executive because otherwise we are going to be has been quoted often in Scotland is Donoghue v very short of tax”, surely this duty should be imposed Stevenson, which in eVect wrote the modern law of on UK ministers in respect of all the judiciary rather tort, which was a case of delict coming from than just the English and Welsh judiciary. Scotland. I personally would not want to close that Mr Boyd: All I can say is that I am not aware of that type of case coming to the Supreme Court, but you ever happening in Scotland, I cannot conceive of it might very well have an argument for saying this is happening and I think if it did the Scottish judiciary the Scottish law of delict rather than the law of tort. would howl and rightly so. Probably it means that you would have artificial distinctions being drawn certainly in common law cases, but it might be easier in statute cases. Q1100 Viscount Bledisloe: And so would the English judiciary. It seems a very odd imbalance. Mr Boyd: What duties are imposed on UK ministers Q1103 Lord Carter: In your reply to Baroness it seems to me is a matter for the United Kingdom Gibson you gave a very clear explanation of the Government and Parliament. What I am saying to relationship between the judiciary and the Executive. you is that so far as the devolved administration is Is there a mechanism for the relationship between the concerned, at the moment we do not plan to legislate judiciary and the Scottish Parliament? I understand there. What I should have said, and it has been a that the Parliament works through committees. Is factor in our consideration, is that we do propose to there a committee before which the judiciary could legislate to put the Judicial Appointments Board on appear and give evidence? a permanent footing and we would consider at that Mr Boyd: We have two justice committees because of time whether or not there should be a duty on the amount of legislation in that field. There have ministers similar to the one in clause 1. been two diVerent approaches from the judiciary to this. In the amendment of the criminal procedure law Q1101 Lord Maclennan of Rogart: We have had arising out of our report from Lord Bonomy the evidence from a number of diVerent quarters on the committee asked if a member of the judiciary would issue of leave to appeal, pointing in some cases in appear before them to give evidence on the diVerent directions, suggesting this might be the time management of the High Court, but they took the to amend the law to require it in Scottish cases or, view in that case that they did not think it was conversely, to require it to confine the jurisdiction to appropriate to do that. On the other hand, Lord cases that are seen to be purely UK as opposed to Cullen gave evidence to the Justice 2 Committee on purely Scottish influences. I understand the position the issue of the Supreme Court and I think it is fair to of the Scottish Executive is to favour the status quo. say that there is a sense in which they might be feeling What are the best arguments you can put forward their way at that moment. That is my impression in for that? any event. Mr Boyd: I think the best one is a pragmatic one and that is, having discussed the matter with the Scottish Q1104 Lord Carter: Do the terms of reference of law lords, it is clear that there are a relatively small those committees make any reference to judgments number of cases coming to the House of Lords in any or anything of that nature? event. If you needed leave then there is a process that Mr Boyd: There is no reference to judgments. I am has to be gone through in order to consider whether not sure, but I do not think the Standing Orders or not leave should be given. I am told that in recent would allow for such a committee to look at years they can only think of one case where they judgments. Certainly, there are various protections would have been inclined not to give leave. What you both for the judges and for myself. have then done is to put in place another process which, frankly, means more work for the judges for little apparent benefit since leave would have been Q1105 Chairman: If the Scottish judges wanted to given in most of these cases anyway. To be honest, if warn the Scottish Parliament that it was doing it became an issue then I would not have a problem something that was unlawful what would they do, with there being leave in Scottish civil cases as well. talk to you? 9741051004 Page Type [E] 28-06-04 21:04:08 Pag Table: LOENEW PPSysB Unit: PAG1

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Mr Boyd: I am sure they would talk to me. I think Home OYce and much of the Department of they would also want to talk to the First Minister Constitutional AVairs and possibly the OYce of the himself, at least to the Minister of Justice. Deputy Prime Minister.

Q1106 Chairman: But there is no public link, is Q1114 there? Lord Howe of Aberavon: It is pretty Mr Boyd: There is not a public link. They certainly omnifarious. do speak to us both formally and informally. I was Mr Boyd: It is a big department, yes. interested in the Chief Justice from New Zealand’s evidence about the communications being public. I Q1115 Lord Howe of Aberavon: You have an do not think the judges think that all of their ad hoc but non-statutory Judicial Appointments communications with the Executive are likely to be Commission. public and if that was a result of the Freedom of Mr Boyd: That is right. Information Act then they might wish to consider how they do that in future. I have no doubt that some mechanism would be found, perhaps by Q1116 Lord Howe of Aberavon: And you are making a public statement or speaking out in some thinking of making that statutory. way, possibly even a letter to the presiding oYcer if Mr Boyd: Yes. it involved the Parliament. Q1117 Lord Howe of Aberavon: How does that Q1107 Lord Howe of Aberavon: Forgive me for work when it makes proposals for appointments, to being elementarily ignorant, but until the Scotland whom do the proposals go? Act the Lord Advocate and the Solicitor General for Mr Boyd: Scotland were members of the UK Government. Formally the proposals go to the First Mr Boyd: That is right. Minister. My recollection is that they put forward a number of names, but they rank them in order of preference. The First Minister is obliged to consult Q1108 Lord Howe of Aberavon: And now you are the Lord President and after the consultation to put not. the name up to Her Majesty. There is a slightly Mr Boyd: No, we are members of the Executive. diVerent procedure in relation to the Lord President and Lord Justice’s Clerk. So far as I am aware the Q1109 Lord Howe of Aberavon: And you are not recommendations of the Judicial Appointments members of this Parliament by deﬁnition nor of the Board have been accepted so far, but it is a young Scottish Parliament. institution at the moment. Mr Boyd: Formally that is right, although if the Lord Advocate and Solicitor General are not elected members of the Scottish Parliament, and neither of Q1118 Lord Howe of Aberavon: I am not quite us are, we have the right to sit and speak but not clear. Did you say that the post of Advocate to vote. In eVect we have most of the rights of General had been created because of the Scotland membership without the right to vote. Act? Mr Boyd: Yes. Q1110 Lord Howe of Aberavon: The oYce of Advocate General is a new oYce resulting from the Scotland Act. Q1119 Lord Howe of Aberavon: Is there any change Mr Boyd: Yes. proposed in the Executive structure in Scotland as a result of the proposed abolition of the Lord Q1111 Lord Howe of Aberavon: And it belongs to Chancellor’s post? the UK Government. Mr Boyd: No. Mr Boyd: Yes. Q1120 Lord Howe of Aberavon: When the First Q1112 Lord Howe of Aberavon: The Minister for Minister reacts to the advice of the Appointments Justice is a member of the Scottish Parliament. Board you say he takes advice from the Lord Mr Boyd: Yes. President, does he not? Mr Boyd: Yes. Q1113 Lord Howe of Aberavon: What exactly is the role of the Justice Minister? How wide is that role? Mr Boyd: It is very wide. It includes criminal law, Q1121 Lord Howe of Aberavon: Does he take civil law, the police, the emergency services, the advice from any of the three law oYcers, either the courts, Legal Aid. I suppose it really covers the two of you or the Advocate General? 9741051004 Page Type [O] 28-06-04 21:04:08 Pag Table: LOENEW PPSysB Unit: PAG1

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Mr Boyd: To my knowledge he does not consult the Q1129 Lord Howe of Aberavon: Apart from the Advocate General. He may consult the Lord obligation to consult the Lord President, it is all Advocate. I am trying to remember whether or not rather informal and growing up as it were. he did in the last one. Mr Boyd: I think that is a fair comment, yes.

Q1122 Lord Howe of Aberavon: He has consulted you in the past, has he not? Q1130 Chairman: Can I come back to the Mr Boyd: He has, yes. devolution appeals. As I understand it quite a lot of them are actually criminal cases going to the Privy Council although they are under the label of Q1123 Lord Howe of Aberavon: But he does not devolution cases. necessarily always do so? Mr Boyd: That is right. I think there has been one Mr Boyd: He would not be obliged to do so. devolution issue which is not criminal.

Q1124 Lord Howe of Aberavon: So the eVective decision on the recommendation of the Judicial Q1131 Chairman: Do you think it is at all Appointments Board is made in substance by the anomalous that the Supreme Court would be First Minister? considering some criminal matters from Scotland Mr Boyd: Yes, but I think in substance the First although they would not have the jurisdiction to Minister will take the advice of the Judicial consider criminal appeals? Appointments Board. I have not known him not to Mr Boyd: To be fair, we were surprised to some take that advice. I think he appreciates that if he extent that one of the eVects of section 57(2) of the was not to take that advice that might cause some Scotland Act was to provide a route to the Privy diYculties. He would have to be able to give a Council in so many criminal cases. When we were reason for not doing so and one of those might be looking at the Scotland Bill devolution issues were because of the recommendation or the advice from thought to arise in the area between reserved and the Lord President. devolved matters. The extent to which devolution issues have come to the Privy Council has been somewhat of a surprise to us, although with the Q1125 Lord Howe of Aberavon: And the Justice beneﬁt of hindsight it is perhaps now not surprising. Minister plays no part in the appointment of judges? Is it an anomaly? Yes, I suppose there is an anomaly Mr Boyd: She does. The previous Justice Minister there. What I think can be said as a justiﬁcation for certainly did because he was a lawyer and knew the the continuation of it is this: devolution issues in candidates certainly at the senior level. I cannot criminal cases involve, almost invariably, matters think that there have been any appointments under involving the European Convention on Human the new Justice Minister. Of course, the First Rights and I think there is a good argument that Minister, Donald Dewar, was a lawyer, but neither there should be a common interpretation of the Henry McLeish nor Jack McConnell are lawyers European Convention insofar as it relates to the and they look to lawyers for advice even on judicial United Kingdom, so I do not have any problems appointments. with these continuing to come to a Supreme Court.

Q1126 Lord Howe of Aberavon: To whom do they look then? Q1132 Chairman: Can I come back to the point on Mr Boyd: As I say, when Jim Wallace was Justice section 1, whether that should apply to Scotland or Minister it would be to him and I am not aware of not and if it should apply to Scotland, who is going it having happened since Cathy Jamieson became to do it. As I understand it what you are saying is Justice Minister last year. I think it may very well that the Scottish Executive does not consider that be that the First Minister would ask my view. I do they need to legislate in that manner for Scotland. not know whether he would and what weight he Mr Boyd: At the moment, yes. would apply to that.

Q1127 Lord Carlisle of Bucklow: And Lord Cullen? Q1133 Chairman: What would happen with the Mr Boyd: Yes. He would be the primary consultee. attitude in Scotland if the UK Parliament legislated so as to impose a similar duty on Scotland? Mr Boyd: If it did it without a Sewel motion then Q1128 Viscount Bledisloe: And obligatory. the reaction would not be favourable because of the Mr Boyd: Indeed. politics of Sewel motions. 9741051004 Page Type [E] 28-06-04 21:04:08 Pag Table: LOENEW PPSysB Unit: PAG1

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Q1134 Lord Windlesham: Could you expand on was that the reasons against having criminal appeals that? going to the Supreme Court were purely pragmatic. Mr Boyd: Sewel motions arose as a result of Lord What I have never understood is why there should Sewel’s—I was going to say invention of the ever have been an argument against criminal Convention—enunciation of the Convention that appeals coming. Of course, the criminal law in the UK Parliament would only legislate in matters Scotland is diVerent from in England, but so is the aVecting the devolved areas of Scotland with the civil law and we manage to hear civil appeals and I consent of the Scottish Parliament and again there have never really understood why we could not have been unforeseen results of that. We have been manage to hear criminal appeals. Tying that in with putting Sewel motions through in a sense by asking what you have just said, surely that would be the the UK Parliament to legislate on certain issues, for simple solution for the new Supreme Court, to hear example civil partnerships, but the Sewel motions all the civil appeals only with leave and criminal have become a political issue because it is seen as appeals likewise. the Scottish Parliament handing over in some way Mr Boyd: I do not think I said that the reasons for the power to legislate to the United Kingdom the criminal appeals not coming to the Supreme Parliament and there have now been quite a large Court were purely pragmatic but rather I was number of Sewel motions. If the UK Parliament did responding to a question from my Lord, Lord legislate without a Sewel motion in this case then it MacLennan on the issue of leave in civil cases. So would be the first time it had happened and I far as the jurisdiction on criminal cases is concerned, imagine that the reaction would not be a you are right that the civil law is diVerent in favourable one. Scotland than in England but, frankly, the diVerences between criminal law in Scotland are Q1135 Lord Carter: I have been reminded of the much greater than the diVerences between civil law debates we had when the Scotland Bill was going in the two jurisdictions. The jurisdiction in relation through and we thought that the Privy Council to the criminal cases I think was exercised by the would be the right mechanism because we expected House of Lords rather infrequently after 1707 but appeals to be largely about the boundary between eVectively came to an end in about 1765, there were reserved and devolved matters. If there were a only a handful of appeals between 1707 and 1765. change in the political composition of the Scottish In Scotland there is almost a unanimous view that Executive and Parliament which meant that the criminal cases should not come to the Supreme Scottish Executive then took a much more robust Court because of the unique nature of Scottish view about that boundary and pushed at the criminal law. If you were to suggest that that should boundary between the two, would you still feel that be changed then the view of the Scottish judiciary, the Supreme Court would be the right mechanism Scottish professions and indeed the Scottish public to deal with that? toward the creation of the Supreme Court would be Mr Boyd: Yes, I do and the reason I say that is quite diVerent. because I think the Supreme Court ought to be a Supreme Court for the United Kingdom and as such then it ought to adjudicate on all constitutional Q1137 Lord Lloyd of Berwick: The House of Lords matters relating to the United Kingdom. I also take and the Privy Council is very used to dealing with the view that one of the reasons for having a diVerent systems of law. Throughout the 19th Supreme Court is that the mechanisms for appeals Century we were dealing with appeals from India beyond the courts in Scotland are confusing and the law could hardly be more diVerent in India sometimes to lawyers but certainly to lay people. If than it is here. Why is it not possible for the you try and explain to people that this might go to Supreme Court, with two Scottish judges, to deal the Judicial Committee of the Privy Council but with criminal appeals? Two Scottish judges would something else might go to the House of Lords then be able to keep the three English judges well you have lost them immediately. I strongly believe informed on the subject. that in a democracy people have to understand the Mr Boyd: I am sure they would. What I must say mechanisms if they are to have any feeling of to you is that there is no appetite whatsoever from ownership over it or influencing it—I do not mean any practitioner or judge, public and Parliament in improperly influencing it, but properly influencing Scotland for there to be that jurisdiction, you would the organs of state and the way in which we look be reversing 250 years of practice. I do not think I at them. can take that matter very much further, my Lord Chairman. Q1136 Lord Lloyd of Berwick: I would like to come Chairman: Can I thank you very much for coming. back to the question which the Lord Chairman You have exposed Scotland to us in a way which raised on criminal appeals. I think your argument we have not heard before. Thank you. 9741051004 Page Type [O] 28-06-04 21:04:08 Pag Table: LOENEW PPSysB Unit: PAG1

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Memorandum by The Magistrates’ Association The abolition of the oYce of Lord Chancellor has serious implications for magistrates—not least because the oYceholder automatically becomes President of the Magistrates’ Association. However, perhaps more importantly, the Lord Chancellor is currently responsible for the arrangements for appointment, training, discipline and removal of justices1. The Constitutional Reform Bill makes it clear that the Secretary of State of the Department for Constitutional AVairs is: — under a duty to ensure that there is an eYcient and eVective system to support the business of the courts of England and Wales, as set out in Part 1 of the Courts Act 2003; — accountable to Parliament for the eYciency and eVectiveness of the administration of the court system, including the proper use of public resources voted by Parliament; — responsible for supporting the judiciary in enabling them to fulﬁl their functions. When the Lord Chancellor ceases to be head of the judiciary (judges and magistrates) The Lord Chief Justice will undertake the role of leading the judges, with the authority which comes from being appointed as chief judge2. The Bill provides that The Lord Chief Justice assumes the title of “President of the Courts of England and Wales”. The Court of Appeal, the High Court, the Crown Court, the county courts and the magistrates courts are to be known as the “Courts of England and Wales”. The Lord Chief Justice will be: — responsible for ensuring that the views of the judiciary in England and Wales are eVectively represented to Parliament, to the Government, and to the Secretary of State in particular, in such a manner as the Lord Chief Justice considers appropriate; — responsible for ensuring that the appropriate structures are in place for the well-being of and training and provision of guidance for the judiciary; — responsible for ensuring that appropriate structures are in place for the deployment of individual members of the judiciary and for the allocation of work within the courts. Neither the Secretary of State, nor any other Minister, will have any role in particular decisions of individual judges. There is a speciﬁc statutory duty falling on the Secretary of State for the Department for Constitutional AVairs to defend and uphold the continuing independence of the judiciary. It is proposed that future arrangements for magistrates appointments, training, discipline and removal will be in line with the arrangements for the full time judiciary.

Appointment Central to the appointments process will be the Judicial Appointments Commission. The Commission will have full responsibility for the process, but it is not suggested that the search and interviewing for magistrates will be undertaken centrally. Advisory committees currently submit names to Lord Chancellor and, in the future the Judicial Appointments Commission will assume responsibility for making recommendations to the Secretary of State, while retaining the local input from advisory committees into the appointments. The Magistrates’ Association would want to see advisory committees continue, and welcomes the comments recorded in Hansard and reproduced below. However, it is clear, from what has also been said in the House of Lords, that advisory committees will almost certainly continue. Lord Morris of Abervon asked the following question: “My Lords, I welcome the broad thrust of the Lord Chancellor’s Statement and that of the Lord Chief Justice in entrenching the judiciary’s independence and the independent machinery for its appointment. I am grateful to both noble and learned Lords for their careful explanation of their position. I declare an interest as a member or chairman of three of the Lord Chancellor’s county advisory committees on the appointment of justices. Will the Lord Chancellor state that there is no diminution 1 Except in Merseyside, Greater Manchester and Lancashire, where magistrates are appointed by the Duchy of Lancaster. 2 At the same time, the Lord Chief Justice will be invited to become President of the Magistrates’ Association. 9741051005 Page Type [E] 28-06-04 21:04:08 Pag Table: LOENEW PPSysB Unit: PAG1

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in the role of the advisory committees, which are essentially the best judges of local needs? In no way are they to be regarded as agents of a government department, whatever its name.” . . . and the Lord Chancellor responded: “My Lords, I am grateful to my noble and learned friend for his welcome of the proposals. I accept what he says about advisory committees: there is no intention of diluting their importance in the appointment of magistrates. Equally, I fully accept that the local knowledge they provide is vital and that it is in no way acting as the agent of central government that they do so”.

Chair of the Commission The chair of the Commission will be neither a lawyer nor a judge, and the largest single group on the Commission will be the members who are neither lawyers nor full-time judges. However, the Commission will include members of each level of the judicial hierarchy, including the magistracy, up to the Court of Appeal and will be required to consult the Lord Chief Justice during the recruitment process. The Magistrates’ Association is content with this.

Transitional arrangements The Judicial Appointments Commission will not be able to assume responsibility for the appointment of magistrates immediately and, for the time being, existing arrangements will continue with the advisory committees making recommendations to the Lord Chief Justice who will submit his approved list to the Secretary of State who will appoint on behalf of the Queen. Speaking in the House of Lords, the Lord Chief Justice said: “I have accepted that it is not practical for the appointments commission to take on its responsibilities for the appointment of magistrates from its inception. Having discussed the matter with the Magistrates’ Association, I have agreed that until the appointments commission is ready to do so, recommendations received from the existing advisory committees will be passed to me and that I will submit an approved list to the Secretary of State under a procedure mirroring that which will apply to the appointments commission.” When the time comes for the appointment of magistrates to be transferred to the Commission, the Magistrates’ Association will make further representations on behalf of its members as to the processes and procedures to be put in place. However, we are concerned that the Bill appears to be silent on the transfer arrangements. We have been advised that this is covered by Clause 65 but there is no speciﬁc mention of magistrates here. We would expect a speciﬁc reference to be made to the magistracy in this respect.

Authorisation of Magistrates to Sit in the Family Proceedings and Youth Courts The Courts Act 2003 provides for new arrangements to be put into place for authorising magistrates to sit in family proceedings or youth courts (sections 49 and 50). In the future, magistrates will neither be specially appointed to the family or youth benches (as is currently the case in Inner London), nor will they be elected to family or youth panels (as is currently the position in all other parts of England and Wales). Instead, magistrates will be authorised to sit. This is in line with existing Association policy that selection of magistrates to sit in the youth and family courts should be based on competence as deﬁned by MNTI 2. The general responsibility for the authorisation will pass to the Lord Chief Justice who will set out the framework: detailed arrangements will be handled locally. The Magistrates’ Association looks for early implementation of sections 49 and 50 of the Courts Act 2003.

Discipline It is envisaged that advisory committees will continue to play their existing roles in relation to the conduct of magistrates—making recommendations to the Secretary of State and the Lord Chief Justice as to what action should be taken. It was proposed that an independent review body would be put in place to review decisions and that a magistrate may ask for his/her case to be considered by the review body, which would include a lay magistrate as one of its four members. There is no reference to the review body in the Bill but it is referred to in the concordat and will, we understand, be implemented through regulations under section 85 of the Constitutional Reform Bill. 9741051005 Page Type [O] 28-06-04 21:04:08 Pag Table: LOENEW PPSysB Unit: PAG1

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Removal Removal, following a disciplinary investigation and report from advisory committees, will be a matter for the Secretary of State and the Lord Chief Justice acting together.

Justices’Training In line with the arrangements for the professional judiciary, the Lord Chief Justice should be responsible for the provision and sponsorship of training for the lay magistracy, within the resources provided by Secretary of State, with a continuing role for the Judicial Studies Board. The Lord Chief Justice shall, after consultation with the Secretary of State appoint the chair and members of the Judicial Studies Board. The Magistrates’ Association is content with these arrangements. April 2004

Memorandum by Justices’ Clerks’ Society

ROLE OF THE JUSTICES’ CLERK The Justices’ Clerk is the senior lawyer and adviser to the magistracy. Currently the appointment is made under the Justice of the Peace Act, 1997 and requires the post holder to be a solicitor or barrister of five years’ standing or be a solicitor or barrister with five years’ experience of working in Magistrates’ Courts. The core responsibilities of the role are as follows: — Provision of consistent and accurate advice to the lay bench both personally, and through the team of legal advisers. — Training the lay bench, subject to the guidance of the Judicial Studies Board. — Providing “pastoral support” to lay Justices. — Facilitating the lay bench in its dealings with court users and partner agencies. — Providing secretarial support to the Advisory Committee and Sub-Committees. — Leading and managing the legal staV assigned to their areas including their training, development and assessment. — Exercising powers under the Justices’ Clerks Rules 1970 and delegating those powers to appropriate members of staV. — Advising and supporting Magistrates’ Committees and Panels. — The listing of cases, magistrates’ rota and policies on fines enforcement. — Line management of court room and listing staV. The proposed changes in the status of the Justices’ Clerk are contained in the Courts Act 2003. Whilst the protection from interference when carrying out judicial functions is replicated in the Courts Act, there was at first, a reluctance to have Justices’ Clerks’ appointments and removals subject to consultation with the local benches. This amendment was secured in the passing of the Courts Act and acknowledged the special and unique relationship that exists between the Justices’ Clerks and the benches they serve. However, whilst the Government feels that the protections in the Courts Act are suYcient to guarantee the independence of the Justices’ Clerks, many people involved in the courts believe that the transfer to the civil service will lead to a gradual erosion of this independence. This belief is based on the fact that, firstly the proposed abolition of the post of Lord Chancellor drastically changes the constitutional position. Secondly there is “guidance” frequently being issued by the Department of Constitutional AVairs, which regularly crosses the line into the judicial area. The proposal has been made to abolish the OYce of the Lord Chancellor, to establish a Supreme Court, which will replace the House of Lords as a Judicial Body, and to create a Judicial Appointments Panel made up of independent members. The logic behind this proposal is to remove an anomaly from the constitutional arrangements in this country and to establish a true separation of powers between the Executive, Legislature and Judiciary. The OYce of the Lord Chancellor had eVectively straddled the three arms of govenment for centuries. 9741051006 Page Type [E] 28-06-04 21:04:08 Pag Table: LOENEW PPSysB Unit: PAG1

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There has been much opposition to what is perceived to be an over hasty and ill-considered policy which attacks the heart of the unwritten constitution of the country. If this claim is to be denied and refuted, it is necessary to ensure that the concept is applied throughout, and at every level of, the Judiciary and the Judicial System. The Supreme Court, Court of Appeal, High Court, Crown Court, County Court and the District Judges will be caught by this new system. However, it must be remembered that 97 per cent of all criminal cases are concluded in the Magistrates’ Court. It is therefore essential that the Magistrates’ Court is included in the process. The Lord Chancellor, acting on the advice of local Advisory Committees, formally makes the appointment of Magistrates. These Advisory Committees are made up of Magistrates and other persons with skills that will assist the appointment process. It is easy to envisage that this body can report directly to the new Judicial Appointments Panel, eVectively acting as Sub-Committees. It may be prudent to review their constitution and membership as part of the overall process, but it could fit well with the arrangements proposed for the Higher Courts. There remains one element that does not fit with the new policy, and this concerns the position of the Justices’ Clerk and Justices’ Clerks Assistants (Legal Advisers) who have unique access to the retiring room while the bench is deliberating. Under the proposals, the Justices’ Clerks and the Legal Advisers will become civil servants, employed by an Executive Agency reporting to the Director of Operations, in what was the Lord Chancellor’s Department and, through that person to the Lord Chancellor, or the Secretary of State for Constitutional AVairs who will be granted this role by future legislation. The eVect of this will be that the legal advice given to the Magistrates will, in the vast majority of criminal cases, be given by civil servants reporting directly to the Executive. This was expressed as a matter of concern in the second reading of the Courts Bill in the House of Lords and was identified as an issue for debate in the House of Commons by the Select Committee considering the Bill. It is easy to dismiss this by stating that Justices’ Clerks and Legal Advisers ar not “Judiciary” and therefore, not within the intended reforms. However, this would be to ignore the Justices’ Clerks Rules 1970, whereby Justices’ Clerks and advisers are under delegated powers given the same substantial judicial powers as are given to a single justice. They are able to make, not simply quasi-judicial but full, Judicial decisions. On 9 May 2003, the Lord Chancellor announced his intention to create greater Case Management powers and that these powers were to be given, primarily, to the Justices’ Clerks. This follows the pattern established in Family Cases by the Children Act 1989, where Clerks have successfuly been involved in Case Management for 14 years. It is clear that the Justices’ Clerk has to follow a Judicial rather than administrative line. All levels of the Judiciary support the principal that Justices’ Clerks should be outside the civil service. This has been clearly stated on many occasions. The Unified Administration Judicial Committee expressed unanimous support for the statement of Lord Justice Judge (Deputy Lord Chief Justice) who stated that “the independence of the Justices’ Clerks needed to go beyond statute” and that “Judicial independence could only be achieved if appointment, deployment and discipline were outside the political processes . . . the same consideration applied to Judges as for Magistrates, and the independece of Justices’ Clerks underpinned the independence of the Magistrates”. These statements of support summarise the views of all groups of the Judiciary and the bodies that represent them, including the Magistrates’ Association. There is also clear support for the proposal that the training of Justices’ Clerks and Legal Advisers, should come under the umbrella of the Judicial Studies Board (JSB) as they are part of the “Judicial Family”. This proposal has been accepted in principle by the JSB and only requires a formal direction to the JSB from the Lord Chancellor to become fact. There remain issues of resources and timing but these are not without possible solutions. The principle was well illustrated by Lord Justice Kay who said that the Criminal Procedures Rules Committee was developing procedures for every tier of court. It would be quite illogical if the legal advisers to the Magistrates were trained diVerently and/or separately to everyone else in the process. It could potentially undo all of the eVorts of commonality being established by the Criminal Procedure Rules Committee. The public will require confidence and expect transparency in any new system. The current situation, on abolition of the post of Lord Chancellor, would result in Justices’ Clerks and Legal Advisers being appointed by a politician, in the form of the Secretary of State for the Department of Constitutional AVairs. (At present the appointment by the Lord Chancellor is an appointment in his Judicial capacity.) If the Justices’ Clerk is a civil servant he or she will be bound by the civil service code and, although theoretically protected by statute, the day-to-day pressures could easily result in the Government’s view of legislation, rather than an independent view, being presented. The clear separation of roles inherent in the proposal to abolish the role of the Lord Chancellor, will be specifically reversed in relation to justices’ clerks, who are the legal advisers to 9741051006 Page Type [O] 28-06-04 21:04:08 Pag Table: LOENEW PPSysB Unit: PAG1

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25 May 2004 the branch of the Judiciary that delivers 97 per cent of all criminal cases and a large percentage of Family cases. It is diYcult to envisage how a member of the public could conclude that a civil servant appointed by a Government Minister will be open and transparently independent in the advice given in any situation. There are already many examples of attempts at inappropriate instruction or direction whilst the Justices’ Clerks are outside the civil service.

Truancy As part of a Government initiative on truancy, a circular was issued which gave guidance on how to address the problem and “oVered” the assistance of a District Judge (Magistrates’ Courts) to any area that did not currently have one, to ensure a greater consistency. The expectation appeared to be that the District Judge would deliver decision which were “on message”, whereas the lay magistracy could not be relied upon to achieve the desired results.

“Operation Payback” “Operation Payback” was a speciﬁc initiative as part of the Government’s drive to increase the percentage recovery of ﬁnes imposed by the Courts. Part of the guidance contained a suggestion that, prior to the special court hearings taking place, there would be a meeting of all parties involved including the Justices and the Clerk. This was clearly inappropriate and would have compromised the court but the Department’s lack of knowledge in this area lead to these “instructions” being issued.

Transfer of Fine Orders The decision to transfer a ﬁne is a Judicial decision. The Department proposed to issue instructions that were “directory and mandatory”. The eVect would be that the Department would tell the Magistrates and the Justices’ Clerks how and when to use their Judicial powers. This was challenged and corrected but, in the absence of challenge, the circular would have been issued. There is no guarantee that consultation will be considered under the Uniﬁed Administration.

Under 14’s Attendance at Court No child under the age of 14 can be present at criminal proceedings unless a specific criteria is met. The final decision whether to permit the child to view the court rests with the court sitting on the day. The Department wishes courts to adopt a procedure whereby school parties, not just individual children, could be given an advance indication that all would be well if they attended the court. There can be no guarantee in advance of the court and the purpose behind the original legislation was to prevent under 14 year olds attending court. It is not for the Department to “find ways around” the legislation. If Parliament wishes to allow under 14 year olds to attend court then it can legislate, it is not for civil servants to re-write the law or try to regulate its eVect. These attempts to enter into the judicial arena have so far been challenged and resisted but this will become increasingly diYcult when the challenge relates not to an outside body but directly to ones’ employer. Whilst protection is available by statute and the professional bodies, the practicalities of careers, promotion and location will actually be, or appear to be, an undermining factor which will bring into question the true independence of the post holder. Current holders of the post of Justices’ Clerk may be willing to resist now, but three or four generations on, what will be the culture in an environment where “true” independence has never been experienced? The Department for Constitutional AVairs has expressed a concern that if the Justices’ Clerks were outside the civil service, there would be a lack of accountability. The Justices’ Clerk is not trying to evade accountability, but the possibility of inappropriate influence. The Justices’ Clerk in his judicial role is accountable, as with any Judicial decision, through the Higher Courts in individual cases. This process also guarantees constistency of advice. The resource management role can still be accountable to the Unified Administration and, on performance, to the Courts Board. Justices’ Clerks would, in relation to the provision of training, be accountable to the Judicial Studies Board (JSB), with, ultimately, their involvement in training being terminated if they fail to meet the standards set by the JSB. The Justices Clerks can still be a member of the Area Senior Management Team as, from a position 9741051006 Page Type [E] 28-06-04 21:04:08 Pag Table: LOENEW PPSysB Unit: PAG1

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25 May 2004 of independence, there should be no compromise to their Judicial independence. The Legal Advisers would become civil servants but their independence would be guaranteed through the Justices’ Clerk. Delegated powers to Legal Advisers and other staV stem from the Justices’ Clerk and can be removed if their operation is being abused. Being outside the civil service would not prevent the Justices’ Clerk from being the line manager of the legal team; this could either operate by virtue of the statute or by an additional contract term for legal staV. The Justices’ Clerk could still give legal assistance to the administration staV and the Area Director. The clear belief of the Justices’ Clerks’ Society is that the justices’ clerk should not be a civil servant but should be: — A Judicial OYcer appointed by the Judicial Appointments Committee. — Bound by an appropriate Judicial OYcer’s Oath for the oYce held. — Assigned to a specific area. — Accountable for their overall performance with appraisal possibly through a 360) model. This would ensure independence and establish an important constitutional principle whilst still being engaged with the Unified Administration, responsible for the line management of the legal team, responsible for the training of Magistrates and legal staV and fully accountable. It would also ensure a more open and transparent system which would improve public confidence. Entry into the civil service would inevitably lead to control, compromise and lack of confidence. May 20041

1 The Government responded directly to this memorandum (see pp 461–3).

Examination of Witnesses Witnesses: Mrs Rachel Lipscomb, Chairman of the Council of the Magistrates’ Association, and Mrs Sally Dickinson, Chief Executive, Magistrates’ Association, and Mr Neil Clarke, Justices’ Clerks’ Society, examined.

Q1138 Chairman: Good morning. Thank you very family panel members and obviously with the new much for coming. I wonder if you could kindly Bill the general responsibility for that authorisation introduce yourselves for the sake of the record and would pass to the Lord Chief Justice. Neil Clarke is then perhaps if you would like to open up the here representing the Justices’ Clerks’ Society. As far discussions for us and tell us some of the concerns of as the justices’ clerks are concerned, I am not going the Magistrates’ Association on the proposals. to go into detail on that, but obviously the role of the Mrs Lipscomb: Good morning, my Lord Chairman. justices’ clerk is very central to the role of the Thank you very much for inviting us to speak to this magistracy. Committee about the Constitutional Reform Bill. I Mr Clarke: Thank you very much for the invitation. am Rachel Lipscomb, the Chairman of the Council My reason for being here is to supplement the paper of the Magistrates’ Association and a member of the that we submitted about justices’ clerks. The Society Judges’ Council. On my left is Sally Dickinson who is concentrating today on a single concern and that is is the Chief Executive of the Magistrates’ Association what it sees as the constitutional eVect the abolition and on my right is Neil Clarke. of the post of Lord Chancellor will have on the Mr Clarke: Neil Clarke, the immediate past President justices’ clerk. The criminal justice system for a long of the Justices’ Clerks’ Society. time has relied on a series of checks and balances and Mrs Lipscomb: We have submitted a short paper on the eVect of the Courts Act 2003 is to create a unified the specific issues for magistrates that are in the Bill. administration, therefore the 42 independent In general the abolition of the role of Lord Magistrates’ Courts Committees are being brought Chancellor has wide implications for magistrates as under a central body. The eVect of that combined at the moment the Lord Chancellor is responsible for with the abolition of the Lord Chancellor we think appointment, for transfer, for discipline, removal renders the situation open much more to undue and for training for all magistrates in England and influence being put on the justices’ clerk in their role Wales. As a member of the Judges’ Council we are in that they will become not an independent person keen that the agreements in terms of the Concordat appointed by a judge but a civil servant appointed by are accurately and clearly reflected in the Bill. a politician and that there is a likelihood that there Another issue that arises from the Courts Act 2003 is will be a crossing of the line, an uncertainty about the authorisation for magistrates to sit as youth and where advice stops and influence continues and there 9741051007 Page Type [O] 28-06-04 21:04:08 Pag Table: LOENEW PPSysB Unit: PAG1

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25 May 2004 Mr Rachel Lipscomb, Mrs Sally Dickinson and Mr Neil Clarke already have been a series of cases under the existing Q1142 Viscount Bledisloe: So what you are really situation where that has occurred. The protection saying, which seems to me to be undoubtedly the that has been granted to the justices’ clerks is consensus, is that the choice of individual must be contained in section 29 of the Courts Act 2003 which done locally by people who know those individuals replicates the protection under the Justices of the and can find out about them and the role of the Peace Act 1997. What we would say is that the Judicial Appointments Commission should be to set environment has significantly changed, it is not the down the criteria and to see that the system is same in that we are no longer independent and producing things in accordance with that criteria? appointed by a judge. As I say, we are going to be civil The Judicial Appointments Commission should not servants appointed by a politician and we would begin to interfere with whether X is more suitable suggest that the Judicial Appointments Commission than Y. should be the appropriate body to appoint justices’ Mrs Lipscomb: The Judicial Appointments clerks and guarantee our independence, that we Commission would obviously set the key qualities should not be part of the Civil Service but should be and the criteria. They would also be considering the assigned to the unified administration in that we have balance of the Bench and the representative quality actual judicial powers and duties, not quasi, that we of that Bench and they would possibly make operate, and that we need that independence to comments or pass through information to specific protect that and to protect the judiciary which we Advisory Committees. serve, because our uniqueness is due to the fact that we are both possessors of judicial powers and Q1143 Viscount Bledisloe: They would say to a local advisers to the judiciary, which no other bodies fulfil. Advisory Committee, “Look, you seem to be appointing a great many people older than the national average”—or it could be that they have Q1139 Chairman: Thank you. In the July 2003 many fewer ethnic minorities or whatever it may be— consultation paper the Government set out three “could you take that into account in the future?” and options for reform in relation to the appointments of they would monitor, but the locals would know their magistrates. The first one is you exclude the Judicial own locals best, would they not? Appointments Commission and you keep local Mrs Lipscomb: I do not think it is a question of Advisory Committees for the role of advising the knowing one’s locals best because they would be Secretary of State. Secondly, you have local Advisory liable to very specific qualities and judicial potential Committees making nominations to the JAC which and criteria. in turn will pass these on to the Secretary of State, or thirdly, let the JAC do everything without any input Q1144 Lord Falconer of Thoroton: What you said from the local Advisory Committees. Which of the was that the arrangement you would favour would be three do you think you would prefer? in eVect replacing the Lord Chancellor with the Mrs Lipscomb: I think I can say very confidently that Appointments Commission, so the Advisory we prefer option B and that there were questions in Committees would continue to make the the House of Lords during the debate in January recommendations. The Judicial Appointments when the matters were first discussed relating to Commission would then normally accept them, but Advisory Committees. We would be very keen to see there may be occasions when they would reject them. the system of Advisory Committees remain because You would be happy with that approach and that is it is appropriate, it meets local need and they are now the approach we are adopting. well trained and performing a good duty. Mrs Lipscomb: Yes. Our only concern would be that the transitional arrangements should be made quite clear because there is no mention of it in the Bill. We Q1140 Chairman: So you would have the Judicial do realise that with the number of appointments that Appointments Committee but you would have it in are made each year it is not easy to transfer in the intermediate role? the early stages of the Judicial Appointments Mrs Lipscomb: The Judicial Appointments Commission. Committee would take over the judicial role of the Lord Chancellor. Q1145 Lord Falconer of Thoroton: We have had discussions about this. The problem has been that the number of magistrates appointed in a year is gigantic Q1141 Lord Carlisle of Bucklow: And do the by comparison with other judicial appointments. We appointments? do not think the Judicial Appointments Commission Mrs Lipscomb: No. I think the Secretary of State could get on-stream in relation to that. We are agreed would still make the appointments on behalf of the that the Lord Chief Justice should play the part of the Queen. Judicial Appointments Commission in that respect? 9741051007 Page Type [E] 28-06-04 21:04:08 Pag Table: LOENEW PPSysB Unit: PAG1

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Mrs Lipscomb: That is correct and he would then pass them on points of crossover between legal and an approved list to the Secretary of State. administrative issues, but our prime function is to be Lord Carlisle of Bucklow: Arising out of this, option either acting judicially or advising judiciary. B at the moment gives an alternative, it says either for formal appointment by the Judicial Committee or for Q1148 Lord Goodhart: So legal qualifications are transmission to the Secretary of State. What I am not needed for the job, are they? clear about is what the Lord Chancellor is saying Mr Clarke: Yes, they are. You have got to be a himself when he says do the magistrates agree. Is he solicitor or barrister to be a justices’ clerk, of five saying the Judicial Commission should be the years standing and with five years experience within appointing body or that they should refer the name Magistrates’ courts. To be a legal advisor you have to to the Secretary of State? be a solicitor or barrister and that was changed in Lord Falconer of Thoroton: They should refer the 1997 when a formal requirement was brought in for name to the Secretary of State in the same way as all professional qualifications. other professional services. Currently what happens is that the Lord Chancellor looks at each individual one and makes the decision to accept or reject. That Q1149 Lord Goodhart: Do the local Advisory would then be done in eVect by the Judicial Committees on the appointment of magistrates play Appointments Commission. What they would then any part in the appointment of justices’ clerks to a be doing would be looking at the recommendations particular bench? that are coming up from the Advisory Committee Mr Clarke: No. The Magistrates’ Courts Committee because the critical diVerence between magistrates on as the employer is the body that actually interviews the one hand and professional judges on the other is and determines who they wish to recommend as that everybody wants to preserve this local element of justices’ clerks and then the appointment goes the Advisory Committees. through to the Lord Chancellor for approval or Lord Carlisle of Bucklow: The evidence we had from consideration. the Judicial Committee was that they should make the appointments. Q1150 Lord Goodhart: The Magistrates’ Courts Lord Falconer of Thoroton: Yes. That is a separate committees have been changed by the Courts Act, issue about recommending or appointing and I am have they not? saying my view in relation to that is it should be a Mr Clarke: They would be abolished. What we are recommendation, not an appointments commission. suggesting is that because of the judicial nature of the work we are doing to demonstrate publicly the Q1146 Lord Goodhart: I would like to ask Mr Clarke independence—because public confidence is an some questions on this really for information important element of the criminal justice system—we purposes. What is the number of clerks and assistant should be appointed by the Judicial Appointments clerks? How many people would the section 27 Commission and then assigned to assist the unified changes involve? administration in a particular area and in a way Mr Clarke: What we are proposing is that it would operate not dissimilarly to District Judge not aVect all clerks. There are 70 justices’ clerks and (Magistrates’ Courts) in that they are appointed to an 2,500 assistant clerks in Scotland and Wales at the area, fulfilling a function but also assisting on present time. We would see that the independence of training and with queries from the administration. the assistant clerks would be preserved by the independence of the justices’ clerk because under the Q1151 Lord Windlesham: Am I right in getting the existing arrangements when an assistant clerk is impression from what you have said that the working as an assistant clerk they have to represent Association is generally satisfied with the provisions the law as defined by the justices’ clerk. in the Bill relating to the magistracy, and indeed the justices’ clerks, or are there any critical points which Q1147 Lord Goodhart: Is the justices’ clerk’s duties you are not happy with and which you would like to exclusively legal or are they administrative as well, see further considered by the Government? how do they divide between the two? Mrs Lipscomb: In general we are content because Mr Clarke: Over the years there were a great deal the thrust of the legislation will make future more administrative powers attached, but these have arrangements and bring them into line with current been stripped away gradually. This happened in 1995 arrangements for the judiciary so that the whole of with the appointment of justices’ chief executives and the judiciary, which is now made up since the Courts also in 1999 with the separation of the accounting Act of judges and the magistrates, would be treated functions, so more and more the justices’ clerks are very much in the same way. Our only concern is the becoming more of a pure judicial element. Obviously clarity about the transition arrangements with which we are advisers to the administration and we assist we have already dealt and obviously concern about 9741051007 Page Type [O] 28-06-04 21:04:08 Pag Table: LOENEW PPSysB Unit: PAG1

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25 May 2004 Mr Rachel Lipscomb, Mrs Sally Dickinson and Mr Neil Clarke the role of the justices’ clerks. Apart from that I think legislature and the executive but for 97 per cent of we are satisfied. criminal matters we are making the justices’ clerks, who are supposed to be independent and who give Q1152 Lord Windlesham: And you are pursuing independent advice, civil servants and going back those matters with the Lord Chancellor’s towards under more executive control than they ever Department. have been. It just seems to be inconsistent. I cannot Mrs Lipscomb: Yes, we are. see how if you said to members of the public, “Do not worry, your case is being heard by an independent magistrate but the person advising on what the law is Q1153 Lord Howe of Aberavon: Perhaps I should is a civil servant appointed by a politician” that they declare an interest as both the son and the father of a will feel reassured and the situation has improved magistrates’ clerk so I start with a view. I have been and that they can feel total confidence in the looking at the responses from the Lord Chancellor’s independence of that advice coming. I see that as a Department to your anxieties and their reference to diYculty. It is public confidence, it is actual Section 29 of the Courts Act and the other interference, and the need to have the clear amendments that they are proposing to make, and on independence of justices’ clerks and protection so the face of it it looks as though, as it is written, it that we can interpret statute and speak out when we should go a long way to meeting your anxieties. believe that there is either improper government Could you explain why they do not? pressure or that the wish is for us to interpret Mr Clarke: Lord Justice Judge, the Deputy Lord legislation in a certain way which is not consistent Chief Justice, said that words on paper need to be with our duty as lawyers. backed up by practice and the practice is that we have been receiving at the moment what are considered inappropriate approaches from both the Department Q1154 Lord Howe of Aberavon: My impression is and from regional government oYces making that under the ancien regime existing until now more suggestions that are at best interference beyond the or less there was a relationship between the bench and line and at worst approaching illegality and that is the clerk dependent upon the role played by the before we go into this new situation of being civil Magistrates Committee in interviewing and selecting servants. Examples of it are a series of advice on and appointing clerks, and one talks about “our truancy which virtually oVered to provide a district clerk” and that kind of relationship. Is that also judge so that the magistrates would be not struggling threatened by the new administrative structure? to get the “right” results; on fine enforcement a Mr Clarke: In fairness, there was an amendment to recommendation that before the fine enforcement the Courts Act which required the Government to court sat to recover funds that it would be good for consult with the bench chairman, and if necessary the all the people involved, including magistrates and deputy chairman, on appointment and removal, but clerks, to meet and discuss the cases and the I do not feel that that is as full as the current procedure before the court and get it all sorted out so relationship is. The relationship of trust between the that the right results would come through, and most bench and clerk is one of the unique features of the recently a letter from the Government OYce for the criminal justice system in this country. I cannot say South West enquiring about anti-social behaviour there are no safeguards towards that but it is now orders, pointing out that in their view one or two much more easy for a justices’ clerk to be removed adjournments were probably unnecessary, that two because it only requires consultation rather than a of the disposals made by the court were clearly decision of the bench to either appoint or remove aberrant, and saying that they hoped they would be because they are dissatisfied with the clerk’s advice or able to help us in correcting these “wrong” decisions the way that they are being served by that clerk as is in the future. I think that sort of pressure is growing at present. in the current system and when you go over to this new system when you become a civil servant and you Q1155 Lord Howe of Aberavon: I wonder if I can are in the political process, for the first generation move to the Magistrates’ Association on the same which knows freedom we will probably be quite point. You and your members are probably closer to robust but when it has been in place for a number of the coal face that we are discussing than any of us are; years and the culture is one of the Civil Service and does your Association share of the anxiety of the promotion et cetera will be dependent upon Justices’ Clerks’ Society or not? performance as perceived by your line managers, Mrs Lipscomb: Yes, we do share their anxieties there is a greater possibility for there to be abuse of because, as Neil was saying, the justices’ clerks are the the system but, equally so, if you are looking at public ultimate protector, they are the buVer between us and confidence we are abolishing the role of Lord the powers or pressure that is exerted either from the Chancellor to establish the separation of powers executive or from outside groups. There is a huge finally by taking the judiciary away from the range of people and groups involved in criminal 9741051007 Page Type [E] 28-06-04 21:04:08 Pag Table: LOENEW PPSysB Unit: PAG1

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25 May 2004 Mr Rachel Lipscomb, Mrs Sally Dickinson and Mr Neil Clarke justice, particularly now, who are sometimes over- Mrs Lipscomb: Yes. enthusiastic in wishing to put their case before a bench, so I think that rule is important as to be a Q1160 Lord Falconer of Thoroton: And would be I guarantor of the quality of legal advice that is be right in saying the Magistrates’ Association, available to both magistrates and to the legal teams reﬂecting the views of its members, has always been (because a justices’ clerk is responsible for the keen that the magistrates should be recognised as training of the legal team) so all legal advice being part, and indeed an important part, of the ultimately depends on the quality and independence judicial family? of that person. Mrs Lipscomb: Yes, I think what concerns us is that it Lord Howe of Aberavon: I fancy that this issue may be is not apparent on the face of the Bill. outwith the scope of this Bill to a certain extent although it does seem to be an important one. Chairman: It is worth having raised it. Q1161 Lord Falconer of Thoroton: I accept all that and we will need to see whether we can improve it in relation to that. One aspect of that is the more the Q1156 Lord Howe of Aberavon: Could I ask just one magistrates are perceived to be part of the judicial other question of the Magistrates’ Association and family the more the importance of magisterial that is that the role of the local advisory committees independence is recognised as well because you are a is something that has changed substantially over the judge like all the other judges. last 20 or 30 years in the sense they were a rather Mrs Lipscomb: Yes, I think that being recognised as V covert in group and they have now become much part of the judiciary does o er a strengthening of more open. I think that the good practice has spread, judicial independence but it is important that the so to speak, although perhaps not yet universally, but whole of the judiciary on the question of judicial one role for the Judicial Appointments Commission independence, and with the judiciary that would would be to ensure widespread knowledge as to best include the justices’ clerks, is quite clear and is robust. practice in this way. Mrs Lipscomb: Yes, I think that would be essential Q1162 Lord Falconer of Thoroton: As far as the because the objectivity of advisory committees has justices’ clerks are concerned, they have a very improved signiﬁcantly. All members joining advisory important role in relation to the running of individual committees are trained in interviewing techniques magistrates’ courts? and those sort of skills and to lose any of that now Mrs Lipscomb: Yes. would be a tragedy. Really it is important. I think one concern we have is that with the appointment and Q1163 Lord Falconer of Thoroton: To you Neil, transfer arrangements, they are covered in clause 65 before 2003, before the Courts Act, you would be of the Bill, but it is not very clear, and we would like engaged by the Magistrates’ Courts Committee? greater clarity in the legislation on the face of the Bill Mr Clarke: Yes, that is correct. on the matters relating to magistrates.

Q1164 Lord Falconer of Thoroton: They were your Q1157 Lord Falconer of Thoroton: The eVect of the employers? changes made by the Constitutional Reform Bill, is as Mr Clarke: Yes, that is right. you have said to the Committee I think, makes it absolutely clear that the magistrates are part of the Q1165 Lord Falconer of Thoroton: The change that judicial family. occurred, which you personally but also your Mrs Lipscomb: Yes. Association drew strong attention to, is the change that is occurring because there will in future be a unified administration and the employer has become Q1158 Lord Falconer of Thoroton: That is perhaps in eVect the Courts Service? most clearly demonstrated by two things, one the Mr Clarke: I think that is part of it. What I am saying Lord Chief Justice for the first time in eVect is going about the Constitutional Reform Bill is that was an to be the head of the justiciary including the element which, whilst we were not happy with that, magistrates? was the will of Parliament but now the situation is Mrs Lipscomb: Yes. changing in that with the abolition of the oYce of Lord Chancellor that function has to be transferred somewhere and what we are saying is that the transfer Q1159 Lord Falconer of Thoroton: And secondly the of that function should be to the Judicial Judicial Appointments Commission is going to play Appointments Commission rather than to the a significant part in the appointment of magistrates? Secretary of State for Constitutional AVairs. 9741051007 Page Type [O] 28-06-04 21:04:08 Pag Table: LOENEW PPSysB Unit: PAG1

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Q1166 Lord Falconer of Thoroton: I understand. placed on the Judicial Appointments Commission The eVect of the change was in fact to take away—it is that diYculty could not arise because it would need not the Lord Chancellor who appoints justices’ clerks the consent of the Commission for that removal to but you are subject to all of the appointments’ take place and the consultation from the bench would procedures in relation to the Civil Service, are you be from the Commission rather than from the not; politicians do not appoint civil servants? Secretary of State. Mr Clarke: As I understand the situation at present, I have to have the approval of the Lord Chancellor before the appointment can be confirmed. Q1169 Lord Falconer of Thoroton: As you know, what we are proposing is to amend the Bill to ensure that before any appointment is made there will be Q1167 Lord Falconer of Thoroton: I am not consultation with the Lord Chief Justice and the appointing, so far as I am aware, justices’ clerks relevant bench chairman. because I am not allowed to appoint civil servants, Mr Clarke: I am aware that that is an amendment quite rightly because I am a politician, but I that is being proposed. I have had a copy of that understood your point not to be quite that but that it proposal from the Lord Chief Justice. What I am was because you are part of the Civil Service you are saying is once in post if you are not taking the susceptible to, as it were, Civil Service procedures. movement line, which is one element of it, there will Mr Clarke: If we become part of the Civil Service, be over a period of time, I think, a culture of which my society is hopeful we will not and that we compliance rather than challenge if you are part of will retain independence, what we are saying is by the Civil Service and part of an organisation rather being part of the Civil Service we will inevitably be than having an independent and declaredly subject to more pressures than we are receiving independent role. Lord Justice Judge speaking at our already, and that if we are part of the formal Civil conference was saying that the independence of any Service our career structures are wider than presently member of the judiciary including the justices’ clerks with the magistrates’ courts and therefore if you are is not the right of the postholder but is the right of looking to move around government as part of your community, and that is really what we are saying. If career progression what you are looking for often is you are looking at the community they would want the support of your higher managers for your there to be independent legal advisers, clearly and eVectiveness. Our concern is with the definition of overtly so, and we feel that because of what is eVectiveness that will be used when those matters are happening at the present time being an indicator of being considered. the likely future situation that cannot be demonstrated save by making that process clearly Q1168 Lord Falconer of Thoroton: I think there are independent and having a separate appointments two separate issues. One is how you move around in body and an independent justices’ clerk system. We the context of a unified administration, and a justices’ are not seeking to be members of the judiciary, we are clerk might wish to move from one court to another, not seeking any greater powers and we are not trying so what would you propose as a way of changing the to avoid accountability; we are happy to be situation? accountable, as any member of the judiciary is, for Mr Clarke: As proposed at the moment, as I say, it the judicial decisions we undertake through the would be that we would be employees of the unified normal process and we are happy to be accountable administration and the administration decides where for an administrative functions we take either on the we are located having consulted with the bench 360-degree model or whatever is proposed. What we chairmen. What we are saying is at the present time have to have is independence so that for ourselves we are postholders and as such our appointment and and for the public it can be seen that we are totally removal is subject to certain sanctions. The Courts separate from government and therefore the advice Committee cannot remove us without the appeal the magistrates are getting is pure and clean with no being available to the Lord Chancellor against that possibility of tarnish attached to it. decision. Here although there could be consultation, consultation does not require agreement, consultation merely requires enquiry of, and even if Q1170 Lord Falconer of Thoroton: Your job is very there is opposition to that movement there is the important: you give advice to magistrates; you possibility of transfer. What I am saying is if this post perform the administrative functions as assigned to that we hold has judicial power, which it does, and is you; and you make judicial decisions. Give us some the judicial adviser to a bench, then the examples of the sort of judicial decisions you are “palatableness” of that advice could cause somebody making? to wish to move that person (in a perverse way Mr Clarke: At the moment we have 44 judicial admittedly but what we have to do is legislate for the powers. One is the determination of whether a good and the bad I would say) and if this duty was summons should be issued. We commit people to the 9741051007 Page Type [E] 28-06-04 21:04:08 Pag Table: LOENEW PPSysB Unit: PAG1

316 constitutional reform bill [hl] committee: evidence

25 May 2004 Mr Rachel Lipscomb, Mrs Sally Dickinson and Mr Neil Clarke

Crown Court for trial. We consider the extension of saying it in such a weak voice as not to be heard, as I bail. We can give directions in criminal— almost was at the beginning of my evidence.

Q1174 Lord Carter: Is there any way in which you Q1171 Lord Falconer of Thoroton: Can you refuse can see that the Bill could be amended to meet those bail? concerns? Mr Clarke: No, what we cannot do is trespass in the Mr Clarke: The Bill can only strengthen the three major criminal areas which is the right to independence by the appointment. It would then be liberty, the determination of guilt and innocence, and for practice, the judiciary itself and our robust the determination of sentence, but what we do do is nature, and the fact that we will be able to bring to the get involved in criminal directions, the listing, the attention of ministers and Parliament the improper time-tabling, et cetera. In the family court we have approaches that occurred for any sanction that they been operating in that jurisdiction on directions can come up with. We have a system now where we since 1990. Judge Cryan said at the Unified are challenging every diYculty. In fairness to the Administration Committee that in respect of the Department, and I do not want to be unfair to the time-tabling and listing functions we carry out in the V Department, they are now beginning to consult us family court we are no di erent from the judges before these circulars are issued to see whether there sitting in the family courts. are points about which we have disagreement. I think that is where practice can correct the problem in time. Q1172 Lord Falconer of Thoroton: In the listing and? We have got to do it from a position of independence Mr Clarke: Listing, time-tabling and directions, otherwise I think we are in diYculties with the because if you want to say to a judge that listing is not challenge in the first place. judicial I wish you well in that, in that they get quite firm that they see it as a judicial function. Of course, Q1175 Lord Goodhart: You have to allocate clerks we uniquely through our powers have access to the to benches, do you not? Under your proposal, which retiring room where nobody else would. As justices’ involves going to the Judicial Appointments clerks we can go and advise any magistrate at any Commission, who would be responsible for the point in time on any point of law. allocation? Would it be a judge? Mr Clarke: If the appointment was made by the Judicial Appointments Commission, what I Q1173 Lord Carter: You are explaining the problem anticipate would happen would be that the agency very well but you are not providing a solution. It would determine the number of areas within which it seems to me that the problem is in two parts, one is operated and the resources that it had available to it the transfer system and the other is what we might on finance. There would then be a fixed number of call undue or improper influence. I think that you are justices’ clerks posts and those would be justices’ proposing to look after the first leg of the problem by clerks, for example, for my own home county of reference to the JAC rather than a minister, but I am Northamptonshire or whatever. As those vacancies not sure you have given us any example of the way arose they would be filled by the Judicial that the Bill could be changed to meet the concerns Appointments Commission on competition. In that that you are expressing on the second leg which is way it would be always, as now, the number of judges undue or improper influence. is determined by Parliament and the allocation of Mr Clarke: I think if I could come up with that I funding to that, so it would be that the agency would would bottle it and sell it very well. What we are determine the number of justices’ clerks and the areas saying is that for there to be the hope of a cure to the to be served by them and then the Judicial problem, there has to be a firm foundation and the Appointments Commission would assign them to firm foundation is the Judicial Appointments that area. Commission. The law as it stands does not have an Chairman: Thank you very much indeed for coming. answer to this because it is happening now. What we Certainly as far as the Justices’ Clerks’ Society is have is our independence whereby we can stand on concerned, you have put your case very clearly in our dignity and say to everybody, “I am sorry, that is front of us, we are much obliged. As far as the not what we are going to do”. My fear is that by going Magistrates’ Association is concerned, we are down the line of the Bill we would be in a situation delighted that they are broadly satisfied. Thank you where we could no longer say it, or we would be very much. 9673871001 Page Type [SO] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

Written Evidence

SUBMITTED TO THE SELECT COMMITTEE ON THE CONSTITUTIONAL REFORM BILL [HL]

Memorandum by Ross Gilbert Anderson

1. Introduction In his well-known work on the Law of the Constitution,1 the great English constitutional lawyer, Dicey stated that “it would be rash of the Imperial Parliament to abolish the Scotch law courts, and assimilate the law of Scotland to that of England. But no one can feel sure at what point Scottish resistance to such a change would become serious.” In 1953, following the coronation of Her Majesty, the great Scottish judge, Lord Cooper of Culross, labelled such a view “exceedingly cynical”2 and suggested that an Advisory opinion from the International Court of Justice might be available if such a situation arose. Mercifully, the government’s proposals for a new Supreme Court for the United Kingdom do not include a proposal to abolish the independent existence of Scots law. Nevertheless, the proposals, in their present form, pose a serious threat to the independent existence of the Scottish legal system. That is not to say that the status quo is ideal. Far from it. Indeed, some of the criticisms which follow are applicable mutatis mutandis to the present arrangements.

2. The ECHR The government has suggested that the new Supreme Court is necessary to ensure compliance with the European Convention on Human Rights (ECHR).3 I have argued elsewhere that the continuation of the status quo, whereby non-Scottish judges sit and vote on Scottish appeals, is contrary to article 6 ECHR.4 The argument is simple. Article 6 ECHR states that “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair . . . hearing . . .”. While it may be acceptable to have unqualified judges at the lower end of the judicial hierarchy, it is quite simply unacceptable to have unqualified judges at the apex of the appellate process. In Scottish appeals, judges who trained, qualified and practised in England and Wales, or in Northern Ireland, are unqualified. They have no training in Scots law. The converse is also true: Scottish judges are unqualified in English law. Section 6(1) of the Human Rights Act 1998 makes it unlawful for any public authority to act in any way that is incompatible with a Convention right. The House of Lords and the new Supreme Court are both a “public authority” in terms of the Human Rights Act 1998, section 6(3). It seems to this writer that litigants cannot receive a “fair” hearing in terms of article 6 ECHR where there are unqualified judges. Scots and English law remain, in many respects, fundamentally diVerent in terms of principle, philosophy, culture and terminology. While English law has exercised a great influence over Scots law in the last couple of centuries, this has not altered much of the basic fabric of Scots law. English lawyers, I would venture, would be somewhat dissatisfied if someone who had qualified and practised only in France or Germany was one of the ultimate arbiters of English law. Yet, for the Scots lawyer, German or French law is often far closer to Scots law in terms of principle than English law.5 English judges seem to express genuine surprise that Scots law might ever be diVerent than English law, despite the fact that the Scottish position is often the norm in Europe and that it is English law that is the peculiar exception. For example, the late Lord Hobhouse of Woodburgh stated in a recent appeal: “What does surprise me is that Scotland, now a highly developed economy, should have a land law which is still based on the judicial development, albeit sophisticated, of the laws of Rome and the mediaeval Feudal system”.6 Yet, the private law of all the main European jurisdictions is based on principles taken from the doctrinal development 1 (9th ed 1948) p 82. 2 MacCormick v Lord Advocate 1953 Session Cases 396 at 412. 3 See, eg paragraph 44 to the Explanatory notes to the Constitutional Reform Bill 2004. 4 “Appeals to London and Human Rights” 2003 Scots Law Times (News) 297. 5 See the comment in the leading text on Scots property law, written by one of the Law Commissioners for Scotland, Professor K G C Reid: “Thus, so far as property law is concerned, modern Scots law may be classified along with the civilian systems of western Europe, such as France and Germany, and with other ‘mixed’ legal systems such as Louisiana and the legal systems of Southern Africa. Conversely, it has little in common with English law, and with other Anglo-American systems, except in those few topics . . . where English law has drawn on Roman law. A lawyer trained in Scots law can without diYculty (other than linguistic diYculty) read and understand a book about the law of property in Germany or, indeed, Japan (where the law is based on German law). But he is likely to be perplexed by a book on the law of property in England”: the Law of Property in Scotland (1996) para 2. 6 Burnett’s Tr v Grainger [2004] UKHL 8 at para 53. Compare the statement of Lord Maugham, Lord of Appeal in Ordinary until 1946, whose impression of Scots law was “those interesting relics of barbarism, tempered by a few importations from Rome, known to the world as Scots law” (quoted by Professor Sir Thomas Smith QC in British Justice: The Scottish Contribution (1961) at p 215. 9673871001 Page Type [E] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

318 constitutional reform bill [hl] committee: evidence of Roman law through the centuries. And no one would suggest that the economies of France, Germany, Austria, or Switzerland have been impeded as a result. In the same appeal Lord Hobhouse also asked counsel at one point in the appeal: “What is diligence?” The subject of the appeal was the eVect of a bankruptcy. In Scots law, sequestration is a collective diligence for creditors. This is something that every first or second year law student in Scotland would know.7 Further examples of judicial ignorance of Scots law are too numerous to mention in this short note.8 No matter how brilliant a judge may have proved himself to be in matters of English or commonwealth law (which is a descendent of English law), this does not necessarily mean that he or she will be able to think him or her self into the terms and concepts of Scots law.9 It is a matter of basic common sense that the final court of appeal in any legal system should contain only judges who are fully qualified in that law and have proven themselves to be distinguished practitioners in that law. The question is one of perception:10 how can the Supreme Court command the respect of the people of Scotland when the majority of the judges in the Court (indeed, if any of the judges) have never studied or practised Scots law?

3. Other Supreme Courts Other Supreme Courts in the world are in a somewhat diVerent position. So too is the Judicial Committee of the Privy Council when it hears appeals from commonwealth countries. In the first situation, matters which reach the supreme court are issues of federal law. There is rarely any dispute that the federal law applies in any particular state. In the second situation, the laws which must be applied are essentially the same as English law. They share a common heritage with English law. Scots law is in a radically diVerent position. Its private law has a common European heritage. Its lawyers historically studied in France and the Netherlands. Even after the Union, it was only in the later part of the eighteenth century that English law exercised any influence on Scots law. In any event, the fact that there are other supreme courts11 which allow non-qualified judges to sit is hardly a good reason to adopt or perpetuate such a position in the UK.

4. Will the Supreme Court be an English Court or a British Court? I opened this note with the comment that Scots lawyers have serious concerns that the new Supreme Court will erode the independence of Scots law as an independent system. The government has sought to refute these claims. Reference to section 31(1) of the Constitutional Reform Bill 2004, however, suggests that it is to be an English court: “The Supreme Court is a superior court of record”. This is a technical English expression with no counterpart in Scots law. The terms of the Bill are unequivocal: the court is to be an English court.

5. Representation on the Bench The present position is that, by convention, there are always two Scottish Lords of Appeal in Ordinary. The convention—and, again, it is no more than that—is that they will always sit in Scottish appeals. But this does not always happen. Often there is only one. Usually, the English judges will follow the speeches of the Scottish judges. However, since the Scots are in a minority, there is always the possibility that the unseen inﬂuence of the majority English judges will be such that the Scottish judges will deliver a decision which would never have been reached in Scotland.12 In other cases, the English judges simply consider the position in English law and make little attempt to appreciate the Scottish position. The point has been well illustrated in appeals on “devolution issues” in terms of the Scotland Act 1998. The Judicial Committee of the Privy Council now has limited jurisdiction over Scots criminal law. Prior to devolution, there had never been any London jurisdiction over Scots criminal law. Scots criminal law has therefore been little inﬂuenced by English law. One of the cornerstones of the Scottish criminal justice system has been the tight time constraints in which an accused 7 The comparable English legal institution is execution. I by no means wish to single out Lord Hobhouse for undue criticism: he was distinguished and often brilliant judge, a master of English law. The quotes are taken to emphasis how expertise in one system is not often a great advantage when trying to understand another. 8 Further references can be found in D M Walker, The Scottish Legal System (8th ed 2001). 9 See the warning administered to the English members of the Judicial Committee of the Privy Council in Montgomery v HM Advocate 2001 Session Cases (Privy Council) 1 at 12H–13B. 10 And I can do no better than quote an English judge: “justice should not only be done but should manifestly and undoubtedly be seen to be done” per Hewart CJ in R v Sussex Justices, ex p McCarthy [1924] 1 Law Reports, Kings Bench Division 256. 11 The other notable example is the Supreme Court of Canada. It hears appeals from Quebec. Quebec law is essentially French based, compared to the Anglo-American law in force in the other provinces. Even in the Supreme Court of Canada, however, there is the requirement that there is a majority of Quebec trained lawyers. 12 For example, it is an axiomatic principle of the law of Scotland that the transfer of immoveable property, ie land, occurs only on registration: see Young v Leith (1844) 6 Session Cases, Dunlop’s Series 370; (1847) 9 Session Cases, Dunlop’s Series 932, aYrmed (1848) 2 Ross’s Leading Cases 103; Sharp v Thomson 1995 SC 455; Burnett’s Tr v Grainger 2002 SC 580. Yet, when the point reaches the House of Lords, this axiomatic principle subject to uninformed criticism and unnecessary alteration: Heritable Reversionary Co v Miller (1892) 19 Session Cases, Rettie’s edition, House of Lords pagination, 43; Sharp v Thomson 1997 Session Cases, House of Lords 66; Burnett’s Tr v Grainger [2004] UKHL 8, especially per Lords HoVmann and Hobhouse of Woodburgh. 9673871001 Page Type [O] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

constitutional reform bill [hl] committee: evidence 319 must be served with the indictment (80 days)13 and brought to trial (110 days).14 There has never been such a culture, never mind statutory requirement, in England. In a recent case15 the issue in a Scottish appeal was whether unreasonable delay had led to a breach of the ECHR on the right to a fair trial. There were a majority of three Scottish judges on the committee. They were quite clear that the unreasonable delay had led to a breach of the convention. The English judges disagreed: one of the reasons being that such a decision would have catastrophic consequences in England, though English law was quite irrelevant to the appeal. Unfortunately, however, when the same point arose for decision in an English appeal,16 the English judges doubted whether the previous decision in the Scottish appeal was correct, much to the consternation of the Scottish judges, Lord Hope and Lord Rodger. The Scottish appeal was not, after all, binding on the court in the English appeal. There is no reason whatsoever why one result can be reached for Scotland and another for England; indeed, this has been the position in criminal law for the last three hundred years of union. With respect, it seems to this writer that the great problem with the present arrangements (which will be perpetuated in the proposed Supreme Court) is a great reluctance on the part of the English judges to do anything in a Scottish appeal other than reach the result that would be reached on the basis of English law. This is not surprising: that is the law in which they are trained and indeed expert.

6. Precedent The foregoing point raises an important issue. The legal systems of Scotland and England both apply a principle of precedent, ie lower courts are bound by the judgements of higher courts. At the moment, a judgement of the House of Lords in an English appeal is binding only in England; judgements in Scottish appeals bind only Scottish courts. As was highlighted in the previous paragraph, diVerences between Scottish and English law do arise. Yet, nowhere in the Constitutional Reform Bill 2004 is there a guarantee that English judgements will not be binding in Scotland. This again highlights the problem of judges who are quite unqualiﬁed to pronounce on Scots law producing opinions which the Court of Session may then be bound to follow. A rigid system of precedent is not required to achieve uniformity between the laws of Scotland and England. Scottish lawyers make regular and often copious reference to English law. Often the results arrived at are the same in both systems. Rather, it is the way of arriving at that result which sometimes diVers; and the chosen route can be very important for future legal development. The more ﬂexible system of precedent advocated here would also allow diVerent decisions to be reached in the small number of cases where diVerences do arise.

7. Full time or Part Time Scottish Judges As noted in paragraph 5 above, the convention is that there are always two judges who have qualiﬁed and practised in Scotland in the House of Lords. Naturally, the judges appointed to the House of Lords are among the most distinguished of Scots lawyers. The number of appeals from Scotland to the House of Lords each year is, on average, between four and six.17 On elevation to the Lords or the Supreme Court, Scotland’s best judges then spend the majority of their time hearing English appeals. Their contact with Scots law is then on an infrequent rather than a daily basis. And all this while there is a chronic shortage of judges in Scotland. In recent years, our small legal system has not just had to cope with losing two distinguished judges to the House of Lords. The incumbent Lord President, Lord Cullen, has spent much time conducting public inquiries; as has Lord Penrose. Judge David Edward has spent all his judicial life in Luxembourg in the European Court of Justice. Lord Bonomy has just been appointed to the International War Crimes Tribunal in The Hague.18 The individuals concerned are only to be congratulated for their achievements and dedicated public service. On a more prosaic level, however, back in Glasgow there are not enough able judges to preside over murder trials; in Edinburgh litigants have to wait months or years for proof dates or to pursue an appeal to the Inner House of the Court of Session. Scots law can cope with relatively short term absences of her best judges to ad hoc appointments like public enquiries.19 It is also right that judges with particular expertise should not be inhibited from taking up outside appointments. However, Scots law cannot cope with the permanent loss of another two senior judges to London on a full time basis. In any event, and I say this with the greatest of 13 Criminal Procedure (Scotland) Act 1995, (c 46) section 65(4)(a). 14 Criminal Procedure (Scotland) Act 1995, (c 46) section 65(4)(b). 15 R v HM Advocate 2003 Session Cases, Privy Council 21; [2003] 2 Weekly Law Reports 317. 16 AG’s Reference, No. 2 of 2001 [2003] UKHL 68; [2004] 2 Weekly Law Reports 1. 17 The statistic is Lord Hope of Craighead’s. See his article, “Taking the case to London—is it all over?” 1998 Juridical Review 135. 18 Scots law has also had to cope with two litigations of unprecedented length: the Lockerbie trial in the Netherlands and subsequent appeal; and the litigation arising out of the Piper Alpha disaster. 19 BBC correspondent Andrew Marr has labelled the phenomenon “Send for a Scots lawyer again!” See “Scots Law News, No. 349 available at ''http://www.law.ed.ac.uk/sln/((. 9673871001 Page Type [E] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

320 constitutional reform bill [hl] committee: evidence respect, they are not actually qualiﬁed to do the majority of the work that they are required to carry out: ie sit on English appeals.20 This writer would therefore advocate that in Scottish appeals to the Supreme Court, the Bench is made up entirely of Scots judges appointed on an ad hoc basis.

8. Conclusions

This comment has tried to make clear that Scots lawyers find the present appellate system highly unsatisfactory. Indeed, it may be that the present system, to be perpetuated by the Supreme Court, is itself in breach of the ECHR. If the Supreme Court is to inspire the confidence of the Scottish people, it must be comprised only of practising Scottish judges (paragraph 1). They should be appointed on an ad hoc basis (paragraph 7). This is something which has, to some extent, already begun: in some Privy Council cases, extra Scottish judges have been drafted in to ensure a Scottish majority.21 I would argue, however, that only a full bench of Scottish judges is suYcient to comply with the ECHR: otherwise, if there be disagreement among the Scottish judges, the opinions of unqualified judges will have the deciding vote. Finally, provision must be made to ensure that decisions of the Supreme Court in English appeals are not binding on Scottish courts (paragraph 6). 21 April 2004

Memorandum by the Association of Personal Injury Lawyers

The Association of Personal Injury Lawyers was formed 14 years ago to champion the rights of those injured through negligence. We currently have over 5,400 members, both in the United Kingdom and abroad. APIL campaigns for improved rights for those who have been injured through no fault of their own and seeks to highlight the kind of negligence which leads to personal injury. APIL also provides training courses so that our members can be as up to date as possible on topical legal issues. APIL does not act as a trade union for its members, nor does it provide endorsements or create business for them. APIL has welcomed and contributed to the debate surrounding constitutional reform, but has serious concerns about schedule two of the Constitutional Reform Bill. The Government has stated that in the future, the Secretary of State for Constitutional AVairs may be a member of the House of Commons rather than the Lords, as at the moment, and may not be a lawyer. Schedule two provides that whilst the Lord Chief Justice can make rules, he must do so with the consent of the Secretary of State, who can veto any rules and also impose his own, which must be implemented by the Lord Chief Justice. This is a change from the current system; at present, the Lord Chancellor, although a member of the Cabinet, is a high ranking lawyer; he is obliged by judicial oath to act in accordance with his duties and is equal in rank to the Chancellor of the Exchequer, the Home Secretary and the Foreign Secretary. Whilst a rule making Lord Chancellor is part of the Executive, his status within the Cabinet should usually ensure his judicial independence. APIL is concerned that the proposed changes will breach one of the core principals of this country’s legal system, which is that there must be a separation of power between the judiciary and the executive. The reason for this is that whilst the Bill contains a “guarantee of judicial independence” APIL concurs with the opinion voiced by Julian SamiloV, in his article, “Crisis in the constitution” (Legal Executive Journal, April 2004), in which he states that “the Bill exposes the judiciary to a real risk that they will be in the future subject to political pressure because the Lord Chancellor’s position would pass to a junior minister . . . unable to resist internal pressures from more senior cabinet colleagues”. Even Lord Carlisle [Hansard, 8 March, col 1066] has stated that “the Secretary of State for Constitutional AVairs will be close to the bottom in the Cabinet, be an ambitious politician and be greatly subject to the views of the Home Secretary . . . He may have no legal background . . . [and] . . . is far more open to political interference”. Schedule two, as currently drafted, thus allows for the judiciary to eVectively become a vehicle for merely implementing and enforcing government policy through the courts. APIL will be drafting an amendment to the Bill to overcome this concern and this will be forwarded to members of both houses of parliament in due course. 20 This writer would in no way wish to suggest that any of the judges concerned have ever failed to discharge their onerous responsibilities with anything other than the highest standards of professional ability. 21 See eg Brown v Scott 2001 Session Cases, Privy Council 43. Here Lord Kirkwood, a Privy Councillor, but not a Lord of Appeal, sat. 9673871002 Page Type [O] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

constitutional reform bill [hl] committee: evidence 321

If members of the committee have any questions about this issue then please contact Lorraine Gwinnutt, Head of Legal and Public AVairs, so that clariﬁcation of APIL’s position can be oVered. Denise Kitchener Chief Executive 15 April 2004

Memorandum by the Association of Women Barristers

1. The AWB has approximately 500 members and its elected committee promotes the wishes and interests of its members. Its current Chairwoman is Jane Hoyal and its current President is the Right Honourable Baroness Hale of Richmond. 2. The AWB has campaigned for a fundamental reform in the way the professional judiciary is appointed. The AWB believes that the case for an independent Judicial Appointments Commission is overwhelming and that the public interest in securing a diverse judiciary which more reﬂects society is urgent. The AWB has responded to all the Government consultation papers and circulated policy and other relevant responses which are available on request. 3. The experience of modern Jurisdictions eg Canada has highlighted the “merit” in judges selected by the application of measurable objective criteria in accordance with non-discriminatory practices. Public conﬁdence in the judiciary has been enhanced by the positive implementation of a non discriminatory application procedure, policy and practice. 4. England, Wales and Northern Ireland have a professional judiciary which is composed of mainly white, male ex barristers. The very low number of women at Circuit Bench, High Court, Appeal Court and House of Lords level is regarded by some as a national disgrace, given the number of eligible women lawyers. The AWB has the highest regard for the excellence, high integrity and merit of the existing Judiciary. 5. The AWB supports strongly that part of the Bill creating the independent Judicial Appointments Commission. It considers that arguments over other parts of the Bill should not be allowed to delay this long overdue reform. 6. The AWB agrees with the Fawcett Society, Rights of Women, the Discrimination Law Association and the Haldane Society in respect of the urgent need for the above reform. Drafting points can be resolved with a commitment by all to co-operate in ensuring that mischievous, unreasonable, obstructive, delaying or blocking tactics are not employed. The AWB is available to provide oral and/or further written evidence if requested. June Hoyal April 2004

Memorandum by Professor John Bell, QC (hon) FBA, University of Cambridge Criteria for Appointment Appointment should be based on merit, but merit should be conceived broadly. On the one hand, being a judge is a job, for which the priority criterion is professional expertise. On the other hand, a judge holds a public oYce, which carries responsibility as an organ of government. Now this requires diVerent qualities for which should be identiﬁed by a range of non-professionals. The key to success in a judicial appointments system is the recognition of the relative importance of these two conceptions of the judicial role at diVerent levels within the judicial hierarchy. Even in assessing the “merits” of candidates for judging as a job, there is a clear role for the lay people. The work of the judge contains much routine. If we think of the work in the County Court, there is a regular ﬂow of routine judicial business—divorces, bankruptcies, debt actions, possession actions. There is little of high policy, but a lot of work with great importance to the parties and those who depend on them. Deciding these matters, which are often uncontested, in a sensitive and professional manner is a demanding task. The main qualities required for the role would be expertise, sound judgment, and a good manner in dealing with the public. The idea of “merit” for appointment should go beyond mere technical legal expertise and assess these broader personality traits. The function of the lay members is both to provide an assessment of these broader aspects of “merit” and to operate as an accountability mechanism whereby the professional lawyers have to justify explicitly their judgments about professional competence. 9673871004 Page Type [E] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

322 constitutional reform bill [hl] committee: evidence

The Composition of the Judicial Appointments Commission

Based on study of diVerent European Judicial Appointments Commissions, I would wish to argue (a) that lay members should be in a majority on the Commission, and (b) that their appointment should be linked firmly into the political process. (a) In response to the Department of Constitution AVairs consultation paper, A New Way of Appointing Judges, both the Bar Council and the Judges Council cited art 1.3 of European Charter on the Statute of Judges 1998 in order to justify giving judges the majority voice: In respect of every decision aVecting the selection, recruitment, appointment, career progress or termination of oYce of a judge, the statute envisages the intervention of an authority independent of the executive and legislative powers within which at least one half of those who sit are judges elected by their peers following methods guaranteeing the widest representation of the judiciary. This principle confuses judicial independence with judicial self-government. My analysis of “merit” makes it clear that lay people are just as competent as judges to assess many of the key features of merit. In addition, choices will be too conservative. Certainly, the evidence is that bodies which do have a substantial judicial presence tend to make appointments more frequently on the basis of seniority, than on strict merits. The Spanish Consejo del Poder Judicial has very few appointments which can be made on grounds other than seniority, and seniority is the principle consideration in French administrative and civil judicial appointments. (b) In designing a judicial appointing body, there is a choice between having lay members as representatives of political society and having them as representatives of civil society. The Constitutional Reform Bill has taken the latter, more diYcult route. Why do we want representatives of civil society, and what are the criteria and responsibilities of this role? The lay members of most European judicial appointments commissions are nominated by Parliament or the Government. In Italy, they cannot be members of the Parliament, but must be law professors or advocates. In Spain, the lay members come directly from the Parliament, as in Germany and France. In Sweden, nomination to Tja¨nstefo¨rslagsna¨mnden is by the Executive, as is appointment to the over-arching judicial agency, Domstolsva¨sendet. These bodies have operational independence of the politicians, but there is a clear line of legitimacy from the organs of political society. Our proposals have a route that really separates the appointing body from the political community, and without setting out any criteria for the qualifications required of the lay members. There is to be a procedure of public appointments by advertisement. But there are no criteria for appointment and no sense of where these people should come from. What exactly is this “civil society”, which they are meant to represent? Whereas school governor nominations will come through political parties, there are no obvious routes of influence here. We have the sort of independent people who are governors of the BBC, but who, like them only have a reporting accountability to Parliament. The notion of a public oYce brings with it a role in shaping the direction of society. This is “political” with a small “p”. The way in which an individual would shape society ought to be held up to scrutiny, and those who have political responsibility are among those best placed to undertake such scrutiny. Most of the European judicial appointment institutions recognise this wider conception of politics. The proposed role for the minister in the UK reflects a rather constrained place for politics. The minister exercises a veto, rather than a choice. This matches the German position, rather than the French, where it is the judicial appointments commission (Conseil supe´rieur de la magistrature) which exercises the veto power. All the same, there has first been a public list of eligibility which does determine who has potential to become a judge. Whether people are included on this list is something which can be (and is) challenged in the courts, and the choice of people for appointment from the list can equally be challenged. For instance, one French judge was able to challenge the appointment of a colleague to a particular regional court of appeal on the ground that the minister had failed to give suYcient weight to his interest in being closer to his family, which lived in that court of appeal area.22 A German judge was able challenge (successfully) the nomination of a member of the Green party to the Bundesgerichtshof on the ground that he was better qualified (a view which was shared by the judges in the Bundesgerichtshof itself).23 In my view, the availability of challenge to decisions either by the applicant or by disappointed colleagues is a suYcient safeguard against improper political decisions, rather than removing politicians altogether from the scene. 22 See CE 6 August 2002, Ozoux, AJDA 2002, 1408 (quashing of a decision to transfer other judges from Metropolitan France to la Reúnion in preference to the applicant, whose wife and children remained there). 23 OVG Schleswig, 15 October 2001. But the judge in the case, Wolfgang Neskovic, was successfully renominated and took his place in the Bundesgerichtshof: Hamburger Abendblatt, 1 August 2002. 9673871004 Page Type [O] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

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I think there is a too easy equation in the responses to the Consultation Paper of political considerations with dubious or improper motives. Concerns about systematic or individual pressure on judges by politicians are not hypothetical. At the same time, they do not preclude legitimate political questions about the direction in which a judge’s exercise of power might take society. (Politics with a small “p”.) In a divided society, there are diVerent views about the way in which society should go. Having judges who are aware of these and even who reflect together a variety of tendencies in society may be one way in which judicial decisions can come to terms with the political dimensions of decisions. Most systems include politicians either as members of a judicial appointments commission, or as the nominators of members (and thus as ensuring some representation of diVerent political tendencies). European experience questions whether the exclusion of politicians from the judicial appointments commission really excludes political issues in appointments. Many legal systems have started oV with a single judges’ professional association, which represents all judges in discussions with government about terms and conditions of employment, as well as the work of the courts. But elections within the judiciary of members of a judicial appointments commission have caused divergences of viewpoint to surface within the judiciary. These are reflected in Italy by diVerent “correnti” or currents of opinion, each of which succeeds in getting its members elected to the supreme judicial council.24 In France and Spain, the single judges association has fragmented into several clearly political associations, which compete to obtain nominations.25 On an election by proportional representation, the diVerent judges’ views are reflected. If there are underlying political questions about the role of judges in the direction of society, they will come out either directly by the involvement of politicians in scrutinising appointments or by the creation of “judicial politics”. In brief, freedom from improper political interference in individual cases or in the career paths of particular judges does not necessarily justify banishing politicians from the whole process. Banishing politicians from the process does not banish political issues. They will surface in debate about reflecting diVerent tendencies within the judiciary, and might be reflected in a role for associations of like-minded judges and lawyers who will seek to secure representation of their ideas in the judiciary through membership of the judicial appointments commission. April 2004

Memorandum by the Blackstone Society

The members of this Society would wish to express their views to the Select Committee on the very important issues raised by this Bill. Our recommendations fall under three heads: the abolition of the oYce of Lord High Chancellor; the establishment of a new Supreme Court; and the proposed Judicial Appointments Commission.

Abolition of the Office of Lord High Chancellor

We see no need for this alteration of the constitutional position. The Lord Chancellor is in a unique position to maintain the independence of the judiciary, since he has a seat in the Cabinet. One of our members wrote the following letter to “The Times” which was published on 6 March: “Sir, it makes a diVerence that a Lord Chancellor was a judge with a seat in the Cabinet. He could uphold the inedpendence of the judiciary in a way which the Lord Chief Justice cannot, because the Chief Justice will have to represent the judges through the Secretary of State for Constitutional AVairs. This latter oYcer may well not be a lawyer in the future. Schedule 1 of the Constitutional Reform Bill, however, will empower the Secretary of State, among other things, to determine pay, pensions and terms and conditions of the judiciary and the overall number of judges and the distribution of business between diVerent levels of courts. So much for independence. It all sounds like the conversion of our judiciary into civil servants as they are in continental Europe. This is exactly what we do not need, if our common law powers of checking the executive are to survive.” 24 For a list see Guarnieri and Pederzoli, The Power of Judges, table 1.3, p 56. (2004) 24 LS at 187. 25 In France, about 60 per cent of the ordinary judges belong to one of the judicial unions. Of these, about 60 per cent belong to the Union Syndicale de la Magistrature, 30 per cent belong to the left-wing Syndicat de la Magistrature and 9 per cent to the right-wing Association Professionnelle des Magistrats. In Spain, The “Juces para la Democracia” occupied a left-wing role, whilst the “Asociacio´nFrancisco de Vitoria” represents a more centre-right tendency. The more right-wing “Foro Judicial Independiente” was formed later. Each has the right to nominate candidates to Parliament to be considered for membership of the CGPJ. 9673871005 Page Type [E] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

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We support the views expressed in that letter and would commend them to the Committee. It may be thought necessary, in the case of the Lord Chancellor, to require him not to sit in judgment with the Law Lords in cases brought before the highest court in the land, while retaining his titles as Head of the Judiciary, Speaker of the House of Lords and Member of the Cabinet.

ANew Supreme Court There is no need for this. The House of Lords Appellate Committee is most highly regarded throughout the world and should continue in its present form. This means that the Law Lords would continue to sit in the Lords’ House and make their wisdom available in debates. If the Bishops retain their seats then so should the senior Judges. Janet Morgan in her book on “The House of Lords and the Labour Government 1964–70” makes the point that “. . . the fact that many Law Lords have presided over Royal Commissions, Tribunals and Courts of Inquiry and other oYcial investigations gives them added authority in debate. The rest of the House respects the Law Lords’ strong convention of political neutrality, both for its own sake and for the implication that it preserves some mysterious essence of non-partisanship that pervades the Lords as a whole”. The White Paper on reform, Cmnd 3799, of 1968–69, expressly stated: “There should be a place in the reformed House for Law Lords and Bishops”. The “strong convention of political neutrality” mentioned above should put to rest accusations of breach of separation of powers. Added to the above is the expense of setting up a separate Supreme Court, estimated as being between £6 million and £32 million. Other such estimates, as for the Scottish Parliament, show how inaccurate they can be.

Judicial Appointments Commission The present method of selection of Judges has worked very well, over a long period of time, as evidenced by the high quality of judgment in the courts. But there is a strong public opinion that it is time for “transparency” in the selection of Judges, and also a feeling that appointments are not compatible with ethnic and gender sentiments. Our position is that the only criterion for appontment should be merit, based on service in the courts. However, we have no objection to the system of selection envisaged by the Bill, although we are of the opinion that the 15 Commissioners who will comprise the Judicial Appointments Commission should be selected by a Parliamentary Committee and not on a recommendation to The Queen by the Minister. This will ensure that those who have a duty to select the best people to serve as Judges are not those most favoured by the government in power. We express the wish that Your Lordships may reach a conclusion on this Bill which reﬂects the power and rationality of Your Lordships’ debate on 8 March 2004. April 2004

Memorandum by Vernon Bogdanor, Professor of Government, Oxford University

1. The Constitutional Reform bill should be seen in the light of the programme of constitutional reform began in 1997 and perhaps not yet completed. 2. We are in the process of doing something quite unique in the democratic world, in slowly converting an uncodiﬁed constitution into a codiﬁed one, by piecemeal means, there being neither the political will nor the public consensus to proceed more rapidly. It may be said, therefore, that the British people, through their elected representatives, are in eVect giving themselves a constitution. The theory of the American Constitution is that the people, through their elected representatives in Congress, are able to maintain a democratic dialogue, on how that Constitution is interpreted. The question may arise in Britain of whether the people should through Parliament, be able to initiate such a democratic dialogue. That is a fundamental and diYcult question. 3. The three central proposals in the bill are: (a) The abolition of the oYce of Lord Chancellor. (b) The arrangements for the new Supreme Court. (c) The new method of appointment of judges. 4. The previous arrangements were defended because they “worked”, and not on any grounds of abstract principle. No one indeed believed that the British model was in any sense generally applicable. Indeed, it was something of an embarrassment. As Erik Jurgens, Rapporteur of the Committee on Legal AVairs and Human 9673871006 Page Type [O] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

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Rights of the Parliamentary Assembly of the Council of Europe told the House of Commons Select Committee on the Lord Chancellor’s Department. “Every day in my Council of Europe work I am in confrontation with new democracies from central and Eastern Europe. When I tell them they should not do certain things they say ‘what about the British?’ They have these [judges] appointed members of Parliament in the Upper House. They have a Lord Chancellor—all the things I tell them they should not have”26 5. The system “worked” since, although in theory, the Lord Chancellor could regularly sit as a judge, he has rarely done so in recent years; and although he could, in theory, act as a partisan Cabinet minister by making political appointments to the judiciary, this too did not happen in modern times. Similarly, the law lords, by convention, played no part in political controversy in the upper house. 6. There are three objections to the argument that the old system “worked”. The first is that it has worked in a broadly satisfactory manner only in recent years. At the beginning of the 20th century, Lord Salisbury, as Prime Minister, spoke of “the unwritten law of our party system”, and declared that “there is no clearer statute in that unwritten law than the rule that party claims should always weigh very heavily in the disposal of the highest legal appointments. In dealing with them you cannot ignore the party system as you do in the choice of a general or an archbishop. It would be a breach of the tacit convention on which politicians and lawyers have worked the British Constitution together for the last two-hundred years”.27 7. Second, there have been cases when the supposed conventions were not observed, even in recent years. Lord Hailsham combined the oYce of Lord Chancellor with that of President of the City of Oxford Conservative Association, and was not inhibited by his role as head of the judiciary from making rumbustious and partisan political speeches. Lord Irvine acquired responsibility for constitutional reform, chairing the Cabinet committees which prepared the devolution legislation and the Human Rights Act. In 2001, Lord Scott spoke in the House of Lords on the controversial issue of hunting, while, in the recent debate in the Lords on the Constitutional Reform bill, Lord HoVman voted against the government and in favour of the motion proposing the establishment of a Select Committee. There is thus no necessary presumption that the conventions will always be observed, and future political vicissitudes might make it expedient for them to be broken. Moreover, the process by which judges were appointed was, until recently, shrouded in some mystery, and was criticized as owing too much to arcane processes of networking. Such processes do not command public confidence in the modern age, and there have been many complaints that there are too few women and too few members of the ethnic minorities amongst the senior judiciary—98 per cent of the judges are male, 87 per cent. went to public school and 90 per cent attended either Oxford or Cambridge. The Judges Council accepted, in its response to the Consultation Papers on Constitutional reform that “One criticism that can be made of the existing situation is that the senior judiciary lacks diversity. The criticism is accepted, and the negative impact of this shortcoming is readily acknowledged”.28 The criticism should be taken particularly seriously at a time when the courts are likely to find themselves increasingly concerned with sensitive issues primarily aVecting women, such as abortion, the status of embryos and stem cell research, and issues primarily aVecting ethnic minorities such as racial discrimination. The court is not of course a representative forum, but, nevertheless, the judiciary needs to be more diverse so that a wider range of experience can be drawn upon. 8. But the third objection is the most important. Even if the conventions worked perfectly, it would still not be satisfactory to retain a system based so largely upon them. “British government”, declared Sidney Low in 1904, “is based upon a system of tacit understandings. But the understandings are not always understood”.29 What may have been acceptable a hundred years ago is hardly likely to be acceptable today in a world in which deference has largely disappeared and political and judicial arrangements are expected to be capable of rational and public justification. Indeed, one central theme of the process of constitutional reform since 1997 is the need to refashion our political system so that it no longer depends on tacit understandings, but is based upon clear public principles for organizing and controlling power. 9. The need for clear public principles is strengthened by our commitment to the European Convention of Human Rights. Recently, the Council of Europe was disturbed by the situation in Luxembourg where the highest administrative court, the Conseil d’Etat, was accustomed to give advice to the government on pending legislation, legislation on which it would eventually have to make rulings. In 2000, in the case of McGonnell vUK(2000), 30 EHRR 289, it was ruled that, with regard to the BailiV of Guernsey, it was “incompatible with the requisite appearance of independence and impartiality for a judge to have legislative and executive functions as substantial as those in the present case”. In the Scottish case of Starrs v Ruxton, 2000 SLT 42, it 26 Minutes of evidence 27 March 2003. 27 R F V Heuston, Lives of the Lord Chancellors, 1885–1940, Clarendon Press, 1964, Pp 52. 28 Judges’ Council response to the Consultation papers on Constitutional Reform, November 2003, para 72, p 16. 29 Sidney Low, The Governance of England, T Fisher Unwin, 1904, p 12. 9673871006 Page Type [E] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

326 constitutional reform bill [hl] committee: evidence was ruled that the provision by which part-time sheriVs were dependent for their continued employment on the executive was in breach of Article 6 (1) of the European Convention. This led to changes in the arrangements for tenure of part-time judges in Scotland and also in England and Wales, to avoid a possible challenge to the position of Recorders. There must, therefore, be some legitimate doubt as to whether the role of the Lord Chancellor and that of the law lords as members of the House of Lords would have been found compatible with Article 6 of the European Convention of Human Rights requiring “a fair hearing by an independent and impartial tribunal”. The rule of law requires that the actions of government are subject to review by judges, and so the head of the judiciary must not only be independent of government but also be seen to be so. The essence of the rule of law, surely, is not only that constitutional arrangements are proper, but that they are seen to be proper. Thus, the requirement that judges be independent of government is itself a fundamental requirement of constitutionalism. 10. There should, therefore, be new arrangements for the appointment of judges. What ought these to be? The problem is one of weighing two opposed principles, judicial independence, the need to ensure that judicial appointments are not politicized; and accountability. Lord Falconer’s introduction to the consultative paper, Constitutional Reform: A New Way of Appointing Judges, (July 2003), declares both that “The appointments system must be, and must be seen to be, independent of Government” but also that “those responsible for judicial appointments must be accountable to Parliament without it becoming part of the political process”. Under our constitutional system, appointments made by the Queen are made on the advice of a responsible minister. They could not be made directly on the recommendation of a Judicial Appointments Commission. The reason for this is clear. It is that the sovereign must be shielded from controversy by a minister who can be questioned in Parliament. 11. However, the Secretary of State, like the Lord Chancellor, performs a dual role. He is, on the one hand, a responsible minister, a member of the government; as such, he plays his part in the formulation and defence of government policy, and is responsible for that policy. But he is also an agent of the state, and, insofar as he acts in this capacity, as he does in the appointment of judges, it is undesirable for him to be questioned in Parliament. Indeed, any political control on him in this latter role is improper. The Lord Chancellor could not of course be questioned in the Commons on individual appointments; and it would be undesirable were the Secretary of State for Constitutional AVairs, who could, of course be drawn in future from the House of Commons, to be questioned in the Commons. However, if the decision on judicial appointments is to be that of a responsible minister, he must have a genuine discretion, a discretion that could, in theory, always be abused for political purposes. How is this conﬂict—between the role of the Secretary of State as a responsible minister and as an agent of the state—to be resolved? 12. The ﬁrst question to answer is what degree of discretion the Secretary of State should enjoy. In the case of senior civil service appointments, where the appointment is advertised, the minister currently has only a very limited discretion. (I am aware that the government is currently seeking to alter this principle.) He or she has the option either of accepting the recommendation of the Civil Service Commission or of rejecting it; but, if the recommendation is rejected, the post is re-advertised and the selection procedure begins again. The minister is not at liberty to choose a candidate other than the person recommended by the Commission. 13. The argument for this is that a civil servant serves not only the particular minister who chooses him or her, but will be required to serve other ministers, who may well be of a diVerent political colour to that of the minister making the appointment. Judges, however, do not serve ministers or government at all; they are servants of the law itself. Therefore, a fortiori, a responsible minister ought not to enjoy a greater degree of discretion over the appointment of a judge than he enjoys over the appointment of a senior civil servant. He should, in other words, be required, in all cases, including appointments to the new Supreme Court, to accept or reject a nomination made by the Judicial Appointments Commission. But how can this principle be made compatible with the idea of a genuine discretion for the minister without which ministerial responsibility becomes meaningless? 14. In cases of appointments to the cross-benches of the House of Lords, the so-called “Peoples peers”, and appointments from the opposition parties, the Prime Minister has indicated that, although it is for him to advise the Queen, he will, by convention, accept the names recommended to him by the House of Lords Appointments Commission. A similar convention should, it is suggested, be adopted in the case of judicial appointments. Thus, although it will be for the Prime Minister, after consulting with the Secretary of State for Constitutional AVairs, to advise the Queen, he will, by convention, accept the recommendations of the Judicial Appointments Commission. Were there to be circumstances where the Prime Minister or the Secretary of State felt that the convention ought not to be adhered to, then the appointments procedure would have to begin again. 9673871006 Page Type [O] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

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15. The question then arises as to whether there ought to be any further measure of accountability to Parliament. It would clearly be highly undesirable for ministers to be questioned on individual appointments; while confirmation hearings after the American fashion, even if in principle desirable, would be unlikely to find favour at the present time. 16. Perhaps, however, some lesser degree of parliamentary scrutiny might be acceptable. There is likely to be increasing public interest in both the role and the composition of the judiciary. It is certainly to be hoped that the judiciary will rapidly become both more representative and more diverse, and, in particular, that more appointments of women and members of ethnic minorities will be made. Progress towards this aim will no doubt be charted by the Judicial Appointments Commission in its annual report. This report will presumably be scrutinised by the Constitutional AVairs Committee in the House of Commons and perhaps in the Lords also, in the same way as the annual report of the High Court of Australia is subject to scrutiny by the Legal and Constitutional Legislation Committee of the directly elected Australian Senate. 17. But there is a more fundamental need for accountability since, as a result of the process of constitutional reform since 1997, the role of the Supreme Court is likely to change very radically. 18. Lord Steyn has declared that the reforms since 1997, and in particular the Human Rights Act, are turning Britain into “a true constitutional state”. He went on to insist that “A distinctive characteristic of such a state is that it has a wholly separate and independent Supreme Court which is the ultimate guardian of the fundamental laws of the country”. (Emphasis added)30 The implications are likely to prove very profound. 19. The idea of fundamental law is of course something wholly new in our constitutional experience. Indeed, Dicey insisted that our constitution knew nothing of fundamental law. Yet, while no doubt the principle of the sovereignty of Parliament remains at the core of our constitution, it would be diYcult to deny that such legislation as the Human Rights Act, the devolution legislation, and, from an earlier period, the European Communities Act of 1972, is in practice fundamental. Certainly, interpretation of such legislation is a very diVerent matter from interpretation of, for example, legislation connected with matters of taxation or company law, and involves judges in a quite diVerent kind of exercise, one in which their philosophical predilections might well prove highly relevant. During the Pinochet case, indeed, both The Times and The Daily Telegraph, distinguished between those law lords who were “liberal” and those who were “conservative”31 That of course is an exercise frequently undertaken in the United States. Were our Supreme Court to begin to take on some of the characteristics of a constitutional court, then the philosophical predilections of a judge might well become a factor relevant to his or her appointment. 20. If we have, in the years since 1997, been in eVect giving ourselves a constitution, then should we not be able, through Parliament, to initiate a dialogue about how that constitution is interpreted? Some senior judges, including the Lord Chief Justice himself, have already begun a dialogue directly with the interested public by announcing their views in the form of lectures and articles for law journals. Why should they not also begin a dialogue with Parliament provided that such a dialogue does not involve the politicization of the judiciary? Thus, the process by which a parliamentary Committee, such as the House of Commons Constitutional AVairs Committee, seeks formal opportunities to meet Justices of the Supreme Court, including recently appointed ones, should be continued and intensified. The Constitutional AVairs Committee has recently concluded that “The views of Judges on the role of the Supreme Court, approaches to broad questions of law, especially constitutional law and human rights law and law reform are all matters of legitimate public interest. A constructive dialogue between parliament and the UK’s most senior judiciary need in no way undermine judicial independence. The Supreme Court itself has much to gain from such dialogue, especially if senior members of the judiciary cease to sit as peers in the House of Lords.— we recognize the potential benefits to public understanding of the role of the new Supreme Court if a practice were to be adopted of inviting Judges, including recently appointed ones, to appear before an appropriate Committee from time to time (including this Committee).”32 In taking on this role the Committee would be providing a further safeguard against any attempt by a minister to politicize the judiciary. April 2004 30 Johan Steyn, “Creating a Supreme Court”, Counsel, October 2003, p 14. See also Vernon Bogdanor, “Our New Constitution”, Law Quarterly Review, 2004. 31 R v Bow Street Metropolitan Stipendiary Magistrate ex p Pinochet Ugarte [1998] 4 All ER 897, HL; (No 2) [1999] 1 All ER 577 HL; No 3 [1999] 2 All ER 97, HL. The Times, 25 March 1999; 22 September 2000; The Daily Telegraph, 18 January 1999. 32 House of Commons, Constitutional AVairs Committee, HC 48-1, 2003–04, paras 86, 87. 9673871007 Page Type [E] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

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Memorandum by the Rt Hon the Lord Brightman Summary 1. I was appointed a Law Lord in 1982. I retired as a Law Lord in 1986 . Thereafter I devoted myself entirely to the nonıjudicial work of the House. In my submission it would be a great mistake to hive oV the judicial work from the pre cints of the Palace of Westminster. It is not necessary to do this in order to prevent the Law Lords becoming legislators. There would be no beneﬁt to litigants. 2. Therefore I think that “Part 2, the Supreme Court” should be amended accordingly.

Evidence 3. My evidence is directed solely against housing a Supreme Court outside the Palace of Westminster. 4. I start by getting rid of one misunderstanding. This is based on the proposition, which for present purposes I accept, that if Law Lords in oYce take part in the legislative work of the House they may be compromised if at some later date they have to deal with the same matter judicially. 5. Therefore it is said that it is necessary to remove the appellate jurisdiction and site it elsewhere, in order to prevent Law Lords being legislators. 6. This argument is a fallacy. There is already a convention that Law Lords do not speak or vote on matters where there is a strong party political controversy, All that is needed is a convention that Law Lords in oYce, or w ho are authorised to sit judicially do not speak or vote at all. That is a total answer to the problem. 7. It may however be asked, how is such a convention to be established? That is no problem, because this House re-gulates, its own proceedings. I will give an example. Before 1844 lay peers, as well as Law Lords (who were very few in number) were in theory entitled to vote and sometimes did vote on judicial appeals. In June 1884 the then Lord Privy Seal advised the House that this practice should cease. His advice was accepted and the covention established. 8. But it may be asked, what about a Law Lord taking his or her seat in the House and listening to the debate on a Bill or an amendment? Will that compromise a Law Lord? Surely it will not, anymore than it matters if a Law Lord listens on the radio to Today in Parliament. If there is a convention that Law Lords in oYce do not speak or vote on Bills, how can it possibly be said that they enjoy the dual role of Judge and Legislator.

Conclusion 9. I finally consider whether there are any other reasons for removing the Appellate Jurisdiction or a new Supreme Court from the Palace of Westminster. It will not benefit appellants or respondents in any way. Appeals will not be heard more cheaply or more quickly. I can see no benefit to Parliament the general public. 10. The move to send the Law Lords away from the House of Lords is, I believe, built on a total misunderstanding of how the system works. Parliament has it in its hands to avoid the waste of millions of pounds. How much better could those millions be used elsewhere. 15 April 2004

Memorandum by The British And Irish Ombudsman Association

The membership of the British and Irish Ombudsman Association includes all the established ombudsmen in the United Kingdom and the Republic of Ireland and we would like to oVer our comments on the proposal in the Constitutional Reform Bill for a Judicial Ombudsman. There has already been an exchange of correspondence with the Department for Constitutional AVairs, following a meeting with their oYcials at which the Association was represented by Walter Merricks, Chief Financial Ombudsman and Chairman of the Association, and Ann Abraham, Parliamentary and Health Service Ombudsman. The key points which the Association wishes to make about the proposal for a Judicial Ombudsman are:

Appointments In relation to dealing with complaints about the appointments process, we consider that this would be compatible with and appropriately handled by the OYce of the Commissioner for Public Appointments. We understand that Dame Rennie Fritchie, the Commissioner, would have no objection to this. 9673871008 Page Type [O] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

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Conduct In relation to the proposed role in connection with judicial conduct, we have grave doubts as to whether the limited functions envisaged in the proposal add up to anything that is really an ombudsman role. The proposal says more about what the Ombudsman will not be able to do rather than what he or she will be empowered to do. In para 21 it is proposed that the Ombudsman would “review the handling of the complaint and may make recommendations to the Lord Chief Justice and Secretary of State”. In para 23 it is proposed that the Ombudsman’s report will say whether a complaint about the handling of the process was found to be justified. If the Ombudsman’s role is to be confined to examining whether procedures have been properly followed without commenting on the merits of the complaint, it is unlikely that the Ombudsman will be able to satisfy anyone, or add much by way of underpinning confidence in the system as a whole. Given that the lessons of enquiries into judicial (mis)conduct ought sensibly to feed into the process of making new appointments, there may be a case for embedding the proposed task within the Judicial Appointments Commission, and assigning this as a particular function to one of the Commissioners.

Workload We doubt whether the size of the workload envisaged merits setting up a new separate oYce. 22 April 2004

Memorandum by Sir Robert Carnwath CVO (Lord Justice of Appeal, former Chairman of the Law Commission)

Summary and Conclusion We already have a “supreme court” for England and Wales, consisting of the High Court and the Court of Appeal, suitably based in a prominent building in the Strand. The other jurisdictions within the United Kingdom have their own appellate courts. The case for a further tier of appeal is not self-evident. It represents a substantial additional expense to the parties and the public. The justiﬁcation must lie in its distinctive character, and the added value which it can provide to the judicial process. There may be a case for a more selective approach, concentrating on “system-wide” improvement of the law, and issues of constitutional importance. The Government’s consultation paper ignored such issues, and engaged in a “shadow debate”. Physical separation from Parliament is not a precondition of judicial independence. For the existing role of the ﬁnal court, the present location is suitable and economical. If more support space is needed, it can surely be found in the vicinity without the need for a constitutional revolution. Rather than seeking separation, we should perhaps consider strengthening the contribution of its members to those aspects of the parliamentary business which (like the work of the Appellate Committee) are aimed at improving and clarifying the structure of the law, rather than political change. The case for the creation of a new “supreme court” in a separate building has not yet been made out, and its symbolic implications have been largely ignored. Before any major change is undertaken, there should be a full review of the function of the Appellate Committee in the 21st century, and its relationship to the lower courts in the three jurisdictions.

AChanging Role Although the basic arrangements under which the Law Lords work were established at the end of the 19th century, their role has changed greatly. In the early days, they combined domestic appellate functions, with an international role as members of the Judicial Committee of the Privy Council, hearing appeals from courts throughout the former British Empire. In combination these two roles meant that for a time, they were probably the most powerful and inﬂuential court in the world. Since the Second World War the international importance of the Law Lords has naturally dwindled. The number of countries within the Commonwealth still retaining a right of appeal to the Judicial Committee has steadily reduced.33 The inﬂuence of the Law Lords within the common law world is now rivalled by supreme 33 There are still cases of wide-ranging importance. For example, a nine member Committee has recently had to consider the constitutional legality of the death penalty in the West Indies. 9673871009 Page Type [E] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

330 constitutional reform bill [hl] committee: evidence courts in, for example, Australia, Canada, India and South Africa. Meanwhile, European law and the influence of the European Courts are increasingly pervasive. The Court of Justice in Luxembourg is the ultimate authority for the interpretation of the law of the European Union, including the regulations and directives which govern so many areas of daily life. Under the Human Rights Act, which in 2000 brought the European Convention of Human Rights into our law, the courts of this country have to pay regard to the decisions of the Court of Human Rights in Strasbourg. Meanwhile, in ordinary civil cases between companies and individuals, the need for such an elaborate superstructure of domestic appellate courts has become less obvious. The framework of civil dispute resolution in this country has changed. Strong encouragement is given by the courts at all levels to mediated settlements. More decisions at first instance are delegated to lower courts or specialist tribunals. Under the recent Woolf reforms, the High Court is now the first avenue of appeal in many categories of case. Appeal to the Court of Appeal usually requires permission of that court or the lower court. If it is a second appeal, permission will only be given if there is a point of general importance. For ordinary civil cases, the retention of a further right of appeal goes against the trend. Even in criminal cases, the Court of Appeal carries the main responsibility for shaping the law. Few of the Law Lords are likely to have recent experience of criminal law. Their relatively rare incursions into this field have not always been found helpful by the lower courts. The Scottish criminal courts operate successfully without any right of appeal to the House of Lords. Generally, the Law Lords enjoy a relatively low public profile. Their decisions come to public attention on the occasions of important judgments, but attention is rarely on the members individually. In many ways the Court of Appeal in England and Wales is the more prominent institution. It is more directly in the public eye. It hears many more cases, and it is led by the two leading judicial figures in the country, the Lord Chief Justice and the Master of the Rolls.34 The Senior Law Lord, though having a high standing in legal circles, is a less prominent public figure. The role of the Lord Chief Justice will be further heightened when, under the Government’s current proposals, he becomes “President of the Courts of England and Wales”, and as such takes over many of the functions of the Lord Chancellor.

Political Controversy

In other respects, the pressures on the highest court have increased. The work of the Law Lords has taken on a more political and constitutional emphasis. One example is the new constitutional role given to them, wearing their Privy Council hats, to determine “devolution questions” relating to the functions of the new devolved parliaments. More generally, the rapid development of “judicial review” in the last 30 years has meant that government decisions are regularly under attack in the courts. Since 2000, the Human Rights Act has confronted the courts with issues of even more direct controversy, political or moral. Sometimes, the courts find themselves in the diYcult role of human rights monitors of government action in sensitive areas. For example, politicians and commentators have recently made much of the apparent conflict between the courts and government over policies to restrict rights of asylum-seekers. They may forget that it was Parliament not the courts which passed the Human Rights Act, and thus established the legal framework within which immigration law has to be applied. The court’s role is to give eVect to the will of Parliament, as expressed in its legislation, even when it has eVects which Ministers may not appreciate. In such areas of political controversy, the low profile of the Law Lords, combined with its established reputation for objectivity, intellectual rigour and total impartiality, may be a valuable asset.

The Government’s Case

Against this evolving background, it would not have been surprising, if as part of its proposals for the reform of the House of Lords, the Government had taken the opportunity to rethink the role of the Law Lords in the modern constitution. However, the consultation paper (issued in Autumn 2003) made no attempt at such a review. Indeed, the paper went out of its way to emphasise that the proposals had nothing to do with any criticisms of the work of the Law Lords. The underlying assumption was that, apart from a change of location and name, things would go on much as before. 34 Thus, Lord Denning, perhaps the most famous judge of recent years, made his mark as Master of the Rolls presiding in the Court of Appeal, not for his occasional appearances in the Appellate Committee. 9673871009 Page Type [O] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

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Two reasons were given for the proposals. First, it was said, the Human Rights Act required a stricter view to be taken of anything which might undermine the independence, actual or perceived, of a judicial tribunal. Secondly, space and resources available within the House were limited, and the working conditions for judges were cramped; a separate Supreme Court “suitably accommodated”, it was said, “could ensure that these issues were properly addressed.”

AShadow Debate A Canadian commentator, Professor Jeremy Webber35 has complained that this discussion of independence has been “conducted overwhelmingly in the abstract”. He describes it as: “a shadow debate . . . purporting to be about independence of the judiciary, but vitiated by its reliance on a superﬁcial and formalistic conception of judicial independence . . .” The case for functional separation, as a constitutional principle, was powerfully attacked in the response of one Law Lord, the late Lord Hobhouse. He criticised the consultation paper for confusing the principle of judicial independence, which “has been an accepted and fundamental part of our constitution since at least the 1688 settlement”, with the American doctrine of separation of powers. He described the latter “as a doctrine based on a mistaken analysis of the British constitution developed by French thinkers in the 18th Century”, which involves: “. . . the complete and balanced separation of all three branches of government—the Executive, the Legislature and the Judiciary—from each other. Thus in the United States, the President and the other members of the Executive are debarred from being members of the Legislature, whereas in the United Kingdom the position is the reverse . . .” Under the British constitution Parliament, under the Crown, is supreme. In diVerent ways, both the executive and the judiciary are the servants of Parliament’s will. The European Court of Human Rights does not insist on a rigid division of functions between the judges and the legislature. It is concerned with speciﬁc connections in individual cases. The Law Lords have responded by a self-imposed restriction on participation in parliamentary debates. There is no reason to think that is ineVective. Nor is there any evidence that the independence of the Law Lords is in doubt, or perceived to be so by government or any one else.

What Should a Supreme Court Do? Remarkably little attention has been paid to what the Appellate Committee does, and why it does it. The subject was not discussed in the Government’s consultation paper. Since a large proportion of cases before the House of Lords are funded directly or indirectly from public sources, one would expect this to be a major concern of government. For example, ﬁgures of the order of £70,000 have been quoted as the cost to Government of an unsuccessful appeal to the House of Lords in a typical case. That is in addition to the costs incurred in the lower courts. The Appellate Committee currently receives some 300 petitions a year, of which about 80 are given leave to go to a full hearing. (By comparison in 2001 the US Supreme Court received about 8,000 petitions but heard argument in only 88 cases.) The great majority of cases (86 per cent over the period 1967–96) come from England and Wales. Although leave to appeal may be granted by the Court of Appeal, it rarely does so, and the Appellate Committee is generally able to select its own workload. Little information is available as to how and why particular cases are selected for the luxury of a second appeal. In an article on the proposed reforms (written before her elevation to the House), Lady Hale quoted the President of the Israeli Supreme Court: “The primary concern of the supreme court in a democracy is not to correct individual mistakes in lower court judgments. That is the job of courts of appeal. The supreme court’s concern is broader, system-wide corrective action. This corrective action should focus on two main issues: bridging the gap between law and society, and protecting democracy.”36 35 Except where otherwise stated, the quotations in this paper come from articles in a recent collection of essays on the proposed changes and their wider implications: Constitutional innovation: the creation of a Supreme Court for the UK; domestic, comparative and international reﬂections” ed Derek Morgan, Legal Studies Vol 24 March 2004. Another valuable source is Building the UK’s New Supreme Court: National and Comparative Perspectives ed Andrew Le Sueur, OUP March 2004. I gratefully acknowledge the assistance of both. 36 Harvard Law Review Vol 116 No 1 p 27–8. 9673871009 Page Type [E] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

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Taking that as her text, she suggested that the ﬁnal court should be more selective. Ordinary criminal and civil cases, no matter how much money is stake, would normally be left to the Courts of Appeal in each jurisdiction, unless for example there was a serious inconsistency between diVerent jurisdictions in the United Kingdom. Generally, she proposed: “Only cases of real constitutional importance would go to the Supreme Court. These would include the ground-breaking human rights cases, cases about our relationship with Europe or the rest of the world, including important cases interpreting international treaties or concepts such as sovereign immunity, and devolution cases . . .” She proposed also that a change in the emphasis of the courts work could be accompanied by a change its composition, including a wider range of expertise, and by a change in its methods of working. Professor John Bell’s study of supreme courts in continental Europe oVers many alternative models.

ALegislative Function? A more selective approach to hearing cases might enable the Law Lords, or their successors, to spend more of their time in improving the law by other means. No-one expects them to be involved in legislation designed to implement the Government’s political programme. But much law-making is not of that kind. An equally important function of the legislature is law reform, in the broader sense of sorting out the existing law, by removing anomalies and injustices, and also ensuring that new law is technically eVective. It is a task which too often is ignored by Parliament because of other demands on Parliamentary time. As John Bell shows, in other countries the judges of the final court may have a valuable role as “think tanks” for law reform, or pre-legislative scrutiny. The Swedish Supreme Court and the French Conseil d’Etat are examples. As he says— “A Supreme Court has both a breadth of experience and exposure to some of the more diYcult issues of law within the legal system. It sees concrete situations which pose legal diYculties, and this can be a valuable perspective from which to review what needs to be reformed in the law.” The need for such pre- and post-legislative scrutiny has become more pressing over recent years, because of the complexity of much modern legislation, and the influx of new proposals from Europe.37 The normal assumption is that the time of serving members of the Appellate Committee should be devoted to hearing cases. Yet, if their true role is “system-wide” correction, more of their time might usefully be devoted to helping to correct legislative muddles in advance, rather than sorting them out retrospectively (and much more expensively). There is no necessary conflict between the two roles. Both are concerned with improving the structure of the law. From the point of view of those aVected it does not much matter whether this is achieved by legislative action or judicial precedent.

APolitical Symbol? To many of its advocates, the idea of a “Supreme Court” is a powerful symbol of the judiciary as a counterweight to elected power, with power to strike down legislation. When the announcement was first made, parallels were drawn with the United States Supreme Court, and the assumption was that the Government was intending to create a similar body with similar powers. In the present climate of apparent conflict between courts and government, the creation of such a court in this country would have been an unexpected development. However, as the consultation paper made clear, that was clearly not the Government’s intention. Indeed, few would advocate it. The United States Supreme Court is a much more powerful court than anything in this country. As the guardian of the American Constitution, it has the power to set aside legislation as “unconstitutional”. The Law Lords have no such power. In this country the supremacy of Parliament is fundamental, subject only to the legislative power which Parliament has voluntarily yielded to the Europe. Yet, if that was not the intention, the proposed reform seems to be sending out a contradictory message. If the idea is “business as usual”, it is odd to find a proposal for what appears to be completely new constitutional arrangement. Creation of a new supreme court cannot be other than a symbolic act. It is important to be clear what it is intended to symbolise. Rightly or not, the new court is likely to be perceived as a new constitutional force, separate from and sometimes opposed to Parliament and the Executive. Far from strengthening its present role, the change may simply heighten the inevitable tensions under which it operates. 22 April 2004 37 The European Union Select Committee, which scrutinises legislative proposals emanating from Europe, has always included one of the Law Lords. It is widely regarded as a job which this country does more eVectively than other member states. 9673871010 Page Type [O] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

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Memorandum by David Christie

1. Many of the commentators in Scotland following the government’s proposals to create a Supreme Court for the United Kingdom have suggested that there must be measures taken to prevent a breach of the Acts of Union 1707. Among others,38 the Scottish judiciary,39 the Scottish Bar,40 the Scottish Solicitors,41 two Scottish Law Lords (one active42 and the other retired43) and the relevant House of Commons Select Committee,44 have recorded their disquiet about the potential conﬂicts that may arise in this case. 2. The main source of angst relates to the eVect of the proposals in connection with Article XIX of the Act of Union. Interpretation of the Act of Union is diYcult given the age of the document and the complex context in which it was drafted. In a decision of the House of Lords Privileges committee (albeit one in which the opinions given were those of Lords of Appeal) on Lord Gray’s Motion,45 the provisions of a diVerent Article, XXII, of the Act of Union were discussed. In interpreting the Article in question, it seems clear that the Law Lords were looking to the purpose of the Act in the context of the whole Union settlement.46 3. Accepting that the Act should be given a generally purposive interpretation, I would suggest that a gloss of the article would be to protect the independence of the Scottish court system. This is the core purpose of the article. When referring to Article XIX in Lord Gray’s Motion, Lord Hope described the Article as for the “preservation of the Scottish juridical system.”47 The Lord Advocate’s interpretation is: 4. “the real underlying purpose of the provision has nothing to do with the place where the courts sit: it is to secure that the Court of Session should not become a part of the English judicial system”48 5. It is pointless to go much beyond these interpretations, as this would be to second guess the interpretation of the courts on a highly sensitive area and as Lord Hope further pointed out; “the matter [of interpreting the Act] is ultimately one for the courts to decide.”49 This raises an important issue. Given the importance of the issue and the arguments either way, it would seem clear that any arguments relating to the new Supreme Court would be the subject of an appeal. Where to? Eventually, to the Supreme Court. This raises a problem, however, as surely the Supreme court could not decide on a question relating to its own validity, after all nemo judex in sua causa.50 If not, then where? Would the House of Lords Appellate Committee have to reform? It is diYcult to think of any other body, especially if the Privy Councils jurisdiction is merged with that of the Supreme Court who would be competent to decide on the matter. Even if the case did go to the Supreme Court (or for that matter, the Lords) then the make-up of the court would be crucial. The convention is that Scottish cases have two Scottish judges sitting on them, along with three others. The problems here are clear; in deciding the eVect of any new measures on the independence of the Scottish judiciary, the ﬁnal judgement will rest in the hands of judges from the very legal tradition from which the independence is claimed. 6. The concerns about the independence have been raised by various bodies in various public discussions on the proposals. I do not wish to go into them here but have drawn out what I see as the main points from the various discussions on the topic. They are essentially as follows: A. The existence of a “United Kingdom” Supreme Court suggests that there is a body of “United Kingdom” law for it to adjudicate on. The fact that there is not is not made clear in the Bill. B. The funding arrangements do not seem to give the appearance of independence either from the executive or, for the purposes of this paper, from the Legal systems of England and Wales. It seems strange that measures that are aimed at strengthening the separation of powers do in fact have the potential to weaken them. C. The methods of appointment do not seem to pay suYcient respect for the separateness and stature of the Scottish Legal system.

38 As will be evident from an examination of some of the other responses on www.dca.gov.uk/consult/supremecourt/responses and the discussions of the Scottish Parliament’s Justice 2 Committee see www.scottish.parliament.gov.uk/justice2 as well as Himsworth and Paterson 2004 L.S. 99. 39 Ibid. 40 Response of the Faculty of Advocates www.dca.gov.uk/consult/supremecourt/responses/sc051.pdf. 41 Response of the Law Society of Scotland www.dca.gov.uk/consult/supremecourt/responses/sc088.pdf. 42 Lord Hope of Craighead’s concerns have been widely reported see eg the Report of the House of Commons Select committee on the constitution infra at n.8. 43 Response of Lord Clyde www.dca.gov.uk/consult/supremecourt/responses/sc030.pdf. 44 Report available on www.publications.parliament.uk/cm200304/cmselect/cmconst/48/4802.htm. 45 Lord Gray’s Motion [Committee for Privileges] 2000 SC (HL) 46. 46 Lord Hope 2000 SC (HL) 46 at 60G. 47 Ibid. at 57I. 48 P 8 of Lord Advocate’s speech 23 January 2004. 49 2000 SC (HL) 46 at 59C. 50 Even if, one might say “iudex casae summae est”. 9673871010 Page Type [E] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

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D. The position of the Court may create a physical link with the English Legal system, if it was based close to buildings associated with the English legal profession; rather than for it to be based within the United Kingdom context in which it currently resides. E. There is no protection for the Scottish Legal system within the Bill—even the current convention that there will be Scottish representation on the Bench during a Scottish Appeal is not guaranteed.

7. Whilst the consultation suggests that one of the principle aims of the exercise is to maintain a degree of continuity of jurisdictions it cannot be ignored that the functions are being moved from one institution, the Parliament, to another, a Supreme Court. The reasons why Scots law ended up as it did with a civil appeal to the House of Lords but no criminal appeal are convoluted and beyond the scope of this essay. They were satisfactory in the context of the Act of Union. With the new arrangements, the question of whether or not the arrangements comply with the Act of Union must be asked again. It is not suYcient to assume that a new institution can and will, automatically, take on all the features of the previous one. Furthermore, this question must be asked on the basis of the facts as they are now—the independence of the Scottish court must be assured in the context of devolution and human rights,51 not merely under the considerations of the past.

8. The problem for Scots Law is that under the doctrine of Parliamentary Supremacy there does not seem to be any protection for it, if Parliament were to legislate contrary to the Act. Many parts of the Act have already been repealed.

9. There is, however, a view that parliamentary supremacy would not strike at Article XIX as it did with other parts of the Act of Union. Article XIX, in protecting the Scottish judiciary strikes at a fundamental condition of the Union while, by contrast, Article XXII does not, since it is more concerned with the cosmetics of the new Parliamentary set up. The importance of Article XIX is clear from the context of the Union in 1707 (as providing a sop for parts of the establishment which otherwise oppose the Union); the words of the Act itself and from the treatment it has been given by the courts.

10. The very text of the Act of Union also makes the importance of Article XIX clear. As will be seen from the quotation of Article XIX, the words “in all time coming” appear. Even these “words of irrevocability” would not prevent Parliament from legislating against the Article; but they do show its importance. It should be noted that, by contrast Article XXII has no such words in it.

11. These factors have been taken, in some parts, to show that Article XIX does impact on Parliamentary Supremacy. It is impossible for Parliament to legislate contrary to it because to do so would be to remove one of its own fundamental preconditions. The locus classicus of this opinion is found in the obiter dictum of Lord President Cooper in the famous case of MacCormick v Lord Advocate.52

12. However, even if it was accepted that Article XIX were theoretically irrevocable, the doctrine of Parliamentary supremacy would bite again. Traditionally, there is no remedy available from the courts to strike down primary legislation. Parliament is supreme in that it supersedes the role of the courts. It is uncertain what remedy there would be in the event of a breach of an Article of the Union. This is the orthodox view, but the last few years have revealed that this is changing. The trouble with any Act of Parliament is, however, that it cannot apply itself. This is left to the courts. Essentially the doctrine of parliamentary supremacy is a rule of interpretation. As Dicey said: “Parliament is the supreme legislator, but from the moment Parliament has uttered its will as law giver, that will becomes subject to the interpretation put upon it by the judges”53

13. The ﬁnal interpretation is for the courts. In recent times, some remedies have been developed to give eVect to changing situations. We have seen the House of Lords grant an interim remedy over the functioning of a statute that breached European Community Law54 and the inception of “declarations of incompatibility” in the case of statutes that breach Human Rights legislation.55 I would suggest that it would be possible for the Court to declare a statute as being inconsistent with the legal order set out in the Act of Union. The basis for this is doubtful. In practical terms, however, this declaration would not have to take the form of tradition ﬁnal interlocutor in the case but could be a statement in the judgement, with reasons. It would practically impossible for Parliament to ignore such a statement. If it did, then this would cause new problems. 51 For a criticism of the past arrangements as aVecting Human Rights legislation see Anderson, Ross Appeals to London and Human Rights 2003 SLT 297. 52 1953 SLT 255. 53 P 413, Dicey, Law of the Constitution (10th ed, 1961). 54 Factortame (No.2) [1991] 1 AC 603. 55 Section 4 of the Human Rights Act 1998 c 42. 9673871010 Page Type [O] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

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14. If this was considered beyond the courts there is a further development. This has come from the common law in the form of the doctrine of “fundamental rights” set out by Laws LJ in his judgement in the English Court of Appeal in the Metric Martyrs case, Thoburn v Sunderland City Council.56 Laws LJ has, in this judgement, reinterpreted the traditional doctrine of Parliamentary supremacy to fit the change in circumstances brought about by the changes to the UK’s constitution over the last thirty years or so.57 He says that there are certain statutes that cannot be impliedly repealed by Parliament. At the same time, it does not change the essence of the doctrine: that Parliament can do what it wishes as long as it does not bind its successors. It recognises that there are some Acts that cannot be repealed accidentally, as the doctrine of implied repeal allows (although it would never be admitted that such an occurrence was accidental). What these Acts actually are and how an Act qualifies as a constitutional statute are questions beyond the scope of this essay. SuYce to say that the Acts of Union are mentioned explicitly by Laws LJ and notwithstanding that fact, surely must be considered to be “constitutional” in their status. 15. The eVects of this doctrine on the current discussion are two-fold. Firstly, it further bolsters the status of the Act of Union against the doctrine of Parliamentary supremacy. Secondly, and more importantly, it shows a way through the issue for both courts and Westminster. 16. If the “fundamental rights” doctrine expounded by Laws LJ, is read in conjunction with the dicta in MacCormick, it is argued, it would be impossible for the Supreme Court statute to impliedly repeal Article. The guarantees of Article XIX would prevail over the newer legislation.58 This would not be a new remedy that the court was applying, merely a new rule of interpretation, following Laws LJ decision in Thoburn. 17. This does not leave Westminster powerless, however. Indeed, it would be undesirable if that were the case. The time may come when an independent Scottish legal system or indeed a single, united, kingdom of Scotland, England, Wales and Northern Ireland is no longer needed or desirable. It would be wrong to keep it going because we were locked into it by the Act of Union. Since Laws LJ’s doctrine is based within the concept of parliamentary supremacy, there is a path through this diYculty. If Parliament wished to repeal Article XIX, according to Laws’ reasoning, it must do so expressly. In order to ensure that part of the Supreme Court legislation does not fall foul of the “fundamental rights” doctrine, therefore, the statute will have to expressly disapply Article XIX at any point in which there may be conflict. 18. Thus, the path is clear. If any part of the Supreme Court statute is inconsistent with Article XIX (or any other “fundamental” legislation) it will not be considered to repeal that Article, unless the statute expressly states that it is doing so.

Memorandum by the Clerk of the Parliaments

1. Clause 94 of the Constitutional Reform Bill is as follows: “94 Parliamentary disqualification (1) In Part 1 of Schedule 1 to the House of Commons Disqualification Act 1975 (c. 24) (judicial oYces disqualifying for membership) at the beginning insert— “Judge of the Supreme Court. Member of the supplementary panel under section 30 of the Constitutional Reform Act 2004.” (2) A member of the House of Lords is, while he holds any of the judicial oYces specified in Part 1 of Schedule 1 to the House of Commons Disqualification Act 1975, disqualified for sitting or voting in— (a) the House of Lords, (b) a committee of that House, or (c) a joint committee of both Houses. (3) A member of the House of Lords who is disqualified under subsection (2) is not for that reason disqualified for receiving a writ of summons to attend that House, but any such writ is subject to that subsection.” 2. The purpose of this memorandum is to direct the Committee’s attention to Clause 94(3). 56 [2001] EWCA Admin 934. 57 See eg Boyron In the Name of European Law: The Metric Martyrs Case [2002] European LR 771. 58 Presumably. Having said that it would surely be likely that the Supreme Court statute would be “constitutional” as well and I wonder if there is any diVerent rule governing a clash of two constitutional statutes?. 9673871011 Page Type [E] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

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3. A writ of summons is issued in the name of the Queen to Members of the House of Lords at the start of each new Parliament. The wording includes the following: “WHEREAS by the advice and assent of Our Council for certain arduous and urgent aVairs concerning Us the state and defence of Our United Kingdom and the Church We have ordered a certain Parliament to be holden . . . We strictly enjoining COMMAND you upon the faith and allegiance by which you are bound to Us that the weightiness of the said aVairs and imminent perils considered (waiving all excuses) you be at the said day and place personally present . . . to treat and give your counsel upon the aVairs aforesaid And this as you regard Us and Our honour and the safety and defence of the said Kingdom and Church and dispatch of the said aVairs in nowise do you omit” 4. The main existing category of disqualification for membership is bankruptcy, and under the Insolvency Act 1986 a writ of summons is not issued to a bankrupt peer. By contrast, Clause 94(3) provides that a writ of summons will still be issued to a peer who is for the time being disqualified by reason of holding a judicial oYce. 5. The Committee may wish to consider whether this novel approach is desirable. Two arguments against it are: (a) It might be thought discourteous to the Queen to require her to issue a command, couched in peremptory terms, which is nugatory. It is also potentially confusing to recipients. (b) If the purpose of disqualification is to separate the judiciary from the legislature then this provision appears to weaken that separation. If, on the other hand, it is not thought necessary to make the separation complete, then it is arguable that disqualification is unnecessary and that it would be suYcient to expect peers who are judges to take leave of absence. 6. A possible practical consequence of the proposed provision is that those concerned might expect to have access to certain facilities of the House. This memorandum is not concerned with that issue, but I should point out that the right to sit on the Steps of the Throne is already extended to Privy Counsellors and thus all members of the new Supreme Court would retain that right. 7. I have been advised by the Department for Constitutional AVairs that the provision in Clause 94(3) was included in order “to distinguish between [judges] and others who are disqualified from sitting—namely bankrupts. We would not want Justices of the Supreme Court and other Judiciary to be in any way equated through their disqualification with bankrupts.” The Committee may wish to consider whether that argument is strong enough to justify the novel arrangement envisaged by Clause 94(3). 27 April 2004

Memorandum by Clifford Chance LLP 1. This submission is made to the House of Lords Select Committee on the Constitutional Reform Bill on behalf of CliVord Chance LLP, the largest integrated law firm in the world. CliVord Chance has some 8,000 staV around the world in 32 oYces based in 19 countries, of which around one half are legal advisers, and some 640 partners. London is the firm’s largest oYce. 2. The provisions of the Constitutional Reform Bill have major implications for the legal sector in the UK. Overall, CliVord Chance welcomes the intention of the Government to reform the legal system along the lines proposed. Our main concern is that local courts should maintain their justified national and international reputation for integrity, impartiality, eYciency and excellence. The Committee will be aware that many companies and individuals around the world choose to give courts here jurisdiction over the determination of commercial disputes because of the high standing of our senior judges and our legal profession. That in turn brings legal business on a major scale to the United Kingdom in general and London in particular. It is important in our view that reforms to the system do nothing which may harm this reputation.

Part 1: Arrangements to Replace Office of Lord Chancellor

3. The Constitutional Reform Bill would abolish the oYce of Lord Chancellor and re-distribute the functions of that oYce. We support this decision because it will help to clarify the separate constitutional roles of the executive, judiciary and legislature. The re-assignment of the numerous powers and functions of the Lord Chancellor therefore needs careful consideration in order to ensure that none of the judges’ previous protections are lost and that the new partnership between government and the judiciary is established on the correct footing. 9673871012 Page Type [O] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

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4. We believe that the overriding aim must be to safeguard the independence of the judiciary, whilst maintaining proper accountability to Parliament for the stewardship of signiﬁcant resources. We therefore welcome clause 1 of the Bill, which places a statutory duty on all Ministers and “all with responsibility for matters relating to the judiciary or otherwise to the administration of justice” to “uphold the continued independence of the judiciary”.

Part 2: The Supreme Court 5. We support the intention of Part 2 of the Bill to set up a Supreme Court of the United Kingdom, which would take over the existing appellate jurisdiction of the House of Lords, together with the devolution jurisdiction of the Judicial Committee of the Privy Council. We also welcome the widely worded power granted in subsection 31(5) for the Court “to determine any question necessary to be determined for the purposes of doing justice in an appeal to it under this Act or any other enactment”. 6. We accept the process of selection and appointment of a candidate to a vacancy among the judges of the Supreme Court, as set out in clauses 20 to 22 of the Bill. It is essential, in order to maintain the independence of the judiciary, that this process be as far removed from political pressures as practicable. We consider that the proposed arrangements are suYciently removed. 7. Ideally, we would prefer the new court to sit in banc, as is the practice of the United States Supreme Court, and we hope it will do so whenever the case justifies it. We accept, however, that the new UK Supreme Court will probably continue to sit in panels for the most part, but we would prefer to see larger panels than the customary five, wherever possible. 8. We believe that the new Court should have full power to determine its own case-load, except in devolution cases. There should be no exceptions to this rule, which should apply equally to (for example) Scottish civil appeals as to appeals from all parts of the United Kingdom. DiVerential access to justice at the highest level is, in our opinion, unacceptable. The circumstances in which leave to appeal is granted should, we believe, be left to the judicial policy of the Court itself, and not fettered by Parliament. 9. The accommodation of the new Supreme Court is a matter of some importance. The size and quality of the Court’s building, and its equipment and facilities, not just for the judges and their staV, but also for litigants, practitioners and spectators, should meet reasonable needs. Particular attention should be paid to facilitating the electronic filing of court documents and to establishing an easily accessible record system.

Part 3: Judicial Appointments and Discipline 10. We agree with the Government’s decision to establish a Judicial Appointments Commission on the basis that such arrangements are more open and transparent than the current system, and that they will more clearly separate at least part of the process from the Executive. Our central concern is that, whatever procedures the new Commission employs, the judges appointed should be of at least the same professional calibre as those appointed under the current system. We therefore welcome the explicit provision in the Bill that “selection must be on merit”. We are concerned, however, that it is left to the Minister (after consulting the Lord Chief Justice) to specify considerations that are to be taken into account when assessing merit and that the Commission and any selection panel must have regard to any guidance issued by the Minister. This places too much power in the Executive in the appointment process. 11. In the commercial area with which we are most concerned, it is clear that clients, many of them from abroad, are rightly anxious that the judges hearing their cases should be drawn from the ablest lawyers in the relevant field. In our view, the public interest in this outweighs all others in play. 12. Subject always to this fundamental principle, we would support the adoption of criteria which could lead to a much wider professional diversity among those considered suitable for appointment. The great majority of British judges at High Court level and above have in practice been selected on the basis that they have had long and successful careers as senior advocates. However, we do not accept that prowess in oral advocacy, or even specialised experience of litigation, is the only, or even always the best, qualification for judicial appointment. Many senior lawyers with long-standing expertise in commercial and corporate matters have as much to oVer as potential judges than lawyers whose experience is restricted to advocacy or litigation. Widening the pool to include lawyers of this kind would greatly increase the field of potential candidates, and so tend to drive up quality over time, to the benefit of the public interest. 13. To bring about such a widening of the pool, it would in practice be necessary to make the system of part- time judicial sitting more user-friendly to solicitors. The present requirements have constituted a real obstacle for able and well-qualified solicitors, certainly in the City of London, where partnership structures can create 9673871012 Page Type [E] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

338 constitutional reform bill [hl] committee: evidence diYculty in reconciling individual aspirations with responsibilities to colleagues. That problem has been under discussion for a number of years, without significant change, but we consider that serious movement on it is an essential condition of widening the pool of candidates for judicial oYce in the way that we support. The establishment of the new Appointments Commission will be a propitious moment for this necessary reform. 14. We agree that the Commission should have about 15 members, but we are concerned about the representation of the legal profession on the Commission. The consultation paper, “Constitutional Reform: A New Way of Appointing Judges”, published in July 2003, said that “the Government’s preferred option would be for the judges, legally qualified members and lay members to be equally represented”. Schedule 10, Part 1 proposes however, that only two out of the fifteen members be professional members, one of whom should be a practising barrister and one of whom should be a practising solicitor. This leaves the legal profession seriously under-represented. There are over 76,000 practising solicitors in England and Wales, each of whom is an oYcer of the Court and owes a duty to the Court. It is not appropriate that they should be represented by one member on the Commission. 15. We agree that disciplinary powers should be exercised, in the main, by the Lord Chief Justice, as the new head of the judiciary. We query, however, whether it should be necessary for the Lord Chief Justice to obtain the agreement of the Minister in order to give advice to a judicial oYce holder for disciplinary purposes (clause 83(3)(b)), or even a warning or a reprimand (clause 83(3)(c) and (d)). We agree that, both in the investigation and sanctioning of judges in more serious cases, there should be outside involvement in order to protect the judiciary from any charge of looking after their own.

Part 4: Other Provisions Relating to the Judiciary 16. We endorse the Government’s policy of disqualifying judges of the Supreme Court from membership of the House of Commons, and from sitting or voting in the House of Lords, and we welcome the extension of the disqualiﬁcation preventing other judges, listed in Schedule 1 to the House of Commons Disqualiﬁcation Act 1975, from sitting and voting rights in the House of Lords. Nor should there be any presumption that retired members of the Supreme Court be appointed to the House of Lords, though we see no objection to occasional appointments of this kind, provided they are genuinely exceptional. 23 April 2004

Memorandum by Richard Cornes, Essex University Abstract This submission concerns Part II of the Constitutional Reform Bill 2003 (the Bill). Establishing a Supreme Court for the United Kingdom is a necessary and desirable reform. However, the model of Court proposed in the Constitutional Reform Bill (the Bill) is ﬂawed. In the circumstances of contemporary UK democracy, a smaller court of, say, nine judges who sit as a full panel on all cases is necessary. The discretion of the Prime Minister as to who is appointed to the Court should be further limited, and representatives of the UK legislatures (preferably the presiding oYcers of the devolved assemblies and the Speaker of the House of Commons) should sit on the appointments commission. The Court itself should elect its President and Deputy, and the President alone should represent the Court on the appointments commission. A purpose clause (see paragraph 19 below) should be included in Part II of the Bill, recording the UK’s continuing commitment to certain constitutional fundamentals. Finally, the Court should have administrative autonomy. These amendments would lead to the creation of an authoritative and independent Court.

Introduction 1. I am a Lecturer in Public Law and Deputy Head of Department in the School of Law at Essex University. I am also a Barrister and Solicitor of the High Court of New Zealand. For the past ﬁve years I have been engaged in research into the structure and operation of the United Kingdom’s Highest Courts. That research has involved research visits to the US and Canadian Supreme Courts, the Constitutional Court in Spain (with Professor Andrew Le Sueur) and the High Court of Australia and the German Constitutional Court in Karlsruhe (both visited alone). These visits involved interviews with the Chief Justices of Australia and the US, and the Presidents of the Constitutional Courts in Spain and Germany. I have also been engaged in the process of establishing a Supreme Court in New Zealand. 2. I support (though with signiﬁcant reservations concerning the model chosen) the creation of a Supreme Court for the United Kingdom. As the Senior Law Lord and those Law Lords in favour of reform have argued, “the functional separation of the judiciary at all levels form the legislature and the executive . . . [is] a 9673871013 Page Type [O] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

constitutional reform bill [hl] committee: evidence 339 cardinal feature of a modern, democratic state governed by the rule of law.”59 Establishing a Supreme Court separate from the House of Lords will achieve this. 3. Almost all the arguments for and against reform are now well known; the need for brevity requires that I not revisit them in this submission.60 4. While I support reform, the model of Court set out in the Bill is far from ideal. The following seven alterations should be made: (1) the number of judges should be limited to nine, all of whom should sit on all cases (ie, en banc); (2) only one name should be submitted to the Prime Minister by the appointments commission; (3) only the President of the Court should sit on the appointments commission; (4) the President and Deputy of the Court should be selected by the Court itself; (5) the Commission should include representatives of the UK legislatures (ideally the presiding oYcers and Speaker); (6) a purpose clause should be included in Part II of the Bill; and (7) the Court should be administratively autonomous. 5. I base my suggestions on the following assumption. The courts in the United Kingdom, and most importantly the top-level courts, now play a central role in the operation of the democratic system. Even without giving the new Supreme Court the formal power to strike down Acts of Westminster for breach of eg, European Convention Rights, it will still have very signiﬁcant power because of: its interpretive powers under s3 of the Human Rights Act, and its declaratory power under s4 of the same Act; the developments in judicial review over the last few decades; the power to disapply (in eVect strike down) Westminster Acts for breach of a valid European Community norm; the power to strike down legislative measures passed by the elected devolved assemblies; and the role of updating the common law and interpretation of statutes to bring them into line with its understanding of contemporary social circumstances (eg, recognising that same sex couples are “family members” in relation to statutory wording dating from the 1920s in Fitzpatrick v Sterling).61 6. Merely replicating the Appellate and Judicial Committees in a new Supreme Court will not automatically give the new Supreme Court the aura of authority enjoyed by the current top-level UK courts. Previously, tradition and various unwritten understandings have underpinned the legitimacy and authority of the UK’s highest courts. The very act of reform (including the events of the last year) have destabilised those understandings. The new Court will need to be designed more in keeping with the underlying design principles of top courts generally, outlined by Andrew Le Sueur in chapter 3 of our report, The Future of the United Kingdom’s Highest Courts.62

Composition of Court and Mode of Operation 7. The Court should have a fixed membership of, say, nine judges and should handle all substantive hearings en banc. Temporary or ad hoc judges should no longer be used. Sitting en banc will help to enhance the Court’s authority and legitimacy over time. Everyone knows that the composition of the Court has an impact on the outcome of cases. When a top court sits in panels of less than the full court, or panels including ad hoc judges there is the potential for the public to be constantly reminded of this—would my case have gone diVerently if only judge x had been involved. Further, however unjustified, speculation will arise that the person, or persons, with the power to select panels may use that power to attempt to influence the outcome of cases. 8. The Court should be given complete control of which cases come to it (including introducing a leave requirement for all Scottish cases) to ensure that, along with changes to the manner in which it hears cases (the length of oral argument may need to be more strictly regulated), it can still decide the number of cases one might expect a second level appellate court to deal with—roughly between 60–120 cases per year (based on assessment of the current UK courts as well as the US and Canadian Supreme Courts and the High Court of Australia). 59 The Law Lords’ response to the Government’s consultation paper on Constitutional Reform: A Supreme Court for the United Kingdom (2003) paragraph 2, p 1. 60 See A Le Sueur and R Cornes The Future of the United Kingdom’s Highest Courts (London: Constitution Unit, 2001) 53–57; Lord Bingham of Cornhill “A New Supreme Court for the United Kingdom” 1 May 2001, University College London; and Lord Steyn “The case for a Supreme Court” (2002) 118 Law Quarterly Review 382. For an argument against reform see, Lord Cooke of Thorndon “The Law Lords: an endangered heritage” (2003) 119 Law Quarterly Review 49; and the evidence of a number of former Lords of Appeal in Ordinary to the Royal Commission on Reform of the House of Lords. 61 Fitzpatrick v Sterling [2001] AC 27 (HL). 62 See above, n2. 9673871013 Page Type [E] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

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9. It would also assist if Supreme Court judges were no longer used for Privy Council cases (that court can be staVed with retired judges and judges of the ﬁrst level appellate courts), and if the dubious practice of using Supreme Court level judges to chair public inquiries were ended.

Number of Names Submitted to the Prime Minister by the Appointment Commission 10. Assuming that there is no appetite for considering an executive nomination/Parliamentary confirmation appointment model (which I prefer), there are a number of ways the appointment process set out in the Bill needs to be revisited. 11. First, the number of names to be put to the Prime Minister. Three to five names leaves the Prime Minister with too much discretion (especially when the appointment commission proposed will be chaired by the President of the Court—a post which in the Bill remains in the sole gift of the Prime Minister). The number of possible appointees at this level will be small. A choice from three to five candidates leaves the Executive with too much discretion; indeed, three to five names may be more choice than the PM currently has. Thinking sceptically, an astute PM would now be able to mould the Court along his or her lines, with the advantage that he or she can point to the judicial appointments commission as cover for partisan choices. 12. Only one name should be put forward by the appointments commission, and the PM should be able to reject the name and ask for another, though with a requirement for a statement to the House of why the name was declined. My suggestion below that representatives of the UK legislatures be included in the appointments commission would ensure that the views of the elected branches were heard in the judicial selection process.

Only the President of the Court on the Appointment Commission 13. The next problem with the appointment commission is the presence on it of two of the Court’s judges. There is a strong argument that none of the Supreme Court judge should sit, since their views may carry undue weight. However, if there is a desire to have the Court’s views represented in the commission directly (rather simply requiring that the Court be consulted as part of the selection process) just one judge would be suYcient, and that should be the President.

Appointment of the President 14. Which leads me to how the President is appointed. The leadership position of senior judge can be one of significant power. The importance of the role suggests it would be inappropriate for the position to be filled at the sole discretion of the Prime Minister; yet this is the choice the Government has made in clause 17(6) of the Bill. The only constraints on the Prime Minister’s discretion will be that a candidate will already have to be a member of the Court. Given, as I noted in paragraph 11 above, the degree of executive discretion currently envisaged in relation to appointment to the Court generally, this may, over time not be a particularly significant fetter. 15. Also of concern is the fact that the President, in addition to leading the Court will likely chair the appointments commission for the Court. It would enhance the Court’s independence and authority if the UK followed the example of the Spanish Constitutional Court and allowed the Court itself to select its lead judges. Providing that the Court continues to have judges on it from the three UK jurisdictions a President so selected should also have the credibility to become a spokesperson for all the UK judiciaries at the UK level.

The Appointments Commission Should Include Representatives of the UK Legislatures 16. Absent considering some sort of Parliamentary conﬁrmation procedure, the lack of democratic legitimacy of the proposed appointments commission (which is in essence a parasitic body twice removed from any electorate) could be improved by including in the commission the presiding oYcers of the devolved assemblies, and the Speaker of the House of Commons. Alternately, the UK legislatures could each elect, by super- majorities, a representative each to the commission. 17. The advantage of using the presiding oYcers and Speaker is that it emphasises that their role is to represent not a particular party, but the interests of the elected branches in the appointment of the Supreme Court judges. Allowing the National Assembly for Wales a distinct voice would also go some way to addressing the need to ensure that the new Court is considered legitimate in Wales, especially important given its role in supervising the legality of acts of the Welsh devolved administration. 9673871013 Page Type [O] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

constitutional reform bill [hl] committee: evidence 341

APurpose Clause Should Be Included in Part II of the Bill

18. The reform process—exacerbated by the manner in which it was initially handled—has already disturbed a range of unwritten understandings about the role and standing of the judicial branch in general, and the court of ﬁnal appeal in particular. We see in clause 1 of the Constitutional Reform Bill and the concordat stuck between the English and Welsh judiciary and the Lord Chancellor the beginnings of a realisation that what has occurred so far has undermined basic concepts, and that remedial action is required. 19. We need to go further than clause 1 of the Constitutional Reform Bill, and the concordat between the judges and the Lord Chancellor. The UK should follow the example of section three (the purpose clause) of the New Zealand Supreme Court Act 2003 and insert a purpose clause into Part II of the Constitutional Reform Bill setting out: 1, the purpose of the reform; and 2, recording certain constitutional fundamentals which the reform is not intended to aVect detrimentally. Using the New Zealand clause a model, a UK version may look like this (I make no claim that this is the only model—I set it out for discussion).

Purpose

(1) The purpose of this Part is: (a) to establish the Supreme Court of the United Kingdom: (i) to recognise the importance of the functional separation of the judicial branch from the legislative and executive branches; and (ii) enable important legal matters, including matters arising from the devolution settlement to be dealt with by a single ﬁnal court of appeal; and (b) to provide for the court’s jurisdiction and related matters; and (c) to end the judicial functions of the Appellate Committee of the House of Lords and the Judicial Committee of the Privy Council in relation to the United Kingdom; (2) Nothing in this Act aVects the United Kingdom’s continuing commitment to: (a) the independence of the judicial branch, (b) the rule of law and respect for fundamental human rights, (c) the sovereignty of Parliament, (d) the distinct existence of separate legal systems within England and Wales, Scotland, and Northern Ireland, or (e) the enforcement of obligations arising from its membership in the European Union. 20. Such a clause, and the debate around it, would serve a number of useful purposes. It would refocus the debate about reform of the judicial branch, requiring us to think explicitly about what, in the midst of all this constitutional reform, we regard as important; what we want the reform to achieve; and what we do not want it to change. It would remind all concerned of the fundamental constitutional issues at stake. It would also provide the Court with some guidance as to what is expected of it. Finally, and most importantly, it would provide the Supreme Court with the democratic warrant to better secure the independence of the judicial branch for the future.

The Court Should Have Administrative Autonomy

21. The new Supreme Court will have less administrative independence from the Executive than the current Appellate Committee. The Court should set its own budget, for inclusion as a single line within the budget of the Department of Constitutional AVairs, and the Court itself appoint its senior administrative oYcer, who should be responsible for all other staYng and resource matters. Appropriate accountability, and an important link allowing dialogue between the branches of government would be achieved by having the senior administrative oYcer and one judge appear before the appropriate committee of Parliament annually to discuss the Court’s operation, as occurs in the US, Australia and Canada. 28 April 2003 9673871014 Page Type [E] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

342 constitutional reform bill [hl] committee: evidence

Memorandum by the Council on Tribunals

1. This memorandum by the Council on Tribunals is submitted in response to the Select Committee’s call for evidence dated 25 March 2004. 2. The Council was set up by the Tribunals and Inquiries Act 1958 and now operates under the Tribunals and Inquiries Act 1992. The Council’s main statutory function is to keep under review the constitution and working of the 80 or so tribunal systems under its supervision and, from time to time, to report on them. The Council must make an Annual Report to the Lord Chancellor and the Scottish Ministers, which is laid before Parliament and the Scottish Parliament. The Council must be consulted before procedural rules are made for any tribunal under its supervision. 3. The Council’s interest in the Constitutional Reform Bill is mainly in Part 1 (Arrangements to replace oYce of Lord Chancellor) and Part 3 (Judicial appointments and discipline). The Council responded to the July 2003 consultation paper on “Constitutional reform: a new way of appointing judges” (CP10/03).

Arrangements to Replace Office of Lord Chancellor 4. In commenting on CP10/03 the Council said that it considered it vital that the Lord Chancellor’s role in preserving judicial independence should continue. The Council thought that this should become the responsibility of the Secretary of State for Constitutional AVairs. The Council therefore welcomes clause 1 and the particular obligations that it imposes on the Secretary of State for Constitutional AVairs (“the Minister”). 5. The Lord Chancellor has a wide range of statutory functions relating to tribunals. For the most part these are to be transferred by the Bill to the Minister. Given the special position of the Minister under clause 1, the Council believes this to be appropriate. In particular, pending any new arrangements that may emerge from the Government’s decision to set up a Tribunals Service under the Department for Constitutional AVairs, the Council thinks it right that the Minister should take over the Lord Chancellor’s responsibilities for making procedural rules for tribunals (and for statutory inquiries under section 9 of the Tribunals and Inquiries Act 1992) after consultation with the Council. 6. Similarly, the Council considers it appropriate that the Lord Chancellor’s powers to make appointments to tribunals should be transferred to the Minister. By virtue of Part 3 of the Bill (see below) these will be made on the basis of selection by the Judicial Appointments Commission. So far as the Lord Chancellor’s powers to remove members of tribunals are concerned, the Council welcomes the fact that under the Bill the Minister will only be able to exercise these powers with the agreement of the Lord Chief Justice (or a judicial oYcer nominated by him). This is an important safeguard of judicial independence and puts on a statutory basis arrangements that have now pertained for some years.

Judicial Appointments and Discipline 7. As mentioned above, the Council responded to the consultation on a new way of appointing judges (CP10/ 03). The Council supported the proposal to create a Judicial Appointments Commission and expressed the view that, in the interests of tribunals’ independence, those appointments that are at present made by the Lord Chancellor or other Ministers should be the Commission’s responsibility. In the event, the Bill provides for the Lord Chancellor’s appointments to tribunals to be made by the Minister on the basis of selection by the Commission. The Minister’s powers to reject a selection or require reconsideration of it are circumscribed in the same way as they are for other judicial oYce holders. The Council is content with these arrangements so far as they go but hopes that further consideration will be given in due course to the Commission’s remit being extended to tribunal appointments at present made otherwise than by the Lord Chancellor. 8. In responding to CP10/03 the Council expressed the view that an essentially England and Wales Commission should not be responsible for appointments to tribunals in Scotland. Currently, appointments to Scotland-only tribunals are made north of the Border. However, judicial appointments to cross-border tribunals, that is, those that sit in Scotland as well as England and Wales, are generally made by the Lord Chancellor, usually in consultation with Ministers in Scotland. The Council adheres to the view that tribunal appointments in Scotland should not be a matter for the Judicial Appointments Commission. 9. The Council notes with approval that the 15 Commissioners must include a tribunal member. In responding to CP10/03, the Council commented that in respect of tribunal appointments the Commission would need to have access to a wide range of expertise, for example, in relation to the appointment of doctors, valuers etc. The Council trusts that regard will be had to this in making appointments to the Commission and in providing it with assistance in connection with specialist tribunal appointments. The Council also made observations about the importance of judicial career development and the encouragement of diversity in 9673871014 Page Type [O] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

constitutional reform bill [hl] committee: evidence 343 appointments, and suggested ways in which the Commission might assume a role here. The Council expects these matters to be taken into account in setting up the Commission. 10. Under section 5 of the Tribunals and Inquiries Act 1992 the Council is empowered to make general recommendations to Ministers as to the making of appointments to tribunals under its supervision. The Council hopes that it will be similarly empowered to make such recommendations to the Commission. 11. As regards judicial discipline, the Council notes the new provisions for the Lord Chief Justice, in cases falling short of dismissal, to advise, warn or reprimand judicial oYce holders, and to suspend them from sitting in certain circumstances, in accordance with prescribed procedures. In commenting on CP10/03, the Council endorsed the importance of there being a significant lay element in the consideration of complaints about tribunal members. This is important for public confidence. The Council suggests that such an element should be reflected in the regulation-making powers in the Bill. 12. However, the Council shares reservations that have been expressed by the British and Irish Ombudsman Association about the establishment of an independent Judicial Appointments and Conduct Ombudsman. In the Council’s view, complaints about appointment procedures and complaints relating to conduct do not sit happily together. The OYce of the Commissioner for Public Appointments seems an appropriate body to consider complaints about the judicial appointments process. The very limited remit proposed for the new Ombudsman in matters relating to judicial conduct hardly seems to amount to a true ombudsman role.

22 April 2004

Memorandum by Dr Stephen Cretney QC (hon) FBA Witness’s Status 1. I am an academic lawyer, an Emeritus Fellow of All Souls College Oxford, a Fellow of the British Academy, and a Queen’s Counsel (Honoris Causa). I practised for some years in the City of London as a Solicitor, and served as a Law Commissioner between 1978 and 1983. I have a long-standing interest in the process of law reform. For the past 10 years I have been engaged in research into the history of English Family Law, and the archival work done in that context has given a particular focus to that interest. I write entirely in a personal capacity.

The Office of Lord Chancellor 2. I believe there is a case to be made for reform in three areas dealt with in the Bill. I believe that case to be strongest in respect of judicial appointments, and least strong in relation to the abolition of the oYce of Lord Chancellor (as distinct from altering some of the functions of that oYce). If the oYce is to go, however, I do not understand why it should be replaced by a “Department for Constitutional AVairs”. Many of the matters dealt with by the Lord Chancellor relate to the private law (for example, family law, will, trusts, land law) and are not in any conventional sense of the word “Constitutional”. To adopt that title suggests that the importance of the private law in the daily lives of many citizens is being undervalued. I believe that most (if not all) the member states of the European Union have a Ministry of Justice or a Ministry for Legal AVairs (headed by a Secretary of State) and it is not clear to me why this latter title should not be adopted here.

Involvement of the Judiciary in the Legislative Process 3. My research has convinced me of the very great value of the contribution made by the Law Lords to the legislative process by scrutiny of Bills and contributing to debates. Equally, they have (especially I think in recent years) made important contributions by serving on Committees. What is in issue are technical and practical matters. Although it might be possible to ﬁnd other sources of this professional expertise it seems to me rash to deprive the Legislature of it without there being a clear plan for providing an acceptable alternative. The contribution which lawyers almost necessarily have to make in the legislative process seems to be being undervalued.

Protecting the Rule of Law: the Lord Chancellor in Cabinet 4. I have noted the discussions which have taken place about the Lord Chancellor’s role, as a senior cabinet minister, in safeguarding the rule of law but am left with a feeling of unease that this function is in future apparently to be served by a Secretary of State, possibly comparatively junior, possibly in future not a lawyer (and, even if a lawyer, probably not having had a substantial career outside politics comparable to that 9673871015 Page Type [E] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

344 constitutional reform bill [hl] committee: evidence traditional for the Lord Chancellor). I appreciate that this matter is complicated by changes in the career patterns and working practices of Members of Parliament and equally by changes in the way in which Government decisions are taken (notably the delegation of many issues away from Cabinet). But I would have thought there is a case to be made for a careful examination of the way in which legal insight is made available in the highest level of executive decision taking: the role of the Law OYcers (the Attorney General not in recent years having been a member of the Cabinet) and the responsibilities of the Parliamentary Counsel are relevant. In this context the argument often used in debate that one no more needs a lawyer to be responsible for legal matters than one needs a doctor to be responsible for health services is based on a false analogy. Governments merely arrange for the provision of health care; but they actually create law. 5. As stated, I believe there is a strong case to be made for giving greater formality to the procedures for judicial appointments. The traditional argument in favour of the Lord Chancellor’s historical role is founded on his personal knowledge of those concerned, but this is no longer convincing at a time when (for example) there are as many as 600 circuit judges. Hence I favour the creation of an Appointments Commission, but would wish to comment on two (related) matters: (a) Appointments by the Commission are to be “on merit”: clause 51(3) but there seems to be no express provision to that eVect in respect of appointments to the Supreme Court. This perhaps provides an opportunity to question whether “merit” is so objective a matter (particularly at the appellate level) as seems usually to be assumed. For example, it would be perfectly possible to identify two people of outstanding technical ability as lawyers but with markedly diVering attitudes on social issues, perhaps of the kind which arose in the Gillick case (availability of contraception to young women) and which seem certain to arise more frequently in deciding issues under the Human Rights Act. Are those attitudes relevant to a determination on the candidates’ respective “merits”? (b) I happen to believe that such matters might properly be taken into account when appointing a judge and especially an appellate judge: to that extent judicial appointments are properly “political” in the broad sense. For this reason, I (unlike most commentators on the Bill) see nothing wrong in giving the ultimate decision taking power to a Minister. But equally I wonder whether there is any convincing reason for taking the formal power of appointing Lords Justices—who play such a vital part in the development of the law—away from the Prime Minister and vesting it in the Secretary of State? 6. There seem to me to be a number of problems about the concept of a United Kingdom Supreme Court. There may well be questions about such matters as where the Court sits, and about the number of members required to deal with appeals on private law matters (given, especially, the fact that the private law of Scotland is wholly diVerent from that of England and Wales). But one particular matter which seems strange is the requirement (clause 21(4)) that a list of Candidates for appointment to the Supreme Court must be given to (amongst others) the National Assembly of Wales. Does this mean that the list will become public knowledge? And is there to be anything to stop public debate in the Assembly about a particular appointment? 7. Finally I note that the Bill places a great many duties on the Lord Chief Justice. Perhaps this is inevitable, but I do not think the transformation of the Head of the Judiciary into a judicial administrator, with little time for involvement in the trial and appeal process should pass without comment.

21 April 2004

Memorandum by Lord Donaldson of Lymington

Introduction It appears that the primary sources of information for the Committee are the Bill itself and the written evidence of Lord Falconer which in some respects foreshadows actual or possible changes in the thinking of the Government. It therefore seems sensible to base my comments on these two documents and in large measure to follow Lord Falconer’s order of presentation.

Summary

A. Abolition of the ofﬁce of Lord Chancellor This oYce could have been saved but for the fact that there is no longer any likelihood that the Prime Minister and all members of the Cabinet will in future accept his historic role as protector of the Judiciary and of the Rule of Law as being of overriding importance. (Paragraphs 1–3) 9673871016 Page Type [O] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

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B. Independence of the Judiciary and support for the Rule of Law Clause 1 of the Bill with its support for the independence of the Judiciary is very welcome, but the Bill contains no express support for the maintenance of the Rule of Law. (Paragraphs 4–5)

C. Independence and accountability of individual judges Neither the Bill nor Lord Falconer’s evidence show any appreciation of the independence of every judge from every other judge, or at least in the case of the senior judiciary, that their only accountability is to the law and to their own conscience. (Paragraphs 6–11)

D. Judicial discipline and the role of the Ombudsman Clauses 83 and 84 and paragraph 356 of Schedule 1 are not compatible with the status of senior judges as being removable only on a joint Address of both Houses of Parliament. Nor is the proposed role of the Ombudsman. Detailed amendments are suggested. (Paragraphs 12–19)

E. Separation of the Judiciary from the Legislature This issue involves two quite distinct issues, namely, (a) whether the new Supreme Court should operate from premises outside the Palace of Westminster and (b) whether serving judges should be disqualiﬁed from sitting or voting in the House of Lords. Lord Falconer’s evidence fails to make this distinction although quite diVerent considerations apply. (Paragraphs 20–34)

F. Independence of the Justices of the new Supreme Court Two comparatively minor points arise concerning compulsory retirement upon medical grounds. (Paragraphs 35–37)

G. Jurisdiction of the new Supreme Court The Government’s proposals amount to adding a new appellate tier to the courts of each of the three national jurisdictions rather than creating a new United Kingdom Supreme Court . . . This results in rights of access to the court diVering according to the court appealed from and in the binding nature of its judgments aVecting the jurisdiction of that court rather than the system of law giving rise to the issue in the appeal. (Paragraphs 38–41)

H. Financing of the Court The Government proposes to save central funds some £3.6 million per annum and to impose a tax upon litigants of some £6.6 million. This is a splendid idea from the point of the Treasury, but will widen the category of those to whom justice is denied upon grounds of cost. (Paragraphs 42–44)

Full Commentary

Part One. Abolition of the ofﬁce of Lord Chancellor 1. Some of the reasons given for abolishing the traditional role of the Lord Chancellor hardly bear examination. Thus whilst it is clearly true that in recent years the department has expanded greatly in terms of its manpower and budget and to a lesser extent in the areas of its responsibilities, it can scarcely compare with the Ministry of Defence or probably with the Home OYce or the Department of Health. Why then has it suddenly become too large and unwieldy to be headed by the Lord Chancellor, parts having to be hived oV? Similarly with the arguments that (a) the Lord Chancellor should not sit as a judge when he is a very active and senior politician and that (b) it is unacceptable that he should have so unfettered a role in recommending the appointment, or himself appointing, holders of judicial oYces. The answer to the ﬁrst objection is for him to announce, as Lord Falconer has done, that he will not sit as a judge and to the second that he will undertake the role in the context of appointments that the Bill and the Concordat foresee for the Secretary of State for Constitutional AVairs. 9673871016 Page Type [E] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

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2. However the whole system whereby the Lord Chancellor acted as the link with and protector of the Judiciary and of the Rule of Law only worked so long as the holder of that oYce regarded those duties as his overriding responsibility and that this priority and his position as the senior member of the Cabinet after the Prime Minister were accepted not only by the Prime Minister, but also by all the other members of the Cabinet. In my judgment these preconditions are no longer met and it is clear that in any event their continuance can no longer be anticipated with any degree of conﬁdence. Nor do I think that it would do other than cause confusion to apply the historic title of Lord Chancellor to the President of the new United Kingdom Supreme Court. I therefore conclude that, so far as this Bill is concerned, the time has come to say a regretful farewell to an oYce which is almost 1,000 years old. In saying this I express no view as to whether it would be appropriate to retain the title for someone fulﬁlling the role of “Speaker of the House of Lords”. 3. That said, there are a number of other matters touched upon in this part of Lord Falconer’s evidence which should not go unchallenged.

Independence of the judiciary 4. I fully accept Lord Bingham’s statement quoted in paragraph 30 of Lord Falconer’s evidence that “what protects it [judicial independence] most is the tradition and the culture.”. Speaking on behalf of the Lords of Appeal in Ordinary he continued: “I could say, and I feel quite sure we would all agree, that in over 20 years of holding judicial oYce none of us would have experienced any attempt whatever by anyone in any oYcial position to inﬂuence any decisions which any of us was about to make, no matter how sensitive the case might be”. My own experience, added to his, takes the matter back for nearly 38 years. Lord Lane of Ippollittis, with whom I was appointed to the High Court bench in September 1966, would I am sure provide further conﬁrmation.

Support for the Rule of Law 5. The Bill by clause 1 provides very welcome support for this independence. What it does not do, at least in express terms, is to aYrm the fundamental obligation of the Government, and indeed the public in general, to accept and support the Rule of Law. The need for such an aYrmation was demonstrated very clearly in the light of clause 14 (the ouster clause) in the Asylum and Immigration (Treatment of Claimants etc) Bill which was passed by the Commons at the Government’s insistence, but which is to be amended in the light of widespread opposition. Further the Constitutional Reform Bill fails to recognise that it is fundamental to the United Kingdom judicial system as we have so far known it that every judge is independent of every other judge. This is particularly relevant to the statements in Lord Falconer’s evidence and the provisions of the Bill relating to discipline which seem to regard the Lord Chancellor, and by succession, the Secretary of State, together with the Lord Chief Justice as line managers. My problems with this require more detailed explanation.

Independence and accountability of individual judges 6. This independence of each individual judge from any other judge arises in two diVerent contexts, namely in relation (i) to decision making and (ii) to other conduct both within and outside court. It may also be that slightly diVerent considerations apply in the context of (a) those who are defined as “Senior Judges” in clause 84(5), ie puisne judges of the High Court and above (but not including Lords of Appeal in Ordinary because, as such, technically they hold oYce as peers rather than judges), and (b) other holders of the judicial oYces listed in Schedule 12. I say that diVerent considerations may apply because, since these “other holders of judicial oYce”, eg circuit judges, can be dismissed by the Lord Chancellor for “incapacity or misbehaviour”, clearly they can, to this extent, be regarded as accountable to him for their conduct. The same is not true in the case of “Senior Judges” who can only be dismissed by the Queen in response to a joint Address by both Houses of Parliament. 7. I write from personal experience only in relation to the position of a “Senior Judge” since, apart from a brief spell as a part time Deputy Chairman of Hampshire Quarter Sessions in 1961–66, I have never served in an other capacity. My independence and personal responsibility in relation to decision making was confirmed and emphasised for me within about a month of my appointment as a High Court Judge. I was due to hear appeals against refusals of bail and was told that the list included an application by a very well known entertainer who was charged with a serious drug oVence. In the light of the high profile nature of the case and my own inexperience, I sought the advice of the Lord Chief Justice (Lord Parker of Waddington) as to any policy which he might have. He was quite clear. Bail should not be granted in such cases. When the very unusual facts of the case were explained to me and I came, somewhat reluctantly, to the conclusion that this 9673871016 Page Type [O] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

constitutional reform bill [hl] committee: evidence 347 was indeed a wholly exceptional case in which it would be unwise and indeed inappropriate to refuse bail. I therefore granted bail. I went back to see Lord Parker and apologetically told him that I had departed from his policy. I was at once met with: “Think nothing of it, John. That is what you are paid for!”. 8. It was not until 1971 that I had to think about my accountability in a broader context. I was the new (and later the only) President of the ill-fated National Industrial Relations Court (the “NIRC”). I was showing Mr Robert Carr (later Lord Carr of Hadley), the Secretary of State for Employment, round the newly constructed court in Chancery Lane when he suddenly asked me whether in my new role I was accountable to the Lord Chief Justice. When I said that I was not, he said that I must then be accountable to the Lord Chancellor. He was visibly surprised when I said that I was accountable to no one. Later, whilst never doubting the accuracy of my answer, I came to the conclusion that I was likely to be asked the same question again and that I ought really to formulate a less stark, but equally accurate, answer to the question and thereafter answered “I am accountable only to the Law and to my own conscience”. 9. In the period between 1971 and 1974, when I was continually faced with having to take politically sensitive decisions, the fact that I was not accountable to others coupled with the fact that I knew that I occupied an irremovable position short of a joint Address enabled me to take those decisions much more dispassionately and confidently than would otherwise have been the case. It was not that I was feather-bedded. Far from it. I used to try to explain the true situation to those who had never been there by asking them to imagine that they were standing on the edge of a cliV with a gusting gale force wind blowing in their face. In taking up a leaning position designed to counter the gusts, there was a high degree of likelihood that at some stage they would overdo it and fall over the cliV or that they would lean insuYciently far forward and get blown flat on their backs. No one could stop the gale blowing, but if they could be largely sheltered from its eVects, they could just stand upright and give complete attention to the real problem in hand. 10. That essential confidence was temporarily undermined in my case when an Early Day Motion calling for my dismissal was signed by a record number of members of the House of Commons. However I was soon told that such motions were a form of parliamentary graYti not to be taken too seriously. The next such motion on the Order Paper somewhat confirmed this view. It congratulated an airline pilot on having achieved a quiet landing at Heathrow. However I also learnt that the Government were aiming to defuse the situation by arranging a debate on the Industrial Relations Act, as contrasted with one centred on my activities, and that the Speaker would inform the members that it was not in order to criticise me in the absence of a substantive motion seeking my removal from oYce. That several members nevertheless felt free to criticise me could be shrugged oV as going with the territory. 11. Consistently with this view of senior judicial accountability, whenever as Master of the Rolls (“MR”) I was asked for advice, whether in relation to a judicial decision or otherwise, in giving advice I always stressed that the decision was not for me but for the colleague seeking that advice. Occasionally in public speeches I pointed out somewhat wryly that the Court of Appeal team contained more Privy Councillors than did Mrs Thatcher’s Cabinet, but that, unlike her, neither I nor anyone else could dismiss any of them! Putting it in another way, I believe that there is great scope for leadership within the senior judicial group, but absolutely none for a system of line management where one judge is either accountable for the actions of another or accountable for his own actions to another, whether that other be the Lord Chief Justice, a Head of Division or any other judge who has a leadership role. Line leadership is what makes the system work as well as it does. Line management would in time transform the ethos of the senior judicial group and would be a disaster.

Judicial discipline 12. Against this background I turn to clauses 83 and 84 and paragraph 356 in Schedule 1 of the Bill. 13. I have no problem with a senior judge being suspended if: (a) he is subject to criminal proceedings (clause 83(4)(a) as defined in clause 84(2)) or (b) he is serving a sentence imposed in criminal proceedings (clause 84(4)(b) as defined in clause 84(6)) or (c) he is subject to proceedings for an Address (as defined in clause 84(3)). Incidentally in the interests of complete clarity, the word “is” in clause 84(3) at line 33 should perhaps be amended to read “has been” so as to read: “notice of motion has been given in each House”. In recognition of the totally independent status of a senior judge, suspension in any such circumstances should always be automatic and not subject to any decision by either the Secretary of State or the Lord Chief Justice. 14. There should be no power under clause 83(5)(a) for anyone to suspend a senior judge who has been convicted of a “criminal oVence”, as this could of course include a minor motoring or other regulatory oVence. On the other hand if such a conviction were to lead to his serving a “sentence” as defined in clause 84(6), 9673871016 Page Type [E] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

348 constitutional reform bill [hl] committee: evidence namely “ any sentence other than a fine” then suspension should prima facie be automatic, although it may be that the definition should also exclude suspension of a driving licence. 15. Turning to clause 83(3), there is no need for any statutory power to enable the Lord Chief Justice to give advice to another senior judge. He could do so anyway. But he should not be entitled to give such a judge formal advice, a warning or a formal reprimand. The Lord Chief Justice should also be unable to suspend a senior judge under clause 83(5)(c) on the ground that he and the Minister consider this course desirable in order to maintain confidence in the Judiciary. The only disciplinary sanction in the case of the senior judiciary is, and always has been, a joint Address of both Houses of Parliament. Incidentally it is not clear why this clause 83(5)(c) power is specifically subject to the agreement of the Minister when clause 83(2) provides that all the clause 83 powers are subject to such agreement.

The role of the Ombudsman 16. According to what view the Committee takes of the position of the senior judiciary, it may be necessary to take a look at clauses 89 to 91 of the Bill which concern investigations by the Ombudsman relating to conduct. I have no doubt that the Ombudsman should be the first port of call for all complainants, not least because I would expect that most will be found really to amount to a complaint that the court or judge reached the wrong decision. This is an inadmissible category of complaint which is better dismissed by the Ombudsman than by a judge. 17. For the rest I would in principle prefer that the facts should be found by the Ombudsman. However at least in the case of complaints against senior judges I think that he should make a purely factual report to the Lord Chief Justice. He should express no view as to whether, on the facts so found, the complaint should be upheld or as to what action should be taken. What happens then would be a matter for the Lord Chief Justice and the senior judge who was the subject of the complaint. If the facts as found by the Ombudsman justified the complaint, honour would usually be satisfied by an apology from the judge concerned, even if privately he did not agree with the Ombudsman’s findings. In more serious cases, which would be a great rarity, the senior judge concerned would have to give consideration to resigning and in that situation would, I hope, give some thought to the damage which would be done both to his reputation and to that of the senior judiciary if, instead of quietly resigning, he forced the Lord Chief Justice and the Minister into supporting a joint Address. 18. Some members of the Committee may think that my views on the individuality and lack of accountability of one judge to another do not square with the strict rules of seniority which exist within the profession. Judicial seniority depends solely upon the level of appointment held and the date of being apppointed. The reconciliation is to be found in the fact that seniority is of minimal importance in judicial life against the background of the deep seated individualistic culture and ethos of the judiciary. In the case of judges drawn from the Bar this is inculcated in them from pupillage. The sole function of judicial seniority is to determine who walks in front of whom in formal processions, who presides in a multi-judge court and who sits on the left and who on the right of the presider. In my time it also determined who was the “housekeeping judge” where more than one judge was in the Lodgings. It also enabled the senior judge to claim the right at meal times to sit with his back to the fire or, as the case might be, to the night store heater!

Sentencing Guidelines Council 19. One last point. Paragraph 356 of Schedule 1 of the Bill amends section 168 of the Criminal Justice Act 2003 to enable the Secretary of State with the concurrence of the Lord Chief Justice to suspend from oYce a “judicial member” of the Sentencing Guidelines Council “on the grounds of incapacity or misbehaviour”. Contrary to principle, no distinction is made between a judicial member who is a senior judge and one who is in the Schedule 12 category. I imagine that this is an oversight.

Part Two. The new Supreme Court

Separation from the legislature 20. This aspect of the Bill is addressed in paragraphs 50–55 of Lord Falconer’s written eveidence. In studying this evidence it is important to bear in mind that these paragraphs address two quite separate questions, namely, (a) should we have a new supreme court which operates from premises outside the Palace of Westminster and has some name other than “House of Lords” and (b) should the justices of the new court be prevented from performing even an advisory function in the upper House of Parliament? Although Lord Falconer’s eveidence is presented in such a way as to give the impression that he is addressing the ﬁrst question he is in reality addressing the second. 9673871016 Page Type [O] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

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21. Personally I have no problem with the establishment of a new independent Supreme Court operating from suitable premises outside the Palace of Westminster and replacing the old independent final court of appeal operating from within the House of Lords. As the latter was in no real sense a part of the House of Lords as a legislative body, this is not a monumental change. Such a move would quite clearly provide added value in terms of the considerably improved facilities which could be provided. It would also give the new court a higher profile and draw attention to the operation of the rule of law at the highest level. It might more easily enable the public to observe the court in action, although departing observers might wonder whether “action” was quite the right word. 22. However where I have very considerable problems is with clause 94(2) and (3) of the Bill which, while permitting judicial oYcers of any level to receive a writ of summons to attend the House, prevents them from sitting or voting thus reducing their status to that of social members. There are to be no exceptions. Not even the Lord Chief Justice with his pivotal role under the “Concordat” is to be excepted. This would indeed be a monumental change which needs to be justified and I do not think that Lord Falconer’s evidence achieves this. 23. When I was appointed to the High Court bench Lord Gardiner, the then Lord Chancellor, presented me with my patent of appointment, rather disappointingly attested only by the Clerk to the Crown in Chancery whereas my previous appointment as Deputy Chairman of Quarter Sessons had been signed by the Queen personally, together with a copy of the famous “Kilmuir letter” and a Writ of Summons. The writ was in these terms: “We strictly enjoining command you that all other things laid aside you be personally present at Our said Parliament with Us and others of Our Council to treat of the aforesaid aVairs and to give your advice (emphasis supplied) and this you may in nowise omit”. Lord Gardiner explained that it was customary not to take the writ too literally, but it does emphasise that one of the historic functions of the Higher Judiciary was to advise the legislature. So long as there were suYcient members of the House who held or had held “High Judicial OYce”, it was understandable that the writ should be treated as a formality, but the fact that I and all others in the same position continued to receive such a summons at the beginning of every succeeding Parliament until, in my case, I was appointed a member of the House, is perhaps not without significance. 24. In paragraph 51 of his written evidence Lord Falconer delivers himself of the platitude that “judges are not legislators”. He might have added that “Archbishops and Bishops are not legislators”, but all that this amounts to saying is that neither Judges, Archbishops or Bishops are appointed to their respective oYces because of their skills as legislators. But there is no reason whatsoever why they should not perform both roles. My recollection is that Lord Falconer in giving oral evidence accepted that there was no reason why an elected member of the House of Commons, who must be regarded as an architypal legislator, should not combine this with being a judge, albeit on a part time basis. 25. In paragraph 52 Lord Falconer prays in aid the European Convention on Human Rights, but as far as I know the only objections to the present system on this basis have been to members of the Executive appointing judges or sitting as judges, not to judges advising the legislature. 26. In paragraph 53 Lord Falconer says that the Government’s case for the creation of a Suptreme Court does not rest solely upon the theory of the separation of powers. If it did, it would have extremely shaky foundations since this theory has never been accepted in this country’s constitutional history. Furthermore if this is now to change the first step must be to prevent members of the Cabinet and all other members of the Government from sitting or voting in either House of Parliament, although they could, following the precedent of clause 94, receive writs of summons and remain social members of either House. 27. The same paragraph goes on to allege that there have been a number of very practical examples where the dual role of the Law Lords as members of the Appellate Committee and of the Upper Chamber have raised questions about their ability to sit on specific cases. Leaving aside the position of the Lord Chancellor of which this is undoubtedly true, the Committee may wish to ask for details of such cases where the dual role has created problems. Problems can always arise out of personal connections which create an appearance of bias and therefore call for the judge to recuse himself, but that is a diVerent matter. 28. Lord Falconer also raises the spectre of a Law Lord being “lobbied in the corridors of Parliament whilst hearing a case”. Quite apart from the fact that fellow peers would be the most unlikely group to try to do anything of the sort because of their acute awareness of the constitutional proprieties, why does he think that this could not equally happen outside “the corridors of Parliament” in one of the Inns of Court, in a club or in 101 other diVerent social environments? 29. In paragraph 54 Lord Falconer seems to suggest that it was as a result of the risk that a Law Lord might have to withdraw from hearing a particular case because of comments which he had made in the House when the legislation was being considered that, in June 2000, the Senior Law Lord made the much relied upon Statement as to the circumstances in which the Law Lords would feel inhibited from speaking in the House. I have no idea why the statement was made at that time, but two things need to be said about it. 9673871016 Page Type [E] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

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30. The first is that it does do no more than emphasise the need for Law Lords to exercise caution when speaking or voting in the House. It in no way supports the total ban proposed under the Bill. Indeed it is wholly inconsistent with it. Second it states or restates what I have always understood to be the position since I first entered the House, namely, that not only Law Lords, but retired Law Lords and senior judges such as myself who have never been Law Lords, should in general avoid becoming involved in matters of strong party political controversy. The reason for this is that it is of the utmost importance not to risk damaging the reputation of the judges as independent non-political servants of the state. This damage can be done whether the member of the House is a serving or retired judge. If he celebrates retirement by becoming an enthusiastic party supporter the obvious inference would be that whilst in oYce he was a closet party politician. An important exception exists where intervention is necessary in the interest of supporting the Rule of Law or expressing expert views upon issues relating to the administration of justice. 31. As to the second part of the statement, judges are well used to administering the law as they believe it to be, rather than as they think that it should be, and it is quite diYcult to think of a situation in which they would have a discretion the exercise of which might be thought to be influenced by their personal predelictions. In any event this risk is not confined to views expressed in Parliament but extends to all public utterances whether in the form of lectures or learned articles both of which have alwsays been regarded as acceptable vehicles for the propogation of a judge’s views. On one occasion after giving judgment in the commercial court I detected considerable surprise at my conclusion as to a point of law. It transpired that the solicitors for the losing side held an opinion which I had written for other clients some time before on the basis of which they expected to win. I expressed my sympathy, but said that the point no longer seemed to me now as it had seemed to me then. 32. My recollection of the Kilmuir letter is that it bad judges to keep their mouths firmly shut at all times lest by opening them they might harm the reputation for wisdom which it said was attached to the judicial oYce. I thought that it was daft when I first read it and I am sure that the Senior Law Lord would not support it. Nor, I would hope, would Lord Falconer. I prefer the view of Lord Nichols of Birkenhead who has stated in forthright terms that both Parliament and the Judiciary have much to gain by each learning more about the other and that this process need in no way undermine the independence of the Judiciary or exert undue influence on Parliament. For my part I would be quite happy for judges to refrain from voting in proceedings in the House or, if necessary being debarred from doing so, but they above all people should be capable of using discretion in deciding when to tender advice and as to the terms in which it should be expressed. I see no reason why the one place where they should be unable to do so should be Parliament. If judges were only able to express their views through the media, it would reduce their contribution to that of just another lobby group. 33. In paragraph 55 Lord Falconer suggests that “a fault line is beginning to open up in our constitutional arrangements” and suggests that the growth of judicial review cases over the last 50 years (actually 30 years) makes this fault line more apparent. I know of no such fault line. Whatever the Home Secretary may think and say, judicial review decisions depend solely upon the extent of the powers and duties conferred upon the authority whose conduct is being reviewed. On the other hand this Government is following a well trodden path taken by governments of both political persuasions when it deplores the growth of judicial review as it aVects central government and, if it were a practical option, would prefer to be be rid of it. 34. In my view none of the reasons put forward as a justification for clause 94 achieve this objective. However the explanation for the clause being included in the Bill is not diYcult to detect. Critical judicial advice expressed in Parliament is far more influential than any such advice expressed elsewhere.

Independence of the justices 35. Clause 24 provides that justices of the new court shall hold oYce during good behaviour , subject only to removal on an Address of both Houses of Parliament. This will bring them into line with the senior judges of England and Wales. At present the Lords of Appeal in Ordinary are not, I think, subject to the possibility of such removal because their status is parliamentary rather than judicial. Their status would become judicial under clause 17 of the Bill, whether or not they happened to be peers. Hence clause 24.

Medical retirement 36. This is the subject of clause 27 and is clearly based upon sub-clauses (8) and (9) of section 11 of the Supreme Court Act, 1981, which applies to all senior judges of the English and Welsh judiciary. So far as I am aware it has never been used and I think it most unlikely that it will ever be used. I say this because not only is it a rare occurrence for a senior judge to be disabled by permanent inﬁrmity from the performance of the duties of his oYce, but the clause only applies if for the time being he is incapacitated from resigning his 9673871016 Page Type [O] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

constitutional reform bill [hl] committee: evidence 351 oYce. It was enacted in the light of a case in which a senior judge became the victim of mental illness of such severity that he had to be certified and confined to a mental hospital. In that situation he clearly did not have the capacity to resign. This power did not exist at the time and, faute de mieux, it was simply announced that he had resigned. As I have said, I think it most unlikely that its very restrictive condition as to the lack of capacity to resign will ever again be met but its inclusion in the Bill does no harm. 37. However there might be a case for a new statutory power for compulsory retirement on medical grounds in a case where the judge was disabled by permanent infirmity from performing the duties of his oYce was capable of forming the intention of retiring, but did not readily see the necessity for doing so. Of course there are problems in defining the degree of disability which should trigger the power to compell retirement. Such very small experience as there has been of such a situation suggests that pressure from fellow judges would in the end resolve the problem. If however this were to be put on a statutory basis and applied to justices of the Supreme Court and to senior judges in England and Wales, I doubt whether a single medical certificate should suYce. I think that the incapacity should attested by the opinions of two medical practitioners of appropriate consultant status. I also think that in the case of all senior judges in England and Wales the concurrence of at least two Heads of Division should be required and that the precedent of clause 11(9) of the Supreme Court Act 1981 which requires only the concurrence of the Master of the Rolls in the case of a Lord Justice of Appeal and that of the relevant Head of Division in the case of a puisne judge should not be followed.

Jurisdiction 38. I do not understand why the draftsman has included clause 31(2) giving an express right of appeal to the Supreme Court from any order or judgment of the Court of Appeal in civil proceedings, instead of simply substituting Supreme Court for House of Lords in the appropriate existing statutes. However I fully accept that I have probably overlooked something. 39. Clause 31(3) in eVect provides that those aggrieved by a Scottish decision in criminal law shall have no right of appeal, but in the case of a decision in civil proceedings need only obtain a certificate of approval from two leading counsel. Paragraph 60 of Lord Falconer’s evidence explains the Government’s more general approach: “. . . we intend the Supreme Court . . . to be a UK institution but applying English, Scottish or Northern Ireland law according to the jurisdiction from which the appeal originated. This means that as with the House of Lords when exercising the same jurisdiction, its decisions are to be binding only in the jurisdiction from whence the case has come, in each of the other jurisdictions its value as precedent would be persuasive only”. Rather than providing a supreme court for the United Kingdom, this approach just adds a new separate top floor level to each of the three national jurisdictions. 40. There are a number of alleged justifications for this approach: (a) Justice is a devolved matter. But United Kingdom Parliament is being asked to legislate for a new United Kingdom Supreme Court and it is diYcult to see how a prior decision to devolve the then existing jurisdiction of the Scottish courts can stand in the way. Parliament can never bind its successor. (b) There has been no demand from the people of Scotland. Well I would not expect them to demand a new limitation on the right of appeal in civil cases and I doubt whether anyone has sought the views of dissatisfied Scottish criminals. (c) That Scottish law is so diVerent that we must have a system whereby decisions on appeal from the courts of the three national jurisdictions are, in eVect, the decisions of separate Supreme Courts, the decisions being binding on the courts of the jurisdiction appealed from but only persuasive in the case of the courts of the other jurisdictions. This seems to be bound up with the fears expressed by Lords Cullen of Whitekirk and Hope of Craighead that the thoroughbred character of Scottish law may be damaged by some, perhaps subconscious, interbreeding with the other two systems (see paragraph 62 of Lord Falconer’s evidence). 41. There are three comments which need to be made: (a) The first is to question whether it would be such a bad thing if rights of appeal were the same throughout the United Kingdom, particularly in relation to criminal law. Leaving aside regulatory provisions, can it really be desirable that what is or is not a crime or that the elements of a criminal oVence shall be diVerent on either side of a land border? (b) The second is to enquire over what areas of law these, no doubt considerable, diVerences exist. Do they extend beyond personal status and personal and real property, ie matters of an essentially local character, although none the less important for that. It would be a disincentive to trade if they 9673871016 Page Type [E] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

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extended to commercial law but no one would wish to interfere with local law which meets the needs of the inhabitants. (c) The third is to suggest that there exists a fundamental confusion of thought over the diVerence between on the one hand jurisdictions, which are normally geographical and related to where judgments can be enforced, and national systems of law which may need to be considered by courts of “foreign” countries either as a result of the application of the objective rules relating to the conﬂict of laws or by the election of the parties. The result of proceedings against an English resident in an English court may turn, at least in part, upon the application of Scottish law and vice versa. Suppose that an English court was faced with a dispute under a contract to sell land in Scotland, which the parties had speciﬁcally provided should be governed by English law. Surely on an appeal to the new United Kingdom Supreme Court that court should be capable of giving binding rulings as to issues of both English and Scots law which had arisen in the case and not only the English law issues.

Financing of the Court 42. In paragraph 84 of his written evidence Lord Falconer records that it is the Government’s intention in the next financial year to set fees for litigants at a level which, excluding those fees which are remitted, exempted or subsidised, will recover 100 per cent of the cost of the civil courts in England and Wales. I am not sure whether this exclusion means that the whole cost will be recovered from fees which are not excluded or that what is to be recovered is the whole cost less an amount equal to the excluded fees. Either way the burden which will fall upon those who are forced to litigate will be huge and for many this approach will amount to a denial of access to justice leaving fewer to contribute towards this recovery of costs. 43. It may be appropriate to remind the Government that in under developed societies, in which the government provides assistance with neither education, health nor housing, there is nevertheless likely to be some state provided rudimentary system for resolving disputes between citizens. Whilst this priority is probably dictated in part by the need not to allow dispute resolution to result in the death or wounding of a high proportion of the population and clearly that is not a consideration in the United Kingdom, it remains the fact that the provision of assistance with access to civil justice should be regarded as a major central government responsibility. 44. In the context of a new Supreme Court it is regrettable that the Government should seek to recover the costs by a surcharge or tax on fees charged in national courts rather than meeting these costs itself. Whatever the benefits to be derived from the creation of the new court, they are not likely to be discernible by the average litigant in a national court. On the figures given in paragraphs 87–89 of Lord Falconer’s written evidence it appears that the Government proposes to relieve itself of expenditure amounting to £3.6 million per annum and to impose a new burden of £6.6 million on the unfortunate litigants. This is a splendid idea from the point of view of the Treasury and the taxpayer, but will widen the, already too wide, category to whom access to justice is denied upon grounds of cost. April 2004

Note. This written evidence is submitted by Lord Donaldson on an individual basis. He became a judge of the High Court in 1966, of the Court of Appeal in 1979 and was Master of the Rolls from 1982 until 1992. He has been an independent crossbench member of the House of Lords since 1988.

Memorandum by the Ecclesiastical Judges Association

1. The members of the Ecclesiastical Judges Association (the EJA) are all the diocesan chancellors in the Church of England (at present numbering 30) and the Dean of the Arches and Auditor. A diocesan chancellor is the judge in the consistory court (the bishop’s court.) and hears only ecclesiastical cases. The Dean of the Arches presides in the Court of Arches in the Province of Canterbury, and in the Court of Chancery in the Province of York hearing appeals from the consistory courts.

2. Appointment of Diocesan Chancellors:Consultation with the Lord Chancellor The bishops of the Church of England appoint their diocesan chancellors by letters patent. Before making an appointment a bishop is required to consult (a) the Lord Chancellor63 and (b) the Dean of the Arches and Auditor. This is to ensure that the candidate has satisfactory credentials to hold the oYce of an ecclesiastical 63 Section 2 of Ecclesiastical Jurisdiction Measures 1963, as amended by Care of Churches and Ecclesiastical Jurisdiction Measure 1991 Schedule 4 paragraph 2. 9673871017 Page Type [O] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

constitutional reform bill [hl] committee: evidence 353 judge both in respect of his/her reputation as a practising lawyer, or as a judge or Recorder, in the secular courts (a matter within the Lord Chancellor’s expertise assisted by his staV), and in the view of the senior ecclesiastical judge. 3. In responding to two of the Government’s papers on Constitutional Reform64 the EJA expressed the view that the responsibility of the Lord Chancellor as consultee in relation to the appointment of a diocesan chancellor should be passed to the Secretary of State for Constitutional AVairs (the Secretary of State). The EJA pointed out that as the appointing power lies within the hands of the bishops, and not a Minister of State, it would be inappropriate to pass the Lord Chancellor’s role to any new Judicial Appointments Commission. 4. By letter, dated 3 March 2004. the EJA was informed that the Government accepted the above points, which were made by others as well as the EJA, that the Government’s intention is that the Lord Chancellor’s responsibilities in relation to “various ecclesiastical appointments will be transferred to the Secretary of State”. 5. The EJA has not seen any clause to this eVect and assumes that it will be a Government amendment. The EJA seeks assurance that a clause transferring the Lord Chancellor’s responsibility, as consultee in respect of diocesan chancellors, to the Secretary of State is indeed included in the Bill in this House. 6. This submission represents the views of the Dean of the Arches and Auditor and of each individual diocesan chancellor. 21 April 2004

Memorandum by the Lord Elton TD

My purpose in writing to you is to bring again before the Committee the eVect that this proposed separation will have upon Parliament if it is carried out as at present proposed. This important aspect of what is proposed received scant attention at second reading. The Parliamentary functions to be principally aVected are those of the House of Lords, to consider, modify and, occasionally, refuse legislation proposed by the executive; and to monitor, comment upon and, occasionally, restrain its political initiatives. This House, being unelected, is quite properly the less powerful House. But the fact that it is not elected gives it a diVerent perspective on public policy and, in particular, a sometimes longer view on the eVects of that policy upon the national interest. As Peers are under no electoral necessity they are also exempt from the controls which that necessity enables party whips to exercise over members of the Commons. Both these factors mean that the advice which the House can give to Government, either collectively or informally, can diVer sharply from that available from the Commons. The more complete a Government’s control of the Commons, the less likely it is to receive necessary but unwelcome views from that quarter, and the more valuable to it the opinions of the Lords may consequently become. Unwelcome views are often those most necessary for the formulation of eVective policy. The eVect of this divergence of the views of the Lords from those of the Commons is made plain and public in the legislative process. It also contributes to the development of policy in less obvious ways. The House of Lords has, by convention, a direct line into the Cabinet in the persons of the Leader of the House and the Lord Chancellor. Without some other, compensating step, the abolition of the oYce of Lord Chancellor would leave it with only a single voice in Cabinet secured to it by convention. A single voice expressing unwelcome views is at best half as eVective as two, particularly when they originate from an institution little understood or regarded by the hearers; and, of course, it can be heard in fewer committees and on fewer occasions. The influence of the House would thus be significantly diminished in a forum where it is of value. To avoid this it would be possible to leave the Lord Chancellor’s oYce in place, whilst alienating most of its powers and responsibilities. I have small experience of Cabinet Committees, and the only meeting of the full Cabinet I have attended was adjourned early, following the explosion of an IRA bomb in Hyde Park. But it is a condition almost of nature that the weight carried in such a group by any member of it depends in large part on the extent of his, or her, powers and responsibilities. A Lord Chancellor with vestigial powers could expect to have vestigial influence in Cabinet. It is convention alone that secures a seat in Cabinet to the Lord Chancellor. If the greater part of the non judicial powers and responsibilities attached to the post were simply transferred to the Secretary of State for Constitutional AVairs (SoSCA) a new convention could be established that the holder of that oYce should sit both in Cabinet and in the Lords. It would require substantial undertakings to reassure the House of this intention; but it would not require primary legislation to carry it out. (The question would then arise as to why 64 Reforming the oYce of Lord Chancellor CP 13/03 and a new way of appointing Judges CP 10/03. 9673871018 Page Type [E] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

354 constitutional reform bill [hl] committee: evidence it was necessary to invent a new name for the Minister carrying out these duties. If they were suYcient to warrant a seat in Cabinet they would warrant retention of an institution a good deal older than Parliament.) Though it has very occasionally been broken, the convention that the Lord Chancellor sits, speaks and votes in the House of Lords is very ancient and should continue as long as does the oYce itself. But if the powers and responsibilities remaining with this oYce are to be vestigial, it will be possible for the holder of another to discharge them. The holder of the oYce of SoSCA suggests itself; but it would not be necessary so to restrict the choice of Prime Ministers in forming their Cabinets. It would suYce if the post was held by any of the half dozen most powerful Secretaries of State. Such a convention would suYce to maintain the influence, and usefulness, of this House on central policy formation. Again, it would not need primary legislation to bring this about. By one or other of these routes it should be possible both to maintain communication between our House of Parliament and the central organ of Government at its present level of eVectiveness and to avoid the abolition of an oYce of great antiquity and some symbolic importance. The quality of the work of the House will also be aVected by this proposed legislation (as, in proportion, will that of the representations of its Cabinet members). The Law Lords now play an occasional but invaluable part in our proceedings. As they are required to interpret the laws it is not surprising that they should have relevant and constructive views on how they should be framed. Membership of the House should therefore be conferred on Judges on retirement from the new Supreme Court. This would normally be done as a matter of convention, but as the current preferment would be removed by the Statute it would be as well if it was the Statute that preserved it. It is not only after retirement that Law Lords make their most useful contributions. Until recently, serving Law Lords have also made a unique contribution to legislation. Lord Scarman’ s numerous, well informed and eVective interventions in the Police and Criminal Evidence Bill (which I took through this House) were made in 1984, following his Report on the Brixton Riots. They were immediately beneficial, and continue to minimise the aggravating eVect of police procedures upon ethnic minority communities to this day. The Bill was enacted two years before his retirement. Since then I understand the Law Lords have withdrawn themselves from legislation. If the Bill were to provide an opportunity for them to consider a return, perhaps within carefully prescribed limits, considerable benefit might be gained. In another area the damage that may be done by the Bill is perhaps more easily remediable. Lord Woolf’s Report on the Prison Service has given him enormous authority on the subject, and that authority remains available to the House. If a means could be found, of preserving, possibly by selective preferment, the opportunity for contributions of this sort by serving Law Lords, and for them to continue to be available to the House after their contributions have been made, considerable harm to this House, and to the body politic, could be avoided, otherwise their loss will be a part of the price we must pay for separation of the powers.

10 May 2004

Memorandum by the Faculty Ofﬁce of the Archbishop of Canterbury 1. Under the Ecclesiastical Licences Act 1533 (the 1533 Act) the Archbishop of Canterbury is empowered to grant faculties for various matters, and the administration is conducted through his Faculty OYce at 1, The Sanctuary, Westminister, SW1. 2. In addition to the granting of special marriage licences and certain degrees, the Archbishop is the appointing authority for notaries public in England and Wales.

3. Appeal to the Lord Chancellor A person who is refused a faculty to practise as a notary has a right of appeal to the Lord Chancellor personally under section 11 of the 1533 Act and under section 5 of the Public Notaries Act 1843. The right of appeal has been exercised very rarely and only once in recent years according to Faculty OYce records. Although there is no statutory basis for the procedure, former Lord Chancellors have considered it appropriate to refer such an appeal to the Chancery Division of the High Court of Justice. 4. By letter, dated 25 February 2004, the Registrar of the Faculty OYce was informed that the Government intends to put forward an amendment to the Bill providing that the jurisdiction of the Lord Chancellor to hear such appeals should pass to the Vice Chancellor of the Chancery Division “who will have power to delegate the jurisdiction to a judge in the Chancery Division as appropriate”. This seems to the Faculty OYce to be a 9673871019 Page Type [O] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

constitutional reform bill [hl] committee: evidence 355 sensible proposal. For consistency in relation to appeals from prospective notaries the same amendment needs to be made to section 5 of the Public Notaries Act 1843 and it is submitted that provision should be made in the Bill accordingly.

5. Application of fees, under section 8 of the 1533 Act This section provides for a complicated system of distribution of fees received by the Faculty OYce, but the system appears to have fallen into disuse as long ago as 1666. A new practice evolved during the nineteenth century whereby speciﬁc fees are paid from the Faculty OYce to the Clerk of the Crown for registering overseas notaries, and this fee is paid as necessary at the present day. Otherwise the fees received for faculties are used to pay for the running of the Faculty OYce. During the course of helpful communication with the Department for Constitutional AVairs the Faculty OYce has pointed out that section 8 is now otiose and has been overtaken by long-standing practical arrangements, which make it unnecessary for the Ministerial role provided for in this section to be retained. It is submitted that section 8 should be repealed and it is hoped that the Government will put forward an amendment of the Bill to this eVect.

6. Lord Chancellor as Keeper of the Great Seal It is noted that references to the Lord Chancellor or Keeper of the Great Seal in the 1533 Act are to be read as a reference to the Secretary of State for Constitutional AVairs, and this seems to be entirely appropriate. 7. This submission represent the views of the Master of the Faculties and the Registrar, being the oYcers in charge of the Archbishop of Canterbury’s Faculty OYce. 21 April 2004*

Memorandum by Fawcett Society I have pleasure in enclosing as evidence the “Interim Report on Women Working in the Criminal Justice System” and a copy of “Women and the Criminal Justice System” which is the final report of a year long Commission into women’s experience of the criminal justice system. In summary, we found that: — Women lack representation throughout the criminal justice system, but under-representation is particularly acute at senior levels of the judiciary (please see illustration on p 27 of “Women and the Criminal Justice System”); — There is limited evidence of any trickle up eVect from the lower ranks of the profession; — The current selection process for appointing judges is flawed and, contrary to perceptions from within the judiciary, does not currently operate on a meritocratic basis; — According to the Discrimination Law Association, the current appointments process may be unlawful since current appointments under the Sex Discrimination Act 1975 and Race Relations Act 1976 because of the narrow “pool” of candidates used in recruiting to the senior judiciary; — Increasing the representativeness of the judiciary is an essential component of increasing public confidence in and credibility of the criminal justice system (please see attached letter to the Constitutional AVairs Select Committee); The Commission made the following recommendations: — That any Judicial Appointments Commission should be required to take diversity into account to endure that the pool of candidates is drawn more broadly than at present; — The Law Society and Bar Council should address barriers to women’s progress across the legal profession including pay, flexible working and provision of maternity leave; — The Sex Discrimination Act be amended so that public bodies have a positive duty, in carrying out all their functions, to have regard to the need to eliminate unlawful sex discrimination and to promote equality of opportunity between the sexes.

20 April 2004 * See also letter from the Faculty OYce of the Archbishop of Canterbury to the DCA at p 477. 9673871021 Page Type [E] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

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Memorandum by Edward Garnier QC MP (Harborough, Conservative) made on his own behalf and on behalf of the Society of Conservative Lawyers

The Office of Lord Chancellor It is undeniably true that the Lord Chancellor’s department has taken on a number of new responsibilities since 1997. It now covers the courts and tribunals, freedom of information and data protection, human rights, Lords and other constitutionals reform, judicial appointments, party funding, electoral law and policy, civil and criminal law, legal aid, and royal, church and hereditary issues. It has a budget measured in billions and has been described by Professor Diana Woodhouse in her article in Legal Studies for March 2002, “The oYce of Lord Chancellor: time to abandon the judicial role—the rest will follow”, as a “resource-hungry department at the centre of government, which operates under the same management and value-for-money regime as other industries.” The Department has become a significant government department and the balance in the Lord Chancellor’s functions has, according to Professor Woodhouse, “moved away from the judicial, towards the executive and political, a shift which means that increasingly executive responsibilities are being carried out by an unelected minister whose territorial boundaries are imprecise and subject to adjustment at his and the Prime Minister’s dictate.” In addition to these criticisms of the present role of the Lord Chancellor a number of Law Lords, most notably Lord Steyn, want him to stop sitting as a judge in the Judicial Committee. “It is no longer acceptable that alone among constitutional democracies our country does not have a supreme court. Public confidence in the administration of justice would be enhanced and the public interest would be advanced if the highest court in the land ceased to be a committee of the legislature. What is required is a proper supreme court as an independent branch of government in our parliamentary democracy in which the final word rests with Parliament.” These arguments are perfectly respectable and have certain neatness to them. They are eminently rational. But one of the strengths (and joys) of the British constitution is that it is diVerent from every other constitution and yet wholly capable of protecting the rights and interests of the citizen. We live by what is reasonable, not by what is rational and have seen the common law provide as much, if not more, protection for the individual against the over-mighty state as the judgments of the supreme courts of other countries with written constitutions. No amount of fiddling with the role of the Lord Chancellor will make a worthwhile diVerence to that. The Lord Chancellor untidily bestrides the constitution. We do not have a minister of justice? Is our democracy the feebler for that? Are our judges government stooges who do no more than the bidding of the politician that appointed them? Are they appointed for their political views or their legal expertise? How many times since, let alone before, the enactment of the Human Rights Bill have the courts decided cases against the government? Does not the Home Secretary, David Blunkett, fulminate against the judiciary for applying the very laws his government has passed against it? Do our courts never award damages against the police or government departments? Was not a private citizen not granted £1 million in compensation for nuisance against the Ministry of Defence, whilst the Royal Navy, our troops and the Royal Air Force were engaged in the recent Iraq war, for noisy low flying by RAF fighter jets over his house near Stamford? Is not the right to strike and to demonstrate not protected by the courts? Did Lord Irvine as the Lord Chancellor, or any other one (I accept that Lord Falconer does not sit judicially), given judgment in the House of Lords on political as opposed to strictly legal grounds or ever threatened the legislature that unless it did his party’s bidding he would give judgment to redress the matter upstairs? To all these questions, and many similar, the last Lord Chancellor, Lord Irvine of Lairg, a man with questionable political and diplomatic skills, can justly claim to have behaved entirely properly. Like him or hate him as a party politician, he was subject to the control of parliament in all that he did as Lord Chancellor. The present oYce-holder, Lord Falconer of Thoroton, although he prefers a new departmental title and is also a secretary of state, is equally circumscribed by parliament and convention—at least for the present. “We have an omnipotent, omnicompetent and sovereign parliament and, to some extent, it reflects the will of the executive, but we have an independent judiciary and the function of the Lord Chancellor is precisely to maintain the independence of the courts of law and the judges. We have no written constitution and in the absence of a document we must rely on the integrity of a man. It is the function of the Lord Chancellor to fight, to his last gasp if need be, for the independence of the judiciary. He can perform that function only if he has a foot in all three camps.” (Lord Hailsham of St Marylebone LC, 1979, Council of Europe). Politics is a business susceptible to fashion; the names and remits of government departments change as frequently as their political masters. The turf wars between the Home OYce, the OYce of the Deputy Prime Minister or the Departments of the Environment/Local Government/the Duchy of Lancaster/the Law OYcers and the Lord Chancellor’s Department will wax and wane, and no doubt the extensive political and executive role of the present Lord Chancellor will be diVerent to that of his successor, be he Labour or Conservative, 9673871021 Page Type [O] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

constitutional reform bill [hl] committee: evidence 357 but the vital and central role of the Lord Chancellor which requires him to tread carefully along the three parallel but invisible lines of the British constitution is justified and justifiable, even in the face of demands from political fashionistas. Whilst there may be room to restructure the remit of the LCD/DCA and to depoliticise the oYce of the Lord Chancellor, frequently and most usefully held by people of the highest intellect and legal experience who are beyond political ambition and above the hand to hand political fighting that is modern politics, its essential purpose and functions should be maintained. The oYce of Lord Chancellor is not bad because it is ancient; it is ancient because it is good. An oYce that has served this country and its constitution well for literally hundreds of years does not need to, and must not, be abolished to answer a seven day political crisis over a Cabinet reshuZe in June 2003.

The Creation of a Supreme Court The Government’s ostensible rationale behind the creation of a Supreme Court is a purist approach to a separation of powers and embarrassment that in the 21st century we do not enjoy that. Judges, it is said, should be entirely separate from the legislature and the executive, and be seen to be so; it is anomalous that the highest court of appeal is situated within one of the chambers of Parliament65. But the British constitution is not purist. It has developed incrementally in an intensely practical and pragmatic fashion. It would be obviously unacceptable if judges became involved in party politics, and they have not done so. However, the ability of senior judges to represent the views of the judges to the House of Lords as a legislature is invaluable and all the more so at a time when the House of Commons, contrary to popular perception is almost a (practising) lawyer-free zone and when some Ministers adopt an increasingly antagonistic (and often unfair) attitude to the justice system. Equally it is no bad thing for the senior judiciary to have some exposure to party political opinion. They do so by being members of the House of Lords and because they are physically based in Parliament. The current system represents very good value for money for the taxpayer. The House of Lords, unlike most other Supreme Courts, costs little more than the Judges’ salaries (which are modest by comparison to the earnings of those at the top of the Bar and the Solicitors’ profession). There is little administrative back up. The Judges do not have assistants66 or advocates general and re´fe´rendaires67. So there is no cost of a separate building, let alone a separate secretariat. Perhaps above all, the House of Lords judges write their own judgments, so they reflect their own reasoning and conclusions, as opposed to their assistants’. A Supreme Court will be much more expensive. Some Law Lords have already called for the Government to ensure that the new court will be able to discharge its functions eVectively. First there has to be a dignified building, fit for a co-ordinate branch of government. Then there must be suYcient resources for the Supreme Court. This may be justified, but it will be very expensive. That expense will not produce much benefit, tangible or intangible, in attracting business from abroad. By contrast, a new Commercial Court, a project strongly demanded by the City of London, would bring real commercial benefit to the country. The quality of the judgments of a Supreme Court will not be better than those delivered by the current House of Lords’ Judicial Committee and they may be worse if a new appointments system substitutes political correctness for merit as the basis for appointment. So again the starting point with the proposed creation of a Supreme Court must be this: will it be a substantial improvement on the current system? Given the cost of providing new premises and the creation of a new bureaucracy, will it all be worthwhile? Given the other demands in the legal field on a limited budget, for instance for a new Commercial Court, is this the best use of those resources? Unless the answers to these questions are clearly in the aYrmative, there is much to be said for retaining the Judicial Committee of the House of Lords as our highest court. In the House of Commons on 4 December 2001 the Parliamentary Secretary to the Lord Chancellor’s Department, Mr Michael Wills MP announced: As we made clear in our White Paper on reform of the House of Lords, published last month, the Government have no plans to alter the current arrangements under which the Law Lords are members of the House of Lords68. 65 H2. 66 cf the US Supreme Court where each Justice has many assistants. 67 as in the European Court of Justice. The Advocate General always writes the first judgment. The court produces its judgment later; it is not bound by the A-G’s judgment but it usually follows it. The judgments of the Judges of the ECJ are, I respectfully suggest, not always of the quality we have come to expect of the House of Lords; many are too dependent on their re´fe´rendaires to write the judgment. 68 Hansard House of Commons 4th December 2001, col 153. 9673871021 Page Type [E] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

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Urged by a questioner to consider the merits of a Supreme Court clearly separate from the legislature, the Minister replied: We have considered those questions exhaustively and extremely carefully, and we are content with the proposals that we have made; otherwise, we would not have made them. The hon Gentleman rightly refers to the separation of powers. That is important, which is why we have that arrangement in this country, and we are keeping it because we believe that it works. The Minister oVered an equally robust defence of the position of the Lord Chancellor: . . . the oYce is unusual in the way that it combines diVerent roles, but it is also unusually helpful, because through it the judiciary has a representative in the Cabinet and the Cabinet also has a representative in the judiciary. So one is entitled to ask: what is the justification for the proposed changes? There is a half-hearted attempt to rely on calls from other people, of whom two are mentioned69. The first is the present Senior Law Lord, Lord Bingham of Cornhill. Lord Bingham gave evidence to the Wakeham Royal Commission on Reform of the House of Lords expressly urging that the Law Lords should continue to have ex oYcio membership of any reformed upper house. The Royal Commission broadly accepted that approach, suggesting only that the Law Lords should publish a statement setting out the bases on which they would decide when to speak, and when they would consider any of their number ineligible to sit on an appeal. On 22 June 2000, speaking on behalf of all the Law Lords, Lord Bingham made just such a statement The Government itself interpreted this statement as showing how an adequate separation of powers was attainable under the present structures70. The other voice cited in the consultation paper is that of the last Chairman of the Bar, Mathias Kelly QC, in an article in “The Times”. Perhaps an explanation for the Government’s enthusiasm for reform is the European Convention of Human Rights: The Human Rights Act, specifically in relation to Article 6 of the European Convention on Human Rights, now require a stricter view to be taken not only of anything which might undermine the independence or impartiality of a judicial tribunal, but even of anything which might appear to do so. (DCA Consultation Paper 2003) The relevant wording of article 6(1) of the Convention is: . . . everyone is entitled to a fair and public hearing . . . by an independent and impartial tribunal . . . The principle enshrined in this article has been fundamental to English law for centuries. “Nemo judex in causa sua” can be traced from canon law, through English ecclesiastical courts71, through the writings of Bracton72, through Coke73, through Lord Hewart CJ74 to a major House of Lords decision in 199375. This is not some new principle which entered our law for the first time with the Human Rights Act 1998. If the Judicial Committee of the House of Lords and the position of the Lord Chancellor flout this fundamental principle one may enquire why this has never been noticed previously. There is a real distinction between: (1) The principle that there should be an independent and impartial tribunal; and (2) The principle that there ought to be a separation between the three powers of executive, legislative and judiciary. Principle (1) is long established in English law. Principle (2) is the Montesquieu theory, which has never been any part of the British constitution. This distinction was recognised by A V Dicey. He wrote of the French notion of “separation des pouvoirs”: It means, in the mouth of a French statesman or lawyer, something diVerent from what we mean in England by the “independence of the judges” or the like expressions. As interpreted by French history, it means neither more nor less than the maintenance of the principle that while the ordinary judges ought to be irremovable and thus independent of the executive, the government and its 69 “Constitutional Reform: a Supreme Court for the United Kingdom” para 1. 70 House of Commons Hansard 4th December 2001 col 155. 71 F W Maitland “Roman Canon Law in the Church of England” (1898) 114. 72 See De Smith, Woolf and Jowell “Judicial Review of Administrative Action” (1995) 5th ed. 522. 73 Dr Bonham’s case (1610) 8 Co Rep 113b, 118. 74 “. . . Justice should not only be done, but should manifestly and undoubtedly be seen to be done”: R v Sussex JJ ex p McCarthy [1924] 1 KB 256, 259. 75 R v Gough [1993] AC 646. 9673871021 Page Type [O] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

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oYcials ought (whilst acting oYcially) to be independent of and to a great extent free from the jurisdiction of the ordinary courts.76 The Government stop short of suggesting that there have been recent developments in the jurisprudence of the European Court of Human Rights which would compel the United Kingdom to alter its constitution. The recent case which has led some observers to claim that the UK could not maintain the Judicial Committee or the position of Lord Chancellor is McGonnell v United Kingdom77. McGonnell concerned a challenge to a planning decision in Guernsey. The appeal was presided over by the BailiV, who had also presided over the passage of the island’s development plan. The Court held that there had not been an independent hearing. But the Court expressly rejected any suggestion that the Convention required a member state to adopt a separation of powers in its constitution: 47. The [UK] Government recalled that the Convention does not require compliance with any particular doctrine of separation of powers. 51. The Court can agree with the Government that neither Article 6 nor any other provision of the Convention requires States to comply with any theoretical constitutional concepts as such. The question is always whether, in a given case, the requirements of the Convention are met. The present case does not, therefore, require the application of any particular doctrine of constitutional law to the position in Guernsey: the Court is faced solely with the question whether the BailiV had the required “appearance” of independence, or the required “objective” impartiality. Therefore, there are no new circumstances to cause Britain to adopt an 18th century theory of separation of powers as a blueprint for a 21st century constitution. It is inaccurate for the Government to say that the Human Rights Act requires a stricter view to be taken towards independence or impartiality. It is hard to imagine a firmer or more determined line being taken by a supreme court anywhere in the world than that taken by the House of Lords in respect of Lord HoVmann’s failure to declare his Amnesty involvement—yet the decision to hold a re-hearing of the Pinochet case was taken in January 199978, that is before the Human Rights Act was in force. There are, moreover, powerful reasons why in modem circumstances the existing British arrangements should be maintained. A feature of many contemporary societies is loss of public confidence in the courts and the politicisation of the judiciary. In France, there is a degree of public cynicism at the uneven treatment of public oYcials arraigned on charges of impropriety in public life. In Italy, one has the spectacle of the Prime Minister openly lambasting his judges as politically motivated. In the Republic of Ireland there have been complaints for years at party political influence on judicial appointments. Even in a country with so high a respect for its courts as the USA, there has been the jolt to public confidence caused by the appearance in the Florida election cases of the decision of every judge at every level, up to and including the US Supreme Courts, going according to political adherence. Against such a gloomy canvass the British judiciary shines out as an unqualified success. Nobody believes, or even suggests, that judicial appointments at any level in Britain have been influenced by party political considerations. Not only are appointments to the higher levels of the judiciary of uniformly high quality, but they are also free of partisan bias. Lord Mackay of Clashfern promoted people of known left wing views; and Lord Irvine of Lairg promoted people of known conservative disposition. The world-wide reputation of the House of Lords as a judicial tribunal has never been higher. Its judgments are cited as persuasive authority internationally. In the Government’s DCA consultation papers they admit that there is not a shred of evidence of any of the supposed problems: ...nocriticism is intended of the way in which the members of [the House of Lords] have discharged their functions. Nor have there been any accusations of actual bias in either the appointments to either body or their judgments arising from their membership of the legislature. The arrangements have served us well in the past.” Yet, in a delightful but apparent non sequitur, the very next sentence reads: “Nonetheless, the Government has come to the conclusion that the present system is no longer sustainable” Constitutional Reform: A Supreme Court for the United Kingdom, para 1. The constitutional upheaval presaged by this Bill will destroy two institutions of proven worth, the oV ice of the Lord Chancellor and the Judicial Committee of the House of Lords, of whose work there has been no hint of criticism but which, on the contrary, stand at the head of a judicial system that commands international and domestic respect. 76 “Introduction to the Study of the Law of the Constitution” A V Dicey (1885). 77 Application 00028488/95, judgment 8 February 2000. 78 R v Bow Street Magistrate ex p Pinochet [1999] 2 WLR 272. 9673871021 Page Type [E] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

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The Law Lords are very good value for money indeed. The total expenditure of the Appellate Committee in 2001–02 was £623,548 (excluding judicial salaries), before fees charged on civil appeals and for assessments of lawyers’ fees of £499,71579. No doubt there are some costs to be added to reflect their use of two large committee rooms on the House of Lords’ corridor and the small oYces allocated to the Law Lords but the overheads remain low. The administrative support, whilst eYcient and eVective, is lean. It is inevitable that a Supreme Court will be much more expensive. Freed from the physical restraints of Westminster, expense will shoot up. Lord Steyn has argued80 that the Supreme Court must be “accommodated in a dignified building fit for a co-ordinate branch of government” (sic). “The new building must have suYcient space for the members of the court, secretaries, judicial assistants, law reporters, an information bureau to serve the public, a press oYce to serve the media, as well as accommodation for the Registrar and staV answerable to the Court. It is also an indispensable requirement that the new Supreme Court must be properly equipped and resourced in every way81. Its budget must be an independent one, structured so that any suspicion of political pressure is avoided”. This all sounds very expensive indeed. But it will not produce better justice. It will not bring in new business to the United Kingdom. International business is satisfied with the House of Lords as a final court of appeal. Resources are scarce. If big money is to be spent on a Supreme Court, it will not be available for other important legal projects. The City of London sees a new Commercial Court as an important priority, as do the commercial law firms in the City and the commercial bar, which directly and indirectly bring in so much business to the United Kingdom. The Commercial Court is a real magnet for international legal business. It is the apex of the system for the resolution of commercial disputes. The City believes that an eYcient system for the resolution of commercial disputes is an essential foundation for the services that the City oVers internationally. It is a matter of great concern that a new Supreme Court will be likely to deny resources for a new Commercial Court, which is of far more importance to the development of international business in the UK. The Law Lords have provided a unique and valuable service by participating in committees of the House of Lords considering European legislation. Their involvement has ensured that Community legislation has undergone a thorough legal review of a quality and intensity (and eVectiveness) unsurpassed by any other legislature in the EU. Using ex-Supreme Court justices, who have retired on the grounds of old age but given life peerages, is no substitute. The involvement of the Law Lords has consistently ensured better legislation and that UK interests are better protected. The House of Commons, Secretaries of State and the Civil Service have not fulfilled this important role. The Law Lords have been able to promote law reform which has tended to be low down on any Government agenda. Most recently the Arbitration Act 1996, an important reform of arbitral law designed to bring international arbitration to the City of London, was promoted by Lord Saville. The earlier Arbitration Act 1979 was similarly promoted. A Supreme Court would have to oVer very considerable advantages for the administration of justice if it were to be worthwhile. The Government’s proposals amount to little more than moving the current law lords out of Parliament—both physically and as members of the legislature—and giving them a new name which already exists to describe the higher courts—see the Supreme Court Act 1981. I question the name “Supreme Court”. In other jurisdictions—especially the United States—the Supreme Court has immense powers under the Constitution to strike down primary legislation. In this country, we have no similar constitution, and no-one suggests the Supreme Court should have conferred on it powers to override Parliament. So the title Supreme Court carries with it an extremely powerful connotation—that the new court has power to override parliament and to pronounce on the lawfulness of legislation. But it is not a Supreme Court. Parliament will remain supreme. I can see no point in giving a confusing title to a new Court.

Judicial Appointments The present system of judicial appointments is in substance, if not in form, apolitical. Judicial appointments in general command the respect of the legal profession and of society at large. Inevitably there is occasional debate within parts of the profession of individual appointments, and there is occasional ridicule (sometimes fair) in the media when a judge appears to be “out of touch”. But there is no recent instance where there has been criticism of a judicial appointment on the basis that it was politically motivated. Successive Lord Chancellors have made appointments from across the political spectrum and on merit. At High Court level and above the track record of appointing able candidates able to do an important job well has been good. At 79 Consultation Paper H63. 80 Counsel Magazine October 2003. 81 my emphasis. 9673871021 Page Type [O] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

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Circuit Judge and District judge level there has been a huge improvement in quality in our professional lifetime, probably because the number of candidates now greatly exceeds the number of posts. Since the only possible justification for abolishing the traditional role of the Lord Chancellor is to create a clearer separation of powers, which of course I do not accept, it would be nonsensical to replace the present system of judicial appointments with a system in which there were greater political involvement or politicisation of the process, or with a system which failed to choose the most able candidate. The sole criterion for judicial appointment should be merit, irrespective of gender, race, sexual orientation, religion or political aYliation. It is regrettable that there are not more women or ethnic minority judges, particularly in senior positions. But this is changing—for instance Lady Hale has recently been appointed the first female Law Lord—and the pace of change is likely to increase. Being a judge is a very public position— nothing could be more damaging to the cause of equal opportunities than the appointment of candidates who were perceived by the profession to have been appointed because of their gender or ethnicity, rather than solely on merit. Whatever system is adopted should encourage applicants from the widest range of backgrounds: but no one should be given preferential treatment in an attempt to engineer a judiciary which meets preconceived notions of how “representative” the judiciary should be. Accordingly there should be a judicial appointments system which satisfies the following criteria: 1.1. it appoints judges solely and strictly on merit; 1.2. it is free from political interference or political bias; 1.3. it has the confidence of society at large and of the legal profession. Merit has many aspects which combine in the ability to deal with cases justly and in accordance with the law, but chief amongst them are good judgment, legal expertise, authority, independence, and impartiality. At the risk of sounding complacent (I am not), Lord Chancellors have on the evidence of appointments at all levels to the full time bench in my adult life and, I am confident for many years before that, created a bench that can confidently stand international comparison. Despite the recommendation, interviewing and selection of candidates being done privately and in an “unmodern” way the exercise is and has been carried out to the credit of the country, the bench and to justice as a whole—and for the benefit of those who use and appear in our courts. The burden of proof for the proposed change and the creation of a JAC is on the Government. April 2004

Memorandum by Professor John Grifﬁth FBA 1. The consultation paper published in July 2003 by the Secretary of State for Constitutional AVairs and (pro tem) Lord Chancellor asks the question “Why Change?” (pp 10–13) 2. The ﬁrst reason given is that there is no longer “suYcient transparency of independence” of the judiciary from the executive and the legislature. For those who are interested in the relationships, this is manifestly untrue as is shown by the strongly outspoken criticism by senior judges, in and out of court, directed against Government policy on sentencing policy, on the complexity of anti-corruption laws, or the treatment of asylum seekers and much else; and the angry response of ministers to this criticism. It would be more accurate to say that today the independence of the judiciary is more apparent than at any time since 1688. 3. The consultation paper refers to the considerable growth in judicial review (itself strong evidence of transparent independence) as leading to the danger that judges’ decisions could be perceived to be “politically motivated”. Lord Falconer feels so strongly about this that he considers it essential our systems “do all they can” to minimise this (transparent) danger. 4. The second reason for change conversely argues that the Human Rights Act 1998 has made “people” more sensitive and aware of the position of the highest court being situated within Parliament. Yet the Act has greatly increased rather than diminished the authority of the judiciary and emphasised the independence of senior judges. 5. The third reason given for change asserts that people do not always understand that non-judicial members of the House do not sit with the Law Lords on judgment nor that Law Lords refrain from getting involved in political issues likely to give rise to litigation. No evidence is given to support this. I have never met anyone who demonstrated such misunderstandings. 6. The fourth reason for change is that the Lord Chancellor may sit as a member of the Appellate Committee, thus compromising the independence of the Law Lords. There are good reasons for abandoning this practice but they do not justify abolishing the oYce of Lord Chancellor. 9673871022 Page Type [E] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

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7. The fifth reason for change is said to be the fact that the Law Lords are a Committee of the House of Lords. In his public lecture on 1 May 2002, Lord Bingham said “to modern eyes it was always anomalous that a legislative body should exercise judicial power”. There is a suggestion here of E P Thompson’s reference to “the enormous condescension of posterity”. But the objection to the argument goes much deeper. 8. The so-called “anomaly” encapsulates all that is misleading about the doctrine (by Blackstone out of Montesquieu) of the separation of powers, by confusing institutions and functions. The three great institutions that determine the shape of the working constitution are the Government, the Houses of Parliament, and the Judiciary. Each of these institutions has executive, legislative, and judicial functions. Most obviously Governments have a whole range of judicial functions, deciding disputes, often after hearings, for example between local planning authorities and individuals on the merits, and even the legality, of proposals. Legislation is a primary function of Governments, often but not always, subject to Parliamentary approval. Each House of Parliament acts judicially in disciplining its members and, executively, in the enforcement of its rules. More to the present point, I am sure Lord Bingham would not describe as anomalous the development by the courts of the common law, a legislative function of huge importance to both private and public law. The House of Lords as part of the High Court of Parliament has exercised judicial powers for centuries. The working constitution is a complex piece of machinery which depends on a commixture of functions, not their separation. There is no anomaly. 9. The Royal Commission on the Reform of the House of Lords (2000) concluded that, given the eVective separation of the appellate work from the other functions of the second chamber, the present arrangements did not undermine the independence of the judiciary or public confidence in judges. 10. The status and influence of the Law Lords are enhanced not diminished by their membership of Parliament. Although their role in the House of Lords is limited by their need to ensure that their participation does not conflict with their judicial responsibilities, this has not presented practical problems. As peers, they are near the centre of political activity. Lord Bingham has said: There are those who feel, quite strongly, that it is a positive advantage for judges at the highest level to have some exposure to the process of legislation and the conduct of government, an experience in much shorter supply with the decline of political appointments to the bench. Lord Bingham disagrees with this view on the ground that the Law Lords “do not belong in a House to whose business they can make no more than a slight contribution”. I find his view unpersuasive. 11. The independence of the Law Lords is also said to be enhanced by the abolition of the oYce of Lord Chancellor. This disabling move significantly shifts the balance between the executive and the judiciary. It replaces the Lord Chancellor’s role of presenting the views of the judges by a Secretary of State for Constitutional AVairs who will not be head of the judiciary, may not be a lawyer, and is not likely to be a prominent member of the Cabinet. 12. The net eVect of these proposals is to weaken the position of the senior judges and their influence on the day-to-day administration of public aVairs. To seek to achieve this by arguing that the purpose is to protect and promote their independence is dubious. 13. The heart of the matter is that while the senior judges are not part of the machinery of the Government, they are part of the machinery of government. They are crucial to the maintenance of law and order; uphold as well as restrain the exercise of governmental powers; they conduct inquiries and chair commissions which frequently concern policy decision of Ministers or civil servants. Like it or not, they are political animals, often being specifically required, in and out of the courts, to decide where the public interest lies. However much we may disagree with any particular decisions of their making they should not be pushed towards corporate isolation. To exclude the most senior judges from the political arena is seriously to weaken that commixture of powers which is the vital ingredient of our constitution. 7 April 2004

Memorandum by Rt Hon the Baroness Hale of Richmond 1. My general views are still those contained in the written and oral evidence given to the House of Commons Constitutional AVairs Committee for its Report on Judicial Appointments and a Supreme Court. The oral evidence is at 2003–04 HC 48-II, Ev 30–35. My written evidence consisted of various papers which can be supplied. I am also aware of, and in general agreement with, the views expressed by the United Kingdom Association of Women Judges and the Association of Women Barristers in their responses to the DCA Consultation Papers. 9673871023 Page Type [O] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

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Part 3: Judicial Appointments and Discipline

2. There was a strong case to be made for a Judicial Appointments Commission long before there was any question of abolishing the oYce of Lord Chancellor. That case had nothing to do with a risk of political appointments or political interference with the independence of the judiciary. Neither of those had been a serious problem for many decades. The problem was the lack of diversity. It would be a serious concern if the proposed replacement of the oYce of Lord Chancellor with a Secretary of State led to a concentration on the need to protect independence, which in turn led to an increase in judicial involvement in or even control of the appointments process. This will do nothing to address the diversity problem. Indeed it could even exacerbate it.

3. There is a pressing need to increase the diversity in gender, ethnicity and life-experience upon the Bench. The ﬁgures are shocking. The need for change is evident: to increase public conﬁdence that the courts are for all the people and not just a selected minority; to symbolise the equality and fairness which it is the courts’ task to protect; to make the best use of the legal talent and expertise available; and to bring a wider range of perspectives to the judging task—this last being particularly important at the higher levels where new law is made.

4. Serious scholars of the problem no longer believe in the “trickle up” theory. If that were so we would already have twice the number of women circuit and High Court judges that we do. There are systemic problems, which the present Commission for Judicial Appointments is exposing, in the way we deﬁne and evaluate the qualiﬁcations for judicial oYce.

5. The main problems are:

(1) “merit” is deﬁned, both consciously and unconsciously, by reference to the qualities and, more importantly, the careers of the existing incumbents;

(2) the existing incumbents have a disproportionate inﬂuence on the appointments process, not only at the ﬁnal selection stage but, perhaps more importantly, at the sift or short-listing stages;

(3) the judiciary is rigidly stratiﬁed into diVerent categories with little movement between them and no planning for career progression even in the most suitable cases, so that those whose experience is only thought suitable for the lower echelons have little opportunity of demonstrating by good judging that they should go further.

6. These problems will be tackled only with strategic thinking by a strong and independent body which is able to recognise and retain what is good about the present system but also has suYcient knowledge and expertise in recruitment and employment practices generally to recognise what is wrong with the present system and to generate ideas about how to improve it. Lawyers are not the greatest innovators in the world. Many have little experience of life in professions or occupations outside the law where genuinely objective merit assessment, equal opportunities and family-friendly working practices were adopted long ago.

7. New strategic thinking is unlikely to happen if we have a Judicial Appointments Commission which is dominated by the judiciary together with others who have an interest in the system remaining as it is. With the best will in the world, they have diYculty in recognising the problem, and even more diYculty in accepting that a system which has produced such a generally excellent judiciary could possibly be improved. No one is saying that the present judiciary lacks “merit”. We simply say that there are many other meritorious people out there who are not being recognised or considered.

8. Nor is it likely to happen unless that body is speciﬁcally charged with trying to remedy the major mischief in the present system. Once it is recognised that our present methods of deﬁning and assessing “merit” are not the only ones possible, there is no incompatibility between that aim and the aim of appointing on merit. Indeed they should be complementary. It would be extraordinary if the equivalent bodies in Scotland and Northern Ireland were set such a task but the body in England and Wales was not.

9. The Report from the House of Commons Select Committee, and the Government’s response to it, indicate that these points have been taken on board. But it is diYcult to ﬁnd them in the present Bill. 9673871023 Page Type [E] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

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10. I also share the view (recently expressed, for example, by Robert Stevens) that the system needs to be democratically accountable. This may not require that ministers be given a choice in individual appointments. As far as I know, the Prime Minister and Lord Chancellor are not questioned in Parliament about individual appointments at present. But it does require that the Appointments Commission, through the Minister, be accountable for its work as a whole, including the criteria and methods by which it makes its selection.

Part 2: The Supreme Court 11. My support for a Supreme Court separate from the legislature has been reinforced during the three months I have spent in the House of Lords. This is an intensely political place. This may have become more apparent since the party political balance became closer and the House of Lords has felt much freer to engage in serious challenges to the House of Commons. This is none of our business as judges: yet if we take an interest we risk compromising our neutrality and if we do not we are seen as remote and stand-oYsh. 12. If a Supreme Court is to be set up, any discrimination in rights of access between citizens of the three jurisdictions should be justified or rectified. No one has produced an objective justification for (a) the diVerence in leave requirements in civil cases, or (b) the diVerence in jurisdiction in criminal cases. For what it is worth, I would favour a universal leave requirement and jurisdiction in Scottish as well as English, Welsh and Irish criminal cases. I would also favour the development of formal criteria for giving leave, criteria which recognised that this is a UK court rather than a second tier appeal in each jurisdiction. 13. The case for diversity at Supreme Court level is even stronger than it is a trial court level. A second tier appeal court is already far removed from the problems facing the trial judge. It has a role in shaping the law which is quite diVerent from that of the first tier appeal courts in any of the three jurisdictions. It is often involved in questions of legal policy. It needs a variety of legal and life experiences to feed into that discussion. 14. I am sorry that the “Government does not believe that it is appropriate to make direct appointments of non-practising lawyers to the Supreme Court”. Their reason is that members should have experience of presiding in the lower courts. Yet the Bill (clause 19) retains the possibility of appointing people who have held no such oYce and indeed may not actually be in practice. Such flexibility has worked extremely well in other jurisdictions. I hope that it will not only be retained but applied in practice. The aim should be to seek out the best judicial talent wherever it may be found in the legal community rather than restricting it to one very specific and specialised part of that community. 15. There is a real problem of isolation in the “ivory tower” that any institution insulated from outside pressures may suVer. Earlier research on the Law Lords showed how isolated they were from the legal community generally, let alone from the general public. Combating that may be one reason why some of our number are keen to remain connected with the diVerent world of Parliament. This again increases the case for diversity in background and experience, as well as for other means of ensuring that we keep in touch with the “real world”, wherever that may be found.

Conclusion 16. A strong case can be made, both for a Judicial Appointments Commission and for a Supreme Court, independently of the proposed abolition of the oYce of Lord Chancellor. I hope that those cases, and the reasons for them, will not be lost sight of in what is a rather diVerent concern, which is how the integrity of the law and the legal system will be defended in Government and Parliament once the Head of the Judiciary is no longer there to do it.

Memorandum by Lord Jauncey of Tullichettle I am of the view that the creation of a Supreme Court with the resultant abolition of the Appellate Committee is unnecessary and would have no practical beneﬁt. It is generally accepted that the Appellate Committee is “currently a beacon of legal excellence” and the grounds advanced for its abolition have been criticised at length in the two debates on 12 February and 8 March. As your Lordships will have studied the reports of those debates I do not consider that I would assist the Committee by merely repeating those criticisms. There are however two matters to which I should like to draw the attention of the Committee. Running through the proposals in the Bill is the so-called principle of separation of powers which is advanced as a reason for severing all links between the judges of the ﬁnal court of appeal and the legislature. Dicey considered this concept to be alien to an Englishman and to rest on a misunderstanding by Montesquieu of the principles and practice o the English Constitution (Laws of the Constitution, 10th edn, p 337). Hood Phillips and Jackson’s Constitutional and Administrative Law, 8th edn para 2-020’ expressed the view that there was not and never had been a strict separation of powers in the English Constitution. Lord Wilberforce 9673871024 Page Type [O] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

constitutional reform bill [hl] committee: evidence 365 in his written submission to the Wakeham Commission expressed the view that separation of powers was neither a norm nor a constitutional principle in this country. He suggested that there was not the beginning of a case for separating oV the Law Lords. The Wakeham Commission similarly saw no reason why the Law Lords should not remain in a reformed House. Have they all got it wrong? The Government also rely on “perception”. Although the current excellence of the Appellate Committee is accepted it is suggested that it might be perceived not to be an “independent and impartial tribunal” for the purposes of Article 6(1) of the European Convention on Human Rights because of its location in the Palace of Westminster. It is now over five years since the Act was passed and if there had been any significant amount of perception by parties to appeals or the general public one might have expected that there would have been some evidence of this. None has been proVered. More significant is the fact that Lord Irvine of Lairg in June 2002 saw no suYcient reason for abolishing the Appellate Committee. Since he piloted the Human Rights Bill through this House he would have been well aware of the probable eVects of Article 6(1). His answer on 10 June in the House when he stated that there was not a suYcient case for the abolition of the Appellate Committee imports that he cannot have seen any problem arising from the Article. Lord Cooke of Thorndon in a penetrating article “The Law Lords an Endangered Heritage” (2003) 119 LQR Suggested that it would be the figment of the imagination of a controversialist casting around for some plausible reason to change an existing system which he was against for other reasons—an apt comment. Lord Wilberforce would, of course, have been aware of any possible impact of the Human Rights Act when he made his submission to the Wakeham Commission (supra). I would commend to your Lordships Lord Cooke’s article which is also available as a pamphlet published by Sweet and Maxwell and Lord Wilberforce’s submission.

Memorandum by Professor J A Jolowicz QC

1. The Legislation

1.1 This is one of the most impenetrable pieces of legislation I have had occasion to try to work through. So much is achieved by way of Schedules containing amendments to innumerable legislative provisions that on many topics nothing can be understood save by working through the Schedules against each and every legislative provision aVected. There is also a great deal of referencing to and fro. For example the deﬁnition of “judicial member” (Schedule 10, para 8(1)) refers back to para 3(1), which uses the term “qualifying oYce” which is in turn deﬁned in para 8(1), which refers back to para 6(2). So much for “transparency.” 1.2 I have not attempted to work through it all. Even so, however, I have noticed what I believe to be some simple errors. For example, paragraph 124 of Schedule 1 amends Section 2 of the Supreme Court Act 1981, but apparently leaves untouched the provision that “(a) the Lord Chancellor and (b) any person who has been Lord Chancellor” are ex oYcio judges of the Court of Appeal. Similarly paragraph 126 of the same Schedule amends section 4 of the same Act, but apparently leaves untouched the provision that the High Court consists of “(a) the Lord Chancellor . . .”

2. Abolition of The Office of Lord Chancellor

2.1 It is understandable and, in my view right, that much of the work done by the old Lord Chancellor’s Department as a major spending Department should be transferred to a new Department under an “ordinary” Minister. This, however, could be done without abolition of the oYce of Lord Chancellor with its triple role as Head of the Judiciary, Cabinet member and Speaker of the House of Lords. I share the widespread belief that the Lord Chancellor’s supposedly—but not historically—anomalous position is of great value to the administration of justice and to preservation of the independence of the judiciary. I also believe that it has endowed our Constitution with an oYce, each holder of which in modern times has maintained an impeccable and unchallenged record of adherence to the distinction between those of his functions in which his actions may properly be inﬂuenced by his political aYliation and membership of the Government, and those, such as judicial appointments, in which they may not. 2.2 It is, in my opinion, seriously misguided deliberately to destroy an oYce whose traditions have succeeded in creating for its holders a remarkable and deserved reputation for trustworthiness. Retention of the oYce of Lord Chancellor—shorn of the responsibilities of a major spending Department that could properly be transferred to a Ministry of Justice—is, in my view, desirable in its own right. It would also, amongst other things render unnecessary the whole of Clause 1 of the Bill. That clause creates what is a ﬁne example of lex 9673871025 Page Type [E] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

366 constitutional reform bill [hl] committee: evidence imperfecta. Or is it envisaged that Clause 1 should open the door to an application for judicial review? That conjures up a vision to delight the enthusiastic lawyer, but may not be entirely sensible. 2.3 In the remainder of this paper, it will be assumed that there will be no reprieve for the Lord Chancellor and that Clause 1, amended perhaps, will become law, with such legal signiﬁcance as it may be found to have.

3. Apportionment of Functions between Lord Chief Justice and Secretary of State for Constitutional Affairs 3.1 The subject of this paragraph is much aVected by the form of drafting adverted to in paragraph 1. Nevertheless it is not diYcult to see that there are many instances of transfer of a power to the Lord Chief Justice, which he may only exercise after consultation with the Minister. These instances do not appear wholly consistent with maintenance of judicial independence. I note, for example, that such consultation is required under the amended Section 6 of the Supreme Court Act 1981. This deals with nomination by the Lord Chief Justice (formerly the Lord Chancellor) of High Court judges to be judges of the Patents, Commercial and Admiralty Courts. This is a matter only of the assignment of persons who are already judges to particular elements of the High Court. Why should consultation with the Secretary of State be required for that? I can ﬁnd no similar requirement in relation to nomination by the Lord Chief Justice of judges to be judges of the Administrative Court.

4. Judicial Selection 4.1 The composition and selection of members of the Judicial Appointments Commission seem to me unnecessarily complex, and the emphasis on ensuring the absolute “laity” of the “first qualifying member” of the advisory panel (Schedule 10, para 5(2) is grotesque. See Schedule 10, para 5(4). My main concern, however, relates to the extent of the Minister’s power over actual appointments. 4.2 I do not challenge the need for some ministerial involvement in the appointment of judges in order to retain answerability to Parliament and to comply with the Convention that the Queen acts only on the advice of her Ministers. However, in my opinion, the Bill gives much more power to the Minister than is necessary or desirable. An extraordinary but, ultimately, a trivial example may be found in clause 22(1) of the Bill. This states, in relation to appointments to the Supreme Court that the Prime Minister must recommend to Her Majesty the appointment of the candidate whose name has been notified to him by the Minister. 4.3 In my view, suYcient ministerial involvement to attract parliamentary answerability would be obtained by the Minister’s proposed role in appointments to the Judicial Appointments Commission (and the Commission for the Supreme Court) and by retaining the proposed power to reject the Commission’s selection or to require the Commission to reconsider the selection (clause 69 (1), (b),(c)). 4.4 At this stage, I wish to emphasise a more general point that I believe to be of great importance to the genuine and perceived independence of the judiciary. Clearly much attention must be paid to the constitution of the Appointments Commissions and their membership. For that a ministerial input is probably inevitable. But once in position the Commissions should be trusted. The newly created Secretary of State for Constitutional AVairs cannot, unfortunately, be regarded as the Lord Chancellor under another name, and his powers in relation to actual appointments, if any, should be minimal. I do not agree, for example, that the list prepared by the Supreme Court Commission must contain more than one name (clause 21(3)(a)); I do not agree that the Minister should have power to prescribe criteria (clause 21(2)(a) with clause 21 (7)—definition of “prescribed”—or to specify considerations to be taken into account in assessing merit, even if after consultation with the Lord Chief Justice (clause 51(4)); still less do I agree that he should have the right to issue guidance to the Commission (clause 52). Equally inappropriate is the obligation imposed on a selection panel to supply information to the Minister, both in and after submission of its report (eg, clauses 62(2)(b), (4) and 68(2)(f), (4). As a less satisfactory alternative, if the Minister is to have power to prescribe considerations to be taken into account by the Commission, to issue guidance to the Commission or to demand information from the Commission, the considerations, guidance, or information required should be made public. 4.5 The Commission for the Supreme Court raises a number of additional points. 4.5.1 The Commission is required to consult the senior judges: clause 21(2)(b). I see no reason why the Minister should be required or even allowed to do the same: clause 21(4)(a). 4.5.2 The Commission must contain a member from each of the Judicial Appointments Board for Scotland and the Northern Ireland Appointments Commission, to be appointed by the Minister: clause 20(2)(c). These two members should be appointed not by the Minister, but by the First Minister in Scotland and the First Minister and deputy First Minister in Northern Ireland (compare clause 21(4)(b), (d)). 9673871025 Page Type [O] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

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4.5.3 Wales creates a diYculty, having no First Minister. I believe this could be overcome by the addition to the Commission of a member of the Judicial Appointments Commission who appears to the Minister (or, better, to the presiding oYcer of the Welsh Assembly) to have special knowledge of Wales (compare Schedule 10, para. 6(1). Adoption of these last two suggestions would remove the need for the ministerial consultation mentioned in clause 21(4)(b), (c), (d).

5. The Supreme Court 5.1 In a case in 1305 Hengham CJ said to counsel, “Ne glosez point le statut; nous le savons meinz de vous, quar nous le feimes” (cited Holdsworth, HEL II, 308 n 5). There would be a strong argument for removing the final court of appeal from the ambience of Parliament if such an observation from a member of the Appellate Committee were conceivable today. It is not. More than 100 years ago, Lord Chancellor Halsbury explicitly refrained from writing a judgment on the sole ground that he had been concerned with the drafting of the legislation the interpretation of which was before the House (Hilder v Dexter [1902] AC 474, 477–478) 5.2 The case for a Supreme Court is largely cosmetic, being based on a supposed need to separate the judges of the final court of appeal from the legislature on the ground that not everybody understands the reality of the present position. The one practical advantage that would accrue from creation of the Supreme Court would be the combination within one court of the jurisdiction of the Appellate Committee and that of the Judicial Committee of the Privy Council in devolution cases. It is also argued that creation of a Supreme Court, “suitably accommodated” would help to solve the problem of accommodation in the Palace of Westminster (Supreme Court Consultation paper, para 4). Even if true, this is an unworthy argument for so major and costly a constitutional change. In any case, I understand that so far no suitable accommodation has been able to be identified. 5.3 It is said, and I can well understand that it should be so, that the Law Lords’ membership of the House of Lords is of considerable benefit to the working both of the House itself and of the Appellate Committee. It is also said that the existing arrangements for devolution cases is working well (Consultation paper para 19). It seems to me, therefore, that the case for replacing the Appellate Committee with a Supreme Court for the United Kingdom is not made out.

Memorandum by Justices’ Clerks’ Society

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Justices’ Clerks, many people involved in the courts believe that the transfer to the civil service will lead to a gradual erosion of this independence. This belief is based on the fact that, firstly the proposed abolition of the post of Lord Chancellor drastically changes the constitutional position. Secondly there is “guidance” frequently being issued by the Department of Constitutional AVairs, which regularly crosses the line into the judicial area. The proposal has been made to abolish the OYce of the Lord Chancellor, to establish a Supreme Court, which will replace the House of Lords as a Judicial Body, and to create a Judicial Appointments Panel made up of independent members. The logic behind this proposal is to remove an anomaly from the constitutional arrangements in this country and to establish a true separation of powers between the Executive, Legislature and Judiciary. The OYce of the Lord Chancellor had eVectively straddled the three arms of government for centuries. There has been much opposition to what is perceived to be an over hasty and ill-considered policy which attacks the heart of the unwritten constitution of the country. If this claim is to be denied and refuted, it is necessary to ensure that the concept is applied throughout, and at every level of, the Judiciary and the Judicial System. The Supreme Court, Court of Appeal, High Court, Crown Court, County Court and the District Judges will be caught by this new system. However, it must be remembered that 97 per cent of all criminal cases are concluded in the Magistrates’ Court. It is therefore essential that the Magistrates’ Court is included in the process. The Lord Chancellor, acting on the advice of local Advisory Committees, formally makes the appointment of Magistrates. These Advisory Committees are made up of Magistrates and other persons with skills that will assist the appointment process. It is easy to envisage that this body can report directly to the new Judicial Appointments Panel, eVectively acting as Sub-Committees. It may be prudent to review their constitution and membership as part of the overall process, but it could fit well with the arrangements proposed for the Higher Courts. There remains one element that does not fit with the new policy, and this concerns the position of the Justices’ Clerk and Justices’ Clerks Assistants (Legal Advisers) who have unique access to the retiring room while the bench is deliberating. Under the proposals, the Justices’ Clerks and the Legal Advisers will become civil servants, employed by an Executive Agency reporting to the Director of Operations, in what was the Lord Chancellor’s Department and, through that person to the Lord Chancellor, or the Secretary of State For Constitutional AVairs who will be granted this role by future legislation. The eVect of this will be that the legal advice given to the Magistrates will, in the vast majority of criminal cases, be given by civil servants reporting directly to the Executive. This was expressed as a matter of concern in the second reading of the Courts Bill in the House of Lords and was identified as an issue for debate in the House of Commons by the Select Committee considering the Bill. It is easy to dismiss this by stating that Justices’ Clerks and the Legal Advisers are not “Judiciary” and therefore, not within the intended reforms. However, this would be to ignore the Justices’ Clerks’ Rules 1970, whereby Justices’ Clerks, and advisers are under delegated powers given the same substantial judicial powers as are given to a single justice. They are able to make, not simply quasi-judicial but full, Judicial decisions. On the 9 May 2003, the Lord Chancellor announced his intention to create greater Case Management powers and that these powers were to be given, primarily, to the Justices’ Clerks. This follows the pattern established in Family Cases by the Children Act 1989, where Clerks have successfully been involved in Case Management for 14 years. It is clear that the Justices’ Clerk has to follow a Judicial rather than Administrative line. All levels of the Judiciary support the principal that Justices’ Clerks should be outside the civil service. This has been clearly stated on many occasions. The Unified Administration Judicial Committee expressed unanimous support for the statement of Lord Justice Judge (Deputy Lord Chief Justice) who stated that “the independence of the Justices’ Clerk needed to go beyond statute” and that “Judicial independence could only be achieved if appointment, deployment and discipline were outside the political processes. . . the same consideration applied to Judges as for Magistrates, and the independence of Justices’ Clerks underpinned the independence of the Magistrates”. These statements of support summarise the views of all groups of the Judiciary and the bodies that represent them, including the Magistrates’ Association. There is also clear support for the proposal that the training of Justices’ Clerks and Legal Advisers, should come under the umbrella of the Judicial Studies Board (JSB) as they are part of the “Judicial Family”. This proposal has been accepted in principle by the JSB and only requires a formal direction to the JSB from the Lord Chancellor to become fact. There remain issues of resources and timing but these are not without possible solutions. The principle was well illustrated by Lord Justice Kay who said that the Criminal Procedure Rules Committee was developing procedures for every tier of court. It would be quite illogical if the legal advisers to the Magistrates were trained diVerently and/or separately to everyone else in the process. 9673871026 Page Type [O] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

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It could potentially undo all of the eVorts of commonality being established by the Criminal Procedure Rules Committee. The public will require conﬁdence and expect transparency in any new system. The current situation, on abolition of the post of Lord Chancellor, would result in Justices’ Clerks and Legal Advisers being appointed by a politician, in the form of the Secretary of State for the Department of Constitutional AVairs. (At present the appointment by the Lord Chancellor is an appointment in his Judicial capacity). If the Justices’ Clerk is a civil servant he or she will be bound by the civil service code and, although theoretically protected by statute, the day to day pressures could easily result in the Government’s view of legislation, rather than an independent view, being presented. The clear separation of roles inherent in the proposal to abolish the role of the Lord Chancellor, will be speciﬁcally reversed in relation to Justices’ Clerks, who are the legal advisers to the branch of the Judiciary that delivers 97 per cent of all criminal cases and a large percentage of Family cases. It is diYcult to envisage how a member of the public could conclude that a civil servant appointed by a Government Minister will be open and transparently independent in the advice given in any situation. There are already many examples of attempts at inappropriate instruction or direction whilst the Justices’ Clerks are outside the civil service.

Truancy As part of a Government initiative on Truancy, a circular was issued which gave guidance on how to address the problem and “oVered” the assistance of a District Judge (Magistrates’ Courts) to any area that did not currently have one, to ensure a greater consistency. The expectation appeared to be that the District Judge would deliver decisions which were “on message”, whereas the lay magistracy could not be relied upon to achieve the desired results.

“Operation Payback” “Operation Payback” was a speciﬁc initiative as part of the Government’s drive to increase the percentage recovery of ﬁnes imposed by the courts. Part of the guidance contained a suggestion that, prior to the special court hearings taking place, there would be a meeting of all parties involved including the Justices and the Clerk. This was clearly inappropriate and would have compromised the court but the Department’s lack of knowledge in this area led to these “instructions” being issued.

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The Department for Constitutional AVairs has expressed a concern that if the Justices’ Clerks were outside the civil service, there would be a lack of accountability. The Justices’ Clerk is not trying to evade accountability, but the possibility of inappropriate influence. The Justices’ Clerk in his judicial role is accountable, as with any Judicial decision, through the Higher Courts in individual cases. This process also guarantees consistency of advice. The resource management role can still be accountable to the Unified Administration and, on performance, to the Courts Board. Justices’ Clerks would, in relation to the provision of training, be accountable to the Judicial Studies Board (JSB), with, ultimately, their involvement in training being terminated if they fail to meet the standards set by the JSB. The Justices’ Clerks can still be a member of the Area Senior Management Team as, from a position of independence, there should be no compromise to their Judicial independence. The Legal Advisers would become civil servants but their independence would be guaranteed through the Justices’ Clerk. The only person who can direct the Legal Advisers on law is the Justices’ Clerk. Delegated powers to Legal Advisers and other staV stem from the Justices’ Clerk and can be removed if their operation is being abused. Being outside the civil service would not prevent the Justices’ Clerk from being the line manager of the legal team; this could either operate by virtue of the statute or by an additional contract term for legal staV. The Justices’ Clerk could still give legal assistance to the administration staV and the Area Director. The clear belief of the Justices’ Clerks’ Society is that the Justices’ Clerk should not be a civil servant but should be: — A Judicial OYcer appointed by the Judicial Appointments Committee. — Bound by an appropriate Judicial OYcer’s Oath for the oYce held. — Assigned to a specific area. — Accountable for their overall performance with appraisal possibly through a 360) model. This would ensure independence and establish an important constitutional principle whilst still being engaged with the Unified Administration, responsible for the line management of the legal team, responsible for the training of Magistrates and legal staV and fully accountable. It would also ensure a more open and transparent system which would improve public confidence. Entry into the civil service would inevitably lead to control, compromise and lack of confidence. April 2004

Memorandum by Liberal Democrat Lawyers Association

Summary 1. As Liberal Democrats and lawyers we believe that the issues raised by the Constitutional Reform Bill (the “Bill”) are of fundamental importance for our society and the democratic values we hold. Broadly, we welcome the Bill. 2. Our views in summary are as follow: Part 1 Arrangements to Replace the OYce of the Lord Chancellor We support the abolition of the role of Lord Chancellor, but regret the transfer of powers to the Secretary of State for Constitutional AVairs, rather than to a Secretary of State for Justice, as head of a Department of Justice and having responsibility of the whole of the justice system. There should be a statutory responsibility imposed on the Secretary of State to protect the independence of the judiciary. Part 2 The Supreme Court We support the creation of a new Supreme Court for the United Kingdom to replace the present judicial functions of the House of Lords. We make detailed recommendations for its composition and arrangements. It should be a prestigious court, well and independently funded. Part 3 Judicial Appointments and Discipline We believe that the process of appointment and promotion of judges, both for the Supreme Court and the courts of England and Wales, should be carried out mainly by an independent Judicial Appointments Commission (“JAC”). Ministerial involvement in the process should be kept to a minimum and be restricted to appointments at High Court level and above. We make detailed recommendations as to composition and functions of the JAC. The JAC should be responsible for complaints against and discipline of the judiciary, though ﬁnal responsibility for the removal of judges should remain with Parliament. The opportunity should be taken to introduce measures 9673871027 Page Type [O] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

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likely to increase diversity in the judiciary. We suggest allowing for appointments of part-time judges who are not currently in full-time practice and abolishing the family-unfriendly circuit system.

Part 1—Arrangements to Replace the Ofﬁce of Lord Chancellor 3. We broadly welcome the proposals to replace the oYce of Lord Chancellor. The role is a historical anomaly, which, over time, has become increasingly diYcult to reconcile with the doctrine of separation of powers. We believe the threefold role of the Lord Chancellor is an aVront to people’s views of fairness. It is notable that in the recent past Lord Chancellors have sometimes sat in a judicial capacity in cases of political sensitivity. It is also notable that the Lord Chancellor has held a very strong political role within Cabinet in the recent past, even chairing Cabinet committees. It is our view that the more prominent the Lord Chancellor’s judicial, legislative and executive roles are and are perceived to be, the more their combination in one oYce oVends against constitutional propriety. 4. We agree that it is not sensible simply to abolish the position of Lord Chancellor. However we have the impression that the current proposals for the role of the Secretary of State for Constitutional AVairs are the consequence of a territorial contest between members of the Cabinet and their departments, rather than a properly considered and measured response to an issue of immense importance. 5. We believe that the executive role of the Lord Chancellor would be more logically performed by a Secretary of State for Justice at the head of a properly constituted Department of Justice, responsible not only for the current ministerial functions of the Lord Chancellor, but also for those parts of the criminal justice system currently within the remit of the Home OYce. 6. We believe that the Government’s proposed reforms will be incomplete until responsibility for the making of the criminal law is transferred from the Home OYce to the DCA. The Home OYce should remain responsible for police and prisons. The present division of responsibility for the courts and the law is a historic anomaly. The abolition of the oYce of Lord Chancellor provides a unique opportunity to reconsider the division of responsibilities between the Home OYce and what is now the DCA and to reconstitute it on a more logical basis. We regret the lost opportunities which will result if the Bill is passed as currently drafted. 7. It is illogical for the Scottish OYce and the Wales OYce to be the Ministerial responsibility of the Secretary of State for Transport and the Leader of the House of Commons respectively, both under the umbrella of the DCA. The current arrangements make it unclear which minister has overall authority in respect of Scottish and Welsh matters. For example, will the Secretary of State for Constitutional AVairs (currently a member of the House of Lords) be able to overrule the Leader of the House of Commons in the case of a disagreement between them about how a particular matter of policy relating to Wales is to be managed? 8. We agree with the provisions of clause 1 that there should be a statutory obligation on all ministers to respect and protect the independence of the judiciary. However, we believe that the Secretary of State for Constitutional AVairs should have a particular and personal statutory duty to act as protector of the constitution in general and the independence of the judiciary, in particular in Cabinet. This function should be exercised impartially and without regard to party political considerations. The Secretary of State should be required to report to Parliament annually on the discharge of this responsibility. He or she should be required to give independent advice to the Government on constitutional issues, on a basis similar to that on which the Attorney-General gives legal advice, but his or her advice should be made public. These duties should not be capable of being transferred to another Minister by a Transfer of Functions Order. 9. We believe that the Speaker of the House of Lords should be a member of the House of Lords and should be elected by the other members.

Part 2—The Supreme Court 10. We believe the new Supreme Court should be accorded the high status it deserves. The current House of Lords is rightly respected throughout the world. The value we set upon our judiciary should be reflected in the arrangements made for the new court. These should include a built-for-purpose court building, with good and substantial public access. They should also include a separate budget, to be controlled by the Supreme Court staV, with provisions for an annual financial report to the Secretary of State for Constitutional AVairs. 11. We believe that these arrangements would strengthen the standing of the highest court in England and Wales, and would foster greater public understanding of the role of the Supreme Court and its importance in relation to the exercise of executive power. The role and standing of the US Supreme Court (though not its overly political flavour) are worth emulating. 9673871027 Page Type [E] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

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12. We agree with the provisions of clause 31 that devolution cases currently heard by the Judicial Committee of the Privy Council should be transferred to the Supreme Court. The reason for assigning them originally to the Privy Council was that it was inappropriate for them to be assigned to the House of Lords, which as one of the Houses of the Westminster Parliament might be regarded as an interested party on devolution issues. That reason would no longer apply. The Privy Council should retain its functions as the final court of appeal for the Crown Dependencies and British Overseas Territories, and for Commonwealth countries which accept it as a final court of appeal. 13. We believe that clause 17 is unsatisfactory. A Supreme Court membership of 12 provides relatively little reserve capacity, given the need to provide members frequently for two panels, or for one panel and the Judicial Committee of the Privy Council, while allowing for absences due to other commitments or illness. The present system of allowing retired Lords of Appeal to sit when needed to fill gaps until they reach the age of 75 has worked satisfactorily but is not ideal. Given the role of the Supreme Court, we can see some constitutional objections to anyone participating in decisions of that Court who is not currently a member of it. We would prefer to see an increase in membership of the Court from 12 to 15, with an increase in the retirement age from 70 to 72, but no reserve panel (as currently provided for in clause 30). We also believe that members of the Supreme Court should not be asked to do outside work, such as chairing inquiries, which is likely to take them away from the Court for long periods of time. If a reserve panel is established it should be limited by statute to retired members of the Court under the age of 75 and current or retired holders of the highest judicial oYces below the Supreme Court. In England these would be the Lord Chief Justice, the Master of the Rolls, and the other heads of divisions, but not other members of the Court of Appeal. 14. We agree with the proposed provision in clause 94 that newly appointed judges of the Supreme Court should not become members of the House of Lords. Members of the Supreme Court who are members of the House of Lords at the date of their appointment (which will be the case with all or most of the first appointments to the Supreme Court) should not vote or (except in special circumstances) speak in the House of Lords for the duration of their service in the Supreme Court, but we think this could be dealt with by agreement rather than legislation. 15. We do not believe that all former judges of the Supreme Court should have a right or expectation of appointment to the House of Lords on retirement. There are a number of reasons for this: i. If—as Liberal Democrats and most members of the House of Commons believe we should—we move to a second chamber most of whose members are elected, the number of appointed members will have to be reduced and inclusion of all former Supreme Court judges would take up too many places. ii. Active membership of the House of Lords would be inconsistent with membership of a reserve panel of former judges available to sit when needed as an additional judge of the Supreme Court, if such a panel is retained. iii. It is doubtful whether it is sensible to include a category of appointees who would not, in practice, be eligible for appointment until they reach the age of 70. However, we believe that so long as an appointment system exists there is a case for appointing the Lord Chief Justice, and the heads of the judiciary in Scotland and Northern Ireland as members of the second chamber so that they can express the views of the judiciary in debate. There is also a good case for appointing some retired members of the Supreme Court if they are able and willing to make a particular contribution to the work of the House. 16. We believe that the Supreme Court should normally sit in panels of five. In cases of exceptional importance however (such as those which are now heard by a panel of seven) the Court should sit in banc as a single body containing all available members of the Court. This would avoid the risk that the outcome might be seen to be aVected by the selection of the panel. When the Court sits as a panel, selection of the panel should be by the President of the Court, the Deputy President and another senior member. Far too often at present the result of cases is perceived to be and is influenced by the choice of judges, which is made in a thoroughly opaque way. 17. We believe that it would be desirable for the Supreme Court to be funded independently of the Department for Constitutional AVairs (“DCA”). While we recognise that there is some overlap between the services which will be provided for the courts of England and Wales and of the Supreme Court, the constitutional importance of the Supreme Court makes it highly desirable that its funding should be negotiated directly with the Treasury. Otherwise, there is a risk that the DCA would squeeze the funding of the Supreme Court to make room for other kinds of expenditure within its overall allocation. 9673871027 Page Type [O] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

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Part 3—Judicial Appointments and Discipline 18. There is no provision in Part 3 setting out precisely which appointments are to be the responsibility of the Judicial Appointments Commission (“JAC”) and which are to be dealt with by diVerent means. 19. We see no need to involve ministers in appointments to the judiciary in England and Wales below the High Court level. It is only judges of the High Court or above who can sit in judicial review cases or whose decisions constitute precedents. The number of appointments of circuit judges, let alone district judges or tribunal members, is so great that ministers are unlikely to be able to come to an informed opinion in particular cases. We believe that the JAC exclusively should make all appointments up to and including the level of circuit judge and recorder. 20. We would welcome a fully appointing JAC, with power to make appointment at all levels in England and Wales, including the High Court and the Court of Appeal. However, we recognise that there are constitutional arguments that a Minister should bear some degree of accountability for senior appointments to the judiciary. If so, we believe that Ministerial involvement in addition to being restricted to appointments to the High Court and Court of Appeal, should be strictly circumscribed. We believe that generally only a single name should be put forward by the JAC to the responsible Minister, and that the latter should have the power only to approve the recommendation or reject it. Furthermore, we agree with the mechanism in clauses 57(5), 63(5) and 69(6) that a Minister who rejects a recommendation or requires it to be reconsidered should be required to give reasons to the JAC. If the JAC does not accept those reasons it should have power, with the consent of the nominee, to publish those reasons and its grounds for rejecting them. Having two or more names put forward, with power to choose between them would give a Minister power to exclude a nominee without having to exercise an actual veto or give reasons. A Minister oVered a choice between (let us call them) Cocklecarrot and Rumpole, and who did not want to appoint Rumpole for political reasons, would find it easy to achieve this by simply appointing Cocklecarrot. If the Minister was oVered Rumpole alone, the Minister would find it much more diYcult actually to reject Rumpole unless he or she had justifiable reasons for doing so. 21. We believe that the same principle should apply to the appointment of judges of the Supreme Court. It would in our view be absurd to have JACs making recommendations for appointments to the highest levels in England and Wales, Scotland and Northern Ireland but to have no involvement by an Appointments Commission at the most important and politically sensitive level of all—the Supreme Court. For the same reason, we think that for appointments to the Supreme Court any involvement by the Prime Minister should be limited to accepting or rejecting a single name put forward by an Appointments Commission, rather than the list of candidates currently envisaged in clause 21(3). We also believe that, if the single candidate is rejected, the Prime Minister should be required to give reasons for the rejection. We recognise that such an Appointments Commission would have to be separate from the JAC for England and Wales. It should be composed of members of the JAC and the equivalent bodies in Scotland and Northern Ireland. Given the limited number of appointments to the Supreme Court it could be somewhat smaller than the JAC. 22. We would be strongly opposed to an entirely centralised system for the appointment of lay magistrates. We believe that the local Advisory Committees should have the main responsibility for nominating magistrates and should forward names to the JAC for formal appointment. The JAC should monitor the work of the Advisory Committees. The JAC should appoint the district judges who sit in magistrates’ courts. The JAC should appoint coroners and members of tribunals. 23. We believe that the JAC is so important that it should be subject to an external review procedure. This should be provided by an individual or body playing an Ombudsman role, and should not be combined with the oYce of Parliamentary Ombudsman. The JAC should be required to lay an Annual Report before Parliament. 24. We agree that the JAC should be a Non-Departmental Public Body, with power to recruit its own staV as provided for in Schedule 10 paragraph 20. 25. We agree that the decision to vary the number of judges in any category, and decisions as to their functions and pay, must remain the responsibility of the Government, but the JAC will acquire much expertise on these issues and must be consulted on them. This requirement for consultation should be included within the CRB. 26. We agree that appointment on merit is essential as is stated in clause 51(3). However, increased diversity is also important and we believe that it can be achieved without diluting merit. The existing appointment system is heavily skewed in favour of successful advocates, but good advocates do not necessarily make good judges and some lawyers who are not outstanding advocates or who practise mainly in fields other than advocacy, may make excellent judges. In addition, the career of a full-time advocate requires constant availability and is very family-unfriendly, making it particularly diYcult for women with children to reach the top. Women and solicitors are both at a serious and unjustified disadvantage under the present system. 9673871027 Page Type [E] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

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27. We believe that a JAC including lay people will be aware of these problems and will be able to increase diversity. In this context, we believe that the JAC should investigate and make appropriate recommendations regarding an alternative career path, allowing lawyers at a relatively young age to take a full or part-time judicial appointment at a lower level with a realistic prospect of promotion if they do well. At present, part- time appointments as judges are normally for only a few weeks a year and are combined with practice. It should be possible for lawyers with family responsibilities to take appointments on a regular part-time basis without remaining in practice. This emphasises however, the importance of ensuring that any Ministerial role in promotions is minimised so that judges do not feel that they will lose out on promotion if they reach decisions which are unpopular with the Government of the day. 28. One other step which would be likely to increase diversity at the higher levels would be the abolition of the circuit system for High Court judges. This requires judges of the High Court (other than the Chancery Division) to divide the judicial year between sitting in London and sitting in diVerent cities outside London. This is likely to deter many potential candidates with relatively young families—men as well as women. Consideration should be given to abolishing the circuit system and instead establishing a permanent branch of the High Court in Wales and in each of the English regions (except the South East, which would be combined with London for this purpose). This would tie in well with the development of the English regions as administrative and, in future, political units. Some trials of specialist cases would probably have to be heard in a restricted number of regions or in London alone. 29. We believe that the JAC, and not the Lord Chief Justice as provided for by clauses 83-87, is the appropriate body for dealing with complaints and discipline. Independence of the judiciary requires that departmental ministers should be excluded from the process. Removal from the High Court, the Court of Appeal or the Supreme Court should continue to require a resolution of each House of Parliament but such resolutions should only be moved following a recommendation from the JAC or the equivalent body for the Supreme Court. Even complaints which, if proved, will only require a reprimand or warning should be handled by the JAC rather than the senior judiciary, both because the JAC will be better placed to carry out any necessary investigations and because of the impact that complaints may have on the prospect of a judge’s promotion. We see no justiﬁcation for giving this role to the Ombudsman rather than the JAC. 30. We believe that the balance of lay people and professional lawyers as provided for in Schedule 10 paragraph 2 could be improved. The present proposals envisage too many current judges or tribunal chairs. There should be an equal number of judges and lawyers, four each, and seven lay members. It is justiﬁable in our view to retain a small professional majority on the JAC, but we agree with Schedule 10 paragraph 4(2) that the Chair should be a lay member. While 15 members makes the JAC rather large, we recognise that the large number of appointments to be made is going to require the JAC to delegate many of its functions to small panels or individual members. A sizeable JAC is therefore appropriate. 31. We agree that the judicial members of the JAC should be recommended for appointment by the Judges’ Council. We believe that neither the Bar Council and the Law Society nor relevant bodies outside the profession should have a statutory right to nominate members of the JAC, though they should of course be consulted. Persons nominated in this way can often be appointed on the basis of their ability and willingness to present the arguments of their nominating body rather then the ability to act dispassionately. 32. We agree that the there should be a separate appointments body, chaired by an independent person, to recommend the appointment of members of the JAC. The First Civil Service Commissioner would be an obvious possibility for chair of this body. 23 April 2004

Letter from D G B Lyon 1. I write not on the technical aspects of the contents of the Bill but as an interested observer of the principles involved. 2. I am a retired solicitor who spent his career in local government. I can remember being taught about the separation of powers and the admirable principle it was but the reality was that it caused a lot of diYculty if too rigidly followed. My lecturers then went on to say although we nodded at it we had evolved a compromise which worked admirably. 3. I must say that in all my years in the law I never heard anyone complain about the lack of rigid separation. Admittedly my forays into the world of the Court of Appeal and the House of Lords were rare but I feel sure that it is only in the closed circuit of Westminster that anyone evinced the slightest interest in tinkering with a situation which has survived the test of time over very many years. 9673871028 Page Type [O] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

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4. On a practical point, even if a new Supreme Court does appear why does there have to be a frantic search for new premises with the consequent cost. The Lords have sat as a court in the House and no one seemed to be put out, why cannot that continue?

5. The ill-thought out and precipitate action to abolish the position of Lord Chancellor showed what a lynch pin the post is. I hope someone was covered in confusion as hasty steps had to be taken to hold the position pro term. Again why is the practical experience of many many years being discarded. The demands of the position have, to the rest of us, transcended any political beliefs, why has that suddenly and allegedly become untenable?

6. Whatever else may have been said about individual members of the highest court and the holder of the Lord Chancellorship the long traditions of this mature democracy have ensured that political bias has been reduced to an insigniﬁcant factor in decision making. Indeed it is not unknown for that bastion of democracy, the Commons to express views that decisions should reﬂect the current political colour, allegedly “because that is what the ‘people’ demand” and they are piqued when those decisions don’t.

7. Reductio ad absurdum—It ain’t broke so why ﬁx it. 15 April 2004

Memorandum by Hector MacQueen*

1. I have already submitted a response to the 2003 Consultation Paper from the Department of Constitutional AVairs, and have given written and oral evidence to the Justice 2 Committee of the Scottish Parliament on 16 March 2004. In general in this evidence I do not seek to repeat at length what I have already said, but wish rather to highlight briefly some additional points. However, I will say that it remains my view that the Scottish dimension of the proposed Supreme Court has been inadequately considered thus far, and the extremely general provisions of the Bill do little to clarify the position, even in terms of the assurances which Lord Falconer has given publicly on the matter. Just to take a couple of minor points in illustration: why does the statutory guarantee of judicial independence apply only to England and Wales? Why is the provision that the court is to be a “superior court of record” not confined to England and Wales, where alone this expression has meaning? Scots law and the Scottish legal system are distinct within the United Kingdom, and if the present appeal to the House of Lords is to be transferred to the Supreme Court, it needs to be clear that the latter will be sitting as a Scottish court applying Scots law. It would also follow from that that panels considering cases from the Scottish legal system should have a majority of judges qualified in Scots law.

2. I also questioned in my previous submissions whether, in the light of the very small number of Scottish appeals to the House of Lords over the last 40 years, and the even smaller number of them that succeed in reversing the court below, the appeal should be discontinued. In an appendix I provide an up-to-date set of ﬁgures on this, for the information of the committee. I accept, however, that devolution issues raise diVerent questions, and I am inclined to think that there is a strong case for a UK Constitutional Court, alongside whatever may be the civil and criminal appeal arrangements for each of the UK’s legal systems. There are good parallels for this in, for example, Germany and France in Europe, and elsewhere in South Africa.

3. The main additional issue to which I wish to draw the attention of the committee is appointments, funding and separation of powers. Given that the latter is the main driving force behind the present reform, it is important to take account of all its implications. In many countries keeping the courts apart from the executive is seen as much more important than distinguishing them from the legislature. The Constitutional Reform Bill clauses 19–22 and 38 V, however, provide for control of appointments to the Court, and of the Court’s budget, ﬁnances and staYng by the Secretary of State for Constitutional AVairs. It must be at least doubtful whether this is satisfactory from the perspective of separation of powers.

4. Thus in the United States of America (and here I paraphrase oYcial US sources), Congress has three basic responsibilities under the Constitution that determine how the federal courts will operate. First, it authorizes the creation of all federal courts below the Supreme Court, deﬁnes the jurisdiction of the courts, and decides how many judges there should be for each court. Second, through the conﬁrmation process, the Senate determines which of the President’s judicial nominees ultimately become federal judges. Third, Congress * Professor of Private Law and Director, AHRB Research Centre on Intellectual Property and Technology Law, University of Edinburgh; member: DTI Intellectual Property Advisory Committee; Cabinet OYce Advisory Panel on Crown Copyright; Co-ordinating Committee, Study Group towards a European Civil Code. 9673871029 Page Type [E] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

376 constitutional reform bill [hl] committee: evidence approves the federal courts’ budget and appropriates money for the judiciary to operate. Three of the essential characteristics of federal judicial administration are that: (1) The federal judiciary is a separate, independent branch of the government that has been given statutory authority to manage its own aVairs, hire and pay its own staV, and maintain its own separate budget. (2) The management of the federal judiciary is largely decentralized. The Judicial Conference of the United States (see further below) establishes national policies and approves the budget for the judiciary, but each court has substantial local autonomy. (3) Judges are in charge of the judiciary at all levels and establish the policies for management of the courts. Court administrators are hired by the judges and report to the judges. 5. The Judicial Conference of the United States, established by statute in 1922, is the federal courts’ national policy-making body, speaking for the judicial branch as a whole. The Chief Justice of the United States presides over the Conference, which consists of 26 other judges. The main responsibilities of the Judicial Conference are: — approving the judiciary’s annual budget request (which is prepared by the Administrative OYce and the Judicial Conference’s Budget Committee); — proposing, reviewing, and commenting on legislation that may aVect the work load and procedures of the courts; — implementing legislation by promulgating national regulations, guidelines, and policies; — supervising and directing the Administrative OYce in such matters as human resources, accounting and finance, automation and technology, statistics, and administrative support services; — drafting and amending the general rules of practice and procedure for litigation in the federal courts, subject to the formal approval of the Supreme Court and Congress. 6. In recognition of the constitutional separation of powers among the three branches of the federal government, Congress has given the judiciary authority to prepare and execute its own budget. The Administrative OYce of the Judicial Conference prepares a proposed budget for the judiciary for each fiscal year. The proposed budget is based in large part on workload staYng and resources formulas developed by the Administrative OYce in consultation with the courts. Using these formulas, a budget proposal is developed that incorporates specific allocations for support staV and administrative services for each court. By law, the President must include in his budget to Congress the judiciary’s budget proposal without change. The appropriation committees of the Congress conduct hearings on the judiciary’s proposed budget at which judges and the Director of the Administrative OYce present and justify the judiciary’s projected expenditures. After Congress enacts a budget for the judiciary, the Judicial Conference Executive Committee approves plans to spend the money, and the Administrative OYce distributes funds directly to each court, operating unit, and program in the judiciary. The Administrative OYce’s Director has delegated to the individual courts many statutory administrative authorities. For this reason, individual courts have considerable authority and flexibility to conduct their work, establish budget priorities, make sound business decisions, hire staV, and make purchases, consistent with policies and spending limits. The judiciary’s budget includes salaries for judges and court personnel, which typically account for over 60 per cent of the total budget. 7. In Germany, the judges of the German Federal Constitutional Court (16 all told) are elected by the Federal legislative bodies (half each by the Bundestag and the Bundesrat, and each requiring a two-thirds majority). The court is not subject to supervision by any Ministry. The President of the court heads its administration, and fundamental organisational decisions are taken by the judges as a plenary group. These include preliminary estimates for their annual budget (in 2002, 16 million Euros). There is of course a supporting staV appointed by the court. 8. In evidence to the Justice 2 Committee of the Scottish Parliament on 16 March 2004 the Dean of the Faculty of Advocates also referred to the independence of the executive enjoyed by the High Court of Australia; and no doubt many other examples could be given. In South Africa, I note, there is an independent judicial appointments commission which appears to have the final say, and which conducts its interviews in public, while managing to avoid the less attractive politicisation which occurs with Supreme Court appointments in the USA. 9. The implications of this material are that if the UK executive, in the shape of the Secretary of State for Constitutional AVairs and the Prime Minister, take too much control of judicial appointments and court funding, then those from other traditions may well see an infringement of the separation of powers principle much more serious than that involved in having a final appellate court sitting in the upper legislative chamber. 20 April 2004 9673871029 Page Type [O] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

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APPENDIX 1. HOUSE OF LORDS SCOTTISH BUSINESS 1961–2002**

Year Initiated Disposed of AYrmed Reversed Withdrawn Pending

2002 7 13 1396 2001 2 3 — 3 — 12 2000 14 841314 1999 4 5 4 — 1 6 1998 5725—8 1997 6 15 8 3 4 10 1996 15 742119 1995 14 10 5 2 3 11 1994 875117 1993 282336 1992 15 11 6 1 4 12 1991 8 4 2 — 2 8 1990 631114 1989 10 10 5 5 - 13 1988 14 4 2 — 2 10 1987 6 12 7233 1986 10 84139 1985 10 71337 1984 4 6 — 3 3 3 1983 15 11 8125 1982 5 10 5231 1981 12 10 6136 1980 7 4 — — 4 1979 531113 1978 5321—3 1977 5 2 — 1 1 3 1976 1 3 1 — 2 — 1975 4431—2 1974 6 6 — 2 4 2 by judgment 1973 — 3 2 1 2 1972 3 8 8 — — 1971 9 12 8 4 5 1970 13 6 5 1 9 1969 7 13 7332 1968 941128 by judgment 1967 5 13 11 2 3 1966 12 6 4 2 11 Totals 283 269 97 53 81 239 percentages 44 24 32 Annual 7.77 7.01 3.01 1.70 2.6 6.75 averages Average for ﬁve years ended 1965 (ie 1961–65) 1961–65 11 10 8 2 7

** Source: Scottish Civil Judicial Statistics 1966–2002. 9673871029 Page Type [E] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

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Note: between 1966 and 1967, and again between 1970 and 1973, it is not recorded whether appeals disposed of by judgement were aYrmed or reversed. The percentages and annual average ﬁgures therefore exclude these years. A minor mystery is why, when 283 appeals were initiated and 269 disposed of between 1966 and 2002, there should have been only six pending at the end of the period. For additional context see the relative ﬁgures of English/Welsh and Northern Ireland appeals disposed of by the House over the period 1997–2001.

1997 1998 1999 2000 2001 Eng & Wal 57 48 68 76 80 N Ireland 3 4 3 1 1

(Source: Annual Judicial Statistics, Lord Chancellor’s Department)

2. APPEALS ENTERED WITH THE PRIVY COUNCIL 2000–02*

2000 2001 2002 Commonwealth appeals 58 68 58 Appeals under Medical Act 1983 17 30 39 Appeals under Dentist Act 1984 1 1 1 Appeals under Veterinary Surgeons Act 1966 1 1 2 Appeals under the Scotland Act 1998 13 (1)& 2 (5)& 3 (2)&

& The main ﬁgure shows the number of appeals entered in the year in question. Not all appeals are disposed of in the same year. Figure in brackets indicate the number of appeals allowed in that year. *Source: Privy Council website (http://www.privy-council.org.uk/output/Page34.asp).

Memorandum by Lord Nolan 1. My evidence is based on my experience as a barrister from 1953 to 1982 (Q.C. 1968), a High Court Judge (Queen’s Bench Division) from 1982 to 1990, a Lord Justice in the Court of Appeal from 1990 to December 1993, a Lord of Appeal in Ordinary from January 1994 to September 1998 and a retired Law Lord sitting part- time on Appellate Committees and in the Privy Council from 1998 until my 75th birthday in September 2003. 2. I submit that the Bill calls for the most rigorous examination by Your Lordships’ Committee. It does so ﬁrst because it proceeds on the basis of two assumptions, both of which I believe to be unfounded. One is that the oYce of Lord Chancellor, and with it the Lord Chancellor’s Department, should be abolished. 3. I can well understand the argument that the Lord Chancellor, as a member of the Government, should not sit as a Judge. I can also see the force of the argument that the Department should be represented by a Minister in the House of Commons, to account for its expenditure. The principal function of the Lord Chancellor should, I believe, remain as the person responsible, under the Queen, for the appointment of Judges, the representative of the Judiciary in Cabinet, and the supervisor of the Court system—surely in themselves justiﬁcation enough for the retention of the oYce at its present level of seniority. 4. The Lord Chancellor’s Department, throughout my time at the Bar and on the Bench, enjoyed a very high reputation for the quality of its advice to successive Lord Chancellors, particularly in the matter of judicial appointments. If there is one subject upon which unanimity appears to prevail, at home and abroad, it is the high standard of the present United Kingdom Judges. If the mould is now to be broken, and advice on the selection of Judges entrusted to people largely drawn from outside the legal profession, it seems to me of paramount importance that the wisdom of the Department’s oYcials, with their intimate knowledge of the profession and of the demands of the judicial life, should be preserved. Is this likely to happen if the Lord Chancellor’s Department is replaced by the Department for Constitutional AVairs? 5. The other assumption, unfounded as it appears to me, on which the Bill is based is that the Law Lords (and the Judicial Committee of the Privy Council) should be replaced by a Supreme Court, whose members would not be members of Your Lordships’ House. This assumption was much criticised in the Take Note and Second Reading debates, and it will be suYcient for me to register my agreement with the critics without repeating what they said. I would simply add these personal observations: (1) I am in favour of the number of serving Law Lords (or their equivalent) being limited to twelve, but there is a danger that such a small number may become inward-looking and out of touch with the wider world. 9673871031 Page Type [O] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

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(2) As things are at present, this danger can be largely overcome by the company of their fellow Peers. There is no shortage of highly intelligent, articulate, interested and interesting companions, with an enormously wide range of experience, for the Law Lords to mix with if they so wish. Unhappily, some Law Lords are not so inclined. The loss is theirs. Certainly I, for my part, learnt much about people and aVairs from my conversations with other Peers, and this experience was of great value to me, not only in considering the increasingly wide range of issues coming before the Appellate Committees but also in carrying out my non-judicial duties as Chairman of he Committee on Standards in Public Life and as Commissioner under the Interception of Communications Act. (3) If the twelve or so individuals comprising the Supreme Court are to be housed in a separate building, they will be largely isolated. (4) This is not really a point for a Law Lord to make, but I would hope that between us we are thought to have contributed usefully to the work of him House, both in debates and in committees. Speaking as objectively as I can, I would think that there is something to be said for having a few senior Judges in a deliberative and revising assembly, provided hat they keep clear of party political issues and of matters likely to come before them in their judicial capacity. (5) The tradition of the independence of the judiciary is embodied in the Law Lords. I have regarded it as a great honour to be included n their number. A new Supreme Court would not attain the same lustre for many years—if ever. 6. Apart from the erroneous assumptions upon which the Bill is based, there are additional reasons why its provisions call for the most rigorous scrutiny. First, it is plain that the eVects of the Bill—even the immediate practical eVects—were not considered. The most obvious example is the failure to identify and prepare a building for the new Supreme Court to occupy. Since one of the principal reasons advanced for the Law Lords to move out of the House was their assumed need for better accommodation again a dubious assumption: the great Law lords of the past did their work with no better accommodation and far fewer facilities one would have supposed that the availability of a suitable alternative building would be a paramount consideration. The suggestion that the Supreme Court should temporarily (though for an indeﬁnite period) occupy the same accommodation will not, I hope, be pursued. It would be embarrassing to the point of humiliation for the members of the Court. 7. My second and ﬁnal additional reason for urging the closest scrutiny of the Bill lies in the substantive amendments proposed by Lord Falconer at the outset of the Second Reading debate. The proposed amendments are, of course, to be welcomed in principle, but they show that the original draft of the Bill was the product of a mind closed to the concept of a Judiciary independent of the Executive. This alone is reason enough for the most careful and vigilant study, not only of the terms of the substantive amendments themselves, but of every provision of the Bill. For example, Schedule 1 alone contains 461 paragraphs of amendments to existing legislation, nearly all of them consequent upon the proposed abolition of the oYce of lord Chancellor. How can one be sure, without careful study in each case, that all of them have been framed with due regard both for their consequences and for fundamental constitutional principles? April 2004

Memorandum by Edward Nugee QC 1. I assume that there is no useful purpose to be served in questioning the main purposes of the Bill, and that comments can only usefully be made with regard to matters of detail. I have to say, however, that I find it regrettable that changes should be contemplated which will entail a doubling of the staV of the final court of appeal (Explanatory Notes para 259), and an increase in its direct cost from the modest figures given in para 246 (£168,300 cash budget for 2001–02, total expenditure £623,548, though admittedly these do not include common services shared with the remainder of the House of Lords or the Law Lords salaries) to annual running costs of between £5.9 million and £10.8 million, together with an estimated £6 million to £32 million for the costs of establishing the Court (paras 247–8). I regret too that the accusation that the Justices live in an ivory tower will be easier to justify than it is under the present arrangements, under which the Law Lords benefit from daily contact with other members of the House of Lords, and in turn give the House of Lords the benefit of their experience in non-political matters. Lord Lloyd of Berwick has written illuminatingly about the former in his recent article in the Spectator, and Lord Cooke of Thorndon has expanded on the latter in his lecture to the Chancery Bar Association in June 2002; and I can only say that I wholeheartedly agree with their views. We have never had a Montesquieu-like separation of powers in this country: our trust in the integrity of those who have held the oYce of Lord Chancellor or who have been Lords of Appeal in Ordinary has been fully justified for centuries; and if it is said (as I have heard the present Lord Chancellor say) that our 9673871032 Page Type [E] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

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European colleagues do not understand this, the right course is to educate them in English ways rather than to change our constitution to fit in with their views. 2. As to the details, Parliamentary Counsel have, as was to be expected, done a very thorough job in tracing hundreds of references in other legislation which need to be amended. There appears, however, to be no general provision to the eVect that references to the Lord Chancellor in non-statutory matters are to be taken henceforth as references to the Secretary of State for Constitutional AVairs (or anyone else). Clauses 14 and 15, which are in wide terms, apply only to functions transferred by any provision of the Act. Clause 8 contains nothing such one finds in other statutes transferring functions; for example (taken at random), Transport Act 1962 Sch.6 para.2: “(1) Any agreement to which the Commission was a party shall have eVect as if ... (b) for any reference to the Commission there were substituted a reference to the successor Board” and “(2) The foregoing sub-paragraph shall apply to any provision of any agreement to which the Commission were not a party, and any other document not being an agreement, as it applies in relation to an agreement to which the Commission were a party”. There are likely to be many legal documents, private as well as public, which contain references to the Lord Chancellor, and it is unrealistic to suppose that Parliamentary Counsel can pick them all up, or that they will all be capable of being covered by an order under clause 98, unless the order itself were to take a form similar to para.6(2) above. A provision of this kind seems to me desirable; and as it would be of a rather diVerent character from the orders that clause 98 appears mainly to contemplate, the examples given being mainly examples of amendments to statutes and statutory instruments, it would in my view merit a specific provision in the Bill (albeit in a Schedule), on the lines of para.6(2). If a provision of this kind could be included in an order under clause 98, there would seem to be no obstacle to its being included in the Bill, as in other cases where there is a statutory general transfer of functions from one body to another. Unless such a provision is made, there are likely, after the Bill becomes an Act, to be a number of legal documents which contain a reference to an oYce which has been abolished and nothing to indicate what is to take its place. It is true that Explanatory Note 238 refers to “charters and other governing instruments of institutions in relation to which the Lord Chancellor has a role” as documents that could be amended by order under clause 98; but the Minister is going to be little more aware of the details of such charters and governing instruments after the Bill has become law than he is now; and it is in my view more usual and more appropriate for a general provision substituting references to the Minister (or anyone else) for references to the Lord Chancellor in cases of this kind to be included in the Bill. 3. As was pointed out in the Consultation Paper CP13/03, there are many other miscellaneous matters in which the Lord Chancellor has a role to play, among the more important of them being his functions in relation to Ecclesiastical Patronage and his Visitatorial functions (see, inter alia, the response of the Chancery Bar Association to CP13/03). There is nothing in Part I of the Act or the relevant Schedules which aVects the Lord Chancellor’s role in these matters, except the fact that the oYce of Lord Chancellor is itself abolished by clause 12. It may be that the intention is to deal with them by order under clause 98. If so, it might be helpful to include something in clause 98(2) which made it clear that functions of this kind are also intended to be dealt with by order under that clause; and the Select Committee may wish to inquire into what is in fact proposed in this regard, as it is notoriously diYcult to do anything in Parliament which aVects the terms of a proposed statutory instrument once it has been made. Ecclesiastical Patronage in particular is a subject on which strong views are held; and it seems to me that which of the various possible destinations for the transfer of the Lord Chancellor’s functions in this sphere is intended to be chosen is a matter on which debate in the House of Lords may be desirable. 4. It may be too late to do anything about the confusion which is likely to arise from the fact that we are to have a Supreme Court of the United Kingdom, a Supreme Court of England and Wales (governed largely by a statute called the Supreme Court Act 1981) and a Supreme Court of Judicature of Northern Ireland, all of which are or will be commonly known simply as the Supreme Court, though it would have been better if more thought had been given to this before the instructions for the drafting of the Bill were given. The name “The Supreme Court of the United Kingdom” is in any event something of a misnomer, as it is not a supreme court in the sense that would be understood in any country with a written constitution (except to a limited extent under the jurisdiction over questions of devolution which are to be transferred from the Judicial Committee of the Privy Council—and even there Parliament remains supreme), and it is subject to control by Parliament and bound to apply laws enacted by Parliament, however contrary they may be to our (largely unwritten) constitution. “Final Court of Appeal” would be a more appropriate name, and would get away from the idea that the Court is in any way comparable to the Supreme Court of the United States, an idea that may well lead to further confusion in the minds of the general public, and to criticism of the decisions of the Supreme Court (of the UK) when the Court accepts, as it must, that it is Parliament which is in fact supreme. 5. The confusion arising as a result of the new court’s being called “The Supreme Court” can be seen in the Bill itself. S.151(4) of the Supreme Court Act 1981, for example, defines “judge of the Supreme Court” as a judge of the Court of Appeal or of the High Court. I have not found anything which amends this—the only 9673871032 Page Type [O] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

constitutional reform bill [hl] committee: evidence 381 amendment of s.151 appears to be in the deﬁnition of “senior judge” (Sch.1 Pt 1 marginal note 157). Although clause 17(7) provides that the judges of the Supreme Court (of the UK) are to be styled “Justices of the Supreme Court”, most of the references in the Bill are to “judges of the Supreme Court”, although plainly these are not intended as references to the same people as are judges of the Supreme Court for the purposes of the Supreme Court Act 1981 (see, for example, the immediately following clauses 18 and 19, and indeed s.17 itself, marginal note and subs.(2), and the heading to Part 2 of the Bill). In fact there appears to be only one other reference to “Justices of the Supreme Court” in the Bill—Sch.8 Pt1 marginal note 33—and one to “Justice of the Supreme Court”—Sch.8 Pt 1 marginal note 41, both concerned with amendments to Scottish statutes. This is in my view a most unsatisfactory state of aVairs, and lends force to the proposition that the Final Court of Appeal should be so called; or alternatively (and by a long way second best) that the Supreme Court of England and Wales should be renamed—which would involve further far-reaching amendment of the Supreme Court Act 1981, and no doubt other Acts. The present proposal appears to have received no more thought than the original (and swiftly aborted) announcement of the instantaneous abolition of the oYce of Lord Chancellor.

6. There appears to be no reference in the Bill to the Law of Property (Amendment) Act 1926, as to which the Chancery Bar Association’s response to CP13/03 said:

“The functions of the Lord Chancellor under s.3(1) of the Law of Property (Amendment) Act 1926 fall into two classes. The ﬁrst, the prescribing of an oYcial position as entitling the holder to be a trust corporation, should, we think, be transferred to the Secretary of State for Constitutional AVairs. The second, under which a corporation which seeks to be accepted as a trust corporation must satisfy the Lord Chancellor that it undertakes the administration of trusts without remuneration, or is required by its constitution to apply the whole of its net income for charitable, ecclesiastical or public purposes, etc, would seem to be more appropriately exercised by the Charity Commission.”

7. Of course this too could be dealt with by order under clause 98, as indeed could many of the transfers made by the Bill; but as the intention appears to have been to refer in the Bill itself to every statute which confers powers on the Lord Chancellor, this might well be included for the sake of completeness (or a little nearer to completeness).

8. There is no express provision in the body of the Bill for the Head of the Chancery Division to be called “the Chancellor of the High Court” or for the appointment of a President of the Queen’s Bench Division. These changes are, of course, eVected by amendments of the Supreme Court Act 1981 in Schedule 1, and are assumed by other provisions in Part 1 to have been made; but they are of suYcient signiﬁcance, one would have thought, to merit a speciﬁc provision in the body of the Bill, corresponding to clauses 4 and 5 (Head and Deputy Head of Criminal Justice and of Family Justice respectively). The title “Chancellor” may be thought to be rather exalted for the head of the Chancery Division, who for the past 30 years has been known as merely the Vice- Chancellor, and give a misleading impression of his powers (though I have to confess that, unless he were to remain as Vice-Chancellor when there was no Lord Chancellor to whom he was vice, which, though not entirely logical, I understand was originally the preference of the Vice-Chancellor, the Chancery judges and the Chancery Bar, I cannot think of a better title).

9. The comments made above may be regarded to some extent as nit-picking, but this is inevitable given the policy decisions that are presumably not open to review (see paragraph 1 above). There are no doubt other similar criticisms that could be made of the detailed drafting of the Bill, but shortage of time does not permit the use of a ﬁne tooth comb, and I have only mentioned a few matters which have occurred to me on looking through the Bill and the Explanatory Notes, and which seem to me worth drawing to the attention of the Select Committee.

10. This Memorandum is submitted by me in a personal capacity. I was involved in the preparation of the Chancery Bar Association’s response to Consultation Paper 13/03, but I have not discussed this Memorandum with other members of the Chancery Bar Association, which has not, I believe, made an Association response to the Select Committee’s request for evidence. My status in other respects, for which I am asked, will be known to several members of the Select Committee—I am not sure what is sought here. 19 April 2004 9673871033 Page Type [E] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

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Memorandum by The Odysseus Trust 1. The Odysseus Trust82 is a non-proﬁt company limited by guarantee, which seeks to promote good governance and the eVective protection of human rights. Lord Lester of Herne Hill QC directs the Trust83, together with his Parliamentary Legal OYcers, Lydia Clapinska and Alison Hayes. This paper has been prepared in response to the call for evidence by the Select Committee on the Constitutional Reform Bill (“the Bill”). We support the broad thrust of the proposals contained within the Bill and we take account of the welcome concessions made by the Government in their response to the report of the Constitutional AVairs Committee84.

Arrangements to Replace Office of Lord Chancellor

Minister of Justice 2. We strongly favour the creation of a powerful Minister of Justice, with the legal stature and qualiﬁcations of a traditional Lord Chancellor, and a speciﬁc duty to uphold the rule of law and the independence and integrity of the judicial system. It is imperative that clause 1 of the Bill imposes this important personal duty on the Secretary of State for Constitutional AVairs, if that is to remain his Departmental responsibility.

The Appointment of Judges

Judicial Appointments Commission for England and Wales 3. In relation to the appointment of judges, the Concordat85 formed between the Lord Chancellor and the Lord Chief Justice has not yet been fully translated into the Bill. In particular, the panel to appoint members of the Judicial Appointments Commission for England and Wales should be an appointing panel and not an advisory panel to be consulted by the Minister, (see paragraphs 136 and 138 of the Concordat compared with paragraph 5 of Schedule 10 of the Bill). We welcome the concession made by the Lord Chancellor and Secretary of State for Constitutional AVairs, Lord Falconer of Thoroton QC, at the Second Reading of the Bill that the panel for appointing members of the Commission will be chaired by the Commissioner for Public Appointments, Dame Rennie Fritchie86. The Bill should be amended to reﬂect the intended nature of the panel and its chairmanship.

Appointment on merit 4. Appointment based on merit is of fundamental importance. Equally it is essential to avoid any appearance of a self-appointed judicial oligarchy. The executive should have no substantive role in the selection of individuals to be judges or in their promotion or appointment to certain oYces. It should be for the Judicial Appointments Commission and not the Minister, to specify the considerations that are to be taken into account in assessing merit. We welcome the fact that this point was accepted by Lord Falconer during the Second Reading of the Bill87 and that it has now been confirmed by the Government in their Response to the Constitutional AVairs Committee88. 5. Appointment on merit for all appointments is essential. Promoting diversity is equally important and the two should not be seen as mutually exclusive. We recognise that membership of the Supreme Court will mainly comprise senior jurists who have exercised judicial responsibilities. Appointment to the Supreme Court should be confined to those who have practised law, but we would hope that the criteria will be suYciently flexible to include not only advocates, but solicitors and legal scholars89. Just as not every Appeal Court judge is an expert 82 For more information about the work of the Trust, please visit www.odysseustrust.org 83 Lord Lester is a Liberal Democrat Peer. He is a member of the Joint Committee on Human Rights. He is also a Council Member of JUSTICE and President of the Liberal Democrat Lawyers Association. 84 “Judicial Appointments and a Supreme Court (court of final appeal): The Government’s response to the report of the Constitutional AVairs Committee” published by the Department for Constitutional AVairs in April 2004. 85 References to the concordat are references to the document entitled, “The Lord Chancellor’s judiciary-related functions: Proposals” published by the Department for Constitutional AVairs in January 2004. 86 House of Lords OYcial Report (Hansard) 8 March 2004 col 983. 87 Ibid, col 984. 88 See paragraph 44 of “Judicial Appointments and a Supreme Court (court of final appeal): The Government’s response to the report of the Constitutional AVairs Committee” published by the Department for Constitutional AVairs in April 2004. 89 For example Justice Bertha Wilson, former member of the Supreme Court of Canada was a solicitor and law teacher. Sir Kenneth Keith of the New Zealand Court of Appeal is a former Law Professor and Chair of the New Zealand Law Reform Commission. Similarly Justice Frankfurter was a distinguished member of the US Supreme Court whose previous experience was as a Law Professor. Judge Louis H Pollak is a renowned Federal Judge of the US District Court (3rd Circuit), having previously been Dean of Yale Law School and the University of Pennsylvania Law School. 9673871033 Page Type [O] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

constitutional reform bill [hl] committee: evidence 383 in every ﬁeld of law and yet decides cases beyond his or her expertise so a former solicitor, law professor or member of the Government Legal Service may make wise and informed judgments without having had trial experience. Opening up the qualiﬁcation for membership would help to ensure greater diversity in the Supreme Court whilst maintaining the very high standard of its work.

Appointments to the Supreme Court for the United Kingdom 6. The process of appointment to the Supreme Court for the United Kingdom should correspond to the process for the appointment of senior judges in England and Wales. Contrary to the current proposal in clause 21 of the Bill, only one name, rather than two to five names, should be submitted by the Commission set up by clause 20. Furthermore, the name of that candidate should be submitted, not to the Minister, unless we have a Minister of Justice, but to the Prime Minster. There should be a requirement to give reasons to the Commission, (but not to Parliament or the general public), for rejection if the Prime Minister did not find that candidate acceptable. These important changes to the Bill are necessary to reduce the scope for political interference. The Government’s Response to the Constitutional AVairs Committee proposes that the Judicial Appointments Commission will recommend to the Secretary of State only one name90. However, it is not clear whether the Government accepts this principle in relation to the Supreme Court. 7. When selecting candidates for the Supreme Court, the Commission needs to be broad-based and to include members of the Scottish and Northern Ireland Commission. The provision in clause 21(4) for further consultation by the Minister with politicians in Scotland, Northern Ireland and Wales, and for secret soundings by the Minister with senior judges, is objectionable because of the risk of political influence and arbitrary interference. Sir Colin Campbell has rightly drawn attention to the defects in the present secret system of secret soundings. The Bill must depart from these systems. The Secretary of State for Constitutional AVairs and Lord Chancellor stated himself in the foreword to the consultation paper91 that, “the appointments system must be, and must be seen to be, independent of Government. It must be transparent. It must be accountable. And it must inspire public confidence”. That is why we believe that the system of secret soundings should not be used, whether for the Supreme Court or for appointments in England and Wales.

The Supreme Court

Membership of the Supreme Court 8. The membership of the Supreme Court should consist of 12 permanent, full time judges. We do not agree with ad hoc appointments. We are concerned that the supplementary panel proposed in clause 30 is contrary to the important constitutional role of the Supreme Court. Judges of the Supreme Court should be concerned exclusively with the work of that court. They should not, other than in exceptional cases, conduct public inquiries or sit, vote or otherwise take part in the work of the House of Lords. They should control their caseload so that the Supreme Court does not become overloaded.

The Operation of the Supreme Court 9. The advantage of the current system of sitting in panels is that it enables the Law Lords to cover a greater number of cases. However, we recommend that membership should be determined by lottery, with the President of the Court, assisted by the Registrar, having a residual discretion. The Court should continue normally to sit in panels. However, in cases of constitutional importance the Court, at its own instigation or on the application of the parties, should sit en banc, or at least in an enlarged court of nine Justices chosen (apart from the President) by lottery. This will promote consistency and legal certainty.

Deferment of Part 2 of the Bill 10. The Supreme Court of the United Kingdom must have adequate resources not only to promote eYciency and quality in the judicial process but also for lawyers and the general public. It should be well endowed as a ﬁrst class Supreme Court, at least on a par with the Final Courts of other Commonwealth countries. We would therefore support deferring the commencement of Part 2 of the Bill until suitable accommodation and resources have become available. 90 See paragraph 34 of the Government’s Response. 91 “Constitutional reform: a new way of appointing judges” published by the Department for Constitutional AVairs in July 2003. 9673871033 Page Type [E] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

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Resources 11. With regard to clause 38, we believe that the Supreme Court should have responsibility for the administration of its own resources and for negotiating this with the Treasury. In Australia, a one-line budget is agreed annually between the High Court’s Chief Executive OYcer and the Attorney-General. In the Law Lords’ Response to the Government’s Consultation paper on a Supreme Court, the Law Lords argued that a similar arrangement to the Australian model would be appropriate here. We agree. The Supreme Court of the United Kingdom as a whole should not be administered by the Court Service for England and Wales but should have responsibility for the administration of its own resources. Its running costs should not be recouped by imposing a surcharge on court fees, but should come from general taxation. The Supreme Court should control its own administrative arrangements and be given an adequate budget to do so.

Accommodation 12. The Government should be under no doubt as to the size of the undertaking. A suitably prestigious building with adequate facilities must be located and prepared before the Law Lords can begin to contemplate moving from their existing accommodation. The following facilities are a minimum requirement and whilst they are perhaps obvious, many of them are lacking from the existing arrangements: — A properly equipped law library (paper and electronic) with a qualiﬁed law librarian. — A registrar and other lawyers to work in the Court oYce to prioritise and list cases with administrative staV to support them. — Other legal support staV such as clerks for each judge. — Adequate administrative support for each judge. — Interview rooms for legal representatives and their clients. — Adequate facilities for counsel and solicitors to conduct their cases eg photocopiers, access to law reports. — Refreshment facilities for the litigants and interested parties as well as separate facilities for Counsel and the judiciary. — Adequate accommodation for law reporters and judicial assistants. — A press oYcer — IT staV — Security staV — Facilities for people with special needs such as hearing ampliﬁcation. Adequate facilities are essential not only to promote eYciency and quality in the judicial process but also to provide proper facilities for the legal representatives of parties and the general public. 26 April 2004

Memorandum by Aidan O’Neill QC Summary 1.1 This paper looks at some of the more recent case law emanating from the House of Lords, and from the Judicial Committee of the Privy Council acting under its devolution jurisdiction. It points to certain tensions in the manner in which these two courts have been operating to date as courts for the whole of the United Kingdom. It suggests that, while the proposed amalgamation within the new UK Supreme Court of the devolution jurisdiction of the Privy Council with the existing appellate jurisdiction of the House of Lords is a necessary step, it is not a suYcient step to ensure constitutional coherence and stability for the Union. The paper proposes that, within the context of the current constitutional reforms, a new oYce within the UK Supreme Court be created, occupying a similar position that to that of Advocates General to the European Court of Justice. The primary function of this new oYce would be, prior to the Supreme Court’s judgment, to draw to the attention of the parties, the court and the public at large the general implications of the Court’s decision in the individual case before it, both for the separate jurisdictions making up the Union, as well as for the UK as a whole. The paper also suggests that it may be appropriate for this proposed new oYce of Advocate General to the Supreme Court to be involved prior to the hearing of individual cases in publicly advising the Court as to whether or not the case before it needs a larger bench than the usual ﬁve judge panel (as envisaged in Clause 32(2) of the Bill), and whether that bench should be required include particular or additional representation from the individual jurisdictions from within the Union (as Clause 29 envisages with 9673871034 Page Type [O] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

constitutional reform bill [hl] committee: evidence 385 its provision for “acting judges”). At the moment the reasons why the House of Lords or the Privy Council occasionally sits in panels larger than the normal ﬁve judges, or why, in the case of the devolution jurisdiction Privy Council, judges other than the current Lords of Appeal in Ordinary have been co-opted on to its bench, are not made public. In the interests of transparency and the maintenance of public conﬁdence in an open and fair procedure, it would seem appropriate for the issues determining these decisions to be made more open and explicit.

2. The Proposed Amalgamation of the Devolution Jurisdiction of the Privy Council with the House of Lords 2.1 In its July 2003 consultation paper on proposals for a new UK Supreme Court, the UK Government suggested that the new court should combine the existing jurisdictions of the Appellate Committee of the House of Lords with the devolution jurisdiction of the Judicial Committee of the Privy Council. This proposal is now reﬂected in Clause 31(4) of, and Part 2 of Schedule 8 to, the Constitutional Reform Bill.

2.2 The suggestion that there be amalgamation of the devolution jurisdiction of the Privy Council with the existing appellate jurisdiction of the House of Lords was, however, rejected by the Law Lords in their published collective response to the Westminster Government’s consultation paper. Although their Lordships accepted that it would be “consistent” with the role of the proposed new UK Supreme Court that “it should be the ﬁnal arbiter of devolution issues”, they noted that under the devolution statutes the Privy Council may, in eVect, call in other judges to their bench “drawn from the devolved jurisdictions”, who would not otherwise be eligible to sit as House of Lords judges. They suggested that this was a feature of the devolution settlement which the devolved administrations would not wish to see abrogated and accordingly, “with a measure of reluctance” concluded that the two jurisdictions should not be combined into the one UK Supreme Court.92

How the devolution jurisdiction of the Privy Council has been used in practice 2.3 Almost as soon as its new devolution jurisdiction was conferred on the Privy Council the judges in Scotland, in their enthusiasm to establish Convention right review, gave a very broad definition to “devolution issues” so as to encompass anything done by the prosecution in the course of any (summary or solemn) criminal trial in Scotland.93 The Scottish judges also insisted that the fair trial rights set out in Article 6 ECHR imposed in Scotland duties directly upon the Lord Advocate and all those acting on his behalf in prosecuting oVences.94 There was some initial opposition to this analysis—notably from Lord HoVmann95—in the first devolution cases to come before the Privy Council, but the more expansive approach to the Privy Council’s devolution jurisdiction advocated primarily by Lord Hope soon prevailed.96 2.4 The overall result was, in the words of Lord Bingham, “anomalous” and “surprising and unexpected”97 in that the Privy Council, when exercising its devolution jurisdiction, became a court—in which Scottish judges became a significant and at times dominant bloc98—dealing exclusively with cases coming from Scotland. The Privy Council in its devolution guise became, in eVect, a second Scottish court of appeal, rather 92 See “The Law Lords response to the Government’s consultation paper on Constitutional reform: a Supreme Court for the United Kingdom” November 2003 at paragraph 9 (paper available online at http://www.parliament.uk/documents/upload/ JudicialSCR271003.pdf) 93 See, for example the decisions of the High Court of Justiciary in Brown v Stott 2000 JC 328 and Starrs and another v Ruxton (Procurator Fiscal, Linlithgow), 2000 JC 208. 94 See, for example, Montgomery v HM Advocate, 2001 SC (PC) 1 per Lord Hope at pages 19G: “But the approach which that Act has taken is that the right of the accused to receive a fair trial is a responsibility of the Lord Advocate as well as of the court.” 95 See, for example, Montgomery v HM Advocate, 2001 PC 1 per Lord HoVmann at 7B-C: “[A devolution issue] arises only if the prospective infringement of their rights is an act of the Lord Advocate. It is therefore necessary to identify the persons upon whom Article 6.1 imposes a correlative obligation. Whom does it oblige to act in such a way as to ensure a fair and public hearing ? If, as a matter of construction of the Article, no obligation is imposed upon the Lord Advocate, then no complaint of an infringement of this particular Convention right can give rise to a devolution issue.” 96 See Aidan O’Neill “Judicial Politics and the Judicial Committee: the devolution jurisprudence of the Privy Council”[2001] 64 Modern Law Review 603–618. 97 Lord Bingham of Cornhill, evidence to the Joint Committee on Human Rights, 26 March 2001: “When Scotland was united with England and Wales in 1707 it was clearly implicit in the Act of Union that there was no criminal appeal from Scotland to London . . . There was originally a doubt as to whether there was even a civil appeal from Edinburgh to London, but it was very quickly established that there was and indeed extensive use of it was made to such an extent that there was very little time to hear English appeals! But what is important is that the Scots criminal system has always been self-contained and has had no English input at all. One of the anomalous, and to me surprising and unexpected, results of devolution is that for the first time one does have judges, Scots prominently among them but nonetheless judges, sitting in London ruling on questions relating to Scots criminal trials.” 98 See further Aidan O’Neill “Judging democracy: Scotland’s Constitution and Human Rights” in (2004) Edinburgh Law Review (forthcoming). 9673871034 Page Type [E] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

386 constitutional reform bill [hl] committee: evidence than a UK constitutional court, and dealt primarily with questions concerning the proper interpretation of Convention rights in ordinary criminal trials, rather than with broader constitutional issues. 2.5 In the five years of its existence there have been a total of 13 cases which have been considered by the Privy Council under its devolution jurisdiction. All of these cases have come from Scotland. Two of these cases have been preliminary hearings before a three judge panel considering applications for special leave to appeal to the Judicial Committee cases after such leave had been refused by the court in Scotland.99 The remaining 11 cases have been substantive appeals before five judges. Of these substantive cases, only one has been a civil appeal from a decision of the Inner House of the Court of Session;100 the remaining 10 being criminal appeals from decisions of the High Court of Justiciary.101 2.6 There were two Scottish judges in all of these cases, and in two of the substantive cases Scottish judges formed a majority of the Board. Lord Hope has sat in all 13 of the Privy Council’s devolution cases to date. In only one of the 13 Privy Council devolution cases to date has a Privy Councillor who was not also a Lord of Appeal in Ordinary been called to sit on the Board of the Judicial Committee—Lord Kirkwood, a judge of the Inner House of the Court of Session, who sat in the second ever devolution case before the Privy Council, Brown v Stott (Procurator Fiscal, Dunfermline).102 2.7 Thus the only devolved administration which has been before the Privy Council in the five years of its devolution jurisdiction has, in fact, been the Scottish Ministers. 2.8 In their own response to the Westminster consultation paper, however, the Scottish Ministers do not appear to share the concerns voiced by the Law Lords in their opposition to the amalgamation of the Privy Council devolution jurisdiction with that of the House of Lords. In fact the Scottish Ministers state that, precisely in order to avoid the possibility of “conflicting judgments on important constitutional issues”, they consider it “essential” that there be a single UK-wide court before which “all matters of a constitutional nature”, such as devolution issues and all cases involving breaches of ECHR, whether arising under the Human Rights Act or by operation of section 57(2) of the Scotland Act, might be decided upon.103

Conflict within the House of Lords 2.9 It should, of course, be noted that the possibility of “conflicting judgments on important constitutional issues” coming even from one amalgamated UK Supreme Court remains if that new court follows the practice of the present House of Lords (as appears to be envisaged by Clause 32 of the Bill) and, from its full 99 Hoekstra and others v Her Majesty’s Advocate (No. 5) 2001 SC (PC) 37—decision of the screening committee comprising Lord Slynn, Lord Hope and Lord Clyde, 26 October 2000 and Follen v HM Advocate, 2001 SC (PC) 105—decision of the screening committee comprising Lord Bingham, Lord Hope and Lord Clyde, 8 March 2001. 100 Anderson v The Scottish Ministers, 2002 SC (PC) 63—decision of Lord Slynn of Hadley, Lord Hope of Craighead, Lord Clyde, Lord Hutton, Lord Scott of Foscote, 24 July 2001 (Article 5(1)(e) ECHR and the detention of persons of unsound mind). 101 The 10 substantive criminal appeal decisions are, in chronological order: (i) Montgomery v HM Advocate, 2001 SC (PC) 1—decision of Lord Slynn, Lord Nicholls of Birkenhead, Lord HoVmann, Lord Clyde, Lord Hope of Craighead, 19 October 2000 (Article 6 ECHR and pre-trial publicity); (ii) Brown v Stott (Procurator Fiscal, Dunfermline), 2001 SC (PC) 43—decision of Lord Bingham of Cornhill, Lord Clyde, Lord Hope of Craighead, Lord Kirkwood and Lord Steyn, 5 December 2000 (Article 6 ECHR and the privilege against self- incrimination); (iii) McIntosh v HM Advocate, 2001 SC (PC) 89—decision of Lord Bingham of Cornhill, Lord HoVmann, Lord Hope of Craighead, Lord Clyde and Lord Hutton, 5 February 2001 (Article 6 ECHR, drug confiscation orders and the presumption of innocence); (iv) McLean and another v Buchanan (Procurator Fiscal, Fort William) and another, 2002 SC (PC) 1—decision of Lord Nicholls of Birkenhead, Lord Hope of Craighead, Lord Clyde, Lord Hobhouse of Woodborough and Lord Millett, 24 May 2001 (Article 6 ECHR, legal aid and the equality of arms between prosecutors and criminal defence lawyers); (v) Millar v Dickson, 2002 SC (PC) 30—decision of Lord Bingham of Cornhill, Lord Nicholls of Birkenhead, Lord Hope of Craighead, Lord Clyde, Lord Scott of Foscote, 24 July 2001 (Article 6 ECHR and possible waiver of the right to an independent and impartial tribunal); (vi) Dyer v Watson and Another and HM Advocate v K, 2002 SC (PC) 89—decision of Lord Bingham of Cornhill, Lord Hope of Craighead, Lord Hutton, Lord Millett and Lord Rodger of Earlsferry, 29 January 2002 (Article 6 ECHR and the factors indicating unreasonable delay); (vii) Mills v HM Advocate (No. 2) 2003 SC (PC) 1—decision of Lord Nicholls of Birkenhead, Lord Steyn, Lord Hope of Craighead, Lord Scott of Foscote, Lord Mackay of Clashfern, 22 July 2002 (Article 6 ECHR unreasonable delay between conviction and hearing of appeal and the remedy of a reduction in sentence); (viii) R v HM Advocate, 2003 SC (PC) 21 —decision of Lord Steyn, Lord Hope of Craighead, Lord Clyde, Lord Rodger, Lord Walker of Gestingthorpe, 28 November 2002 (Article 6 ECHR unreasonable delay in bringing charges and remedies under the Scotland Act); (ix) Clark v Kelly, 2003 2 WLR 1586; 2003 SLT 208, JCPC—decision of Lord Bingham of Cornhill, Lord HoVmann, Lord Hope of Craighead, Lord Hutton, and Lord Rodger of Earlsferry, 11 February 2003 (Article 6 ECHR and the independence and impartiality of the District Court); (x) Flynn and others v HM Advocate, [2004] UKPC D1—decision of Lord Bingham of Cornhill, Lord Hope of Craighead, Lord Rodger of Earlsferry, Baroness Hale of Richmond and Lord Carswell, 18 March 2004 (Articles 5 and 6 ECHR tariVsfor mandatory lifers). 102 Brown v Stott (Procurator Fiscal, Dunfermline), 2001 SC (PC) 43. 103 See Constitutional Reform: Scottish Executive Response: Supreme Court for the United Kingdom” 14 November 2003, available online at http://www.scotland.gov.uk/about/JD/JD-BSU/00018515/SEresponse.pdf. 9673871034 Page Type [O] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

constitutional reform bill [hl] committee: evidence 387 complement of 12 judges, normally sits in committees of five, rather than en banc as a full or plenary court. However, this practice has not, to date, made for a consistent line of judgments from the Appellate Committee in areas of some constitutional importance. 2.10 Thus in R v Lambert104 a House of Lords bench made up of Lord Slynn of Hadley, Lord Steyn, Lord Hope of Craighead, Lord Clyde and Lord Hutton pronounced judgment on 5 July 2001 in a 4:1 decision (Lord Steyn strongly dissenting) finding to the eVect that the relevant provisions of the Human Rights Act 1998 were not intended to apply to events which happened before October 2000 when the Act came into force and that, accordingly, decisions of courts or tribunals made before that date could not to be impugned under section 6 on the ground that the court or tribunal had acted in a way incompatible with Convention rights. This decision in Lambert was, as Lord Lloyd was to point out,105 itself inconsistent with a previous 4:1 majority decision of the House of Lords in R v Director of Public Prosecutions, Ex p Kebilene106, in which the majority had been made up by three of the same judges as in Lambert (Lord Slynn of Hadley, Lord Steyn and Lord Hope) together with Lord Cooke of Thorndon, (with Lord Hobhouse of Woodborough dissenting). 2.11 Just under five months after the decision in R v. Lambert on 29 November 2001 in R v. Kansal,107 almost precisely the same House of Lords bench as in Lambert (the only change of personnel being that Lord Lloyd of Berwick replaced Lord Clyde) held by a 3:2 majority (Lord Lloyd of Berwick, Lord Steyn, and Lord Hope of Craighead) Lambert had, in fact, been wrongly decided. They considered that a defendant whose trial took place before the coming into force of section 7(1)(b) of the Human Rights Act 1998 should be entitled, after the Act had come into force, to rely in an appeal on an alleged breach of his Convention rights under section 22(4) of that Act. Notwithstanding that they considered that in Lambert the wrong decision had been reached on the question of the retrospectivity of the Human Rights Act, however, both Lord Lloyd and Lord Steyn took the view that there was no compelling reason which would require the House to depart from that earlier considered majority opinion. They therefore applied the rationale of Lambert, which they considered not only erroneous but plainly erroneous, to the facts of the case then before them. Only Lord Hope maintained that the Lambert majority (of which he had been part) had been wrong and that the decision should be departed from on the ground that their Lordships were in a developing field of jurisprudence, and therefore the sooner any mistakes were corrected the better. 2.12 An even more striking example, post-Lambert and Kansal, of continuing inconsistency between two benches of the Appellate Committee may be seen in comparing, on the one hand, the decisions in Regina (Middleton) v West Somerset Coroner and another108 and Regina (Sacker) v West Yorkshire Coroner109 with, on the other hand, the decision in In re McKerr.110 2.13 The cases of Middleton and Sacker were heard by a five bench appellate committee consisting of Lord Bingham of Cornhill, Lord Hope of Craighead, Lord Walker of Gestingthorpe, Baroness Hale of Richmond and Lord Carswell between 2 and 4 February 2004. The decision in these two cases was pronounced on 11 March 2004. The Appellate Committee took the unusual step of giving its decisions in each of these cases in the form of a joint single judgment which was said to represent “the considered opinion of the Committee”. 2.14 The appellate committee in In re McKerr also sat on 2 and 3 February 2004, and also announced its decision on 11 March 2004. The appellate committee in that case was, however, constituted by Lord Nicholls of Birkenhead, Lord Steyn, Lord HoVmann, Lord Rodger of Earlsferry and Lord Brown of Eaton-under- Heywood. The unanimous decision in that case took the usual form of five individual speeches; unusually, however, all five judges made substantive speeches. 2.15 Middleton concerned a death in prison 14 January 1999; Sacker concerned a prison suicide on 7 August 2000; McKerr concerned the death in November 1982 of an individual who had been shot dead by members of the Royal Ulster Constabulary. All of these deaths pre-dated the coming into force of the Human Rights Act 1998 in October 2000. 2.16 In both Middleton and Sacker—following a line of case law established in its unanimous October 2003 decision in R (Amin) v Secretary of State for the Home Department111 (which concerned the murder in March 2000 of a prisoner by his cell mate)—the Appellate Committee held that, in carrying out inquests into these deaths, the State was obliged under Article 2 of the European Convention of Human Rights to ensure that 104 R v Lambert [2002] 2 AC 545. 105 In R v Kansal (No 2) [2002] AC 69 per Lord Lloyd of Berwick at 92 paragraph 18. 106 R v Director of Public Prosecutions, Ex p Kebilene [2000] 2 AC 326. 107 R v Kansal (No 2) [2002] AC 69. 108 Regina (Middleton) v West Somerset Coroner and another [2004] 2 WLR 800, HL. 109 Regina (Sacker) v West Yorkshire Coroner [2004] 1 WLR 796, HL. 110 In re McKerr [2004] 1 WLR 807, HL. 111 R (Amin) v Secretary of State for the Home Department [2003] 3 WLR 1169. The Appellate Committee was made up of Lord Bingham of Cornhill, Lord Slynn of Hadley, Lord Steyn, Lord Hope of Craighead and Lord Hutton. 9673871034 Page Type [E] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

388 constitutional reform bill [hl] committee: evidence there was a full inquiry into and findings upon: the general circumstances of the death; the causes of the death; any steps which could have been, but were not, taken to prevent it; and any precautions which ought to have been taken to avoid or reduce the risk of death to individuals in similar positions. In McKerr, by contrast, the Appellate Committee held that the State had no such obligations in respect of any deaths which had occurred prior to 2 October 2000. Lord Nicholls’ speech was the only one to mention—and that in a passing remark— the inconsistency between this approach and that taken by their Lordships in Amin, Middleton and Sacker: “There have been several cases where everyone concerned appears to have assumed that section 6 of the Human Rights Act could apply to a failure to investigate a death which took place before the Act came into force. These include two decisions of your Lordships’ House: R (Amin) v Secretary of State for the Home Department [2003] 3 WLR 1169 and R (Middleton) v West Somerset Coroner [2004] 2 WLR 800. In none of these cases, so it seems, was this point the subject of argument. So they do not assist.” 2.17 Given that the decision in McKerr was an appeal from the Northern Ireland Court of Appeal, whereas Middleton and Sacker were each appeals from the Court of Appeal of England and Wales, it might be said that, strictly, the McKerr decision is binding only in Northern Ireland, whereas the approach taken by the House of Lords in Middleton and Sacker binds the courts of England and Wales. But it seems no way for a Supreme Court to operate as an institution presumably intended to strengthen the Union within the United Kingdom as a whole. 2.18 It might be noted, too, that, the five judge bench of the Appellate Committee in McKerr which overruled the unanimous decision of the Northern Ireland Court of Appeal (consisting of the then Lord Chief Justice Sir Robert—now Lord—Carswell, Lord Justice McCollum and Mr Justice Coghlin) contained no judge from the Northern Irish legal system, notwithstanding Lord Hutton’s continued eligibility under the present rules to sit, post-resignation, as a Lord of Appeal until June 2007. The decision of their Lordships in McKerr can only add to calls already being made for wholly separate provision to be made for a new Northern Ireland Supreme or Constitutional Court, possibly even a cross-border institution with the Irish Republic’s legal system, leaving the proposed new UK Supreme Court to be a Supreme Court at best only for Great Britain.112 2.19 The question as to whether and when the provisions of the Human Rights Act can be relied upon in relation to events which occurred prior to its coming into force is one of major constitutional significance. But, as a result of a continuing series of inconsistent and irreconcilable judgments from diVerently constituted five judge benches of the House of Lords, this whole question remains utterly confused, contrary to basic requirements of legal certainty. Such a situation cannot add to the reputation of the House of Lords as a judicial body. And if no eVective national judicial remedy is permitted by the courts—even in the case of admitted or uncontested breaches of Convention rights by the State prior to the coming into force of the Human Rights Act—some harm may conceivably be done to the international legal standing of United Kingdom as a whole as a State founded upon and governed by the principles of the rule of law.

Conﬂict between the House of Lords and the Privy Council 2.20 And the possibility of “conﬂicting judgments on important constitutional issues”— which, as we have seen, had been anticipated by the Scottish Ministers in their response to the UK Government’s consultation on constitutional reform—has also been realised as between devolution decisions of the Privy Council from Scotland and the appellate decisions of the House of Lords from England and Wales. This is plain from the incompatible decisions of, respectively, the Privy Council in November 2002 in HM. Advocate v “R” and of the House of Lords in December 2003 in Attorney General’s Reference No 1 of 2001. 2.21 In H M Advocate v “R”113 the Privy Council in its devolution jurisdiction considered the question as what remedy could be pronounced by the court where it was found that there had been a breach of his Article 6 Convention right to be brought to trial within a “reasonable time”. The Board split 3:2, with the three Scots Judges—Lord Hope, Lord Rodger and Lord Clyde—forming a majority bloc on the Board in the face of robust dissent from Lord Steyn and Lord Walker to decide the following matters of law: (i) The scope of the Convention right: that the true interpretation of the Convention right (contained in Article 6 ECHR) to a trial within a reasonable time means that it is incompatible with Article 6 for a trial to be held after a reasonable time has passed; and 112 See, for example, the views expressed in a personal capacity by Professor Brice Dickson, Chief Commissioner of the Northern Ireland Human Rights Commission, in his “A Constitutional Court for Northern Ireland ?”, Chapter 3 in Andrew LeSueur (ed.) Building the UK’s new Supreme Court: national and comparative perspectives (Oxford: OUP, 2004). 113 HM Advocate v R, 2003 SC (PC) 21; [2003] 2 WLR 317; 2003 SLT 4, JCPC (Lord Hope of Craighead, Lord Rodger of Earlsferry, and Lord Clyde—Lord Steyn and Lord Walker dissenting). 9673871034 Page Type [O] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

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(ii) The remedy available under Scots law for breach of the Convention right: that the structure of Section 57(2) of the Scotland Act which—in contrast to the “lawfulness” control set out in Section 6 of the Human Rights Act—imposes a vires control on Convention incompatible action by the Scottish Ministers, including the Lord Advocate, means that the judges have no option but to quash/interdict any attempted prosecution by the Lord Advocate after a reasonable time has passed. It is, they say, not open to the judges acting under the Scotland Act to remedy any breach of the speedy trial requirements of Article 6 by some lesser alternative remedy, such as a reduction in sentence or a payment of damages.

(iii) The procedure to be followed in seeking vindication of the Convention right: that procedural provisions of the Scotland Act take precedence as lex specialis over the Human Rights Act such that Convention rights complaints against the Lord Advocate and other members of the Scottish Executive have to be taken as devolution issues rather than simply as human rights issues raised under the Human Rights Act. More controversially, yet, Lord Hope and Lord Rodger suggest that the procedural provisions of the Scotland Act can only be prayed in aid in relation to positive acts by the Scottish Ministers in contravention of Convention rights and cannot be used to impugn their “omissions” contrary to the requirements of the Convention.114

2.22 The two non-Scots making up the Board of the Judicial Committee in “R” (the South African educated Lord Steyn and the Englishman, Lord Walker) were clearly unhappy with this result fearing, perhaps, that the decision in the Scottish case would mean that a similar result would have to be reached in English proceedings: a result which the non-Scots appeared unwilling to countenance, given that the Strasbourg jurisprudence appeared to allow, rather than the quashing of all charges, a lesser remedy for breach of the reasonable time requirement, such as civil damages or a reduction in sentence. Lord Steyn was also unhappy that a decision which might, in eVect, let the guilty walk free would be subject to adverse public reaction, and might bring the idea of the necessity for judicial protection of human rights into disrepute. He noted (at paragraph 18):

“A characteristically elegant observation of L’Heureux-Dube´ JinR v O’Connor [1995] 4 SCR 411 is relevant. She said p 461, (para 69):

It is important to recognize that the Charter has now put into judges hands a scalpel instead of an axe—a tool that may fashion, more carefully than ever, solutions taking into account the sometimes complementary and sometimes opposing concerns of fairness to the individual, societal interests, and the integrity of the judicial system.’

The moral authority of human rights in the eyes of the public must not be undermined by allowing them to run riot in our justice systems. In working out solutions under the Scotland Act 1998 and the Human Rights Act 1998 courts in Scotland and England should at all times seek to adopt proportionate remedies. In my view there is nothing in the open-textured language of section 57(2), read in context, which rules out the application of such an approach in this case.” 114 In Al Fayed v Lord Advocate, OH unreported decision of 12 March 2004 Lord Drummond Young noted at paragraph 39 “[A]n argument presented on behalf of the Advocate General that section 57(2) of the Scotland Act 1998 extended only to acts of members of the Scottish Executive, and not to the failure of a member of the Scottish Executive to act. Section 57(2) is in the following terms: ‘A member of the Scottish Executive has no power to make any subordinate legislation, or to do any other act, so far as the legislation or act is incompatible with any of the Convention rights or with Community law’. In the present case, it was argued, the petitioner in his pleadings founded on section 57(2) as one of the sources of the Lord Advocate’s duty to initiate an inquiry into the death of the petitioner’s son. The complaint made about the conduct of the Lord Advocate, however, was that he had failed to instruct an inquiry into the death. That amounted to a failure to act, which, it was said, did not fall within the prohibition in section 57(2). In support of that argument, counsel for the Advocate General cited HM Advocate v R, 2003 SLT 4, where in the Privy Council Lords Hope and Rodger expressed the view, obiter, that the term ‘act’ in section 57(2) did not include a failure to act. A contrast was drawn with other provisions of the Scotland Act, notably sections 52(4) and 100(4)(b) and paragraph 1(e) of Schedule 6; each of those provisions made express reference to a failure to act. Consequently the expression ‘act’ dealt only with positive acts of the Lord Advocate. In response, counsel for the petitioner cited the opinions of Lords Sutherland, Coulsﬁeld and Penrose in the Inner House in Clancy v Caird, 2000 SC 441, where it was held that the term ‘act’ in section 57(2) covered a failure to act. In the latter case, it was indicated that once the Human Rights Act 1998 came into force in its own right an act was deemed to include a failure to act, which would avoid the problem in so far as breaches of Convention rights were concerned. Nevertheless, the court considered that there were serious practical diYculties in distinguishing an act from a failure to act, and it was pointed out that the reference to Community law in section 57(2) had no parallel in the Human Rights Act; consequently, a failure by the Scottish Executive to act in accordance with Community law would fall outwith the scope of the legal framework of the Scotland Act unless an ‘act’ were construed as including a failure to act. Clancy v Caird was not cited in HM Advocate v R. I do think that it is necessary for me to express any view on this controversy. I have come to a decision in favour of the general position adopted by the Advocate General on a number of other grounds, and thus any view on this dispute would be plainly obiter. Moreover, the construction of section 57(2) raises diYcult issues which are fundamental to the structure of the Scotland Act and where diVering views have been expressed by a number of eminent judges. Any further opinion on those issues should be conﬁned to a case where the proper construction of section 57(2) is essential to the decision.” 9673871034 Page Type [E] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

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2.23 Lord Rodger, speaking as part of the Scottish majority in the case, was equally robust in his response to Lord Steyn at paragraphs 128–9, 155: “Parliament has quite deliberately treated the acts of members of the Scottish Executive diVerently from the acts of Ministers of the Crown. [I]n all such cases of positive acts by a member of the Scottish Executive the legal consequence of incompatibility with Convention rights is that the purported act is invalid so far as it is incompatible. That is the legal consequence which Parliament has chosen to attach to this situation—whether or not it is the consequence that would most suit the party who challenges the act. [. . .] In enacting a constitutional settlement of immense social and political signiﬁcance for the whole of the United Kingdom, Parliament has itself balanced the competing interests of the Government of the United Kingdom, of the Scottish Executive, of society and of the individuals aVected. Having done so, Parliament has decided that members of the Scottish Executive should have no power to do acts that are incompatible with any of the Convention rights. In this case that means that the Lord Advocate has no power to continue the prosecution on charges 1 and 3. If this is to use an axe rather than a scalpel, then Parliament has selected the tool. Your Lordships’ Board cannot re-open the exercise that Parliament undertook and re-balance the competing interests for itself. Rather, it must loyally give eVect to the decision of Parliament on this sensitive matter, even if—or perhaps especially if—there are attractions in a diVerent solution.” 2.24 The decision of the Privy Council in H. M Advocate v “R” would appear to have caused some general consternation within the higher judicial circles because it was then decided (under what precise circumstances is not known)—in an exercise that, from the outside at least, rather looks like “court packing”— to ﬁeld a bench of nine judges to form the appellate Committee of the House of Lords to hear argument in Attorney General’s Reference No 2 of 2001,115 an English case on appeal from the Court of Appeal (Criminal Division).116 This appeal concerned the same substantive Convention law/human rights questions as were considered in “R”: whether criminal proceedings may—or indeed must—be stayed on the grounds that there has been a violation of the reasonable time requirement in Article 6 of the European Convention of Human Rights in circumstances where the accused cannot demonstrate any prejudice arising from a delay. 2.25 As we have seen, the Privy Council majority in “R” was of the view that any prosecution after an unreasonable delay would necessarily be Convention incompatible. Accordingly they held that, in the context of the Scotland Act, it would be ultra vires the Lord Advocate to continue with any such prosecution. In so deciding they eVectively established that the incorporation of the European Convention of Human Rights into Scots law by the Scotland Act means that an individual has a positive right not to be prosecuted after an unreasonable time has passed regardless of any question of (un)fairness or prejudice. 2.26 In the decision of the Appellate Committee in Attorney General’s Reference No 2 of 2001117 seven of this unprecedented nine judge bench stated, quite unequivocally, that the previous year’s majority decision of the Privy Council in H M Advocate v “R”118 had been wrongly decided. The two dissenting judges from this House of Lords decision were the Scots, Lord Hope and Lord Rodger, who together with Lord Clyde had formed the Scottish majority in the earlier Privy Council case. Departing from the reasoning of the majority in “R”, the House of Lords majority in Attorney General’s Reference stated that it was not, in and of itself, contrary to the Convention for a criminal prosecution to be proceeded with against an individual, even after an unreasonable time has passed. Their Lordships’ majority therefore held that the power to stay criminal proceedings on the ground of unreasonable delay may be exercised only if either a fair hearing was no longer possible, or it was for any compelling reason unfair to try the defendant. 2.27 Lord Hope and Lord Rodger—now forming the dissenting minority in Attorney General’s Reference— were unsparing in their criticisms of the majority, accusing them of “emptying the reasonable time guarantee almost entirely of content” and of confusing the issue of whether the right has been breached with the wholly 115 The House of Lords appeal was part heard on 9 and 10 April 2003 and further heard on 28, 29 and 30 July 2003 with a decision being pronounced on 11 December 2003. Only three of the twelve then serving Lords of Appeal in Ordinary were not on this case, presumably because otherwise engaged: namely, Lord Saville (engaged in the Bloody Sunday inquiry), Lord Hutton (engaged in the inquiry into the death of David Kelly) and the then most junior Law Lord, Lord Walker of Gestingthorpe, presumably excluded to keep the bench an odd number. 116 Reported as Attorney General’s Reference (No 2 of 2001) [2001] 1 WLR 1869, CA. 117 Attorney General’s Reference No 2 of 2001 [2003] UKHL 68, unreported decision of 11 December 2003, Lord Bingham of Cornhill, Lord Nicholls of Birkenhead, Lord Steyn, Lord HoVmann, Lord Hobhouse, Lord Millett, Lord Scott of Foscote—Lord Hope of Craighead and Lord Rodger of Earlsferry, dissenting. 118 HM Advocate v R, 2003 SC (PC) 21; [2003] 2 WLR 317; 2003 SLT 4, JCPC (Lord Hope of Craighead, Lord Rodger of Earlsferry, and Lord Clyde—Lord Steyn and Lord Walker dissenting). 9673871034 Page Type [O] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

constitutional reform bill [hl] committee: evidence 391 distinct question as to what remedy might properly be made available under domestic law in respect of any such breach. In this the majority were perhaps exemplifying what has been described as the “typical” English law approach of “fasten[ing] not upon principles but upon remedies”1198 in contrast to the approach characteristic of Scots law (and other Roman-canonical law based legal systems) of first establishing the content of the right and then determining the remedy which vindication of that right requires, as captured in the maxim ubi ius ibi remedium. 2.28 The House of Lords majority in Attorney General’s Reference did accept that, notwithstanding their greater numbers, they had no jurisdiction formally to overrule the majority decision of the Privy Council in “R”. They did, however. make clear their “preference” for the dissenting minority opinions therein expressed by Lords Steyn and Walker. 2.29 What the House of Lords majority did not consider, however, was the extent to which it is required by statute to regard itself as bound by the decisions of the Privy Council exercising its devolution jurisdiction, even when it disagrees with them. Section 103 of the Scotland Act, Section 82 of the Northern Ireland Act and paragraph 32 of Schedule 8 to the Government of Wales Act all assert the binding nature of decisions of the Judicial Committee of the Privy Council in proceedings under these Acts in all other courts and legal proceedings, (apart from later cases brought before the Committee). And the status of the House of Lords as a court subordinate to the Privy Council would appear to be confirmed by the provision in the Devolution Statutes for preliminary references on devolution issues being made from the lower courts to higher courts; a procedure modelled, in part, on article 234 EC (formerly article 177 of the EC Treaty). Provision is made specifically for the House of Lords to refer any devolution issues arising in judicial proceedings before it to the Privy Council “unless the House considers it more appropriate, having regard to all the circumstances, that it should determine the issue”.120 The House of Lords majority in Attorney General’s Reference make no reference to these provisions, however. 2.30 What can be taken from this magisterial silence on the part of their Lordships’ majority to statutory provisions apparently binding them to follow the Privy Council exercising its devolution jurisdiction? Is it that that the non-Scottish judges on the Appellate Committee have come to regard the Privy Council in its devolution guise as nothing more than a further Scottish appeal court rather than—as was arguably the original intent of the devolution settlement—a new court for the whole of the United Kingdom binding the new constitutional settlement together in the Union ? It might perhaps be argued that this is because the Privy Council, in its interpretation and application of Convention rights in its devolution jurisprudence to date, has decided matters simply under reference to Scotland, the only legal system from which its cases have come thus far, and has not taken full and due account of the impact of their rulings on all of the legal systems of the UK.

2.31 The silence of their Lordships on these fundamental constitutional matters is to be regretted.

3. Conflict in the Top courts and a Disunited Kingdom?

3.1 The failure on the part of the House of Lords majority in Attorney General’s Reference No 2 of 2001 to address the issue of the proper hierarchy of courts under the existing constitutional arrangements in fact highlights the very question—which of necessity has to be addressed in the context of the plans for a UK Supreme Court to replace the Appellate Committee—as to whether there can indeed be a United Kingdom court which overarches and unites the various distinct legal systems within the Union.

3.2 The judges of the Court of Session—in their response to the UK Government’s consultation paper on the proposed new Supreme Court—went so far as to deny that one may meaningfully talk of there being any “United Kingdom law” (any more, perhaps, than there can properly be said to be “Franco-German law”121). This is, perhaps, to go too far, standing the harmonising inﬂuence of EU law across the United Kingdom and the fact that in many areas of law reserved to the Westminster Parliament under the Scotland Act 1998 (for 119 Davy v Spelthorne Borough Council [1984] AC 262 per Lord Wilberforce at 276. 120 See: paragraph 32 of schedule 6 to the Scotland Act 1998; paragraph 29 of schedule 8 to the Government of Wales Act 1998; and paragraph 32 of schedule 10 to the Northern Ireland Act 1998. 121 This analogy is also expressly made in R G Anderson “Appeals to London and Human Rights”, 2003 Scots Law Times (News) 297 at 298 as follows: “It would be unacceptable if German jurists, even distinguished members of the Bundesgerichtshof, sat in judgment in cases before the Cour de Cassation in Paris. Why is the House of Lords any diVerent? While Scotland and England are politically united, Scots law and English law are legally separate (see, most recently R v Manchester Stipendiary Magistrates, ex parte Granada Television [2001] 1 AC 300 at 304 per Lord Hope of Craighead.” 9673871034 Page Type [E] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

392 constitutional reform bill [hl] committee: evidence example, social security, employment protection and discrimination law) a uniform approach is taken across the United Kingdom by UK tribunals acting on the basis of UK statutes.122 3.3 In any event, the Court of Session judges express their “strong opposition”—on the grounds that it would “be retrograde and damaging to the separate identity of Scots law”—to the suggestion in the consultation paper that the decisions of this new court should be considered as binding throughout the United Kingdom,as opposed to simply within that particular legal jurisdiction from which the appeal has come. Perhaps, indeed, the refusal by the majority of the House of Lords in Attorney’s General’s Reference to recognise the Privy Council when acting under its devolution jurisdiction as the supreme United Kingdom court whose decisions bind even the appellate committee in English appeals makes this very point.

Implications for Scotland 3.4 Where does this split between and within the UK’s current top courts leave matters in Scotland? What is clear is that under the current constitutional structure a decision of the House of Lords in an English appeal on a criminal issue such as the Attorney General’s Reference does not apply to, nor will it be regarding as binding upon, the Scottish courts, whether in criminal123 or in civil cases.124 In relation to delays in prosecution attributable to the Lord Advocate, then, the strict analysis given to the reasonable time provisions of Article 6 ECHR by the Privy Council Scottish majority in “R” remains binding upon the courts in Scotland. 3.5 Questions may arise as to whether or not the analysis of Article 6 ECHR by the Privy Council in “R” formally binds the Scottish courts in relation to cases involving unreasonable court delays which cannot be attributed to the Lord Advocate or the Scottish Ministers generally, for example where the delays are caused by the court itself or by the court administration.125 If not, this would leave open, at least in theory, the possibility of the courts situated in Scotland developing a “third way” analysis of the reasonable time requirements of Article 6 ECHR distinct from either the House of Lords or the Privy Council, leading to further fragmentation of any notion of a uniform standard of human rights protection throughout the Union. 3.6 But it can be anticipated that the situation in which Article 6 ECHR is taken to mean one, or more, things in Scotland, but yet a third thing in England will not be allowed to continue for any extended period. One would expect the Lord Advocate (or, conceivably, the Advocate General, the Scottish Law OYcer for the UK) to seek at the earliest opportunity to bring this issue back before the Privy Council. Mandatory references directly to the Privy Council may be made of devolution issues in proceedings in which any of the Law OYcers are parties, on their application.126 Alternatively, the matter may come to the Privy Council by way of appeal from or reference by the High Court of Justiciary acting as the Scotland’s Court of Criminal Appeal. The Privy Council would not, of course, be bound to follow the House of Lords decision in Attorney General’s Reference but it would seem that whether it does or not may well be determined by the composition and size of the Board of the Judicial Committee deciding the issue—and who decides that is not known. The spectre 122 It is to be noted that Lord Hope in his remarks to the House of Common Constitutional AVairs Committee considering Judicial appointments and a Supreme Court on Tuesday 2 December 2003 (available at www.parliament.the-stationery-oYce.co.uk/pa/ cm200304/cmselect/cmconst/uc48-ii/uc4802.htm) carefully emphasises that the dissimilarities between the two systems are to be found primarily in private law, such as property law and contract, noting: “Scots private law is markedly diVerent from English private law, and indeed it is a devolved issue in the Scotland Act and it has its own deﬁnition as to what private law contains. The problem is, I think, if you describe the court as a supreme court of the United Kingdom, it tends to suggest that there is a body of United Kingdom law. In a court which inevitably is ﬁlled with a majority of English judges there may be a temptation to say, ‘Well, we see diVerences between Scots law and English law on issues relating to property or other matters, what’s the point of having a diVerence when we’re sitting as a United Kingdom court?’ The Scots may well feel that would introduce a drift away from their system of law into an English system, and there are signs in case law, even now, that there is a temptation along that line. I think Scots are anxious that anything that will tend to dilute the present system, which maintains a distinctive Scottish appellate structure, will give rise to risks of losing the separate identity of Scots law.” 123 Compare, however, with the statement of the High Court of Justiciary in Lord Advocate’s Reference (No 1 of 2000) Re Nuclear Weapons 2001 JC 143 (a case concerning possible reliance on norms derived from customary international law by way of defence to a prosecution for criminal damage to Government property associated with the Trident missile defence system) at para 60: “In our view it is not at all clear that if this issue had been fully debated before us the incorporation of Trident II in the UK’s defence strategy, in pursuance of a strategic policy of global deterrence, would have been regarded as giving rise to issues which were properly justiciable. Chandler [v Director of Public Prosecutions [1964] AC 763, HL] remains binding authority in this court. Such developments as have taken place seem to have left untouched the status of the prerogative in matters relating to the defence of the realm. However, we have not been asked to dispose of the case on this basis, and we see no alternative but to reserve the issue for another occasion” (emphasis added). 124 See, for example, the repeated refusal by the Inner House in McDonald v Secretary of State for Scotland 1994 SC 234 and again in Davidson v Scottish Ministers (No 1), 2002 SC 205, IH to follow the decision of the House of Lords in MvHomeOYce [1994] 1 AC 377 and of the (non devolution jurisdiction) Privy Council in Gairy v Attorney General of Grenada [2002] 1 AC 167, JCPC on whether Ministers of the Crown may be subject to interim and coercive orders pronounced by the courts. 125 See for example Mills v HM Advocate (No 2) [2002] 3 WLR 1597, 2002 SLT 939, JCPC where there was an unreasonable delay between conviction and the hearing of a criminal appeal caused not by the Lord Advocate but by the court administration. 126 See: paragraphs 33–35 of sch 6 to the Scotland Act 1998; paragraphs 30–31 of sch 8 to the Government of Wales Act 1998; and paragraphs 33–35 of sch 10 to the Northern Ireland Act 1998. 9673871034 Page Type [O] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

constitutional reform bill [hl] committee: evidence 393 of more “court packing” inevitably raises its head.127 Clause 32(2) of the Bill makes provision for the President of the Court to direct in any speciﬁc proceedings that the bench of the new Supreme Court should consist in a higher than normal quorum.

Implications for England 3.7 Where does this unresolved dispute between the two top courts leave matters in England? It would seem at least to open arguments (whether in applications to the European Court of Human Rights or before other courts) to the eVect that a failure to give persons charged in England at least as good a remedy for breach of the reasonable time requirement in criminal prosecutions as is available to those charged in Scotland may itself be a breach of Article 14 ECHR which provides that “the enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as . . . race . . . national or social origin, birth or other status.”. The English do, after all constitute a distinct racial group from the Scots for the purposes of the Race Relations Act 1976.128

Implications for the United Kingdom 3.8 And what of the situation for the United Kingdom as a whole? As a result of the Attorney General Reference (HL) v “R” (PC) split there is now no one court in the United Kingdom with the jurisdiction to ensure uniformity as regards the interpretation and application of Convention rights across the United Kingdom. The Privy Council decides matters on devolution issues for Scotland (and potentially also Wales and Northern Ireland), the House of Lords for England. But what rationale is there, then, for the Privy Council (or its successor the new UK Supreme Court) to continue in the newly assumed role of a court of final appeal in Scottish criminal matters (at least when the accused’s Convention rights have been breached by the “acts” of the prosecution) ? 3.9 The review conducted by Lord Bonomy into the practice and procedure of the High Court of Justiciary recommended that, because of the delays and disruption caused to criminal trials in Scotland by the devolution issue procedure, the right of appeal under from decisions of the Scottish Court of Criminal Appeal to the Privy Council should now be withdrawn. He stated: “The only practical reason for ever categorising such issues as devolution issues was to ensure that recognition was given to the Convention rights during the period between the implementation of the Scotland Act and the implementation of the Human Rights Act, but even there it was a rather artificial way of introducing Convention rights to Scottish criminal procedure. That interim period is now over. Schedule 6 of the Scotland Act should be amended to make it clear that acts or failures to act by the Lord Advocate as prosecutor, and anyone acting on his authority or on his behalf as prosecutor, are excluded from the definition of a devolution issue. The Scottish Executive should urge the United Kingdom Parliament to make that amendment.”129 3.10 If this suggestion were taken up, it would “let Scotland be Scotland”. The Scottish judges on the top courts seem to be happy enough to see a split between England and Scotland on fundamental rights issues.130 This need not be a bad thing. The two countries have two distinct legal systems, and the system of criminal law in Scotland has been almost entirely uninfluenced by English law considerations for centuries. DiVerent rights regimes within the same overall polity would conceivably set up the conditions for an inter-jurisdictional dialogue which can only be to the benefit of rights protection in a race to the better protection for individuals. 127 The composition of the Board in any particular case would appear to be a matter the senior Law Lord. See the following written Parliamentary answer in Hansard for 30 July 1998 at HL 2885 “Lord Lester of Herne Hill asked Her Majesty’s Government: ‘Who will determine the composition of the Judicial Committee of the Privy Council for hearing each particular appeal under the provisions of the Scotland Bill and the Government of Wales Bill ?’ The Lord Chancellor (Lord Irvine of Lairg) ‘Responsibility for determining the composition of the Judicial Committee of the Privy Council lies with the Lord Chancellor. However, for many years it has been the policy of successive Lord Chancellors in practice to delegate this responsibility to the senior Lord of Appeal in Ordinary. Thus it will be for him to determine which members of the Judicial Committee sit in the Privy Council to hear cases under the provisions of the Scotland Bill and the Government of Wales Bill.’” 128 See BBC Scotland v Souster, 2001 SC 458; [2001] IRLR 150, IH. 129 Improving Practice: the 2002 Review of the Practices and Procedure of the High Court of Justiciary by the Honourable Lord Bonomy at paragraph 17.14. The report is also available on-line at http://www.scotland.gov.uk/library5/justice/rppj-00.asp. 130 For example in HM Advocate v R, 2003 SC (PC) 21 Lord Clyde noted at paragraph 103: “If there is a diVerence between the position in Scotland and that which may exist in England under the Human Rights Act 1998 that is a diVerence which has been prescribed by Parliament in the express enactment of section 57(2) in the Scotland Act 1998.” 9673871034 Page Type [E] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

394 constitutional reform bill [hl] committee: evidence

Appeal from Scotland to the new UK Supreme Court and the 1707 Acts of Union

3.11 The suggestion that Scotland and England might be allowed to go their own ways on fundamental rights matters (at least in relation to criminal law) is not one which apparently ﬁnds favour with the Scottish Ministers, however. They have not sought the change proposed by Lord Bonomy and instead, as we have seen, in principle they support the UK Government’s proposals for a new UK Supreme Court absorbing the Privy Council’s existing devolution jurisdiction. 3.12 On the question of Scottish representation on the new Supreme Court the Scottish Ministers state that: “in relation to devolution issues under the Scotland Act, the new UK Supreme Court is the appropriate forum for ﬁnal determination of all such matters . . . provided that appropriate arrangements are made to ensure that Scottish Judges sit in cases raising devolution issues”, while accepting that “that does not in itself mean a majority of Judges must be Scottish”.131 3.13 It is clear, however, that the talk of further reform of the constitution and the creation in the proposed new Supreme Court of a new institution of the Union has stirred up anxieties in certain quarters in Scotland.132 In their response to the Government’s proposals the Faculty of Advocates has stated that “A Supreme Court which is created must be consistent with the Claim of Right of 1689 and the Act of Union of 1707. These instruments are fundamental parts of the constitution of the United Kingdom of Great Britain and Northern Ireland, and in the view of the Faculty any proposal for a Supreme Court which contravened any provision of these instruments would be unlawful.”133 3.14 The Claim of Right of 1689 is a Declaration of the pre-Union Scottish Parliament—styled the Estates of the Kingdom of Scotland—asserting that James VII of Scotland (and II of England) had, by his conduct and religion, forfeited the right to the Crown in Scotland and that the throne had become vacant, thereby allowing the pre-Union Scottish Parliament to oVer the Scottish Crown to the then King and Queen of England, William and Mary. The Claim declares that: “it is the right and privilege of the subjects to protest for remeed of law to the King and Parliament against Sentences pronounced by the Lords of Session providing the same do not stop Execution of these sentences”.134 3.15 Otherwise, it reads as a profoundly sectarian document, excoriating Catholics and Catholicism135 and, indeed, requiring the abolition of the episcopacy even over the reformed Scottish Church.136 As the Lord Advocate, Colin Boyd QC has noted: “Leaving entirely aside the provisions of the Human Rights Convention and of the legislation as to discrimination made under the European Union treaties, no-one has complained that the Education (Scotland) Act 1918, which extended the right to public education to members of the Catholic faith was in breach of the Claim of Right. If we are to accept that the Claim of Rights is a golden statement of immutable principles, then we should be told why it is that its strictures on the practice and dissemination of the Roman Catholic faith, which looks very odd to our modern eyes, are not to be 131 See Constitutional Reform: Scottish Executive Response: Supreme Court for the United Kingdom” 14 November 2003, available online at http://www.scotland.gov.uk/about/JD/JD-BSU/00018515/SEresponse.pdf. 132 See for example the response of the Faculty of Advocates to the proposals on a new Supreme Court available at www.advocates.org.uk. 133 The Faculty of Advocates response is to be found on their web-site at www.advocates.org.uk. 134 See Kay Goodall “Ideas of ‘representation’ in UK Court structures”, Chapter 2 in Andrew LeSueur (ed) Building the UK’s new Supreme Court: national and comparative perspectives (Oxford: OUP, 2004) at pages 70–80 for a lively and informed account of the historical development of the House of Lords’ appellate jurisdiction from Scotland in the years following the 1707 Union. 135 The 1689 declaration notes, inter alia: “That Erecting Schools and Colleges for Jesuits, the Inverting Protestant Chapels and Churches to public Mass houses and the allowing Mass to be said are Contrary to Law That the allowing Popish bookes to be printed and Dispersed is Contrary to law That the taking the children of Noblemen Gentlemen and others sending and Keeping them abroad to be bred papists The making funds and donations to popish schooles and Colleges The Bestowing pensions on priests and the perverting protestants from ther religion by oVers of places preferments and pensions are Contrary to law That the disarming of Protestants and employing papists in the places of greatest trust both Civil and military the thrusting out Protestants to make room for papists and the entrusting papists with the forts and magazines of the Kingdom are Contrary to law”. 136 The 1689 Claim of Right also states: “That Prelacy and the superiority of any oYce in the Church above presbyters is and hath been a great and insupportable grievance and trouble to this Nation and contrary to the Inclinationes of the generality of the people ever since the reformations (they having reformed from popery by presbyters) and therefor ought to be abolished.” 9673871034 Page Type [O] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

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followed today, while it rather vague provision about political appeals are set in stone for all time coming.”137 3.16 It is indeed somewhat surprising that any contemporary reliance should be placed upon this document as the basis for a claim for fundamental constitutional freedoms in our now properly pluralist and Convention rights-sensitive Polity. But the implicit suggestion from those relying upon this document seems to be that the right to appeal from the Court of Session to the pre-Union Scottish Parliament which was asserted in the 1689 Claim of Right was transformed with the 1707 Union into an unqualiﬁed right of appeal to the United Kingdom Parliament (without need for leave, whether from the Court of Session or from the House of Lords138). Although not fully stated, the idea would appear to be that any alteration in this now settled right of appeal from the Court of Session to the House of Lords would be contrary to the Claim of Right of the pre- Union Scottish Parliament139 and thus (?) ultra vires the post-Union United Kingdom Parliament140—and, therefore, challengeable before the courts as unconstitutional. In the words of the Faculty of Advocates’ response: “Any attempt to create a Supreme Court which did not comply with these requirements would be contrary to the constitution of the United Kingdom, and any purported act in or aVecting Scotland by such a Court would be unlawful and of no eVect in Scotland.” 3.17 The irony is, that any such claim would have to be tested before the Court of Session, and the parties involved would then have a right of appeal to the House of Lords which would then become iudex in causa sua in that it would have to determine whether the Westminster Parliament could lawfully abolish appeals from Scotland to itself as a Committee of the Westminster Parliament. 3.18 This studied legal antiquarianism all rather smacks of desperation, given that the pre-Union Scottish constitution was not one noted for its protection of what would now be regarded as the fundamental rights and freedoms of the individuals.141

3.19 But what it would seem that these references—to what are presented as the foundational documents of the constitution of Scotland—are intended to do is to make the non-Scottish parts of the Union stop and listen. The altering of settled constitutional arrangements resurrects many issues, and may exhume half-buried resentments or unarticulated unease. This is not something peculiar to Scotland. It applies equally to the debate over the terms of a new European Union Constitution and the place of the United Kingdom therein, 137 Colin Boyd QC, Speech to the Conference of the Law Society of Scotland on the UK Supreme Court Proposals, 21 January 2004 at paragraph 26. 138 See however the comments of Lord Brown of Eaton-under-Heywood in the House of Lords appeal from the Court of Session in Buchanan v Alba Diagnostics Ltd. 5 February [2004] UKHL 5 at paragraph 41: “For the reasons given by my noble and learned friend Lord HoVmann I too would dismiss this appeal. I add only that it seems to me a great misfortune for Mr Buchanan that he was able to bring this appeal before your Lordships House without leave. Had leave been required assuredly it would have been refused and Mr Buchanan thereby saved a very great deal of expense.” 139 This is perhaps diYcult to square with the plain words of Article XIX of the Act of Union which provides that: “That the Court of Session or College of Justice do after the Union, and notwithstanding thereof, remain in all time coming within Scotland as it is now constituted by the laws of that kingdom, and with the same authority and privileges as before the Union; and that the Court of Justiciary do also, after the Union, and notwithstanding thereof, remain in all time coming within Scotland as it is now constituted by the laws of that kingdom, and with the same authority and privileges as before the Union, subject, nevertheless, to such regulations as shall be made by the Parliament of Great Britain, and without prejudice of other rights of justiciary.” 140 In MacCormick v Lord Advocate, 1953 SC 39, IH Lord President Cooper observed (at 411): “The principle of the unlimited sovereignty of Parliament is a distinctively English principle which has no counterpart in Scottish constitutional law. It derives its origin from Coke and Blackstone, and was widely popularised during the nineteenth century by Bagehot and Dicey, the latter having stated the doctrine in its classic form in his Law of the Constitution. Considering that the Union legislation extinguished the Parliaments of Scotland and England and replaced them by a new Parliament, I have diYculty in seeing why it should have been supposed that the new Parliament of Great Britain must inherit all the peculiar characteristics of the English Parliament but none of the Scottish Parliament, as if all that happened in 1707 was that Scottish representatives were admitted to the Parliament of England. That is not what was done. Further, the Treaty and the associated legislation, by which the Parliament of Great Britain was brought into being as the successor of the separate Parliaments of Scotland and England, contain some clauses which expressly reserve to the Parliament of Great Britain powers of subsequent modiﬁcation, and other clauses which either contain no such power or emphatically exclude subsequent alteration by declarations that the provision shall be fundamental and unalterable in all time coming, or declarations of a like eVect. I have never been able to understand how it is possible to reconcile with elementary canons of construction the adoption by the English constitutional theorists of the same attitude to these markedly diVerent types of provisions.” 141 In Mackintosh v Lord Advocate, (1876) 2 App Cas 41, HL(Sc) Hemming QC at 59–60 cites a paper by J F Macqueen, QC, read at the Manchester Congress of Social Science on 8 October 1866 (Lord Brougham presiding) to the following eVect: “The blessings of the English Constitution, however, were not extended to Scotland [at the Union in 1707]. The Scotch consequently have no Magna Charta, no Bill of Rights, no Habeas Corpus . . . Personal freedom depends on the temper of the existing government, or rather on the discretion—peradventure the caprice—of the Lord Advocate. When that high functionary incarcerated a gentleman supposed to entertain dangerous political opinions, the Lord Advocate justiﬁed himself in the House of Commons by the proud boast that he represented the Scottish Privy Council, and that his powers were unlimited. Under the sway of a benignant sovereign Caledonian grievances have practically disappeared. But the grave question remains whether it is consistent with the dignity of an intellectual people that their political rights should depend on the clemency of the government.” 9673871034 Page Type [E] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

396 constitutional reform bill [hl] committee: evidence as to the reform of the institutions of the United Kingdom and the place of its constituent nations therein. If you are altering the institutions of the Union then you have to have some view as to what sort of Union we have or want. 3.20 From the Scottish point of view, the United Kingdom is considered to be a union of nations, based primarily on an 18th Century compact between two equal contracting parties—the Scottish and English Parliaments—resulting in the dissolution of both institutions and the creation of new Union institutions; in particular the Westminster Parliament which does not have unbridled sovereignty but is, instead, to be understood as being bound by the original Eighteenth century institutions and instruments which created it.142 3.21 The impression one sometimes gets is that, insofar as the English think about these matters, the 1707 union was an incorporating union, under which Scotland was annexed to England. There is and was no equality. There is and was no binding contract. There is no limitation on the sovereignty or power of Parliament. As was submitted on behalf of the appellant to the House of Lords in 1876 in Mackintosh v Lord Advocate: “[T]he meaning of that Treaty [of 1707] was that the whole political and judicial constitution of Scotland was swept away, and that the political and judicial constitution of England was substituted for it in every particular not mentioned in the Treaty itself.”143 3.22 Such a constitutional analysis is not one which would be likely to go down well in present day Scotland, however.

Two UK Supreme Courts, One or None? 3.23 However one interprets the impact and continued relevance of the Treaty of Union and Claim of Right, for the sake of constitutional and democratic stability in post-devolution UK it is clear that the present structure of two top courts (in the House of Lords and the Privy Council) cannot continue. The Constitutional Reform Bill is premised on that finding. 3.24 It would appear, then, that we have two options. Either there is one Supreme court for the United Kingdom which, at the very least, combines the current jurisdiction of the House of Lords with the devolution jurisdiction of the Privy Council in a manner which properly has regard to the diVering constitutional traditions existing within the United Kingdom; within this one court, the dialogue (and dialectic) between the approach of the Aristotelian judge (who insists that right decisions are and be reached by only following the rules) and the Platonists (who intuit the right result and then try and find a way to use the rules to get to that result) can be contained, and may continue in a manner while maintains constitutional stability within the multi-national state that is the United Kingdom. The alternative would be to consider the abolition of all appeals (whether criminal, civil or devolution issues) from Scotland and let England be England. 3.25 This latter option is one which seems to find some favour in the Scottish legal academic community on the basis that it will ensure that Scots law can develop in a manner uncontaminated by English law.144 There is indeed an argument that with the re-establishment of a Scottish Parliament—which has established a public petitions committee to consider requests from individuals for the Parliament to express a view or introduce or amend legislation on a matter of public concern—the mischief complained of in the 1689 Claim of Right reference to the need for recourse to Parliament has now been remedied, and there is no longer any need to provide for further appeals to London from decisions of the Court of Session. 3.26 But the abolition of appeals from Scotland would, in my view, be a retrograde step and not one to be recommended if the intention is that the Union is to be maintained. Scotland is a small country and its legal system, lawyers and judges all benefit from appeals to London. It is psychologically very important for all judges to think that they may judged in another forum—the classic “quis custodiet ipsos custodes?” problem— so that even if they are not appealed against, they know that they might be, and their reasoning there analysed and held up to rigorous scrutiny. 3.27 It is arguable that the possibility of appeals to the House of Lords in civil cases from Scotland does precisely that, and keeps the judges of the Inner House sharp, less likely to fall into unreasoned prejudice, more careful in how and what they decide. The ECtHR performs a similar (but not as pervasive) a function for the House of Lords. So the rationale for even the unexercised possibility of second or third tier appeals is precisely to keep the judges focussed. From this practitioner’s point of view coming from a small jurisdiction, it is also 142 See, for example Lord Gray’s Motion, 2000 SC (HL) 46; [2002] 1 AC 124 where such arguments have been pressed. 143 See Mackintosh v Lord Advocate, (1876) 2 App Cas 41, HL(Sc) per Mr Hemming, QC at 58. 144 See, for example: James Chalmers “Scottish Appeals and the Proposed Supreme Court” (2004) Edinburgh Law Review 1; and Professor Hector MacQueen “Scotland and a Supreme Court for the UK?” (2003) Scots Law Times (News) 279–282 at 280: “If diVerence of laws with an inevitable majority of non-Scottish members makes the House of Lords inherently unsuitable for Scottish criminal appeals, then the case is, if anything, stronger for private law appeals. One does not need to be a legal nationalist to see this.” 9673871034 Page Type [O] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

constitutional reform bill [hl] committee: evidence 397 not unwelcome to be able to argue a diYcult or controversial point before judges who are not known to one personally and are therefore unlikely to confuse the point being argued with the person arguing it. The possibility of getting into a broader UK legal forum can therefore be something a breath of fresh air for practitioners and judges and indeed the law of Scotland.145 And indeed it is potentially very useful to argue before (and hear argument from) Platonist judges as well as from Aristotelians. The English legal system, too, beneﬁts from having a comparativist outsider perspective on matters which can be brought by the non-English judges on the House of Lords bench.

4. Conclusion:AProposal to Minimise Judicial Conflict and Stabilise the Union 4.1 How then to preserve the benefits of comparativism, while allaying the fears expressed by some Scots lawyers and judges that the integrity of the Scottish legal system would be undermined by a new United Kingdom supreme court? One possible solution might be to consider the appointment of comparativist amici curiae in cases coming to the new Supreme Court. Their task might be to set out before the court the relevant law as applies in the jurisdictions other than that from which the appeal is being taken, and then draw the possible implication of any decision of the court from an overall United Kingdom perspective. Thus, appeals from England might profitably have an amicus to present the position in Scotland while Scottish cases could be advised as to the position in England. It is noteworthy that already in purely English cases it would appear to be the custom of Lord Hope also to advise (albeit without the benefit, it would seem, of specific submissions from counsel on the matter) what the position is in Scotland and Scots law. In this way the whole Union perspective of the decisions emanating from a UK Supreme Court may be assisted. 4.2 The role played by these proposed comparativist amici curiae might be similar to that taken by the Advocate General before the European Court of Justice who seeks to place the submissions of the parties against the broader European perspective146 or by the Commissaire du Gouvernement in proceedings before the French Conseil d’tat.147 It is suggested that they might be given the title of Advocate General to the UK Supreme Court. 4.3 It should, of course, be borne in mind that the European Court of Human Rights has stated that “the right to adversarial proceedings means in principle the opportunity for the parties to court proceedings falling within the scope of Article 6 to have knowledge of and comment on all evidence adduced or observations filed, with a view to influencing the court’s decision”.148 This would, then, require that the actual parties to the litigation have the last word and a proper opportunity to comment on the submissions of the comparativist amicus,149 if so advised, since “in this context, importance is attached to appearances as well as to the increased sensitivity to the fair administration of justice.”150 145 As Colin Boyd QC, Speech to the Conference of the Law Society of Scotland on the UK Supreme Court Proposals, 21 January 2004 observes at paragraph 52: “As a legal system in a small country on the edge of Europe, we must be conscious of the risk of becoming self-centred and inward looking. It would be very easy for us to fall into the trap of defining our unique legal qualities and character in a negative sense, of simply not being the same as others. Certainly we must protect and cherish and develop the many valuable features of our legal heritage. But the presence of Scottish judges in the supreme court, whether it is the current House of Lords or the proposed new institution, opens a two-way window for us into the world-wide family of common-law systems. In the same way the United Kingdom’s membership of the European Union opens up for Scots lawyers opportunities of contributing to and learning from the diVering systems of Continental Europe. This is not the time for Scots law to retreat into some kind of protectionist shell.” 146 Case C-17/98 Emesa Sugar (Free Zone) NV v Aruba [2000] ECR I-665 at paragraphs 14-16 for an account of the role of the Advocate General. See too, Case C-466/00 Arben Kaba v Secretary of State for the Home Department (No 2) [2003] ECR I-2219, in particular the Opinion of Advocate General Ruiz-Jarabo Colomer in the case at paragraphs 104–117. 147 See John Bell “The role of the Commissaire du Gouvernement and the European Convention on Human Rights” (2003) 9 European Public Law 309-3 14, for an account of this oYce and a critical case note on the decision of the European Court of Human Rights in Application No 39594/98 Kress v France, Judgment of 7 June 2001. 148 See, for example: Application no 32559/96 Fortum Corporation v Finland, ECtHR judgment of 15 July 2003, H 39; Keroja¨rvi v Finland, judgment of 19 July 1995, Series A no 322, p 16, H 42; Nidero¨st-Huber v Switzerland, judgment of 18 February 1997, Reports of Judgments and Decisions 1997-I, p 108, H 24). 149 See, in particular: Vermeulen v Belgium, 20 February 1996, RJD 1996-I 225 at 233 at paragraph 33 (re the Belgian Avocat Geńe´ral); Lobo Machado v Portugal, 20 February 1996, RJD 1996-I 195, paragraphs 28 to 31 (re the Portuguese Attorney-General); Van Orshoven v Belgium, 25 June 1997, RJD 1997-III, 1040, paragraphs 38 to 41 (re the Belgian Avocat Geńe´ral); J.J. v Netherlands, 27 March 1998, RJD 1998-II, 604, paragraphs 42 and 43 (re the Dutch Advocate General); and K.D.B. v Netherlands, 27 March 1998, RJD 1998-II, 621, paragraphs 43 and 44 (re the Dutch Advocate General). In Application no. 36590/97 Go¨ç vTurkey11 July 2002 and in Application nos. 32911/96, 35237/97 and 34595/97 Meftah and others v France 26 July 2002 the European Court of Human Rights, sitting in an appellate capacity as a Grand Chamber in both cases, confirmed this line of case law and held that the applicants’ lack of opportunity to respond to the submissions of the Principal Public Prosecutor to the Court of Cassation of Turkey (in the former case) and to the Advocate-General’s submissions to the Court of Cassation of France (in the latter cases) constituted a violation of their rights to a fair hearing guaranteed under Article 6 H 1 of the Convention. See, too, Application no. 45019/98 Pascolini v France, ECtHR, 26 June 2003 where Article 6(1) was found to be breached where an applicant was not provided with a copy of the reporting judge’s report to the Court of Cassation and Applications nos. 38410/97 and 40373/98 Fontaine and Bertin v France, ECtHR, 8 July 2003 where a violation of Article 6(1) was found both in the failure to provide the applicants with a copy of the reporting judge’s report to, and in the presence of the Advocate General at the deliberations of, the Court of Cassation. 150 See Bulut v Austria Judgment of 22 February 1996, RJD 1996-II, No 3 at paragraph 47. See, too, Borgers v Belgium A/214 (1991) 15 EHRR 92 at paragraph 24. 9673871034 Page Type [E] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

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4.4 There is arguably, already, at least the beginnings of provision for the appointment of suitable comparativist amici curiae in Clause 34 of the Constitutional Reform Bill which provides as follows: “(1) If the Supreme Court thinks it expedient in any proceedings, it may hear and dispose of the proceedings wholly or partly with the assistance of one or more specially qualiﬁed advisers appointed by it (2) Any remuneration payable to such an adviser is to be determined by the Court unless agreed between the adviser and the parties to the proceedings (3) Any remuneration forms part of the costs of the proceedings.”

4.5 This provision of the Bill would require some amendment however, given that the role of the comparativist amicus would be to represent the general public interest in outlining the eVects of a decision on (the constituent parts of) the Union, it would seem more appropriate that the costs of his participation should be borne not by the parties to the action but subsumed within the costs of running the court itself. But in any event, the proposed new position of Advocate General to the UK Supreme Court would encompass but go beyond the comparativist amicus role outlined above.

4.6 As a matter of fundamental principle, the public at large and the parties before the court are entitled to expect consistency from the court, particularly given that this is a court of ﬁnal instance against which there is no appeal. Without consistency in court decisions, lawyers cannot properly advise their clients and individual cannot properly regulate their aVairs. As should be clear from the review of the recent case law set out above, the current structures under which the House of Lords and the Privy Council do not seem to be ensuring this necessary consistency in approach, particularly on question as to how and when Convention rights may be relied upon before the courts by individuals against the State. Some more structural reform seems to be called for.

4.7 Further, provision is also made in Clauses 29 and 30 of the Supreme Court Bill for the appointment of “acting judges” to the UK Supreme Court from persons who hold high judicial oYce or are Privy Councillors who are members of a speciﬁed “supplementary panel”. This provision is presumably primarily intended to allow for additional judges to be appointed to speciﬁc cases from individual jurisdictions of the Union to ensure adequate representation of that jurisdiction on the case in question. But the fact that additional acting judges may, on occasion, be called to sit on any particular case would itself tend to militate against a overall consistency in approach by the Supreme Court, since it is plain that the changing of the identity of even one member of the court can change the internal dynamic of decision making within the court and may potentially make the diVerence between a close minority decision becoming a majority decision.

4.8 So, it would appear that there is an overall general public interest in the interests of transparency and maintaining public conﬁdence in the integrity of the court’s decision in knowing when, how and why a particular bench of the court has been composed in the way that it has—why a larger bench than ﬁve is thought necessary in one particular case; why particular acting judges from Scotland and/or Northern Ireland or Wales or, indeed, England have been co-opted in another case.

4.9 It is suggested that the proposed new Advocate General to the UK Supreme Court could properly play a role on this issue. For example, once it is clear that a case is proceeding before the Supreme Court (whether because leave to appeal has been granted or a petition for appeal without leave duly lodged) it might be useful for the Advocate General to the Court to advise as to whether or not this case raises such issues as would be appropriate for a larger bench than normal to be assigned the case, or that the bench in question should contain at least two members from Scotland, say—whether full time members of the court or acting judges co-opted from the relevant jurisdiction. It is not suggested that the parties to the case should have any input into the composition of the bench (to avoid fears of court picking) but it would at least make it clear to the parties (and the public at large) why their bench is composed of seven or nine judges, and why some of these are acting judges, and/or why a number of the judges in question are Scots.

4.10 In sum, one thing seems clear: the conﬂict within the House of Lords and between the House of Lords and the Privy Council has made further reform of our top courts’ structure inevitable. The status quo cannot be maintained on this matter. But if a more stable and lasting constitutional structure is to be achieved, it must be one which is not inconsistent with the historic constitutions of the Union, and of its constituent nations if it is to maintain the conﬁdence of the people. This has, at the very least, to involve a formal recognition in the structure of the new court of the distinctive intellectual and constitutional history, judicial philosophy, and 9673871034 Page Type [O] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

constitutional reform bill [hl] committee: evidence 399 continuing national identity of Scotland, and a conscious and explicit acknowledgment that the Union of which the new UK Supreme Court will be a lynchpin is based on partnership among nations rather than presumed incorporation into the one nation that is “greater England”.151 19 April 2004

Memorandum by The Royal Society of Edinburgh 1. The Royal Society of Edinburgh (RSE) is pleased to respond to the House of Lords Inquiry into the Constitutional Reform Bill. This response has been compiled by the General Secretary, Professor Andrew Miller and the Research OYcer, Dr Marc Rands, with the assistance of a number of Fellows with considerable experience in this area. 2. In considering this Bill it is important to recognise that there are separate jurisdictions and judicial systems within the United Kingdom, and consideration needs to be given as to whether the Government’s proposal is compatible with the Treaty of Union between Scotland and England and the Claim of Right. 3. The speciﬁc sections of the Bill are now addressed below.

Part 1: Arrangements to replace office of Lord Chancellor 4. Clause 1, seems to refer only to the English judiciary and places on Ministers of the Crown a duty to uphold the continued independence of the judiciary, as part of the proposed arrangements to replace the oYce of the Lord Chancellor. However, as a result, a Scottish Minister, being a Minister of the Crown, would have a duty to uphold the independence of the English judges, if he were involved in English proceedings, but not those of Scottish judges. Similar treatment, therefore, should be given to Scottish judges with Scottish Ministers also having a duty to uphold the independence of Scottish judges involved in Scottish proceedings.

Part 2: The Supreme Court 5. The existence of a Supreme Court for the United Kingdom is a potentially important symbol of the continuing unity of the state post-devolution, but there are concerns over it acting as a ﬁnal appellate court rather than as a United Kingdom court, addressing United Kingdom issues. 6. The Appellate Committee, in so far as it is a court at all, functions, in eVect, as an English Court or as a Scottish Court, according to the jurisdiction from which the appeal has come. Any decision of the Appellate Committee in an English appeal is not binding in Scotland, and its decision in a Scottish appeal is not binding in England. Therefore, it will be vital that that the binding eVect of a Supreme Courts’ decisions should be limited to the jurisdiction from which the appeal has come, and that there are suYcient safeguards to preserve the separate identity of the civil and criminal law of Scotland. The Bill as it stands says nothing about the need to preserve the distinct nature of Scots law and the separate existence of the Scottish legal system, which is guaranteed by article XVIII of the Treaty of Union 1707. Consideration, therefore, should be given to including a clause in the Bill to the eVect that nothing in the Act aVects the continuing commitment of the United Kingdom to the distinct existence of separate legal systems within England and Wales, Scotland and Northern Ireland. 7. In addition, to date, there have been only a comparatively small number of Scottish appeals at the House of Lords, and the even fewer which resulted in overturning the Court of Session. Analysis of the Civil Judicial Statistics for the last forty years shows that on average over that period there have been seven to eight appeals per year. Of this small number of appeals, only one or two of the seven or eight appeals achieved a change in the decision of the case. It is therefore questionable whether is it good for Scots law for some of its best lawyers to be dealing mainly with cases to be decided under other laws, and that their input into Scots law to be conﬁned to seven or eight cases per annum. Restricting the jurisdiction of the Supreme Court to single market law and constitutional matters, including Community law, human rights and devolution issues, should therefore be considered. 151 In this regard see, in particular, the provision of the Act of Union of 1707 which states that: “[N]o Causes in Scotland be cogniscible by the Courts of Chancery Queens-Bench Common-Pleas or any other Court in Westminster-hall; And that the said Courts or any other of the like nature after the Union shall have no power to Cognose Review or Alter the Acts or Sentences of the Judicatures within Scotland or stop the Execution of the same”. In its response to the UK Supreme Court proposals, the Faculty of Advocates has glossed this provision as meaning that “any Court exercising jurisdiction in Scotland, and in particular a Court with the power to review or alter the interlocutors of the Courts in Scotland, cannot be a part of the Courts of England and Wales. This means that in order to comply with the Act of Union, a Supreme Court would require to be set up as a Court independent of the Courts of England and Wales.” 9673871035 Page Type [E] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

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8. It will also be important for a Supreme Court’s United Kingdom character, to be administered and funded by an independent Supreme Court Service rather than by the Department of Constitutional AVairs which is responsible for the English but not the Scottish legal system.

Part 3: Judicial appointments and discipline 9. Should Appellate matters be considered by the Court, it will be important to ensure an appropriate proportion of Scottish Judges are present when considering Scottish cases. One curious aspect of the debate has been the way in which the presence of an inevitable majority of judges unqualified in Scots law on any Scottish appeal to the House of Lords has been presented as a valuable corrective to the potential insularity of the Scottish system. There is nothing to parallel this in other legal systems and, although England & Wales sometimes has the benefit of Scottish and Northern Irish input, that input is never in the majority. 10. Therefore, three of the five judicial members of the Supreme Court ought to be Scottish judges when dealing with a case that comes from Scotland. In order to achieve this you would either need to increase the number of Law Lords beyond the present 12 (currently with two Scottish judges), or alternatively ensuring that, when a Scottish case came before the supreme court, every eVort was made to ensure that a third Scot was there by bringing an ad hoc judge into play. 11. In terms of the appointment of judges of the Supreme Court, the proposed independent Judicial Appointments Commission is to recommend a single candidate for each vacancy and, before doing so, is to consult the Lord Chief Justice about the candidate or possible candidates. We recommend that consultation should also be made with Scotland’s Lord President and Lord Justice Clark of the Court of Session, when considering the appointment of Scottish Judges. 12. The Secretary of State is then to be able to appoint only candidates recommended by the commission. However, he is to have the option of asking the commission to reconsider its recommendation for appointment, “if the evidence suggests that the recommended candidate is not the strongest candidate”. If due recognition is to be given to the independence and importance of the Commission, its recommendation as to the strongest candidate should prevail, except in exceptional circumstances.

Part 4: Other provisions in relation to the judiciary 13. Clause 94 of the Bill extends the parliamentary disqualiﬁcation to judges of the Supreme Court and members of the House of Lords while holding any of the judicial oYces referred to in clause 94(2), who will be disqualiﬁed from sitting or voting in the House of Lords and its committees. While the removal of the right to vote, is accepted, we question the need for removal of the right to sit (and with it the right to speak). 14. Since devolution, much legislation relating to devolved matters has been taken under Sewell motions at Westminster. This removes the legislation from detailed scrutiny at Holyrood and it heightens the importance of its receiving detailed scrutiny in the House of Lords. However, only a few peers are skilled in Scots law and practice and almost all of them are based in Scotland. The Scottish Law Lords, who are regularly present, should also be seen as a resource in this regard. There would therefore be merit in enabling the Scottish members of the Supreme Court to participate by allowing them to sit and speak in the House, particularly in regard to legislation which aVects Scotland.

Part 5: General 15. With regard to the question of the cost of running the Supreme Court, the Explanatory Memorandum states that costs will be apportioned between litigants before the Supreme Court and those engaged in civil litigation before the lower courts in England and Wales, Northern Ireland and Scotland. However, fees are recovered from litigants in the Scottish courts under regulations made under section 2 of the Courts of Law Fees (Scotland) Act 1895, where the definition of “the Scottish courts” does not mention the House of Lords, and there is no provision for the recovery of fees payable in one of the courts listed in the definition to be used to subsidise the cost of running another. Therefore, the Bill will need to be amended to make provision for the fees charged to litigants in the Scottish courts to be surcharged by the amount needed to contribute to the cost of the Supreme Court. However, the proposal is likely to be contentious. Some litigants may be unable to go to a final court because their case is not the sort of case that can be appealed to such a court; and if a litigant’s case can go to such a court, it may be refused leave to do so. It would be unfair for litigants to have to suVer the surcharge in these circumstances. 9673871035 Page Type [O] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

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Additional Information 16. Copies of this response are available from the Policy OYcer, Dr Marc Rands (email: evidenceadvicewroyalsoced.org.uk) or from the RSE website (WWW. Royalsoced.org.uk). April 2004

Memorandum by Mark Ryan 1. The submission detailed below represents my own personal submission and does not represent the views of my employer, Coventry University. 2. My submission supports the main elements of the Constitutional Reform Bill (the abolition of the Lord Chancellor, the establishment of a Supreme Court and a statutory Judicial Appointments Commission) as further modernising the United Kingdom’s uncodified constitutional arrangements as well as linking with earlier reforms, viz, the Human Rights Act 1998 (Article 6 the requirement for an independent and impartial tribunal) and devolution (resolving devolution issues). The Bill is to be welcomed as a seminal constitutional measure which would realign the institutional balance of our constitution so as to further accord with the separation of powers. It is, however, worth noting that in spite of its constitutional and historic importance, the Bill was not specifically foreshadowed in either the 1997 or 2001 Labour Party general election manifestos. Although it has been suggested that Part 3 of the Bill (dealing specifically with a statutory Judicial Appointments Commission) could be severed and legislated on separately, it is submitted that the Bill should be viewed, and voted on, as one inter-connected composite package of constitutional reforms. My short submission will be confined to consideration of the creation of the Supreme Court. 3. It is submitted that the establishment of a separate Supreme Court is a desirable and long overdue constitutional reform. This measure would necessarily enhance the independence of the highest court by virtue of the fact that its serving judges would be separate and independent from the Legislature and therefore no longer directly involved in the passage of legislation. 4. Although the Bill detaches the senior judiciary from Parliament, it does nevertheless detail in Clause 21 that the Executive (in the form of the Minister, viz, the Secretary of State for Constitutional AVairs) would determine the Justices to sit in the Supreme Court after an ad hoc Commission had prepared a list of between two and five possible candidates. Although the Bill is prefaced on the assumption that the Executive should have a significant input in relation to the appointments to the Supreme Court (an assumption which in itself is constitutionally arguable), it is submitted that the discretion conferred on the Minister under Clause 21 is unacceptably wide and, therefore, perhaps consideration should be given to confining the choice to a fewer number of candidates. Indeed, the Consultation Paper published in July 2003 in relation to the creation of a Supreme Court, initially envisaged such a Commission putting forward the names of only one or two candidates (Constitutional reform: a Supreme Court for the United Kingdom, paragraph 41). In any event, one possible way of fettering the discretion of the Minister in relation to, for example, a list of five candidates under Clause 21, would be for the Commission to list all five candidates in order of suitability and specifically require the Minister to openly justify and explain the selection of his/her particular appointment. 5. During the Second Reading of the Bill in the House of Lords, legitimate concern was expressed that it may well be that a future Minister, in relation to this Bill, could well be an individual who would not be a lawyer (therefore lacking appropriate legal knowledge or experience), but who would nonetheless select Justices to sit in the Supreme Court. Moreover, this Minister, under Clause 36, would also be able to allow, or disallow, Supreme Court Rules (made by the President of the Court) which would regulate the procedure and practice of the Supreme Court. Accordingly, therefore, one possibility could be to specify in the Bill that the oYce of the Minister referred to in Clause 1(4) should only be performed by an individual with a minimum of specific legal knowledge/experience. Alternatively, arguably a constitutional convention might be developed to achieve the same objective. 6. The removal of the judicially active Law Lords from Parliament will necessarily have an impact on the House of Lords in its legislative capacity. Although it is conceded that the Chamber would lose the valuable advice and expertise provided by these senior judges, the point has to be made that, in any event, the contributions of the Law Lords have always been circumscribed by convention and more recently by the self- denying ordinance statement issued by Lord Bingham in June 2000. In any event, the departure of the Law Lords would not leave the House of Lords devoid of any legal knowledge, as the Chamber contains members with legal expertise (both practical and academic). 7. Although under the Bill the Justices of the Supreme Court would be separated from the Legislature, nevertheless it is suggested that they should not operate in a constitutional vacuum and become isolated from Parliament. Accordingly, serious consideration should be given to the suggestion of the creation of a Joint 9673871036 Page Type [E] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

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Committee of both Houses of Parliament to facilitate communication between the Judiciary and Parliament. Moreover, it is also submitted that upon appointment, but before they assume oYce, putative Justices of the Supreme Court could be introduced to, and reviewed by, Parliament (this could arguably be performed by the Joint Committee indicated above). 8. The titles of the Supreme Court and Justices of the Supreme Court are to be welcomed as they convey the constitutional importance (and unifying factor) of the Court at the head of the United Kingdom court structure. Indeed, these terms may help to some extent to demystify the hierarchy of the courts system, as the present title of the Appellate Committee of the House of Lords, together with the term Lords of Appeal in Ordinary, are apt to mislead the non-lawyer. One consequence of the adoption of these terms may be that other existing court titles (viz, Lord Justice of Appeal) may also have to be reviewed. 9. Finally, the establishment of the Court must be fully and accurately costed and the accommodation selected for its physical separation from Parliament must be architecturally appropriate to the constitutional standing of the Court. Accordingly, although the severance of the Bill is opposed (as indicated in paragraph 2), it is contended that it would be appropriate to support Lord Goodhart’s suggestion (Hansard, 8 March 2004, col 1099) that a sunrise clause could be inserted into the Bill with the result that Part 2 of it (ie, the establishment of the Supreme Court), would only come into operation subject to the provision of appropriate accommodation being satisﬁed. 21 April 2004

Memorandum by Sir Konrad Schiemann, Judge at the Court of Justice of the European Communities

IClauses 19, 29, 30 and 48 1. There seems to me to be a case for allowing former members of the European Court of Justice, the Court of First Instance and of the European Court of Human Rights (Former European Judges) to be eligible to sit as members of the Supreme Court either as full members or as acting judges. There are a number of cases where their expertise gained as judges or advocates general might, I should have thought, be of significant help. As the Bill stands there is no mention of Former European Judges as such. 2. Clause 19 is so drafted as to allow some Former European Judges to be eligible for appointment but not all of them. It might be thought that to rule out in principle someone who has been appointed to one of the European Courts after rather less than 15 years as a qualifying practitioner but has served in Europe for a further 12 or more years has little advantage. If such a person is thought personally to be not the best candidate he will not be appointed. 3. More important are clauses 29 and 30. The way into appointment as an acting judge appears barred to: — someone who has never held High Judicial OYce as defined in clause 48; — someone who has held High Judicial OYce but whose membership of the supplementary panel has not been approved by the President of the Supreme Court whilst he holds such oYce. 4. Thus it seems that there will be Former European Judges who are eligible to sit as full members of the Supreme Court but are not eligible to be acting judges of that Court. The policy reasons behind this diVerence of approach, if they exist, are not clear to me. 5. My present view is that there is something to be said for widening the definition of High Judicial OYce so as to include at least former Advocates General and Judges of the ECJ and arguably former judges of the CFI or the ECHR. 6. Perhaps it is appropriate to add on a personal level that at the time of my nomination to act as a Judge of the ECJ it was made clear to me that it was envisaged that I stay in that court for the rest of my judicial career and I accepted the job on that basis.

II The Position of the Minister The Bill contains extensive provisions as to the minimum qualifications for the exercise of various judicial positions. By contrast, there are no minimum qualifications which need to be held by the Minister save the trust of the Prime Minister of the day. The system has worked well enough during my professional lifetime but the oYce of Lord Chancellor has been thought of as one to be held by someone with no further political ambitions. If in future the crucial powers ascribed to the Minister in the Bill are to be held by someone not sustained by a long tradition and who wishes to move on to become leader of his party, Home Secretary or Prime Minister he will be exposed to severe temptation to sacrifice the independence of the Judges to the 9673871037 Page Type [O] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

constitutional reform bill [hl] committee: evidence 403 popular or prime ministerial will of the moment. Not all will be able to resist them. Would it be desirable to consider whether to enact that the Minister would not be eligible to hold other Ministerial oYce after having been Secretary of State for Constitutional AVairs?

III Clause 22 Since the Prime Minister has no discretion whatever, what is the point of bringing him into the process at all? The only eVect will be to introduce delay.

IV Clause 21(2) and (7) I am not clear as to what is intended to be the nature of the prescribed criteria referred to here. The concept of merit which is enshrined in the Bill as an express criterion for the selection of judges in general (see clause 51(3)) does not appear as an express criterion in the selection of Supreme Court judges. Are the prescribed criteria supposed to take the place of the vaguer “merit”? Given the quality of the Commission envisaged under Clause 20 why are prescribed criteria needed? If the desire for transparency motivates the expression of criteria then should the Criteria not be expressed in the Bill and be subject to debate rather than left to be dealt with by way of resolution?

VClauses 51 and 52 I have the same hesitations in relation to these clauses. The reference to guidance—not I think to be subject to Parliamentary approval—is again puzzling. What is aimed at here which can not be dealt with by the order procedure envisaged in clause 51(4). There seems to be a tension between clause 51(5) and Clause 52.

Letter from Professor Ian Scott

My basic point is a simple one. The Supreme Court is an organisation made up of judges. The Court will be the judges and the judges will be the Court. The Court has no separate organisational identity apart from the judges. It is a corporate body (just in the same way as the House of Commons is a corporate body made up of MPs). The Supreme Court will not be some kind of tribunal (albeit a rather superior one) falling under the overall responsibility of a department of executive government (eg employment tribunals). Therefore it should not be administered by a government department. As an organisation Court should “run itself”. All of the functions of an administrative kind that will have to be discharged in order to ensure that the Court runs itself eYciently and eVectively are the responsibility of the judges. But of course they will need help in order to ensure this (just in the same way that members of the House of Commons have staV to help them). Therefore the judges (as a corporate body) will need to be able to recruit non-judicial staV to carry out necessary administrative functions. But that staV will be the Court’s staV and not civil servants working within a Government department. The Court will have to be organised so that it, that is to say the judges, with the assistance of the necessary Court staV, can negotiate with the Treasury over matters of funding. There is no need for a Government Department (in the form of the DCA) to get in the way between the Court and its staV and the Court and the Treasury. Indeed, such an arrangement will lead to confusion. At the moment the independence of the judicial committee of the House of Lords (both legally and administratively) is secured by the separation between the House of Commons and the House of Lords. Historically speaking, the House of Lords looked after Law (Lord Chancellor) and the House of Commons (Chancellor of the Exchequeur) looked after Money. The House of Lords “looked after Law” in two ways: ﬁrst by being a brake on legislation passed by the House of Commons, and secondly by being the ultimate interpreter of the law by being the home of the highest court in the land (the Law Lords). To say that in the past we have had no separation of powers misses the point. In the past the separation that mattered was between the House of Lords and the House of Commons. Now that that separation is breaking down, steps have to be taken to ensure that the Law Lords in their new guise as judges of the Supreme Court have as much independence from the House of Commons and the Executive as they have enjoyed in the past. One of the important ways in which this can be done is by making it clear that the new Court is administratively independent. 9673871038 Page Type [E] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

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In a democratic society, the courts (particularly the highest court in the land) must be and must be seen to be as quite separate from the popularly elected legislature. The House of Lords was a safe haven for the ultimate court in the land so long as it had the capacity to “look after Law”. Now that capacity is going so a new safe haven has to be constructed. The process of reforming the House of Lords is incomplete. It will be sometime before we know to what extent it will or will not be a popularly elected part of the legislature. April 2004

Evidence of Professor I R Scott, Institute of Judicial Administration, School of Law, University of Birmingham given to the House of Commons Constitutional Affairs Committee

A. Introduction 1. I understand that members of the Committee have available to them the paper (dated 8 September 2003) that I submitted to the Department for Constitutional AVairs in response to the consultation paper circulated by the Department in July 2003, entitled Constitutional reform: a Supreme Court for the United Kingdom (CP11/03). My paper was short and was confined to the proposals put forward in paragraphs 63 et seq of the consultation paper under the heading “Administration, funding and support”. 2. My submission was that those proposals, which envisage that the administration of the Supreme Court should be the responsibility of the Department for Constitutional AVairs, were wholly inadequate. I suggested that it was important to ensure (what I called) the “corporate independence” of the proposed new Supreme Court. I was particularly critical of the fact that the consultation paper made no attempt to canvass alternative arrangements that might be made for administration, funding and support to achieve that objective. In my submission I concentrated on a small number of, what could be called, “constitutional” justifications for corporate independence and only hinted at, what could be called, practical “organisation and management” justifications. In this paper I try to focus on the latter justifications. (In the response to the Consultation Paper prepared by the Lords of Appeal in Ordinary their Lordships said that they agreed with what I had said in my paper as to corporate independence; see The Law Lords response to the Government’s consultation paper on Constitutional reform: a Supreme Court for the United Kingdom, paragraph 4. It may be noted that the Law Lords say that the new court could not be appropriately administered by the Court Service, but it is administration by the Department that is proposed, not by the Court Service.) 3. In legal systems in countries with a system of government similar to that in the United Kingdom (ie a system of “responsible government”, often known elsewhere as the “Westminster system”), the arrangements for the administration of courts vary. The various court administration schemes can be classified according to the way in which they strike a balance between the responsibilities and powers of the courts, on the one hand, and of departments of central government, on the other. In theory, at one extreme, the scheme may be “executive- based” and at the other “judiciary-based”. In practice, most schemes fall somewhere between the two. There is a substantial literature on the subject, and it includes a number of reports containing wide-ranging surveys of court administration systems in various North American and Australasian jurisdictions. Professor Martin L Friedland’s report for the Canadian Judicial Council, published in 1995, would give any one coming to the subject for the first time a flying start (Friedland, A Place Apart: Judicial Accountability in Canada (CJC, 1995).

B. Judicial Independence and Governmental Accountability 4. In 1981, Canadian authors wrote (Millar and Baar, Judicial Administration in Canada (1981) p 53) “The major constitutional issue in court administration is . . . the role and authority of the judges themselves. Does it follow from the principle of judicial independence that judges must have authority over administrative matters incidental to the proper administration of justice? Or do the principles of parliamentary government require that administrative matters be the domain of a minister of the Crown who is answerable to the legislature? Indeed, are the principles of parliamentary government and independence of the judiciary compatible with one another?” 5. In 1986, I ventured to write (I R Scott, “The Future of Judicial Administration”, AIJA Seminar on Constitutional and Administrative Responsibilities for the Administration of Justice (1986) Chapter 7): “It is my view that there is nothing in the doctrine of separation of powers or the principle of judicial independence that gives a convincing answer to the question ‘Who runs the courts?’ I think this is partly because those constitutional principles are indeterminate in their practical eVects.” 9673871039 Page Type [O] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

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I am immodest enough to say that that view has become the conventional wisdom amongst those who have conducted research into court administration in the years since. The question has become: in the interests of good government, how best may court administration arrangements be structured? In this context, “good government” means designing practical arrangements that ensure the rule of law, sustain the separation of powers and protect the independence of the judiciary. This, in turn, means giving the courts as institutions as much control over their own aVairs as possible, whilst ensuring accountability for the expenditure of funds that must be appropriated by Parliament. 6. In England and Wales, the arrangements for court administration were settled in 1971 by the implementation of the recommendations of the Beeching Commission. By the Courts Act 1971, administrative responsibility for the courts above the level of magistrates’ courts (not, of course, including the House of Lords in its judicial capacity) was placed in the hands of the Lord Chancellor. The English arrangements are an extreme example of an executive-based system and the proposals for the administration of the new Supreme Court follow that model. It is not a model that has commended itself to any other legal system operating within a Westminster style of government. It has been generally assumed that English arrangements have only been possible because of the special constitutional position of the Lord Chancellor, at once both head of the judiciary and a minister. (It should be remembered that, by statute, the Lord Chancellor is a judge of the High Court and an ex oYcio judge of the Court of Appeal.) In 1968, Sir George Coldstream (who was permanent secretary in the Lord Chancellor’s Department and a member of the Beeching Commission) fended oV the suggestion that the English courts might be administered along similar lines to American federal courts by saying that in America “the judiciary is regarded as a separate constitutional entity to an extent not recognised, consciously at any rate, over here, where we are content to let the hybrid institution of the Lord Chancellor act as a catalyst between the constitutionally competing functions of the legislature, the judiciary and the executive”.

C. The Revolution in Public Sector Governance 7. In modern times, the debate about how best to administer courts has been significantly aVected by the revolution in public sector governance that has occurred, both in the United Kingdom and elsewhere, during the past decade. 8. As Professor Philip Williams and his colleagues have explained (Alford, Gustavson and Williams, “Court governance: Can justice be measured?” paper prepared for AIJA Annual Conference, Fremantle, Western Australia, 21 September 2003): “This revolution has consisted of two principal elements. The first has been the move to split service- delivery from policy, by separating agencies into a policy/purchasing function on the one hand, and service-provision functions on the other, with contract-like relations between them. This restructuring has gone hand-in-hand with a second type of change: a recasting of the budgetary framework. Most governments have adopted a form of either program budgeting or output budgeting in which parliamentary appropriations are allocated not by line-item functions, such as salaries or accommodation, but rather by groups of results sought or produced. ...Although these changes have given line departments more autonomy in how they do their work, they have tightened Treasury control over the results they must deliver. This tightening of Treasury control over the objectives of government agencies (including courts) is at the heart of much of the current conflict between the courts and the executive.”

D. Court Administration in the U.K. 9. One can see the impact of this revolution in the way in which all government departments in the U.K. are required to define and measure their work through a series of objectives and targets. It is worthwhile pausing to get some flavour of how this works. 10. By “Strategic Objectives” a department’s long-term aspirations and the general scope of its work are defined. Among the SOs for the Lord Chancellor’s Department is the following (SO6): “Deliver justice in partnership with the independent judiciary”. 11. Public Service Agreements contain descriptive and measurable targets that support SOs. PSAs are published periodically to define a department’s major programmes and objectives for the period of one spending review. Among LCD PSAs is the following, to take just one at random (PSA6b): “Secure year-on- year increases of at least 5 per cent in the number of international legal disputes resolved in the UK” (this PSA seems to be unknown to those lawyers and judges anxious to see a new Commercial Court built). 9673871039 Page Type [E] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

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12. Service Delivery Agreements contain targets that support PSA targets. They break down in more detail the specific milestones that a department is seeking to reach, and can be measured against a deadline target. SDA targets cover the ways in which the department delivers its services, such as providing value for money. 13. In 1995 the Court Service was launched as a “next steps” agency of the LCD with its own Framework Document and Corporate and Business Plans. In the documentation produced at that time (in so far as it was made public) some feeble attempts were made to acknowledge that judges have some role to play in court administration. The Chief Executive was exhorted to work closely with the senior judiciary. However, the change of status of the Court Service did nothing to alter the fact that court administration in England remained firmly executive-based. 14. The Court Service has its own PSA and SDA targets. Among the Service’s SDAs is the following (SDA49): “Increasing the VFM of civil law business by increasing the percentage of Court Service civil business dealt with in target time and reducing in real terms the unit cost of an item of originating process in civil courts by an average of 3 per cent per annum.” The Service labours under many other equally prescriptive SDAs (many apparently designed to drive down costs year on year). 15. Now, what strikes one as one reads through all of the documentation relating to the target setting in relation to the administration of justice through the courts that has accompanied the revolution that has occurred in the structure of public sector governance is the sheer banality and futility of it all. 16. Objectives and targets are apparently quite randomly selected. They are disjointed. They mix high-level, unmeasurable goals and highly specific targets together as if they are all of a seam. From time to time particular targets are abandoned or significantly revised without explanation. Quite often, in terms, they are almost meaningless. Where they are highly prescriptive they often seem to be directed at administrative problems that are quite puny when put in perspective. They wander back and forth across the boundary between case management (as understood by judges and lawyers) and what might be called “pure” court administration. Generally, they fail to address core judicial and court administration functions in any structured, connected way. Many of the targets and objectives cannot possibly be achieved by court administrators under their own steam because, as a practical matter, their accomplishment is almost entirely dependent upon the way in which judges go about their work (in other words, the administrators’ responsibilities far exceed their authority). To my mind, the lack of rigour in relating targets to what courts actually do is astonishing. If one draws all this to the attention of individual judges they are amazed, and not a little concerned. 17. In England (and probably too in the other constituent parts of the U.K.) we have completely lost sight of the fact that courts are organisations consisting of judges exercising the judicial power and that, as organisations, they require administrative support. The LCD and the Court Service have become the central organisational focus and judges have become marginalised. The LCD and the Court Service, having lost sight of the distinction between judges and courts, have no idea who their “customers” are. Structures that have been put in place to smooth relations between judges and administrators have not worked. Judges serving as presiding judges and in other capacities that bring them into working contact with court administrators are often frustrated in their attempts to improve the working of the courts. The civil servants, finding it impossible to serve two masters, have opted to serve their departmental heads. The senior civil servants have one principal objective in mind, that is, to keep their Ministers out of trouble. Put shortly, the executive-based court administration system is fatally flawed. The tensions inherent in it must be resolved. Unfortunately, the prospects of any fundamental changes being made are bleak. No political party with any hope of forming a government in the foreseeable future is likely to put court administration reform in its manifesto. The slogan “home rule for the courts” (attributed to Lord Hewart LCJ) does not have legs. 18. However, the setting up of a new Supreme Court presents an opportunity to make a modest beginning, bearing in mind that the best administrative arrangements for a small, final court of appeal might well be quite diVerent (insofar as the respective responsibilities of judiciary and executive might be apportioned) than the best arrangements for a network of regional trial courts (towards which the 1969 Beeching recommendations were directed). If, in the event, the proposals for the administration, funding and support of new Supreme Court as set out in the consultation paper are implemented, presumably the Department of Constitutional AVairs will have to indulge in the fantasy world of dreaming up some SOs, PSAs and SDAs. What on earth will they say? Will the judges of the new Court be consulted about them? Will they have a veto? Will the SDAs include targets designed to drive down the costs of particular aspects of the Court’s activities (and will the judges know that)? 19. Lord Mackay LC, who presided over the LCD during the onset of the revolution in public sector governance referred to above, was an ardent defender of the Beeching system. His Lordship conceded that, in order to preserve their independence “the judges must have some control over the administrative penumbra immediately surrounding the judicial process” (“The Lord Chancellor in the 1990s” (1991) 44 Current Legal 9673871039 Page Type [O] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

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Problems 241), but he considered that “any move to making the professional judiciary who are tenured responsible for administration of the courts and for the administration of the Vote for the courts, to the House of Commons, would be an extremely retrograde and confusing step”. In his Lordship’s view, the support of the courts in these matters is “the duty and the responsibility of the executive and should be clearly seen to remain so” (“The Administration of Justice: The Courts” Hamlyn Lecture 1993). The key words here are “duty” and “responsibility”. Sadly, many members of the judiciary believe that there is no way in which that duty to support the courts can be enforced. The legitimacy of the Beeching system hung on the slender thread of the peculiar constitutional position of the Lord Chancellor. (It was not unimportant that the Lord Chancellor dwelt in the House of Lords, that part of the legislature to a degree shielded from government pressures, and that the Chancellor of the Exchequer dwelt in the House of Commons.) That thread has now been cut. Judicial confidence and trust were already ebbing away; it has now gone. The precipitate way in which the oYce was dismantled has raised the question: “what will they do next?”. If they can do it once they can do it again. It is time to construct the administrative arrangements for the courts on firmer foundations and to make a decisive shift away from the extreme executive-based system that is presently in place. To a significant extent, the case for the corporate independence of the new Court is bolstered by the feeling that the Beeching arrangements have failed. (It is perhaps significant that some of the Law Lords attracted to the idea of corporate independence previously served in superior courts administered under the Beeching executive- based system.)

E. Other Court Administration Models 20. There are other court administration models to hand. These models, devised in jurisdictions governed under the Westminster system, recognise that courts are corporations and seek to engage the courts in running their own aVairs, whilst protecting the public purse. It is important to note at the outset that they do not eradicate entirely the potential for friction between government and courts; that would be impossible and perhaps not desirable. Judges with administrative responsibilities in courts administered under systems that are more judiciary-based than executive-based still face the reality of having to husband resources and of having to accept that they live in a world where they have to do more with less. (Justice, like health and education, is rationed.) But judiciary-based systems do go a long way towards strengthening the courts as a branch of government separate from the executive and the legislature (and they have other advantages). 21. It is important to note that superior courts are organisations that consist of judges. The court is the judges and the judges are the court. The court is a collegiate organisation responsible for the discharge of the judicial power (a prerogative power). 22. The new UK Supreme Court will be a small, ﬁnal court of appeal exercising a small but very important part of the judicial power. As an organisation, it is important that it should be, and should be seen to be, quite independent from the other branches of government (corporate independence). The funding and support that it will require will be modest, and the administrative arrangements required to support it should be quite uncomplicated. Corporate independence for the new Supreme Court is achievable. All that is required is some imagination and a willingness to break free from the discredited Beeching system. (Senior oYcers in the former LCD were not known for the imagination in matters of court governance. In my opinion, they did a poor job in adjusting the arrangements for the administration of the courts to the new realities of public sector governance referred to above.)

The High Court of Australia 23. The new Supreme Court will play a similar role in the U.K. to that played by the High Court of Australia. The administrative arrangements for the HCA may provide a model. The primary legislation relating to the administration of the High Court of Australia is found in the High Court of Australia Act 1979 Pt III. Section 17 of that Act states that the High Court “shall administer its own aVairs”. The Court has power for the purposes of the Court to do all things that are necessary or convenient to be done for or in connection with the administration of its aVairs, including power: (a) to enter into contracts (but ministerial approval for contracts in excess of a certain amount is required); (b) to acquire, hold and dispose of real and personal property; (c) to take on hire, to exchange, and to accept on deposit or loan, library material, and also furnishings, equipment and goods needed for the purposes of the Court; (d) to control and manage any land or building occupied by the Court and any adjacent land or building that is declared by Proclamation to be part of the precincts of the Court. The Court acts collectively, although it “may appoint committees consisting of Justices, or of Justices and other persons, for the purpose of advising the Court in relation to” the administration of the Court. 9673871039 Page Type [E] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

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24. The Chief Executive and Principal Registrar of the Court is appointed by the Governor-General on the nomination of the Court. The CEO “has the function of acting on behalf of, and assisting, the justices in the administration of the Court”. The CEO appoints such other oYcers as the Court considers necessary. The terms and conditions of employment of oYcers or employees appointed are determined by the Court. 25. The High Court prepares estimates and submits them to the Minister for Finance (the Treasurer). Monies appropriated by Parliament for the Court are paid to the Court. The Court is required to submit to the Minister an annual report, together with financial statements. Before submitting financial statements the Court is required to submit them to the Auditor-General who shall report to the Minister as to various matters. 26. Other federal courts in Australia were given administrative autonomy by the enactment of the Courts and Tribunals Administration Amendment Act 1989. This legislation transferred administrative and financial responsibility for the Federal Court of Australia and the Family Court of Australia from the Attorney- General’s Department to the Courts. The detailed provisions in this legislation were not the same as those found in the High Court of Australia Act 1979. For example, the FCA model diVers from the HC model in that the Chief Justice of the FCA, rather than the Court collectively, is “responsible for the administrative aVairs of the Court”. 27. In South Australia, the arrangements for the administration of the state courts is the responsibility of a State Courts Administration Council created by statute consisting of the Chief Judge of the Supreme Court the Chief Judge of the District Court and the Chief Magistrate of the Magistrates Court. The Council administers one budget for all levels of court and is responsible for providing, or arranging for the provision of, the administrative facilities and services for participating courts that are necessary to enable those courts to carry out their judicial functions”.

The Family Court of Australia 28. It is important to notice that the Australian arrangements do not create, what Lord Hailsham LC called, a “legal Arcadia”. The budgets of the Federal Courts are still controlled by the Government through the Attorney-General’s Department. The mechanics of the arrangement insofar as it aVects the FCA may brieﬂy be described as follows. 29. The budget is negotiated directly by the CEO of the Court and his staV with the Department of Finance [Treasury]. Once agreed, budgets are submitted by the Executive to Parliament, which make the appropriation. The Court’s budget formally forms part of the Attorney General’s Department budget but is paid directly to the Court. Once the budget has been approved the Court has authority to allocate funds as it requires. The Chief Justice, assisted by the CEO, is responsible for management of the budget, but as a practical matter the CEO carries out most of the work involved. For example, the CEO appears to give evidence before parliamentary estimates committees. For the purposes of the Financial Management and Accountability Act, the FCA is an “agency” and the Court’s CEO is an agency head. The performance of the agency is subject to scrutiny by parliament through Senate estimates hearings and through audits by the National Audit OYce. 30. As noted above, friction between the executive branch and the judicial branch is not avoided by these arrangements, and means for improving the relationship are constantly sought. Sir Anthony Mason, former Chief Justice of Australia, has suggested that, as in the United States, court funding should be determined by Parliament, rather than through the Department of Finance. Such a development is unlikely. What is more likely is that courts and government will continue to build on what they have got. 31. The contrast between executive-based systems and judiciary-based systems is striking. In judiciary-based systems the discipline of court administration comes of age. Where judiciary-based systems are working at their best, there is an openness about the funding of, and administration of, the courts that is entirely lacking in England. Because court administrators are alongside of, and responsible to, the judges, they do not have to prevaricate or evade when dealing with the judges. The problem of divided loyalties goes away. A pro-active approach to court management emerges. (In England, there are many layers of management in the closed world of court administration, and most of them seem to exist for the purpose of saying “no”.) Judges with administrative responsibilities and court staV are on the same team, and value one another’s ideas and sympathise with one another’s diYculties in discharging their tasks. Experiments can be tried. New ideas for improving court performance can be worked up at local level. Judges are not alienated. They learn about administrative matters and understand that sometimes hard choices have to be made about what can and cannot be done. Relationships between courts and professional bodies and court-user groups improve immeasurably because the judges and the administrators who serve them are able to present a united front and, therefore, are in a position to negotiate more eVectively with such bodies and groups. (In England, the division in responsibilities between judges and administrators creates a serious weakness in this respect.) Court 9673871039 Page Type [O] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

constitutional reform bill [hl] committee: evidence 409 administrators become a professional class. Leaders among them emerge, ready and able to participate in conferences and seminars without first having to utter weasel words about “not being able to speak on behalf of the Department” or “Parliament have first to be told”, or “Ministers have not taken decisions”, and all of the other evasive claptrap that civil servants have at their command when pressed. (It is significant that, in all the years since the Beeching scheme came into force, England has produced no single person who has made a contribution to the discipline of court administration of national or international significance. That is part of the price that has been paid for allowing court administration to fall into the closed world of central government bureaucracy.)

F. Conclusion 32. The existing arrangements for the administration, funding and support for the Appeal Committee of the House of Lords are outlined in the consultation paper. Oddly, those arrangements would seem to give the Appeal Committee greater protection from the executive branch of government than the proposals put forward in the consultation paper for the administration of the new Supreme Court. It can be argued that if there is one court in the land that should run its own aVairs it is the ultimate court of appeal. How might that be done? As I hope I have indicated in this paper, elsewhere in the world (not only in Australia, to which I have referred, but also in Canada, to which I have not) judiciary-based systems have been designed; they seem to work well and they maintain governmental accountability. The civil servants in the Department of Constitutional AVairs ought to be challenged to design a judiciary-based administration system for the new Supreme Court that would be workable in U.K. conditions so that informed decisions can be made. The fact that the consultation paper does not oVer up a possible judiciary-based system for consideration has aroused suspicions (perhaps the omission is simply explained by a lack of professionalism in the Department). A bald assertion by the Department that the proposals in the consultation paper are best will not do. The Department must overcome its addiction to the Beeching inspired executive-based system. The addiction is understandable given the power and authority it gives to the Department. The English executive-based system was devised primarily for the purpose of providing for the administration of high volume trial courts (particularly those operating in the regions), and not for superior courts carrying out important appeal and review work, and certainly not for an ultimate court of appeal discharging the enormous responsibilities that will be carried by the new Supreme Court. 33. The salaries of the judges of the new Court will fall on the consolidated fund and are not provided by annual Parliamentary Vote. The key question is: how is accountability going to be ensured for those running costs of the Court that must necessarily come from funds appropriated by Parliament? The new Court will need to be housed in a suitable building. The running costs for that will be significant. It is well-known that a prime cause of friction between courts and executives is the provision of suitable accommodation. This should be anticipated and steps taken at the outset to minimise the problem so that it does not become chronic and a constant threat to the maintenance in the long term of trust between the Court and government. There is no reason why the new Court should not be given and should thereafter own its own building. A radical solution would be for the Court to be given, as a once-and-for-all settlement, a building that is 10 times bigger than its needs on the understanding that it would occupy one-tenth and apply the rental incomes from the other nine tenths to the upkeep of the building (I can picture Mandarins fainting as I write this). 34. The Court should be responsible for its own administration. Whether administrative authority should be given to the senior judge or to the judges collectively is not a matter that should be diYcult to resolve. The Court should appoint its own administrative oYcers and employ its own staV. The Court should have its own library and IT facilities. The Court, with the assistance of its executive oYcers should prepare its own budget and should collect and keep its own fees. The budget should be negotiated directly with the Treasury. Any Treasury objection to this should be met with the robust argument that the Court is not simply another government agency or service whose entreaties for money should be filtered through a ministry, but an organization sitting at the top of a co-equal branch of government and exercising prerogative power. Further, if Lord Mackay was right in saying that the executive and the legislature have a duty to see that the courts are properly funded, that duty as owed to the highest court in the land must be brought home strongly where it cannot readily be evaded. 35. It may faintly be argued, in support of the proposals put forward in the consultation paper to the eVect that funding, admission and support should be the responsibility of the Department for Constitutional AVairs, that, as the Department is responsible for other courts, certain benefits would accrue to the new Supreme Court if its administration remained within the fold. For example, it may be said that the Department and the Court Service is rich with highly skilled administrators available to assist the new Court according to need. The answer to that is that it would not be necessary for the new Court to be run by the Department for the Court to have access to such expertise (or indeed, expertise to be found elsewhere), if and when it is needed. 9673871039 Page Type [E] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

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As a practical matter, help is most likely to be needed in relation to the framing of the Court’s budget. The Australian judiciary-based systems anticipate this and ensure that the necessary assistance from central government is available to the courts. 36. It may also be said (again faintly) that an advantage for the Supreme Court of staying within the fold would be that the Court would beneﬁt from the fact that it was administered by a Department that had large funds at its disposal some of which could be applied to particular, special and non-recurring needs of the Court from time to time. The short answer to this is that it is not right that the funding of the highest court in the United Kingdom should in any way be linked to expenditure needs of other courts (most of which goes on supporting courts in England). 27 November 2003

Response to the Government’s consultation on: A Supreme Court for the United Kingdom from Prof I R Scott, laid also before the Select Committee

A. Introduction

My response is conﬁned to the section of the consultationpaper headed “Administration, funding and support” (para 63 et seq).

B. The Proposal and its Justifications

It is proposed that the administration of and resourcing for the new Court should come within the responsibility of the Department for Constitutional AVairs (part of the executive branch of government). This proposal is justified in paragraphs 64 and 65. It my opinion, the reasoning given in those paragraphs is specious and weak. Certainly the arguments based on central services and in particular on IT are disingenuous. As an organisation, the new Supreme Court will be about the same size as a small firm of solicitors or barristers’ chambers. As such it will be perfectly capable of administering itself in an eYcient and economical manner (and may be best advised to do so, given the appallingly bad record that the Lord Chancellor’s Department has in managing IT provision for courts). It would seem that the intention is to arrange for the proposed Supreme Court to be administered in much the same way as the existing superior courts in the United Kingdom are presently administered. In my view that is wrong, both in principle and from a practical point of view. It is important, not only that judges should be independent, but also that the courts they constitute should be independent. Unfortunately, the superior courts in the United Kingdom do not enjoy “corporate” independence. The fact that they do not should not lead to the conclusion that the proposed new Supreme Court (which is to be the highest court in the land) should be denied corporate independence. If the Supreme Court is to be denied corporate independence, that should be justified in a principled way. Paragraphs 64 and 65 do not come close to doing this. All they oVer is a rag-bag of low level practical justifications, none of which amounts to much.

C. Corporate Independence

I am aware of the fact that the argument that the Supreme Court should be an independent corporation, administering its own aVairs, is an unfashionable one and not likely to be welcomed by those promoting the consultation paper. It is not an argument that can be put simply. The judicial administration literature on the extent to which courts may and should be able to administer themselves is considerable (though apparently unread in Whitehall and in the Court Service) and I suspect I would be wasting my time in trying to review it, to summarise it, and to apply it to the proposed Supreme Court. In this response to the consultation paper I conﬁne myself to a few points selected on the basis that they do not always receive the emphasis they deserve when issues concerning the administration of courts are debated. Inevitably, because I am not attempting to be comprehensive, what follows is to an extent disjointed. 9673871040 Page Type [O] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

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D. Some Justifications for Corporate Independence

Put simply, the doctrine of separation of powers holds that the legislative, administrative and judicial functions of government should be discharged by separate institutions, the legislature, the executive and the judiciary. By these means, amongst other things, the rule of law is secured. Within a democratic system of government, the ways in which such separate institutions are constructed, and their relationships one with another adjusted, can vary enormously. No system of government maintains a strict divide. That would be impossible. The best that can be hoped for is a system of “checks and balances”, with each branch licensed “to fish in one another’s pond” to a degree. Neither the legislature nor the judicial branch is self-perpetuating. The members of the legislature are subject to periodic elections. The judges are appointed by the executive (the significance of this “interference” by one branch of government with the aVairs of another cannot be exaggerated) and serve only until a statutory retirement age. But once appointed, the executive must leave the judge alone. The judge does not operate in a vacuum. He or she operates in an institutional context. Leaving the judge alone should mean also leaving that institution alone. Because the ways in which that institution is structured and administered directly aVects the capacity of the judge to discharge his or her functions. The maintenance of the separation of the judicial branch from the others is to an extent secured by devices designed to ensure the independence of the judges in their day to day decision making. But this alone does not secure the independence of the judicial branch (in a corporate sense) from the legislature and the executive (in their corporate senses). Members of parliament and civil servants enjoy certain protections in their day to day tasks (an MP cannot be prevented from attending parliament and a civil servant cannot be summarily sacked). But no one would suggest that these “personal protections” secure the independence of the institutions that MPs and civil servants serve. The independence of the judicial branch may be justified on various grounds. One that tends to be forgotten is that it enhances the legitimacy of the other branches of government, because the truth is that the courts spend a lot of their time supporting the expressed will of the legislature (by faithfully applying enacted law in cases arising) and supporting the activities of the executive branch (through decisions in individual cases where executive departments and their agencies are parties to cases arising). It is in the interests of the government of the day and of the legislature that the courts as institutions (and not merely judges as individuals) should be, and should be seen to be, at arm’s length, and should not be seen as their poodles. The proper separation of powers requires the “corporate” independence of the branches of government. Parliament is a corporation of members of parliament, an institution that, with the help of oYcers and staV, administers itself (and is not administered by the executive branch). Superior courts are corporations consisting of judges. They, too, should be institutions that, with the help of oYcers and staV, administer themselves. Courts have to be “administered”. What is meant by that? (It means in part dealing with the procedural and administrative case-orientated matters traditionally dealt with by rules of court; but it means much more than that.) And how and by whom, should it be accomplished? It seems to be the case that, for various good reasons, this involves some kind of cooperation between the executive and judicial branches of government. Elsewhere in the world, quite a lot of eVort has gone into designing mechanisms for the funding of courts and into trying to identify and classify court administration “functions”, with a view to determining which should functions should be wholly the responsibility of the courts (that is to say, of the judges and non-judicial staV working for the courts) and which should be wholly the responsibility of the executive branch and which should be a cooperative endeavour. (A result of one such exercise can be seen in the High Court of Australia Act 1979.) Unfortunately, in the United Kingdom no serious attention has been given to these issues. Over the years, slowly but surely court administration powers have been sucked into the executive branch. Thus, in this country court administration is not “judiciary-based” but “executive-based”. Within the executive branch of government, a bloated, hugely expensive and ineYcient court administration bureaucracy has grown up. (Departments of executive government may be fine instruments for discharging certain governmental tasks, but experience has shown that running courts and justice-related agencies (CPS, CAFCASS etc), whether directly or through “next steps” agencies, is not one them. There are reasons for this.) Elsewhere in the democratic world, care is taken to protect and preserve the “corporate” independence of the courts by ensuring that, so far as may be, they are responsible for court administration. This is not so in the UK. This is wrong in principle and dangerous. It would be dangerous anywhere but it is particularly dangerous in the UK because the UK constitution has a feature not shared by continental systems of government or by the state and federal systems of government in the United States. 9673871040 Page Type [E] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

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That diVerent feature is this. Under the UK system of government, within the executive branch of government a distinction has to be drawn between, what could be called, (1) the “administrative executive”, and what could be called, (2) the “political executive”. The former consists of civil servants, and the latter of politicians (either elected or appointed) making up the government of the day. Under the UK system, the political executive dominates the administrative executive, and it also (unlike the position on the Continent and in America) dominates the legislature. This means that, if the governmental task of administering the courts is placed largely within the executive branch of government, the judicial branch of government can be routinely overborne, not only by the regular activities of the executive branch discharging such judicial administration functions as it enjoys, but also by the occasional activities of the legislature, spurred into action by the political executive (perhaps reﬂecting short term political pressures). (In American and Continental systems of government, the executive, whatever its settled court administration powers may be, cannot readily use the legislature as its instrument for altering those powers for the purpose of interfering with the judicial branch, for good or ill.) Thus, in the UK the independence of the judiciary is seriously invaded on two fronts. The judicial branch is not “separate but equal” but rather “separate but subservient”, and subservient both to the legislature and to the executive. Good government demands that this position be redressed in relation to the existing UK superior courts, and that the proposed Supreme Court should not treated in the same way as the superior courts are treated at present.

E. Conclusion It is submitted that the section of the consultation paper headed “Administration, funding and support” (para 63 et seq) is wholly inadequate. It completely ignores the case for “corporate” independence. The presumption ought to be that the new Supreme Court will administer itself (as Parliament administers itself) and attention should be focused on the arrangements that necessarily will have to be made between the Court and the other branches of government to ensure that this is achieved eYciently and eVectively. A few, indeed only a very few, of the arguments in favour of corporate independence have been explained above. Emphasis has been placed on, what could be called, constitutional justifications for corporate independence rather that on practical organisation and management justifications. (Justifications of the latter type are many and cannot shortly be explained.) 8 September 2003

Memorandum by the Scottish Ministers

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5. That separation should be transparent and be suYcient to eliminate any concerns—whether real or perceived—that Judges are not independent, impartial or free from prejudice or bias. 6. The Executive has made clear (and in doing so agrees with DCA) that there is no suggestion that the independence of the Law Lords has been compromised. However, having Law Lords sitting both as judges and as legislators gives rise to a risk that the separation of their roles may not be perceived or properly understood. 7. The Scottish Parliament had the opportunity on 29 January to debate the proposals on an Executive motion and voted to support the establishment of the Supreme Court.

Implications for Scotland

8. The Scottish Executive has given close scrutiny to the proposals, having regard to their implications on the Scottish legal system and to the need and desirability of preserving the independence and integrity of Scots law. 9. At a constitutional level, the preservation of the independence and integrity of Scots law is rooted in the continuation of the separate existence of Scots law, as provided for in the Act of Union. 10. The Executive believe that the Constitutional Reform Bill properly respects the separate nature of Scots law and the protections set out in the Act of Union. The Executive agrees with the analysis by the Lord Advocate of the assertion. that the establishment of a Supreme Court would not infringe the Claim of Right and/or the Treaty of Union. His views were set out in a lecture to the Law Society of Scotland on 21 January (a copy is appended). 11. There are two strands to this which are of particular importance. Firstly, the Scottish Executive has carefully considered the administrative structures proposed with a view to ensuring that, in terms of legal analysis, Scots law does not become subservient to the law of England and Wales by virtue of these proposals. 12. A concern has been raised in this respect in connection with governance arrangements for the court proposed by the DCA. This concern arises at a general (as opposed to a peculiarly Scottish) level and was addressed by the written and oral evidence given by the Secretary of State and Lord Chancellor to the Special Select Committee. 13. The DCA has responsibility for the administration and financing of the court system for England and Wales but as the Secretary of State and Lord Chancellor has made clear in his evidence to this Committee, the separate governance arrangements for the Supreme Court do not, on any assessment, have the eVect of placing the Supreme Court (and so Scots law) subservient to the court system for England and Wales. For that reason, the Scottish Executive do not consider that the proposals, in relation to governance, are contrary to the Act of Union. 14. Secondly, the Scottish. Executive is alert to the fact that, as a general proposition, the current civil jurisdiction of the Appellate Committee is not a unified jurisdiction throughout the whole of the United Kingdom but comprises three separate jurisdictions—Scotland, England and Wales, and Northern Ireland— dependent on the court from which the appeal to the House of Lords is taken. 15. In view of the Scottish Executive, the transfer of the jurisdiction of the Appellate Committee to the new Supreme Court does not in itself, have the eVect, as a matter of law, of merging those streams of jurisdiction. Accordingly, in future, it will remain the position (to the same extent as at present) that a decision in a case emanating from Scotland will be binding in relation to Scotland but only persuasive in relation to England and Wales (and vice versa). 16. As a transfer of the existing jurisdiction in itself would not, in the view of the Executive, impact or impinge upon those jurisdictions, the Bill does not at present have or require an express provision preserving the current position. 17. Concerns have, however, been raised that the creation of a Supreme Court will create a momentum towards the idea of a unified body of UK law which will be inconsistent with the maintenance of those two independent streams of jurisdiction. The Secretary of State and Lord Chancellor, therefore, in. his evidence to the Committee has indicated his intention to bring forward an amendment to entrench the current degree of separation of jurisdictional streams. The Scottish Executive support that proposal. 9673871041 Page Type [E] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

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Number of Scottish Judges

18. Moving on from constitutional issues, the Scottish Executive would wish to address one further issue concerning the way in which Scottish cases are to be dealt with by the new Supreme Court. This issue relates to the number of Scottish Judges who would sit as Supreme Court Judges and the question of whether there should or could be a Scottish majority in all or some Supreme Court panels hearing cases emanating from Scotland

19. At present, by convention no fewer than two of the Judges appointed to the House of Lords are judges who have held high judicial oYce in Scotland.

20. It is entirely a matter for the Government (subject to the agreement of Parliament) to determine the number of Judges sitting in the Supreme Court from time to time having regard to the level of judicial business. The Scottish Executive are content with the proposal that at commencement the number of such Judges is to be 12 comprising the existing Lords of Appeal in Ordinary. The Scottish Executive agree that, on that basis, there should be no fewer than two suitably qualiﬁed Judges from Scotland.

21. The Scottish Executive considers that it is important that, for so long as there are 12 permanent judges in the Supreme Court, the convention should be that at least two should have held judicial oYce in Scotland. Were the qualifications and practices to allow for lawyers who have not held judicial oYce being appointed to the Supreme Court, then the requirement would be for someone qualified in Scots Law who has practised and was familiar with Scots Law. In any event the conversation should be that there were at least two (out of 12) identifiable Scots lawyers. Were the number to increase then consideration should be given to increasing the nuumber of permanent Scots judges.

22. While the Executive does not consider it. necessary to set out a minimum number on the facie of the Bill, the Executive is concerned to establish a proper mechanism for continuation of the convention. The Executive votes and welcomes the commitment from the Secretary of State and Lord Chancellor that the convention will be respected. The Executive is in discussion with the DCA about the mechanism for enshrining the convention.

23. In most, though not all, cases before the Privy Council a majority of the Board have been Scottish judges. This arrangement is a product of the devolution settlement which recognised the importance, and political sensitivity, of devolution issues. The Executive believes that this system has worked well.

24. Accordingly the Executive would wish to see a continuation of the arrangements whereby, where appropriate, a majority of the court hearing a devolution issue, could be Scottish judges. Where appropriate this cap. be extended to other Scottish cases.

25. However the Executive believes that it would be inappropriate to have a rule requiring that Scottish cases always had a majority of Scottish judges. First the Executive recognises that this has not been the rule to date Secondly it would, in eVect divide the court with the possibility that diVerent approaches were taken by diVerent majorities of Scottish and English judges. Thirdly it would be very diYcult to arrange where the court sat in larger panels of 7, 9 or even 11 judges.

26. So far as the appointment process is concerned, the Executive agrees that appointment must be on merit. The Executive agrees that the appointment process must be more open and transparent and based on recommendations from an independent appointments board. The Executive considers that it is vital that there should he a consultation with the senior judiciary in Scotland (ordinarily the Lord President of the Court of Session) and, at the appropriate point in the process with the First Minister. The Executive is in discussion with the DCA on the detail of the mechanism, particularly on the issue of ensuring a continuation of the convention on the minimum number of judges, referred to above.

Sewel Motion

27. The DCA proposals in relation to the creation of a new Supreme Court impinge on the regulation of the Scottish legal system insofar as they modify the appeal jurisdiction from the Inner House of the Court of Session. Accordingly, the relevant provisions of the Bill require the agreement of the Scottish Parliament in accordance with the Sewel convention. The Executive is awaiting the outcome of the Committee’s consideration of the Bill before seeking the consent of the Scottish Parliament by means of a Sewel Motion. 9673871041 Page Type [O] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

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Conclusion 28. Subject to that, the Scottish Executive reiterate its support for the creation of a Supreme Court as an eVective measure of reform, modernising the court system and reaYrming the independence and integrity of Sects law.

Memorandum by Michael Shrimpton

1. I gratefully adopt the recently reported remarks of His Grace the Archbishop of Canterbury, a distinguished member of your Lordships’ House, on the decline of public trust in the government and our institutions, a decline which I submit will be accelerated by this constitutionally dangerous bill. 2. The ancient OYce of Lord Chancellor is a vital as well as venerable part of the Constitution and an important guarantee of the independence of the judiciary. It should be retained in its present form. 3. Considerations of the separation of powers have no place in this debate, for two reasons: firstly successive Lord Chancellors have not allowed their judicial decisions to be influenced by party political considerations and in practice have exercised their executive, judicial and legislative functions independently, ie there is separation of powers in practice if not in theory. I am not a member of his party, but I can think of no Lord Chancellor in modern times who commanded greater respect and aVection than the late Lord Elwyn-Jones, who would surely have recoiled from these proposals and regarded them as destructive. 4. Secondly, we do not have a formal separation of powers in this country as understood in the United States and elsewhere, although even in the United States the Vice-President is an oYcer of the Senate and a member of the legislature, a point recently brought home to me when I had the privilege of observing the Senate in session. 5. Our Lie`ge Sovereign Lady HM the Queen sits at the Apex of the Constitution and both the judicial and executive functions are exercised in Her name. The Queen is not only a vital part of the legislature but is entitled to sit in your Lordships’ House in Her capacity as Duke of Normandy. 6. Considerations derived from treaty arrangements should have no part in determining our Constitution, which is a matter for us and the Commonwealth. Treaties such as the ECHR should yield to constitutional principle not viceversa. There is no reason at all, for example, why the Lord Chancellor should not sit in your Lordships’ House. It is not just that the Lord Chancellor is entitled to sit—it is desirable that he should. I think back to the Boddington case, for example, where the leading speech, given by Lord Irvine of Lairg LC, showed with respect a deeper understanding of constitutional principle than those of the “professional judges.” 8. Turning now to the so-called “Supreme Court”, four observations may be made, putting entirely to one side practical concerns about where it should sit (I was amused to see St. Dunstan’s House mooted in the Times—St. Dunstan’s House is for taxing appeals!). Firstly we already have a Supreme Court of Judicature, so-called because some notion was current when it was mooted that there should be only one tier of appeal from the High Court. I have heard of countries with one supreme court, but two might thought be to excessive, not least since we shall have appeals from the Supreme Court to the Supreme Court. What we are we to call the Supreme Court of Judicature? The “Not-so Supreme Court of Judicature”? I daresay someone has come up with a new title and I am sure it is an obscure part of the bill, but I cannot think why a new name is necessary at all. 8. Secondly it cannot be supreme—the highest court in the land will remain the High Court of Parliament, which may not only repeal the arrangements setting up the “Supreme” Court at any time, in its legislative capacity, but could try the judges of the court in its judicial capacity, eg by Bill of Attainder. Curiously the nominally highest court in the land will have no power to hand down or confirm a death sentence, but the penalty remains available to the High Court of Parliament under the Attainder procedure, although I daresay a Bill of Attainder with provision for the execution of some miscreant minister would have a note about a possible conflict with the Human Rights Act. 9. Thirdly, desirable convergence between British and Commonwealth jurisprudence will in practice be more diYcult than it is under the present arrangements, which allow judges to move freely between the Appellate Committee and the Judicial Committee of the Privy Council. It would still be possible of course, but little thought seems to have been given to the position of the Privy Council vis a vis the new court and I am unaware of any meaningful consultation amongst the Commonwealth of Nations, a community of nations far more important to us in times future as well as past than the European Community. 10. Fourthly, the mishandling of the so-called concept of supremacy of community law and serious constitutional errors such as the heretical suggestion in Factortame (No 1), reversed in M v Home OYce, that ministers cannot be called to account and restrained from illegality in our courts, seriously call into question 9673871042 Page Type [E] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

416 constitutional reform bill [hl] committee: evidence the constitutional competence and literacy of our senior professional judiciary. I speak as counsel who recently had the experience of hearing a Divisional Court (in Thoburn v Sunderland City Council) tell me in all solemnity that a court of law in England was not bound by and considered itself free to depart from plainly expressed words in an Act of Parliament. The court did not express itself in that way of course, but that is what it did. 11. Perhaps I should explain. My late lay client was observed selling a pound of bananas to one of his customers, who turned out upon inquiry to be an undercover trading standards oYcer engaged on a mission of metric espionage. Since he was wont to shout out at the top of his voice “best bananas 25 pence a pound” the necessity for this subterfuge was not immediately apparent. The court accepted that an Act of this Parliament passed in 1985 permitted the use of Imperial measures alongside metric, with no preference for one over the other. An earlier EEC Directive was to the contrary, but it did not have direct eVect and was incorporated under a delegated power granted in an earlier Act, passed in 1972. It was with respect as plain as a pikestaV that the court was duty bound to obey the will of Parliament and give eVect to the later Act. The Appeals Committee not only agreed with the decision of the lower court, but thought the contrary unarguable. 12. The public of this country cannot be expected to have conﬁdence in a new supreme court if this is the quality of decision making that the judges, with great respect, can come up with. Overall there has been a supine response from the professional judiciary to the constitutional challenges posed by our membership of the European Community/Union. Having failed this admittedly stern test the judges cannot be heard to call for greater power, greater isolation from the Parliament whose statutes they have disregarded or “set aside” and reduced accountability to the High Court of Parliament. 13. These proposals with respect are anathema and unworkable and the Bill should be rejected although that is of course entirely a matter for your Lordship’s House and another place. 22 April 2004

Memorandum by The Lord Chancellor

GOVERNMENT AMENDMENTS TO THE BILL

Introduction 1. This document describes the Government amendments to the Constitutional Reform Bill which I wish to move in the Select Committee. Where appropriate, I make suggestions as to the way in which these amendments may best be handled which I hope are consistent with the Committee’s views as expressed at the meeting on 11 May and in response to Lord Richard’s paper. 2. I am not seeking to move all the amendments the Government wishes to make to the Bill in this Committee, rather I have focused on those the Committee will wish to consider, those which deliver agreements with the Lord Chief Justice and those where minor and straightforward corrections may be made to the Bill without impinging on the Committee’s limited time. My proposals for handling the amendments are also intended to ensure that the Committee has time to debate the issues we have identiﬁed as critical and not waste our time on issues we do not consider so pressing. 3. I have grouped the amendments I wish to make to the Constitutional Reform Bill into three categories: — “Substantive Amendments”: those which deal with some of the major issues this Committee has been considering, many of which I mentioned in my speech at Second Reading of the Bill (section one, paragraphs 11 to 31 and annex A); — “Concordat Amendments”: further amendments to the Bill needed to ensure that it delivers the agreements reached with the Lord Chief Justice, set out in the written statement placed in the libraries of both Houses on 26 January 2004 and known as the Concordat (section two, paragraphs 32 to 62; and — “Minor and Technical Amendments”: those which are minor and technical and either simply correct the Bill or provide additional minor provisions to deliver matters consequential to the provisions in the Concordat. These minor Concordat amendments introduce no new principle to the Bill, they simply deal with the detailed eVects of the Concordat (section three, paragraphs 63 to 65 and Annex A). 4. The main part of this note is accordingly divided into three sections, one for each category of amendment. Each part sets out which clauses and schedules of the Bill I am seeking to amend and the eVect each amendment will have. There are a number of proposed amendments in relation to which I am seeking the views of my cabinet colleagues before any ﬁnal decision to go ahead and amend the Bill. If tabled, these will be substantive amendments for full debate by the Committee. 9673871043 Page Type [O] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

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5. At the beginning of each section I have also set out my proposals for handling each category of amendment and am seeking the Committee’s agreement to those arrangements. 6. The Committee should be aware that the amendments described in this paper are in diVerent stages of development. Some are now near complete and ready to table. Others are still at the point where details of drafting and policy remain outstanding. I am conﬁdent that the great majority of the amendments will be ready in time for consideration by the committee. However, I cannot exclude the possibility that despite our best eVorts some of the amendments described here will not be ready in time to be tabled by 4 or 8 June. If that turns out to be the case, I will be bringing those amendments forward in the Committee of the Whole House. In the very few cases where there is a signiﬁcant chance of this happening, it is indicated in the body of the paper. If any such cases do in fact arise the Committee will of course still be able to consider the policy behind the relevant amendments, as described in this paper. 7. In addition, as drafts of some of the minor and technical amendments (described in Annex A) are still in the process of being settled, it is possible it will emerge that some of these amendments are for technical reasons unnecessary, or need to be done in a diVerent way. For example, it might turn out that some of the amendments we have listed separately can be combined in a more convenient way than we envisaged, or that some require additional, minor consequential amendments that we have not spotted. 8. If there are diVerences between the amendments as described in this paper and as tabled in due course, I will bring the diVerences to the Committee’s attention either when tabling the amendments or when the amendments fall to be considered by the Committee. 9. I would also like to bring to the committee’s attention the fact that there will be other amendments we will be bringing forward before the Committee of the Whole House which are not described in this paper. For example, an amendment relating to the involvement of the President of the new Supreme Court in the appointment of the registrar of the Privy Council. Some introduce provisions for Northern Ireland and were set out in my written evidence paper, Proposals relating to Northern Ireland, submitted to the Committee on 26 April 2004. 10. I have assumed that the Committee will consider the Bill clause by clause in the order in which it is printed but schedules will be taken with the clauses to which they relate. I have also assumed that all amendments must be moved as the clauses are reached since each clause will be treated as standing part of the Bill once it has been reached and all consideration has been completed.

SECTION ONE—SUBSTANTIVE AMENDMENTS Overview and Handling 11. I wish to move substantive amendments to Parts Two and Three of the Bill (the Supreme Court and Judicial Appointments Commission). 12. Since these amendments deal with issues which this Committee has been considering, and introduce provisions which, although some were outlined in my Second Reading speech, will be new to both Houses, I propose to move these amendments to the Committee for debate and consideration. 13. The amendments and what they will achieve are set out below.

Substantive Amendments Concerning the Supreme Court

Appointment of judges of the Supreme Court 14. I propose to amend clauses 19 to 22, which make provision for the process of selection and appointment of judges of the Supreme Court, to bring those provisions more into line with the arrangements in Part 3 of the Bill for senior appointments involving the Judicial Appointments Commission in England and Wales. In particular, clause 21 as presently drafted provides for the Supreme Court Appointments Commission (SCAC) to provide the Secretary of State for Constitutional AVairs with a list of between two and ﬁve suitable candidates for each vacancy, from which he will recommend a single candidate to the Prime Minister. The process as it is proposed to be amended will require the Commission to recommend only one candidate, with the Secretary of State having the same limited range of options in response to that recommendation as in Part 3. 15. I propose also to amend the provisions governing the composition of the SCAC, with a view to guaranteeing that the SCAC has a balance of lay and judicial representation and expertise. To that end, clause 20 will be amended in such a way that the Secretary of State will always be in a position to ensure that at least one member of the Commission is lay. 9673871043 Page Type [E] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

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16. As to the process of considering candidates, the provision in Part 2 will be amended to align it far more closely with that in Part 3, providing for appointments to be on merit, with no power in the Secretary of State to prescribe criteria by which candidates must be considered. Merit will be for the SCAC alone to determine. An important and vital diVerence from the process in Part 3 is that, subject to the overriding criterion of merit, the SCAC will be required to ensure that the Court is able to call on direct experience of and expertise in the law of each of the United Kingdom’s legal systems. While the SCAC will be responsible for assessing both merit and territorial balance, it will in doing so be required to consult the senior judiciary in each jurisdiction and the judges of the Supreme Court other than the President and Deputy President (so long as they themselves are not candidates), the Heads of the Devolved Administrations and the Secretary of State for Constitutional AVairs. I also propose that the Secretary of State for Constitutional AVairs should be able, before the SCAC convenes, to provide non-binding guidance relating to the vacancy that has arisen by, for example, drawing attention to the existing and future jurisdictional balance and requirements of the Supreme Court. 17. The Secretary of State for Constitutional AVairs will receive one name from the SCAC along with details of the other candidates seriously considered, and must consult again the senior judiciary in each jurisdiction, as well as the Heads of the Devolved Administrations. The Secretary of State will then have the same options available as currently proposed in relation to appointments in which the Judicial Appointments Commission is involved, in Part 3 of the Bill, with the exception of the option of re-running the competition completely. The Secretary of State, if he does not approve the candidate, will be able to (i) ask the SCAC to reconsider its original selection or (ii) reject the candidate submitted. The amendments will be substantial, and I am therefore attaching, as annex B, a note which explains in more detail the process as it will operate when revised. 18. In the Bill there is no speciﬁc provisions for the appointment of a new Deputy President or President. The amendments which I propose to table will also make provision for altering the composition of the SCAC for such appointments and for cases when either the Deputy President, the President or both is or are unable to be members of the SCAC. The note at annex B provides more detail on this aspect also. 19. Ministerial views are currently being sought in regard to the proposals for appointment detailed at paragraphs 14 to 17.

The jurisdiction of the Supreme Court

[June 2004: To note that amendments in paragraphs 20, 22 and 23 are still in preparation and will be moved in the Committee of the Whole House] 20. The next amendment relates to clause 31 and Schedules 8 and 15 and seeks to make speciﬁc provision for the extent to which certain decisions of the Supreme Court are to have binding eVect. The issue was canvassed during the debate on Second Reading, in evidence before the “Justice 2” Committee of the Scottish Parliament and in evidence before this Committee, in particular by Lord Hope of Craighead and Lord Cullen of Whitekirk. The amendment will make it clear that a decision of the Supreme Court on an appeal from one jurisdiction within the United Kingdom is not to have eVect as a binding judicial precedent in any other such jurisdiction, or in a subsequent appeal before the Supreme Court from another such jurisdiction. This provision is essentially declaratory of the position which is generally accepted to pertain in proceedings on appeal before the House of Lords. It is not necessary, and not intended, to extend this provision to decisions on devolution issues and the amendment will be limited in eVect to decisions in appeals within the jurisdiction presently exercised by the House of Lords. In other words, it will not apply to decisions in proceedings under the Scotland Act 1998, the Government of Wales Act 1998 and the Northern Ireland Act 1998, within the devolution jurisdiction presently exercised by the Judicial Committee of the Privy Council (JCPC). This is because decisions of the JCPC are presently binding in all proceedings other than those before the JCPC and a similar provision will ensure that decisions of the Supreme Court should be similarly binding in all proceedings other than those before the Supreme Court. The proposals outlined above are subject to Ministerial views.

The number of permanent Supreme Court Judges 21. It is also my intention to amend clause 17 to provide that the number of Supreme Court judges may, by aYrmative resolution, be increased or further increased from 12 to some greater number, but that their number cannot be less than 12. Whereas there may, in future, be a need to increase the number of judges to cope with additional workload and it would be appropriate for this to be exercisable by secondary legislation 9673871043 Page Type [O] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

constitutional reform bill [hl] committee: evidence 419 as at present for the number of Lords of Appeal in Ordinary, I am persuaded that it would not be appropriate to decrease the membership of the Supreme Court except by primary legislation. The amendment in regard to the number of Supreme Court judges is subject to Ministerial views.

Acting judges 22. I wish to make two amendments in respect of the persons who may be acting judges of the Supreme Court. The ﬁrst is an amendment to clause 29(1)(a) to ensure that a person who holds high judicial oYce may act as a judge of the Supreme Court only if (in addition to holding high judicial oYce) that person is also a member of the Privy Council. The Bill as introduced already requires, in clause 29(1)(b), that members of the Supplementary Panel who act as judges of the Supreme Court must be Privy Councillors. The proposed amendment provides consistency in this regard, and will aid manageability by reducing the pool of potential acting judges to those of greater seniority. 23. The other amendment which I propose is to ensure that those who are currently eligible to sit on appeals in the House of Lords as “Lords of Appeal” within the meaning of s.5(3) of the Appellate Jurisdiction Act 1873 should continue to be available to assist the Supreme Court by becoming members of the supplementary panel. I wish to introduce a new provision, analogous to clause 18(a), to provide those who are, immediately before commencement, Peers who hold high judicial oYce, other than the Lords of Appeal in Ordinary and the Lord Chancellor, or who are Peers who before commencement have held high judicial oYce, will become members of the supplementary panel.

Taking of the judicial oath by the President 24. I also wish to supplement the provision in clause 23 which presently provides that a person appointed as a judge of the Supreme Court must take the oath of allegiance and judicial oath in the presence of the President. The proposed amendment will cover the situation where the person is being appointed as President, and also that where the oYce of President is vacant. If the President is unavailable for the taking of the oath, the Deputy President will stand in for the President, failing which (for example, where it is the Deputy President who is to take the oaths), the oaths may be taken in the presence of the senior Justice. This amendment will also provide for the President and Deputy President to take the oaths on appointment to these oYces, even though they may previously have been sworn in as members of the Supreme Court. This mirrors the approach for judges of the existing Supreme Court of England and Wales and Scottish and Northern Irish superior courts where the speciﬁed oYce requires a separate oath whether or not the oath has been taken before appointment to a diVerent judicial oYce. To give eVect to this policy, there may also need to be consequential amendments in terminology.

Substantive Amendments Concerning the Judicial Appointments Commission

The deﬁnition of merit 25. I wish to amend clause 51 to delete sub-sections (4) and (5) so that the Minister no longer has a power to specify considerations that are to be taken into account in assessing merit. All selections will be made on merit, and it will be for the Commission itself to decide what constitutes merit in relation to appointments to a particular post or category of posts.

Issuing guidance to the Commission 26. Clause 52 provides that the Commission must have regard to any guidance issued by the Minister. I wish to amend this clause in order to stipulate that the Lord Chief Justice must ﬁrst be consulted about any guidance issued by the Minister to the Commission under this section, and that guidance must be issued in the form of a statutory instrument laid before Parliament and subject to the aYrmative resolution procedure. The clause should also provide that such guidance may, for example, relate to such matters as the need to encourage applications for judicial appointment from a more diverse pool of candidates, and the need to ensure that any selection or interviewing panel used by the Commission as a means of assessing candidates should include a judge of appropriate seniority and experience. This would bring into eVect paragraph 119(e) of the Concordat. 9673871043 Page Type [E] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

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Rejection and reconsideration of selections for appointment 27. Clauses 57 and 58, 63 and 64, and 69 and 70 enable the Minister to reject the selection made by the Commission and require it to make a new selection, or to require the Commission to reconsider its selection. I wish to amend these provisions in order to make it clear that the Minister may only reject a selection if he considers that the selected candidate is unsuitable for that judicial appointment; and that he may only require the Commission to reconsider if he is not satisﬁed that the selected candidate meets all the criteria for appointment, or is not satisﬁed that the selected candidate is the candidate best suited to the post. In either case, the Minister will have to give reasons for his decision in writing.

Clarification of the process of appointing members of the Commission 28. The processes for appointing the members of the Commission, and the requirements as to membership are set out in Schedule 10 to the Bill. The Schedule as currently drafted does not reflect in full the terms of the Concordat, and it needs reworking. Depending on the views of Parliamentary Counsel, and of the Committee, the best way of proceeding may be to substitute a new draft of the entire Schedule, in one amendment, rather than by making changes piecemeal in numerous small amendments. 29. One of the key amendments I will introduce to Schedule 10, and which I mentioned during the Second Reading debate on 8 March, is to ensure that the Bill reflects paragraph 137 of the Concordat. The three senior judicial members will be nominated by the Judges’ Council. All the other members of the Commission will be selected by an advisory panel and their names put forward to the Minister for final decision in accordance with Nolan procedures. 30. Other key points that I wish to ensure are reflected more clearly in schedule 10 include the following: — The Commission will consist of a lay Chairman and 14 members appointed by Her Majesty on the advice of the Minister. — The Chairman will be selected and appointed as such and will not hold oYce separately as a Commissioner; if he resigns as Chairman, his seat will be vacated. — Apart from the Chairman there will be five other lay members, five judicial members, two legal practitioners, a lay magistrate, and a member of a tribunal or holder of another oYce listed in Part 3 of Schedule 12 to the Bill. — The most senior judicial member of the Commission will be the Vice-Chairman. — The advisory panel will consist of either three or four members: a chairman, selected by the Minister and the Lord Chief Justice; the Lord Chief Justice or a judge nominated by him; an independent person selected by the chairman, and the Chairman of the Commission, provided that that post is not vacant and is not the post which is being selected for. Civil servants and Members of Parliament will not be permitted to be members of the advisory panel. 31. More details of these and other amendments which I wish to make to Schedule 10 to bring it into line with the Concordat are included in Section Two of this paper, in the description of Concordat amendments.

SECTION TWO—CONCORDAT AMENDMENTS Overview and Handling 32. In order to deliver the agreements I reached with the Lord Chief Justice and set out in the Concordat, I need to propose further amendments to Part One of the Bill (arrangements to replace the oYce of Lord Chancellor) and to Part Three (judicial appointments and discipline). 33. Together with the minor amendments which deal with matters consequential to the concordat (paragraphs 50 to 53 refer), these amendments will ensure that this Bill delivers the arrangements I have agreed with the Lord Chief Justice. I set out these arrangements in an oral statement to the House of Lords on 26 January 2004 and placed a more detailed analysis of them—the Concordat—in the libraries of both Houses on the same day. For this reason, the eVect of these amendments is not new to this Committee, and much of what will be delivered by them we have discussed in some detail with witnesses over the last month or so. These amendments are very important, though, and it would assist the Committee of the Whole House greatly if they are included in the Bill which we return to that Committee for further scrutiny. 34. I propose therefore, as we reach the relevant clause or Schedule, to move these amendments to the Committee, but would ask you to consider debating each amendment or each group of amendments only if it appears to raise a signiﬁcant issue about which the Committee has concerns. Where the Committee is content that this is not the case, and is satisﬁed with the eVect of an amendment or group of amendments, I would 9673871043 Page Type [O] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

constitutional reform bill [hl] committee: evidence 421 propose that the amendments or group in question be agreed to be included in the Bill without debate. This approach will allow these signiﬁcant, but in our view technical, amendments to be included in the Bill for consideration by the Committee of the Whole House without taking up our limited time. It will also, subject to the views of members of the Committee of the Whole House, enable that Committee to better focus on those amendments which are of broader policy signiﬁcance. To assist members of this Committee, a description of the amendments and what they seek to achieve is set out below. I would also like to assure the Committee that there is no amendment set out in this section which has any eVect other than to deliver the arrangements in the Concordat, as described and published. [June 2004: Before the Committee began considering amendments, the Lord Chancellor decided to table all his amendments, except only the very minor ones at Section 3 and Annex A of this paper, for debate. The amendments in Section 2 “Concordat Amendments” were therefore moved by the Lord Chancellor for debate. In addition, at the Committee meeting on 8 June when the amendments were discussed but not formally moved, Viscount Bledisloe and Lord Carlisle expressed concern about some of the minor amendments. A group of oYcials from the Department for Constitutional AVairs met Viscount Bledisloe and Lord Carlisle later that day to discuss the amendments, their purpose and eVect. The peers remained concerned about 14 amendments, and these were not moved by the Lord Chancellor]

Concordat Amendments Relating to the Abolition of the Lord Chancellor

Rule Making 35. The Concordat (at paragraphs 50–57) set out the arrangements proposed for the making of procedural rules. It has been agreed that, in general, functions relating to the allowing of procedural rules of court will transfer to the Secretary of State for Constitutional AVairs and the making of such rules will rest with the relevant rule committees, where such committees exist. Where no relevant rule committee exists, functions relating to such rule making will be exercised by the Lord Chief Justice, with the concurrence of the Secretary of State for Constitutional AVairs. The policy relating to rule-making where no relevant rule committee exists is given eVect in Schedule 2 (introduced by clause 6), Part 2 of which lists existing powers of the Lord Chancellor which are in future to be subject to the new process. This process, as described in paragraph 56 of the Concordat, is set out in Part 1 of the Schedule. Schedule 1 deals with those functions where rule committees do exist, making the relevant amendments to existing legislation to bring it into line with the Concordat. 36. On further analysis since the Bill was introduced, we concluded that it was not necessary for a number of functions listed in Part 2 of Schedule 2 to be made subject to the new procedure in Part 1 of that Schedule. We reached this conclusion for two reasons. First, a number of the rule-making powers listed in Part 2 have never been used, and rules within their ambit are currently made by existing rule committees (principally the Civil Procedure Rule Committee). It would therefore be more appropriate for this reality to be acknowledged in the Bill, and any such powers removed from Part 2 of the Schedule. We propose to repeal any of these powers which are redundant, and whose scope is subsumed by Civil Procedure Rules These changes will ensure greater consistency of approach and enable users to ﬁnd all relevant civil procedure provisions in a single code. Secondly, a few of the functions currently in Schedule 2 do not, in fact, relate to rules of court and should, therefore, be dealt with by amendments made under Schedule 1. 37. The details of the amendments necessary to give eVect to the above changes are included as separate minor concordat amendments and marked up accordingly.

Practice Directions 38. At paragraph 62 of the Concordat, there is an agreement to create a method of uniformly making directions governing practice and procedure in civil matters across all levels of court. I will seek to amend the Bill to create such a power based on section 74 of the Courts Act 2003, as amended by Schedule 3 to the Bill. Section 5(1) of the Civil Procedure Act 1997, which allows practice directions to be provided for by Civil Procedure Rules will also apply to the new power. As a result of this amendment, and consistent with the approach described in the previous paragraph in relation to rules, I propose to bring forward amendments to Part 2 of Schedule 3 to the Bill to remove references to direction-making powers that either have never been used, or which would be subsumed within the scope of the new, uniform directions power. We are also considering how to better standardise the approach for making practice directions with regards to Family Proceedings in line with paragraph 62 of the Concordat. Given the stage these deliberations have reached, it is possible that any amendments in this category will not be ready in time for consideration by the select committee. 9673871043 Page Type [E] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

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[June 2004: To note that these amendments are still in preparation and will now be moved in the Committee of the Whole House]

The amendment of enactments and documents of governance 39. I propose to move an amendment to clause 99 in line with the recommendation of the Delegated Powers Committee to provide that any Order made under clause 98 which amends public and general Acts will be subject to the aYrmative, rather than the negative, resolution procedure. The purpose of clause 98 remains to allow the making of Orders to give full eVect to the Bill. It will be used, for example, to transfer, in accordance with the principles set out in the Concordat, any functions of the Lord Chancellor created since the introduction of the Bill or inadvertently omitted from the Bill.

[June 2004: To note that this amendment is still being prepared and will be moved in the Committee of the Whole House] 40. I propose to move a further amendment to clause 98 which will have the eVect that, if an Order under the clause that transfers a function from the Lord Chancellor to the Secretary of State for Constitutional AVairs so provides, section 1 of the Ministers of the Crown Act 1975 will not apply to the function after the transfer takes eVect. This will mean that functions so transferred will not be able to be transferred away from the Secretary of State for Constitutional AVairs in the future without primary legislation. The amendment will bring clause 98 into line with clause 96, which disapplies section 1 of the Ministers of the Crown Act to certain judiciary related functions transferred to the Secretary of State in the Bill. The amendment will allow those Lord Chancellor functions transferred by Order, which are of the same character as those currently transferred in the Bill, to be treated in the same way as those transferred in the Bill. The purpose of this is to ensure that the principle of safeguarding judicial independence by limiting powers to transfer away from the Secretary of State for Constitutional AVairs functions relating to the judiciary, judicial appointments and the Great Seal is upheld.

Other amendments required to deliver matters consequential to the Concordat 41. As mentioned above, there are a number of minor amendments required to give full eVect to the provisions in the Concordat. A number of these amendments have arisen out of discussions with the Judges’ Council’s working party on the detail of the Bill. These amendments are principally to be dealt with in Schedule 1 and fall into two broad categories: 42. Those where the Bill currently fails to apply the Concordat. In the main, these relate to particular functions within a category in the Concordat which have been incorrectly assigned as between the Secretary of State for Constitutional AVairs and the Lord Chief Justice, or where the consultation/concurrence requirements of the category have not been correctly reﬂected in the Bill’s treatment of a particular function. There are also some cases where a category in the Concordat is incomplete in the Bill, and a particular function needs to be added. 43. We are liaising with the Judges’ Council’s working party concerning these amendments.

Concordat Amendments Concerning the Judicial Appointments Commission

Complaints and discipline—the Lord Chief Justice 44. Paragraph 73 of the Concordat provides that the Lord Chief Justice and the Minister are together responsible for providing a system for considering and determining complaints against the personal conduct of the judiciary. The subsequent paragraphs set out the arrangements that will apply. The Concordat does not, however, consider the arrangements that should apply in the event of a complaint about the personal conduct of the Lord Chief Justice himself. The Government does not consider it appropriate for the Lord Chief Justice to be responsible for considering and determining and such complaint himself; nor should it be the responsibility of another—by deﬁnition more junior—judge from England and Wales. I will therefore introduce an amendment to Part Three of the Bill which will provide for this function to be carried out by the President of the Supreme Court, subject to the same conditions and procedures (including the concurrence of the Secretary of State) as apply when the Lord Chief Justice is exercising his disciplinary powers over other judges. 9673871043 Page Type [O] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

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[June 2004: To note that this amendment is still being prepared and will be moved in the Committee of the Whole House]

Complaints and discipline—United Kingdom tribunal members sitting in Scotland or Northern Ireland 45. The provisions relating to complaints and discipline in Part Three of the Bill apply to the judiciary of England and Wales. The Lord Chancellor, however, has responsibility for discipline in relation to members of United Kingdom tribunals who sit solely in Scotland and Northern Ireland. This responsibility will pass to the Minister, but should be exercised in accordance with the principles set out in the Concordat. I therefore propose an amendment to provide for the application, with modiﬁcations, of the powers set out in clause 83(3) to members of United Kingdom tribunals who sit solely in Scotland or Northern Ireland.

[June 2004: To note that this amendment is still being prepared and will be moved in the Committee of the Whole House]

Complaints and discipline—report from the Ombudsman relating to conduct 46. It is a central feature of the Concordat that responsibility for providing a system for considering and determining complaints and for discipline is shared between the Minister and the Lord Chief Justice. This is reﬂected in the Bill. One exception to this, however, is at clause 89, which requires the Ombudsman to submit a report on an investigation relating to conduct to the Minister, but not to the Lord Chief Justice. This should be amended so that the report is also submitted to the Lord Chief Justice.

Judicial appointments—decision not to fill a vacancy 47. Under paragraphs 119(a) and 121(a) of the Concordat, the agreement of the Lord Chief Justice is required before the Minister can decide that a vacancy should not be filled. The Bill does not yet reflect that agreement. I will introduce amendments to correct this.

Judicial appointments—consultation with previous ofﬁce-holder 48. At present the Bill requires the Commission, before it makes a recommendation to the Minister, to consult with the Lord Chief Justice, and a person (other than the Lord Chief Justice) who has held the oYce for which a selection is being made or has other relevant experience. (Sub-clause 67(3).) In submitting its report to the Minister (clause 68), the Commission is required to state any recommendation from the Lord Chief Justice. It is not required to state any recommendation from the person who has held the oYce for which a selection is being made or has other relevant experience. I think it should, and I will introduce an amendment to achieve this.

Judicial appointments—Commission sub-committees 49. The Commission will almost certainly need to create sub-committees to consider whom to recommend for appointment. The sheer number of appointments, and the need to make timely recommendations will almost certainly prevent all 15 members considering every appointment. The Bill provides for this—at Paragraphs 18-19 of Schedule 10—and requires that for the purpose of making recommendations for appointment, such committees should include no less than three Commissioners. However, there is nothing to require the Commission to ensure that there is judicial and lay input into these sub-committees. While I want to ensure the Commission has as much freedom as possible to decide its own practices and procedures, I think it important to avoid the possibility of recommendations being made to the Minister without the beneﬁt of lay and judicial expertise. It is also important that any judge on such a sub-committee is at least as senior as the vacancy under consideration. I therefore propose amendments to make these requirements. 50. It is important to distinguish this requirement from the requirement that there be at least one judge of the appropriate seniority and experience on any selection panel, as described above at paragraph 26. Selection panels will be responsible for the actual process of sifting and interviewing (or whatever selection process the Commission chooses to employ), and will not necessarily involve Commissioners themselves. The sub- committees that make the recommendation to the Minister will be made up of Commissioners. 9673871043 Page Type [E] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

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Judicial appointments—exercise of power to reconsider and then reject 51. Paragraphs 120(h)-(j) of the Concordat explain the procedure that should apply when the Minister asks the Judicial Appointments Commission to reconsider its recommendation, and the Commission recommends an alternative candidate whom the Minister then rejects. Where, in such circumstances, the Commission selects a third candidate, the Bill at present does not allow the Minister to choose between that third candidate selected by the Commission and the candidate originally put forward. I will introduce amendments to ensure the Concordat is reﬂected.

Judicial appointments—power to withdraw request for vacancy to be filled 52. I wish to make two amendments in this area. The first of these brings the provisions into line with the spirit of the Concordat. This amendment will require the Minister to consult the Lord Chief Justice before withdrawing a request. This was an issue raised by Lady Justice Arden in her evidence to the Committee on 4 May. 53. The second amendment in this area reflects the letter of the Concordat, paragraphs 121(e) and 126 of which envisage a power for the Minister to restart the appointments process. This power is equivalent to his power to do so for appointments at High Court level and below. This is not yet reflected in the Bill, however.

Judicial appointments—restrictions on membership of the JAC 54. Paragraph 134 of the Concordat states that “[m]embership of the Commission will not be open to Members of Parliament, candidates for Parliament, or civil servants”. I will introduce amendments so that the Bill ensures that people in these categories cannot be appointed to the Commission, and existing Commissioners must resign if they fall into one of these categories.

Judicial appointments—Chairman of the Commission 55. The Bill correctly ensures that the Chair of the Commission should be a lay member (paragraph 133 of the Concordat, and paragraph 4(2) of Schedule 10 of the Bill). However, it was a key theme of the discussions that led to the Concordat that there should be a specific recruitment exercise for the Chairman. He or she should not simply be selected from among the lay members. In amending Schedule 10 (discussed in paragraph 28 to 31, above), I will clarify that the Chairman is a specific post, and should be identified as distinct from the other lay posts on the Commission.

Judicial appointments—Vice-chairman of the Commission 56. Paragraph 133 of the Concordat states that the most senior Judge on the Commission should be its Vice- Chairman. I will introduce an amendment to that eVect. Seniority will be based on the oYce held at the time. If two or more judges hold oYces of equivalent seniority, the judge who has served longest in the oYce, over one or more periods, is the senior. 57. I will also amend the Bill to ensure that the Vice Chairman can perform the functions of the Chairman where the Chairman’s oYce is vacant, or if the chairman is unable to undertake those functions. 58. There is one exception to this principle: underlying the Concordat is the understanding that the selection panels for the appointment of Lords Justices of Appeal and Heads of Division are made up of two judicial members and two lay members. The lay members for these panels are to be the Chairman of the Commission or his nominee, and one other lay member of the Commission designated by the Chairman of the Commission (clause 61(1)). It would clearly run counter to the spirit of the Concordat if the Vice-Chairman of the Commission—a senior judge—were to perform the function of the Chairman in this context. I therefore propose to provide that, in order to maintain the balance of judicial and lay members, in the absence of the Chairman, one of the lay members of the Commission (selected by the lay members) performs this function.

Judicial appointments—consultation with professions before appointing Commissioners 59. The Bill currently requires the Minister to consult the General Council of the Bar before appointing a barrister to the Commission and the Law Society before appointing a solicitor. Although this issue is not covered in the Concordat it strikes me that it would better emphasise the independence of the advisory panel if that responsibility were passed to the panel itself. I propose to introduce an amendment to that eVect. 9673871043 Page Type [O] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

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Judicial appointments—increasing the size of the Commission 60. Although careful thought has been given to the size of the Commission, and the level of support it will need, it may be that in the future, an unexpected increase in workload is such that a Commission of 15 is no longer suYcient. The Bill therefore provides—at Paragraph 7 of Schedule 10—that the Minister may by order increase the size of the Commission. This power is subject to consultation with the Lord Chief Justice. However, to ensure that this power cannot be used inappropriately, I think the concurrence of the Lord Chief should be required, and I therefore propose such an amendment.

Judicial appointments—Judicial Appointments Commission annual report 61. The concordat envisages a central role in judicial appointments for the Lord Chief Justice. With that in mind, I propose to introduce an amendment which requires the Minister to consult with the Lord Chief before giving directions to the Commission regarding any speciﬁc matters to be included in its annual report (Paragraph 29 of Schedule 10).

Judges’ Council 62. In reflecting the Concordat, the Bill makes reference to the Judges’ Council (in paragraph 5 of Schedule 10 which refers to the Council’s role in the appointment of members of the Commission). The Council is not defined in the Bill, and I therefore propose an amendment which provides such a definition.

SECTION THREE—MINOR AND TECHNICAL AMENDMENTS Overview and Handling 63. As I mentioned in the opening section of this paper, there are further substantive amendments I wish to make to this Bill. but since they deal with provisions which this Committee has not discussed, I am not seeking to table them to this Committee. 64. There are however a number of technical amendments which if included in the Bill we return to the House, would assist them with their further scrutiny. These amendments are technical and simply tidy up the Bill, or are minor and deliver matters consequential to the Concordat, or the transfer of functions process. It is these amendments which are set out in this section of this paper. 65. I propose that since all the amendments in this section are purely technical, or minor and introduce no new principle to the Bill, these are added to the Bill without any debate. A full list of the amendments is attached at Annex A, with those which relate to the concordat shown separately and I can assure the Committee that none of them make any substantive change to the principles in the Bill. [June 2004: To note that additional consequential amendments to those listed in Annex A were tabled before the Select Committee in addition to those in the Annex. To note also that some of the amendments in Annex A are still in preparation and will now be moved in the Committee of the Whole House] May 2004

Annex A MINOR AND TECHNICAL AMENDMENTS CONSEQUENTIAL TO THE CONCORDAT (Lord Chancellor Table 1)

Statute reference (only given where another Bill clause to be existing statute is altered amended by this amendment) Explanation of amendment Addition to Bill— Juries Act 1974 s 5 I will seek to amend schedule 1 of the Bill to include Schedule 1 reference to section 5 of the Juries Act 1974. The function of arranging for lists to be prepared of people summoned to be jurors will be transferred to the Secretary of State for Constitutional AVairs to be exercised after consultation with the Lord Chief Justice, to comply with the agreed policy in the concordat relating to the organisational framework, eYciency and eVectiveness of the courts system. 9673871044 Page Type [E] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

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Statute reference (only given where another Bill clause to be existing statute is altered amended by this amendment) Explanation of amendment Addition to Bill— Juries Act 1974 I will seek to amend schedule 1 of the Bill to include a Schedule 1 s 9AA (inserted by par 12 reference to section 9AA (inserted by paragraph 12 Schedule 33 to Criminal schedule 33 Criminal Justice Act 2003) of the Juries Act Justice Act 2003) 1974. The function of issuing guidance on how the functions of the appropriate oYcer will be exercised will be transferred to the Secretary of State for Constitutional AVairs to be exercised after consultation with the Lord Chief Justice, to comply with the agreed policy in the concordat relating to the organisational framework, eYciency and eVectiveness of the courts system.

Addition to Bill— Domestic Proceedings and I will seek to amend schedule 1 of the Bill to include a Schedule 1 Magistrates’ Courts Act reference to section 2 of the Domestic Proceedings and 1978 s 2 Magistrates’ Courts Act 1978. The function of setting the maximum amount for lump sums under this Act will be transferred to the Secretary of State for Constitutional AVairs to be exercised after consultation with the Lord Chief Justice, to comply with the agreed policy in the concordat relating to the organisational framework, eYciency and eVectiveness of the courts system.

Addition to Bill— Supreme Court Act 1981 I will seek to amend schedule 1 of the Bill to provide that Schedule 1 s 82 the Lord Chancellor’s function in section 82 of the Supreme Court Act 1981, which concerns specifying by directions responsibility of oYcers of the Crown Court for keeping records of the proceedings and other administrative matters, should be transferred to the Secretary of State for Constitutional AVairs to be exercised after consultation with the Lord Chief Justice. This is in line with the agreed policy in the concordat relating to the organisational framework, eYciency and eVectiveness of the courts system.

Addition to Bill— County Courts Act 1984 I will seek to amend schedule 1 of the Bill to provide that Schedule 1 s 12 the Lord Chancellor’s function in section 12 of the County Courts Act 1984, which concerns making regulations for District Judges to keep records of and in relation to proceedings in the court for that district, should be transferred to the Secretary of State for Constitutional AVairs to be exercised after consultation with the Lord Chief Justice. This is in line with the agreed policy in the concordat relating to rules, regulations and orders.

Addition to Bill— Children Act 1989 sch 1 I will seek to amend schedule 1 of the Bill to provide that Schedule 1 para 5(2) the Lord Chancellor’s function in schedule 1 paragraph 5(2) of the Children Act 1989, which concerns ﬁxing by order a lump sum payment as ordered by a magistrates’ court, should be transferred to the Secretary of State for Constitutional AVairs to be exercised after consultation with the Lord Chief Justice. This is in line with the agreed policy in the concordat relating to rules, regulations and orders.

Addition to Bill— Welsh Language Act 1993 I will seek to amend schedule 2 of the Bill to provide that Schedule 2 s 23 the Lord Chancellor’s function in section 23 of the Welsh Language Act 1993, which concerns making rules prescribing a translation into the Welsh language, should be transferred to the Secretary of State for Constitutional AVairs to be exercised after consultation with the Lord Chief Justice. This is in line with the agreed policy in the concordat relating to rules, regulations and orders. 9673871044 Page Type [O] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

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Statute reference (only given where another Bill clause to be existing statute is altered amended by this amendment) Explanation of amendment Addition to Bill— Defamation Act 1996 I will seek to amend schedule 1 of the Bill to provide that Schedule 1 section 9 the Lord Chancellor’s function in section 9 of the Defamation Act 1996, which concerns prescribing damages, should be transferred to the Secretary of State for Constitutional AVairs to be exercised after consultation with the Lord Chief Justice. This is in line with the agreed policy in the concordat relating to rules, regulations and orders.

Addition to Bill— Justices of the Peace Act I will seek to amend schedule 1 to provide that the Lord Schedule 1 1997 section 25(1) and (2) Chancellor’s functions in section 25(1) and (2) Justices of the Peace Act 1997, which concern nominations of keeper of the rolls, and administration relating to the post, should be transferred to the Secretary of State for Constitutional AVairs, to be exercised after consultation with the Lord Chief Justice. This is in line with the agreement in the Concordat related to nominations and the organisational framework of the courts system.

Addition to Bill— Courts Act 2003 section I will seek to amend schedule 1 to provide that the Lord Schedule 1 16 Chancellor’s functions in section 16(1) and (2) of the Courts Act 2003, which concern nominations of keeper of the rolls and administration relating to the post, should be transferred to the Secretary of State for Constitutional AVairs, to be exercised after consultation with the Lord Chief Justice. This is in line with the agreement in the Concordat relating to nominations and the organisational framework of the courts system.

Addition to Bill— Supreme Court Act 1981 I will seek to amend schedule 1 to provide that the Lord Schedule 1 s 130 Chancellor’s function in section 130(1) of the Supreme Court Act 1981, which concerns the fees to be taken in the Supreme Court, should be transferred to the Secretary of State for Constitutional AVairs. Paragraph 428 of the Bill already amends s130(2) concerning the requirement for the concurrence of the Heads of Division to provide for the new President of the Queen’s Bench Division and the re- styling of the oYce of Vice-Chancellor. This is to bring the Bill in line with the concordat policy on the provision of resources.

Addition to Bill— Tribunals and Inquiries I will seek to amend schedule 1 to provide that the Lord Schedule 1 Act 1992 s 16(2): Chancellor’s function in section 16(2) of the Tribunals and Inquiries Act 1992 should be transferred to the Secretary of State for Constitutional AVairs, in line with the agreed policy in the concordat relating to the making of rules for tribunals. These functions are concerned with provision to designate by order any inquiry or hearing for the purposes of this section of the Tribunals and Inquiries Act.

Addition to Bill— Access to Justice Act 1999 I will seek to amend schedule 1 to provide that the Lord Schedule 1 Sch 14 Part V paras 33 Chancellor’s functions in paragraphs 33 and 35 of and 35(1) and (2) Schedule 14 to the Access to Justice Act 1999 should be transferred to the Secretary of State for Constitutional AVairs. This function concerns an order making power for the transition from the Greater London Magistrates Court Association to the magistrates’ courts committees for Greater London. This will bring the Bill in line with the concordat policy on organisational framework, eYciency and eVectiveness of courts system. 9673871044 Page Type [E] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

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Statute reference (only given where another Bill clause to be existing statute is altered amended by this amendment) Explanation of amendment Addition to Bill— Courts Act 2003, Sch 1, I will seek to amend schedule 1 to provide that the Lord Schedule 1 para 2(c)(d) Chancellor’s functions in paragraphs 2(c) and (d) of schedule 1 to the Courts Act 2003, which concern the appointment of non-judicial members of Courts Boards, should be transferred in schedule 1 to the Secretary of State for Constitutional AVairs. Paragraph 406 already deals with judicial members. This will bring the Bill in line with the concordat policy on provision of resources and administration of courts. Addition to Bill— Juries Act 1974 s 9AA(2) I will seek to amend schedule 1 to provide that the Lord Schedule 1 Chancellor’s functions in section 9AA(2) of the Juries Act 1974 (which is to be inserted by paragraph 12 of schedule 33 to the Criminal Justice Act 1993) are transferred in schedule 1 to the Secretary of State for Constitutional AVairs. The provision relates to the requirement to lay before Parliament and to publish guidance issued under this section. It does not comply with the agreed policy in the concordat relating to organisational framework, eYciency and eVectiveness of courts system that has importance to the judiciary. Addition to Bill— Tribunals and Inquiries I will seek to amend schedule 1 to provide that the Lord Schedule 1 Act 1992 s 13(1) Chancellor’s functions in sections 13(1), (3) and (5) of the Tribunals and Inquiries Act 1992, which concern the making of orders to add to those tribunals falling under the supervision of the Council on Tribunals, should be transferred in schedule 1 to the Bill to the Secretary of State for Constitutional AVairs. This brings the schedule in line with the concordat policy on tribunal rules. Addition to Bill— Tribunals and Inquiries I will seek to amend schedule 1 to provide that the Lord Schedule 1 Act 1992 s 13(3) Chancellor’s functions in sections 13(1), (3) and (5) of the Tribunals and Inquiries Act 1992, which concern the making of orders to add to those tribunals falling under the supervision of the Council on Tribunals, should be transferred in schedule 1 to the Bill to the Secretary of State for Constitutional AVairs. This brings the schedule in line with the concordat policy on tribunal rules. Addition to Bill— Tribunals and Inquiries I will seek to amend schedule 1 to provide that the Lord Schedule 1 Act 1992 s 13(5)(a), (c)-(e) Chancellor’s functions in sections 13(1), (3) and (5) of the Tribunals and Inquiries Act 1992, which concern the making of orders to add to those tribunals falling under the supervision of the Council on Tribunals, should be transferred in Schedule 1 to the Bill to the Secretary of State for Constitutional AVairs. This brings the schedule in line with the concordat policy on tribunal rules. Addition to Bill— Anti-Terrorism, Crime I will seek to amend schedule 1 to provide that the Lord Schedule 1 and Security Act 2001, Chancellor’s function in paragraph 2 of schedule 6 of this sch 6, par 2 Act, which concerns the appointment of oYcers and servants for the Commission, to the Secretary of State for Constitutional AVairs. This is in line with the agreement in the Concordat related to the provision of resources. Addition to Bill— Value added Tax 1994 I will seek to amend schedule 1 to provide that the Lord Schedule 1 sch 12 par 7(7) Chancellor’s functions in section paragraph 7(7) of schedule 12 of this Act, which concern the removal of chairmen of VAT tribunals from oYce, should be exercisable by the Secretary of State for Constitutional AVairs with the concurrence of the Lord Chief Justice. This is in line with the agreed policy in the concordat related to complaints and discipline. 9673871044 Page Type [O] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

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Statute reference (only given where another Bill clause to be existing statute is altered amended by this amendment) Explanation of amendment Addition to Bill— Landlord and Tenant Act I will seek to amend schedule 1 to provide that the Lord Schedule 1 1954 s63(6)(c): Chancellor’s functions in section 63(6)(c) of the Landlord and Tenant Act 1954, which concern determination of remuneration for an assessor, should be transferred to the Secretary of State for Constitutional AVairs. This is in line with the agreement in the Concordat relating to the provision of resources.

Addition to Bill — Children Act 1989 s 96(3) I will seek to amend schedule 3 to provide that the Lord Schedule 3 Chancellor’s function in section 96(3) of the Children Act 1989, which concerns orders to make provision for the admissibility of evidence which would otherwise be inadmissible under any rule of law relating to hearsay. This function should be transferred to the Lord Chief Justice (or judicial delegate) with the concurrence of the Secretary of State for Constitutional AVairs, but without concurrence if practice directions are guidance about the law or making judicial decisions. This is in line with the agreement in the Concordat relating to practice directions.

Addition to Bill— Courts-Martial (Appeals) I will seek to amend schedule 1 to provide that the Lord Schedule 1 Act 1968 s 2(3) Chancellor’s functions in section 2(3) of the Courts- Martial (Appeals) Act 1968, which concern the payment of remuneration and travelling and subsistence allowances of judges of the Appeal Court, should be transferred to the Secretary of State for Constitutional AVairs. This brings the schedule in line with the concordat policy on the provision of resources

Addition to Bill— Taxes Management Act I will seek to amend schedule 1 to provide that the Lord Schedule 1 1970 s3(2) Chancellor’s function in section 3(2) of the Taxes Management Act 1970, which concerns the remuneration of clerks, should be transferred to the Secretary of State for Constitutional AVairs. This is in line with the agreement in the Concordat related to the provision of resources

Addition to Bill— Local Government Act I will seek to amend schedule 1 to provide that the Lord Schedule 1 2000 s 76(11)(12) Chancellor’s function in sections 76(11) and (12) of the Local Government Act 2000, which concerns guidance with respect to the composition of tribunals, should be transferred to the Secretary of State for Constitutional AVairs, after consultation with the Lord Chief Justice. This is in line with the agreement in the Concordat related to deployment.

Addition to Bill— Value added Tax 1994 I will seek to amend schedule 1 to provide that the Lord Schedule 1 sch 12 par 2(3) 3(2) Chancellor’s function in paragraphs 2(3) and 3(2) of schedule 12 of Value Added Tax Act 1994, which concern the terms and conditions of the President, should be transferred to the Secretary of State for Constitutional AVairs. This is in line with the agreement in the Concordat related to the provision of resources.

Addition to Bill— Children Act 1989 I will seek to amend schedule 1 of the Bill to include Schedule 1 s 96(5)(c) reference to section 96(5)(c) of the Children Act 1989. The function of amending other legislation relating to evidence as a consequence of orders laid under the Children Act will be transferred to the Secretary of State for Constitutional AVairs to be exercised with the concurrence of the Lord Chief Justice. This is to comply with the agreed policy in the concordat relating to rules, regulations and orders. 9673871044 Page Type [E] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

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Statute reference (only given where another Bill clause to be existing statute is altered amended by this amendment) Explanation of amendment Schedule 1 Supreme Court Act 1981 I will seek to amend schedule 1 of the Bill as it does not 2(6) comply with the agreed policy in the concordat relating to judicial posts. At present it sets out which additional posts can be vacant, and the Court of Appeal still sit. It should be amended to include the Vice Presidents of the Civil and Criminal Division in addition to Chancellor of the High Court or President of the Queen’s Bench Division which the Bill already adds to the Supreme Court Act 1981 section 2(6) Schedule 1 Habeas Corpus Act 1679 I will seek to amend schedule 1 part 1 paragraph 1 of the paragraph 1(1) s 1 Bill which relates to subsections 1, 2 and 9 of the Habeas Corpus Act 1679, so that it removes reference to the Lord Chancellor and the Keeper of the Great Seal in these sections. These sections provide a power to discharge an accused if the writ of habeas corpus is unsatisfied, as well as to grant bail in accordance with the Bail Act 1976, to an accused. These functions will transfer to the Lord Chief Justice to bring the Bill into line with the agreed policy of the Concordat in relation to judicial posts held by the Lord Chancellor. Schedule 1 Magistrates’ Courts Act I will seek to amend schedule 1 paragraph 105(2) of the paragraph 105(2) 1980 s 144(1) Bill as it does not comply with the agreed policy in the concordat relating to the appointment of rule committees. At present the Bill provides that the appointment of a rule committee for magistrates’ courts shall be made by the Secretary of State for Constitutional AVairs. This paragraph should be amended so that the Secretary of State for Constitutional AVairs should appoint a rule committee for magistrates’ courts after consultation with the Lord Chief Justice. Schedule 1 Judicial Pensions Act 1981 I will seek to amend schedule 1 part 1 paragraph 110(2) of paragraph 110(2) s 5 the Bill as it does not comply with the agreed policy in the concordat relating to provision of resource—pay, pensions and terms and conditions. At present it transfers granting of circuit judges’ pensions to the Secretary of State for Constitutional AVairs after consultation with the Lord Chief Justice. The pension functions that don’t relate to incapacity or medical certificates, and extension of maximum retirement ages should be amended to remove the requirement to consult with the Lord Chief Justice to bring it in line with the agreed policy in the concordat regarding pensions. Schedule 1 Judicial Pensions Act 1981 I will seek to amend schedule 1 part 1 paragraph 111 (2)(a) paragraph 111(2)(a) s 7 as it does not comply with the agreed policy in the concordat relating to provision of resource—pay, pensions and terms and conditions. At present it transfers granting of magistrates pensions to the Secretary of State for Constitutional AVairs after consultation with the Lord Chief Justice. The pension functions that don’t relates to incapacity or medical certificates, and extension of maximum retirement ages should be amended to remove the requirement to consult with the Lord Chief Justice to bring it in line with the agreed policy in the concordat. Schedule 1 Judicial Pensions Act 1981 I will seek to amend schedule 1 part 1 paragraph 114 of the paragraph 114 s 13 Bill as it does not comply with the agreed policy in the concordat relating to provision of resources—pay, pensions and terms and conditions. At present it transfers granting of Social Security Commissioners’ pensions to the 9673871044 Page Type [O] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

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Statute reference (only given where another Bill clause to be existing statute is altered amended by this amendment) Explanation of amendment Secretary of State for Constitutional AVairs after consultation with the Lord Chief Justice. The pension functions that do not relate to incapacity or medical certiﬁcates, and extension of maximum retirement ages should be amended to remove the requirement to consult with the Lord Chief Justice to bring it in line with the agreed policy in the concordat regarding pensions. Schedule 1 Children and Young I will seek to amend schedule 1 paragraph 13, as it does paragraph 13 Persons Act 1933 s 45 not comply with the agreed policy in the concordat relating to deployment—authorisations. At present the Bill provides that authorisations to sit on youth courts, and powers to make rules and provisions relating to youth courts should be made by the Lord Chief Justice with the Secretary of State for Constitutional AVairs. This paragraph should be amended so that the Lord Chief Justice must have the concurrence of the Secretary of State for Constitutional AVairs. Schedule 1 Supreme Court Act 1981 I will seek to amend Schedule 1 paragraph 130(3), by paragraph 130(3) s 9(2) deleting from “(2D)” to end of line 44 and inserting the following wording: “(2B) In the case of a request to a person within entry 1, 3, 5 or 6 in column 1 of the Table, the relevant authority may make the request only after consulting the Secretary of State for Constitutional AVairs. (2C) In any other case the relevant authority may make a request only with the concurrence of the Secretary of State for Constitutional AVairs. (2D) In the case of a request to a Circuit judge or Recorder to act as a judge of the High Court, the relevant authority may make the request only with the concurrence of the Judicial Appointments Commission.” Amending these paragraphs will bring the section into line with the agreed policy in the Concordat relating to deployment—authorisations/assignments. Schedule 1 Supreme Court Act 1981 I will seek to amend Schedule 1, paragraph 131(5) as it paragraph 131(5) s 10 does not apply with the agreed policy in the Concordat relating to oath taking. At present, it states that the Lord Chief Justice should take the oath in the presence of the Master of the Rolls. It should be amended to provide that the oath will be taken also in the presence of the presidents of the divisions of the High Court and to ensure that a vacancy in any of the oYces of the Master of the Rolls or the presidents of the divisions of the High Court will not prevent the Lord Chief Justice taking that oath. Schedule 1 Supreme Court Act 1981 I will seek to amend schedule 1 paragraph 140(2)(a), as it paragraph 140(2)(a) s 61(3) does not comply with the agreed policy in the concordat relating to the distribution of business. At present it states that the Lord Chief Justice must consult with the Secretary of State for Constitutional AVairs concerning directing by order that business in the High Court be assigned to a diVerent division. It should be amended to read the Lord Chief Justice with the concurrence of the Secretary of State for Constitutional AVairs. Schedule 1 Supreme Court Act 1981 I will seek to amend schedule 1 paragraph 141(3), as it paragraph 141(3) s 63(2) does not comply with the agreed policy in the concordat relating to the distribution of business. It should be amended so that the functions in section 63(2) of the Supreme Court Act 1981 to reassign business from 9673871044 Page Type [E] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

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Statute reference (only given where another Bill clause to be existing statute is altered amended by this amendment) Explanation of amendment specially nominated High Court Judges to any High Court Judge are transferred to the Lord Chief Justice who must consult the Secretary of State for Constitutional AVairs (rather than obtain the concurrence of the Secretary of State). This is because it relates to redeployment of business within the same level. Schedule 1 Supreme Court Act 1981 I will seek to amend schedule 1 paragraph 151 of the Bill as paragraph 151 s 92(3A) it does not comply with the agreed policy in the concordat relating to provision of resources—pay, pension, terms and conditions. At present it does not amend section 92(3A) of the Supreme Court Act 1981 in relation to retirement ages of judges. It should be amended to transfer the function in section 92(3A) of the Supreme Court Act 1981 to the Secretary of State for Constitutional AVairs. Schedule 1 Representation of the I will seek to amend schedule 1 paragraph 160, as it does paragraph 160 People Act 1983 s 161 not comply with the agreed policy in the concordat relating to complaints and discipline. At present it states the Secretary of State for Constitutional AVairs should be the oYce holder an election court should report any evidence of corruption by a Justice of the Peace to. It should be amended to read both the Secretary of State for Constitutional AVairs and the Lord Chief Justice. Schedule 1 Mental Health Act 1983 I will seek to amend schedule 1 paragraph 169 as it does paragraph 169 s 105(2) not comply with the agreed policy in the concordat relating to the transfer from the Lord Chancellor of judicial posts. The words “the Lord Chancellor or from” should be deleted as the Lord Chancellor will no longer sit in a judicial capacity. Schedule 1 Insolvency Act 1986 I will seek to amend schedule 1 paragraph 195(2) as it does paragraph 195(2) s 117(4) not comply with the agreed policy in the concordat relating to deployment—numbers/regions/location/sitting times/ jurisdiction. At present it incorrectly transfers functions to exclude jurisdiction from county courts to the Secretary of State for Constitutional AVairs after consultation with the Lord Chief Justice. It should be amended to transfer the function to the Secretary of State for Constitutional AVairs with the concurrence of the Lord Chief Justice. Schedule 1 Children Act 1989 s 97(4) I will seek to amend schedule 1 paragraph 218(2), as it paragraph 218(2) does not comply with the agreed policy in the concordat relating to the issuing of practice directions. At present it states the Lord Chief Justice should have the power to overturn an order under section 97(4) of the Children Act 1989 if it is in the child’s welfare to do so. As this is a ministerial power it should be amended to read the Secretary of State for Constitutional AVairs with the concurrence of the Lord Chief Justice. Schedule 1 Courts and Legal Services I will seek to amend schedule 1 paragraph 225 of the Bill as paragraph 225 Act 1990 s 1 and 9 it does not comply with the agreed policy in the concordat relating to deployment—distribution of business. At present it states that the function of conferring jurisdiction on the High Court/County Courts, allocate proceedings to the High Court/County Courts, and specify proceedings which may be commenced/taken only in the High Court/ County Courts is transferred to the Secretary of State for Constitutional AVairs. It should be amended to transfer the function to the Secretary of State for Constitutional AVairs with the concurrence of the Lord Chief Justice. 9673871044 Page Type [O] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

constitutional reform bill [hl] committee: evidence 433

Statute reference (only given where another Bill clause to be existing statute is altered amended by this amendment) Explanation of amendment Schedule 1 Judicial Pensions and I will seek to amend schedule 1 paragraph 249 of the Bill paragraph 249 Retirement Act 1993 s 26 which refers to section 26 of the Judicial Pensions and Retirement Act 1993. This function relates to an exclusion for the Lord Chancellor of the maximum age permissible to hold judicial oYce. It should be amended to read the Lord Chief Justice with concurrence of the Secretary of State for Constitutional AVairs, to bring it into line with the agreed policy in the Concordat on Judicial Posts. Schedule 1 Trade Marks Act 1994 I will seek to amend schedule 1 paragraph 259(2), which paragraph 259(2) s 77(3) concerns the removal of a person from oYce who has been appointed to hear and decide appeals under the Trade Marks Act 1994 Act, as it does not comply with the agreed policy in the concordat relating to complaints and discipline. This paragraph amends subsections 3 (b) and (c) and 4 to transfer the function to the Secretary of State for Constitutional AVairs. Schedule 1 Reserve Forces Act 1996 I will seek to amend schedule 1 paragraph 261(2) as it does paragraph 261(2) s 92(1) not comply with the agreed policy in the concordat relating to Deployment—authorisations/assignments. At present it states that an appeal tribunal under the Reserve Forces Act 1996 shall consist of a chairman and two other members selected by the Lord Chancellor after consulting the Secretary of State for Constitutional AVairs from the appropriate panel appointed under section 90 or 91. This is a drafting error and the reference to the Lord Chancellor will be amended to the Lord Chief Justice. Schedule 1 Employment Tribunals I will seek to amend schedule 1 paragraphs 265(4) and (5) paragraph 265(4) Act 1996 as they do not comply with the agreed policy in the and (5) concordat relating to appointments. At present these paragraphs state that when an appointed member of the Appeal Tribunal is temporarily absent or otherwise unable to act as a member of the Appeal Tribunal, the Lord Chief Justice and the Secretary of State may jointly appoint a person as a member to act temporarily in his place. This will be amended so that the Lord Chancellor’s function in section 23(3) of this Act is transferred to the Secretary of State for Constitutional AVairs, who must consult the Lord Chief Justice. Schedule 1 Civil Procedure Act I will seek to amend schedule 1, part 1 paragraph 271 of paragraph 271 ss 2(1A), (3) and (4) the Bill to provide that the Lord Chief Justice may delegate the power to appoint one judge of the Supreme Court, one Circuit judge, one district judge and one person who is a Master referred to in part 2 of schedule 2 to the Supreme Court Act 1981 to the Civil Procedure Rules Committee. The function will can be delegated under section 84(4) of the Bill to another judicial oYce holder, to comply with the agreed policy in the concordat relating to appointment to committees, boards and similar bodies. Schedule 1 Education Act 1996 s 334 I will seek to amend Schedule 1, part 1, paragraph 275 paragraph 275 which relates to Education Act 1996 s 334.The function deals with the power of the Lord Chancellor to remove a President of the Education Tribunal if they become unﬁt to hold oYce. The Bill should be amended to speciﬁcally transfer the function to the “Secretary of State for Constitutional AVairs” to be exercised with the concurrence of the Lord Chief Justice. This is to bring the Bill in line with the concordat policy on complaints and discipline. 9673871044 Page Type [E] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

434 constitutional reform bill [hl] committee: evidence

Statute reference (only given where another Bill clause to be existing statute is altered amended by this amendment) Explanation of amendment Schedule 1 Criminal Justice and I will seek to amend Schedule 1, part 1, paragraphs 327(3) paragraph 327(3) Court Services Act 2000, of the Criminal Justice and Court Services Act 2000, sch 1(3) schedule 1(3). This function deals with whom a person must resign to when leaving a position on a Local Probation Board. The Bill should be amended to speciﬁcally transfer the function to the “Secretary of State for Constitutional AVairs”, in line with the policy in the Concordat dealing with Provision of Resources. Schedule 1 Civil Procedure Act 1997 I will seek to amend schedule 1, paragraph 279 of the Bill, paragraph 279 s 2(1A), 3 and 4 which refers to sections 2(1A), (3) and (4) of the Civil Procedure Act 1997. These functions relate to the power to appoint judicial members to the Civil Procedure Rules committee. This function is to be transferred to the Lord Chief Justice. This amendment provides that this function may be delegable to another judicial oYce holder as deﬁned in clause 84(4) of the Bill. This amendment brings the policy into line with the Concordat in relation to appointment to committees, boards and similar bodies. Schedule 1 Special Immigration I will seek to amend schedule 1 paragraph 290(4) as it does paragraph 290(4) Appeals Commission Act not comply with the agreed policy in the concordat relating 1997, sch 1, para 4 to tribunals. At present the Bill provides that the times and places of sittings of the Commission shall be determined by the Secretary of State for Constitutional AVairs, with the concurrence of the Lord Chief Justice. This function should transfer to the Secretary of State for Constitutional AVairs alone. Schedule 1 Immigration and Asylum I will seek to amend schedule 1 paragraph 315(4) as it does paragraph 315(4) Act 1999, sch 7, para 5 not comply with the agreed policy in the concordat relating to tribunals. At present the Bill provides that the times and places of sittings of the Tribunal shall be determined by the Secretary of State for Constitutional AVairs, with the concurrence of the Lord Chief Justice. This function should transfer to the Secretary of State for Constitutional AVairs alone. Schedule 1 Land Registration Act I will seek to amend schedule 1 to provide that the Lord paragraph 338 2002 sch 9 par 1(2) Chancellor’s functions in paragraph 1(2) of Schedule 9 to the Land Registration Act 2002, which concerns the removal of adjudicators from oYce on the ground of incapacity or misbehaviour, should be transferred in Schedule 1 to the Secretary of State for Constitutional AVairs to be exercised only with the concurrence of the Lord Chief Justice. This is to bring the Bill in line with the concordat policy on complaints and discipline. Schedule 1 Nationality, Immigration I will seek to amend schedule 1 paragraph 349(3) of the paragraph 349(3) and Asylum Act 2002 Bill, as it does not comply with the agreed policy in the sch 5, para 5 concordat relating to tribunals. At present the Bill provides that the times and places of sittings of the Tribunal shall be determined by the Secretary of State for Constitutional AVairs, with the concurrence of the Lord Chief Justice. This function should transfer to the Secretary of State for Constitutional AVairs alone. Schedule 1 Extradition Act 2003, I will seek to amend schedule 1, part 1, paragraph 352(2) paragraph 352(2) s 67(1)(a) of the Bill which refers to section 67(1)(a) of the Extradition Act 2003, designation of a District Judge (Magistrates’ Courts) as an appropriate judge for an extradition hearing in England and Wales. The Bill currently transfers the function to the Secretary of State 9673871044 Page Type [O] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

constitutional reform bill [hl] committee: evidence 435

Statute reference (only given where another Bill clause to be existing statute is altered amended by this amendment) Explanation of amendment for Constitutional AVairs after consulting the Lord Chief Justice, but should be amended to transfer the function to the Lord Chief Justice after consulting the Secretary of State for Constitutional AVairs, in line with the policy in the Concordat dealing with deployment— allocation of work. Schedule 1 Extradition Act 2003 I will seek to amend schedule 1 paragraph 353(2) as it does paragraph 353(2) (c. 41) 139(1)(a) not comply with the agreed policy in the concordat relating to deployment—allocation of work. At present the Bill provides that the Secretary of State for Constitutional AVairs designates a District Judge (Magistrates’ Courts) as an appropriate judge for a (Part 2) extradition hearing, after consultation with the Lord Chief Justice. This paragraph should be amended so that the Lord Chief Justice designates the District Judge, after consultation with the Secretary of State for Constitutional AVairs. Schedule 1 Criminal Justice Act I will seek to amend paragraph 355(2) as it does not paragraph 355(2) 2003s 167(1)(b) comply with the agreed policy in the concordat relating to appointments to committees. At present the Bill provides that the Secretary of State for Constitutional AVairs appoints members to the Sentencing Guidelines Council. This paragraph should be amended so that the Lord Chief Justice appoints members, after consultation with the Secretary of State for Constitutional AVairs. Schedule 1 Courts Act 2003 s 11(2) I will seek to amend schedule 1, part 2, paragraph 369 paragraph 369 which refers to section 11(2)(b) of the Courts Act 2003. This function allows the Lord Chancellor, on behalf of Her Majesty, to remove a lay justice from oYce on the ground of incapacity or misbehaviour. At present the Bill omits to provide an oYce holder for this function to be transferred to. This paragraph should be amended to transfer this function to the Secretary of State for Constitutional AVairs to be exercised with the concurrence of the Lord Chief Justice, in line with the agreed policy in the Concordat relating to complaints and discipline. Schedule 1 Courts Act 2003 s 13(3) I will seek to amend schedule 1 paragraph 370(2) of the paragraph 370(2) Bill, as it does not comply with the agreed policy in the concordat relating to deployment—resource implications. At present it transfers to the Secretary of State for Constitutional AVairs after consultation with the Lord Chief Justice the functions of permitting a lay justice acting as a Justice of the Peace who turns 70 while proceedings are in progress to remain a lay justice until the proceedings are complete. It should be amended to transfer the function to the Lord Chief Justice with the concurrence of the Secretary of State for Constitutional AVairs. Schedule 1 Courts Act 2003 s 17(3) I will seek to amend schedule 1 paragraph 373(2) as it does paragraph 373(2) not comply with the agreed policy in the concordat relating to deployment and also the provision of resources. At present the function of authorising a lay justice to continue as chairman or deputy chairman of lay justices for proceedings which are in progress when the lay justice’s oYce would otherwise end is transferred to the Secretary of State for Constitutional AVairs. It should be amended to transfer the function to the Lord Chief Justice with the concurrence of the Secretary of State for Constitutional AVairs. 9673871044 Page Type [E] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

436 constitutional reform bill [hl] committee: evidence

Statute reference (only given where another Bill clause to be existing statute is altered amended by this amendment) Explanation of amendment Schedule 1 Courts Act 2003 s 20 I will seek to amend schedule 1 paragraph 375(3), as it paragraph 375(3) does not comply with the agreed policy in the concordat relating to rules. At present the Bill provides for the Lord Chief Justice to make rules. This paragraph should be amended to read the Lord Chief Justice with the concurrence of the Secretary of State for Constitutional AVairs can make rules. Schedule 1 Courts Act 2003 s 25(2) I will seek to amend schedule 1 paragraph 379, as it does paragraph 379 not comply with the agreed policy in the concordat relating to the organisational framework of the courts system. At present it states that District Judges have a duty to act as Justices of the Peace in the local areas in accordance with arrangements made by or on behalf of the Secretary of State for Constitutional AVairs. It should be amended so that the function is transferred to the Lord Chief Justice who must consult the Secretary of State for Constitutional AVairs. Schedule 1 Courts Act 2003 s 30 I will seek to amend schedule 1 paragraph 382 of the Bill as paragraph 382 it does not comply with the agreed policy in the concordat relating to Deployment—numbers/regions/location/sitting times/jurisdiction. At present it transfers provisions relating to directions to the places magistrates’ courts may sit to the Secretary of State for Constitutional AVairs after consulting the Lord Chief Justice. Subsection (5) should be amended to transfer the function to the Secretary of State for Constitutional AVairs with the concurrence of the Lord Chief Justice. Schedule 1 Courts Act 2003 72(3) I will seek to amend schedule 1, part 2, paragraph 393 paragraph 393 which refers to section 72(3) of the Courts Act 2003 in which the Lord Chancellor may, with the concurrence of the Secretary of State, allow, disallow or alter rules so made. At present the Bill merely removes the reference to the Lord Chancellor. The original reference to the “Secretary of State”, is not suYciently clear and a reference to “the appropriate Minister” will be inserted to clarify which Secretary of State is intended. Schedule 1 Courts Act 2003 s 77(1A) I seek to amend schedule 1, part paragraph 396(3) of the paragraph 396(3) (1B) Bill which refers to s 77(1A) and 1(B). This section refers to the appointment of judicial and non-judicial members of the Family Procedure Rules Committee. The Lord Chief Justice should appoint all judicial members and the Secretary of State for Constitutional AVairs should appoint all non-judicial members. This amendment would bring this function into line with the agreed policy of the Concordat in relation to rule committee appointments. Schedule 1 Courts Act 2003, Sch 1, I will seek to amend schedule 1 paragraph 406(2) as it does paragraph 406(2) par 2 not comply with the agreed policy in the concordat relating to appointments. At present it states that the appointment of members to Court Boards is transferred to the Secretary of State for Constitutional AVairs. For judicial appointments to Court Boards only, it should be amended to read Secretary of State for Constitutional AVairson “on the recommendation of the Lord Chief Justice”. Schedule 1 Children and Young I will seek to amend paragraph 412(6)(b)(ii) as it does not paragraph Persons Act 1933 sch 2 comply with the agreed policy in the concordat relating to 412(6)(b)(ii) (15) Deployment—nominations. At present it states that the chairman of a youth court shall be selected in such manner 9673871044 Page Type [O] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

constitutional reform bill [hl] committee: evidence 437

Statute reference (only given where another Bill clause to be existing statute is altered amended by this amendment) Explanation of amendment as may be provided by an order made by the Lord Chancellor after consulting the Secretary of State for Constitutional AVairs. This is a drafting error and the reference to the Lord Chancellor will be amended to the Lord Chief Justice.

Schedule 1 Restrictive Practices I will seek to amend schedule 1 paragraph 418(2) of the paragraph 418(2) Court Act 1976 s 4(1)(a) Bill, as it does not comply with the agreed policy in the and (b) concordat relating to the number of judges deployed. This provision relates to the deployment of additional Judges to the Court of Session and appointment of members. The ﬁrst reference to the Lord Chancellor should be amended to read the Secretary of State for Constitutional AVairs (rather than the Lord Chief Justice). The second reference to the Lord Chancellor (b), the reference to the Lord Chief Justice should be removed.

Schedule 1 Pharmacy Act 1954 I will seek to amend schedule 1 paragraph 43(2) of the Bill, paragraph 43(2) (c. 61) sch 1c para 3(4) as it does not comply with the agreed policy in the concordat relating to the appointment of leadership posts. At present it states that the Secretary of State for Constitutional AVairs must approve the appointment of a chairman or deputy chairman under schedule 1c paragraph 3(4) of the Pharmacy Act 1954 after consulting the Lord Chief Justice. It should read the Lord Chief Justice must approve the appointment after consulting the Secretary of State for Constitutional AVairs.

Schedule 1 Justices of the Peace Act I will seek to amend schedule 1paragraph 460 as it does paragraph 460 1997 s 33(3) not comply with the agreed policy in the concordat regarding deployment—numbers/regions/location/sitting times/jurisdiction. The ﬁrst reference to the Lord Chancellor in section 33(3) of the Justices of the Peace Act 1997, which concerns the making of orders to amend a petty session area, should be replaced by the Secretary of State for Constitutional AVairs. Paragraph 460(4) already provides for consultation with the Lord Chief Justice about such orders.

Schedule 1 Taxes Management Act Schedule 1 paragraph 66 needs to be amended to provide paragraph 66 1970 s 2(1) and (6) for consultation with the Lord Chief Justice of Northern Ireland under section 2(1) and (6) of this Act where the division concerned is in Northern Ireland.

Schedule 1 Taxes Management Act I will seek to amend schedule 1 paragraph 70 which refers paragraph 70 1970 s 4(3) to s 4(3) of the Taxes Management Act 1970. This function deals with the power to appoint special commissioners to a committee and should be transferred to the Secretary of State for Constitutional AVairs to be exercised with the concurrence of the Lord Chief Justice, the Lord Chief Justice of Northern Ireland and the Lord President of the Court of Session, as currently it does not comply with the agreed policy in the concordat relating to tribunals that have jurisdiction throughout the United Kingdom.

Schedule 1 Aircraft and Shipbuilding I will seek to amend the new section 42(8A) of the Aircraft paragraph 96(4) Industries Act 1977 and Shipbuilding Industries Act 1977 in schedule 1 section 42 (8A) paragraph 96(4) of the Bill, to reﬂect that the requirement of concurrence of the LCJ for the removal of tribunal members from oYce by the Secretary of State applies only to appointments made by the Secretary of State under section 42(8)(a). 9673871044 Page Type [E] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

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Statute reference (only given where another Bill clause to be existing statute is altered amended by this amendment) Explanation of amendment Schedule 1 Justices of the Peace Act I will seek to amend schedule 1 paragraph 450(3) as it does paragraph 450(3) 1997 s 24(5) not comply with the agreed policy in the concordat relating to the making of rules. At present the Bill provides that rules relating to training courses to be completed by magistrates before they may preside in court shall be made by the Lord Chief Justice, after consulting the Secretary of State for Constitutional AVairs and that other rules under this section should be made by the Secretary of State for Constitutional AVairs, after consulting the Lord Chief Justice. This paragraph should be amended so that other rules concerning the approval of magistrates to preside should also be made by the Lord Chief Justice. Schedule 1 Various A number of amendments will be made throughout paragraphs 134; schedule 1 of the Bill to apply a consistent approach 124(4)(b); 126(2); reﬂecting the agreed order of precedence amongst the 126(3)(b); 129(3)(b); judicial Heads of Division. The agreed ordering should be: 131(2); 131(3); the Lord Chief Justice, the Master of the Rolls, the (new) 132(3); 134; 152(2); President of the Queen’s Bench Division, the President of 225(3); 229; 251; the Family Division, the Chancellor of the High Court. 309(3); 364(3); 402(3); 409(3)(b); 413(1); 428(1) Schedule 2 Reserve and Auxiliary I will seek to amend schedule 2, part 2 paragraph 10(2) as paragraph 10(2) Forces (Protection of Civil it does not comply with the agreed policy in the concordat Interests) Act 1951 s 5(1) relating to rule making. It should be amended to specify that the function is being transferred to the Secretary of State for Constitutional AVairs after consultation with the Lord Chief Justice. At present the clause relating to powers to issue rules under the Reserve and Auxiliary Forces (protection of Civil Interests) Act 1951 is in schedule 2. It should be moved to schedule 1. Schedule 1 Reserve and Auxiliary I will seek to amend schedule 1, paragraph 40(2) as it does paragraph 40(2) Forces (Protection of Civil not comply with the agreed policy in the concordat relating Interests) Act 1951 s 5(2) to rule making. At present the Bill removes references to who will make the rules under section 5 of the Reserve and Auxiliary Forces (Protection of Civil Interests) Act 1951. It should be amended to state that rules under subsection (2) should be made in accordance with Part 1 of Schedule 2 to the Bill. Schedule 2 National Health Service I will seek to amend schedule 2 paragraph 16 of the Bill paragraph 16 Act 1977 s 126 which relates to s 126 National Health Service Act 1977. This function deals with Orders and regulations, and directions deposited to parliament by the Lord Chancellor. The function should be transferred to the Secretary of State for Constitutional AVairs in line with the agreed policy in the concordat relating to rule making. This speciﬁc amendment is based on the Concordat amendment on rule-making. Schedule 2 National Health Service I will seek to amend schedule 2, part 2, paragraph 17 as it paragraph 17 Act 1977 sch 9A (paras does not comply with the agreed policy in the concordat (15)(16)(21) relating to rules/regulations/orders. At present the order making power for determining panels and procedures for hearings under schedule 9A paragraphs (15), (16) and (21) of the National Health Service Act 1977 is transferred to the Lord Chief Justice with the concurrence of the Secretary of State for Constitutional AVairs. It should be deleted from schedule 2 and the relevant amendment inserted into schedule 1. The rule making power should be 9673871044 Page Type [O] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

constitutional reform bill [hl] committee: evidence 439

Statute reference (only given where another Bill clause to be existing statute is altered amended by this amendment) Explanation of amendment transferred to the Secretary of State for Constitutional AVairs. This specific amendment is based on the Concordat amendment on rule-making. Schedule 2 Mental Health Act 1983 I will seek to amend schedule 2, part 2, paragraph 24 as it paragraph 24 s 65 does not comply with the agreed policy in the concordat relating to rules/regulations/order. At present it does not state who should have the power to make rules under the Mental Health Act 1984 should be transferred to. It should be removed from schedule 2 and the function transferred to the Secretary of State for Constitutional AVairs in schedule 1. Schedule 2 Mental Health Act 1983 I will seek to amend schedule 2, part 2, paragraph 25 as it paragraph 25 s 108 does not comply with the agreed policy in the concordat relating to rules/regulations/order. At present it does not state who the power to make rules under the Mental Health Act 1984. It should be removed from schedule 2 and the function transferred to the Secretary of State for Constitutional AVairs in schedule 1. This specific amendment is based on the Concordat amendment on rule-making. Schedule 2 Mental Health Act 1983 I will seek to amend schedule 2, part 2, paragraph 26 as it paragraph 26 s 143(3) does not comply with the agreed policy in the concordat relating to rules/regulations/order. At present it does not state who should have the power to make rules under the Mental Health Act 1984. It should be removed from schedule 2 and the function transferred to the Secretary of State for Constitutional AVairs in schedule 1. This specific amendment is based on the Concordat amendment on rule-making. Schedule 2 County Courts Act 1984 I will seek to amend schedule 2, part 1, paragraph 27 of the paragraph 27 s 38(4) Bill which refers to County Courts Act 1984 section 38(4) which contains the power for the Lord Chancellor to make regulations under subsection (3) with respect to matters of procedure as he considers expedient. Currently the Bill transfers this function to the Lord Chief Justice with the concurrence of the Secretary of State for Constitutional AVairs. This provision should be amended to transfer the function to the Secretary of State for Constitutional AVairs after consulting the Lord Chief Justice as this is in line with the agreement in the Concordat related to rule making. This specific amendment is based on the Concordat amendment on rule-making. Schedule 2 County Courts Act 1984 I will seek to amend schedule 3, part 1, paragraph 9 of the paragraph 27 s 74A Bill which refers to County Courts Act 1984 section 74A which contains the power for the Lord Chancellor to make directions as to the practice and procedure of county courts, and delete it from schedule 3 as the power will in future be provided for under the Civil Procedure Act 1997. Schedule 2 Housing Act 1996 s 138 I will seek to amend schedule 2 part 2 paragraph 37 as it paragraph 37 (6) does not comply with the agreed policy in the concordat relating to rules, regulations and orders. At present it deletes references to the Lord Chancellor having the power to make rules by statutory instrument under the Housing Act 1996. The provision in section 138(6) of the Housing Act 1996 have never been used, and it is envisaged that any future rule making functions will be made under the Civil Procedure Act 1997. It should be amended to remove this 9673871044 Page Type [E] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

440 constitutional reform bill [hl] committee: evidence

Statute reference (only given where another Bill clause to be existing statute is altered amended by this amendment) Explanation of amendment provision from the Bill. This speciﬁc amendment is based on the Concordat amendment on rule-making. Schedule 2 Family Law Act 1996 I will seek to amend schedule 2 paragraph 41 to delete the paragraph 41 s 65(2)(a) reference to the Lord Chancellor in section 65(2)(a) of the Family Law Act 1996, which concerns the power to make incidental, supplemental, consequential and transitional provision by statutory instrument. This is to bring the Bill in line with the policy in the concordat on rules, regulations and orders. Schedule 2 Justice of the Peace Act I will seek to amend schedule 2, part 2, paragraph 42 as it paragraph 42 1997 s 54(8) does not comply with the agreed policy in the concordat relating to organisational framework, eYciency and eVectiveness of courts system. At present it transfers the function of by order prescribing procedures for appeals to the Lord Chief Justice after consultation with the Secretary of State for Constitutional AVairs. It should be amended to transfer the function to the Secretary of State for Constitutional AVairs and the relevent powers transfered to Schedule 1. Schedule 1 Restrictive Practices I will seek to amend schedule 1 paragraph 421(1) as it does paragraph 421(1) Court Act 1976 s 9 not comply with the agreed policy in the concordat relating to the making of rules. At present it states the fees chargeable in respect of proceedings before the Restrictive Practices Court Act shall be such as may be determined by rules made by the Secretary of State for Constitutional AVairs after consulting the Lord Chief Justice. It will be amended so that this function is transferred to the President of the Restrictive Practices Court, with the concurrence of the Secretary of State for Constitutional AVairs. Schedule 2 Trustee Act 1925 s 54 I will seek to amend schedule 2, part 2 paragraph 6 as it paragraph 6 does not comply with the agreed policy in the concordat relating to rules, regulations and orders. At present it states that the function of making rules with respect to the exercise of the jurisdiction in regard to mental patients under the Trustee Act 1925 section 54 will be transferred to the Lord Chief Justice with the concurrence of the Secretary of State for Constitutional AVairs. It should be amended to delete from schedule 2 and insert into schedule 1. The rule making powers should be transferred to the Secretary of State for Constitutional AVairs.This speciﬁc amendment is based on the Concordat amendment on rule-making. Schedule 3 I will seek to amend the relevant provisionn of schedule 3 of the bill so that a Minister’s agreement is not required for directions relating to guidance as to matters of the law. This will bring the Bill into line with the agreed policy in the concordat at paragraph 65 relating to Practice Directions. Schedule 3 Housing Act 1985 s 111 I will seek to amend schedule 3 part 2 paragraph 11. While paragraph 11 it does comply with the agreed policy in the concordat relating to rules regulations and orders, and the making of practice directions. This provision in section 111 of the Housing Act 1985 has never been used. At present it states that rules should be made in accordance with part 1 of schedule 2. It should be amended to delete this provision from schedule 3 relating to practice directions, while 9673871044 Page Type [O] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

constitutional reform bill [hl] committee: evidence 441

Statute reference (only given where another Bill clause to be existing statute is altered amended by this amendment) Explanation of amendment retaining the reference in schedule 2. This speciﬁc amendment is based on the Concordat amendment on rule-making.

Schedule 3 Housing Act 1985 s 181 I will seek to amend schedule 3 part 2 paragraph 12. While it paragraph 12 does comply with the agreed policy in the concordat relating to rules regulations and orders, and the making of practice directions. This provision in section 181 of the Housing Act 1985 has never been used. At present it states that rules should be made in accordance with part 1 of schedule 2. It should be amended to delete this provision from schedule 3 relating to practice directions, while retaining the reference in schedule 2.This speciﬁc amendment is based on the Concordat amendment on rule-making.

Schedule 3 Housing Act 1985 s 572 I will seek to amend schedule 3 part 2 paragraph 13. While it paragraph 13 does comply with the agreed policy in the concordat relating to rules, regulations and orders, and the making of practice directions. The provision in section 572 of the Housing Act 1985 have never been used. At present it states that rules should be made in accordance with part 1 of schedule 2. It should be amended to delete this provision from schedule 3. This speciﬁc amendment is based on the Concordat amendment on rule-making.

Schedule 3 Housing Act 1996 I will seek to amend schedule 3 part 2 paragraph 15. While it paragraph 15 s 138 (4) does comply with the agreed policy in the concordat relating to rules regulations and orders, adn the making of practice directions. The provision in section 138(4) of the Housing Act 1996 has never been used. At present it states that rules should be made in accordance with part 1 of schedule 2. It should be amended to delete this provision from schedule 3.This speciﬁc amendment is based on the Concordat amendment on rule-making.

Schedule 3 Housing Act 1996 s 143N I will seek to amend schedule 3 part 2 paragraph 16 as it does paragraph 16 not comply with the agreed policy in the concordat relating to the jurisdiction of county courts under the Housing Act 1996 section 143N. This provision has not been used, so it is proposed that it be deleted, rather than just deleting the references to the Lord Chancellor.

Schedule 3 Criminal Justice Act 2003 s I will seek to amend schedule 3 part 2 paragraph 22 as it does paragraph 22 168 not comply with the agreed policy in the concordat relating to practice directions. At present it states that the Secretary of State can by order make arrangements for proceedings of Council under the Criminal Justice Act 2003 section 168. It should be amended to the Lord Chief Justice with the concurrence of the Secretary of State for Constitutional AVairs. This section should also be moved to schedule 1.

Schedule 3 Rent (Agriculture) Act I will seek to amend schedule 3, part 2, paragraph 5 as it does paragraph 5 1976 s 26(5) not comply with the agreed policy in the concordat relating to rules/regulations/orders and practice directions. At present the power to make rules and directions under the Rent (Agriculture) Act 1976 section 26(5) is transferred to the Lord Chief Justice with the concurrence of the Secretary of State for Constitutional AVairs. It should be amended to remove the provision from schedule 3 relating to practice directions, while retaining the reference in schedule 2. This speciﬁc amendment is based on the Concordat amendment on rule-making. 9673871044 Page Type [E] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

442 constitutional reform bill [hl] committee: evidence

Statute reference (only given where another Bill clause to be existing statute is altered amended by this amendment) Explanation of amendment Schedule 3 Housing Act 1980 s 86(4) I will seek to amend schedule 3 part 2 paragraph 7. While it paragraph 7 does comply with the agreed policy in the concordat relating to rules regulations and orders, and the making of practice directions. This provision in section 86(4) of the Housing Act 1980 has never been used. At present it states that rules should be made in accordance with part 1 of schedule 2. It should be amended to remove the provision from schedule 3 relating to practice directions, while retaining the reference in schedule 2. This speciﬁc amendment is based on the Concordat amendment on rule-making. Schedule 4 Tobacco Products Duty I will seek to amend schedule 4 paragraph 31 as it does not paragraph 31 Act 1979 s 5(4) comply with the agreed policy in the concordat relating to appointments to committees, boards and similar bodies. At present it states that the function of appointing a referee under the Tobacco Products Duty Act 1979 section 5(4) should be transferred to the Secretary of State for Constitutional AVairs. It should be amended to transfer the functions to the Secretary of State for Constitutional AVairs to be exercised with the concurrence of the Lord Chief Justice (when the relevant determination was made in England or Wales); the Lord President of the Court of Session (when the relevant determination was made in Scotland); or the Lord Chief Justice of Northern Ireland (when the relevant determination was made in Northern Ireland). This amendment will also require that additions to schedule 1. Schedule 4 Aircraft and Shipbuilding I will seek to amend the option for removal of the President paragraph 28 Industries Act 1977 of the Tribunal to the Secretary of State for Constitutional s 42(5)(b) AVairs with the concurrence of Lord Chief Justice and the Lord Chief Justice for Northern Ireland as the tribunal has an England and Wales and Northern Ireland jurisdiction. Schedule 4 Car Tax Act 1983 s 3(5) I will seek to amend schedule 4, part 2, paragraph 37 of the paragraph 37 Bill relating to s 3(5) of the Car Tax Act 1983. This function deals with the Lord Chancellor’s power to appoint a referee for disputes relating to reports of a Commissioner of Customs and Excise. The Bill currently transfers this function to the Secretary of State for Constitutional AVairs, but should be amended to transfer the function to the Secretary of State for Constitutional AVairs to be exercised with the concurrence of Lord Chief Justice. This will bring it in line with the agreed policy in the Concordat relating to appointments. This amendment will also require the additions to schedule 1. Schedule 4 Value Added tax Act 1994 I will seek to amend schedule 4, part 2, paragraph 56 of the paragraph 56 sch 12, par 7(3)(a) Bill as it does not comply with the agreed policy in the concordat relating to appointments. It should be amended to transfer the power to appoint chairmen to the panel to the Secretary of State for Constitutional AVairs. Schedule 4 Merchant Shipping Act Schedule 4 paragraph 58 relates to the appointment and paragraph 58 1995 removal of wreck commissioners. I will seek to amend Schedule 1 to provide that the removal function in section 297 of this Act is transferred to the Secretary of State for Constitutional AVairs, to be exercised with the concurrence of the Lord Chief Justice and the Lord Chief Justice of Northern Ireland, in line with the agreed policy in the concordat relating to complaints and discipline. 9673871045 Page Type [O] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

constitutional reform bill [hl] committee: evidence 443 airs, to V airs in new V More Annex A ect. V airs, to be exercised only after airs, to be exercised only with the V V airs, to be exercised only with the concurrence of airs, to be exercised only with the concurrence of V V Northern Ireland. Lord President of the Court of Session, and the Lord Chief Justice of be exercised only with the concurrence of the Lord Chief Justice, the be transferred to the Secretary of State for Constitutional A The Lord Chancellor’s functions in sections 6(4), (7), (8) and (11) will Court of Session, and the Lord Chief Justice of Northern Ireland. consultation with the Lord Chief Justice, the Lord President of the State for Constitutional A proceedings are held in England or Wales). Secretary of State (see below), has e j011s, which transfers various functions of the Lord Chancellor to the Schedule [j011s] (see below). A new clause will be added to the Bill providing that new Schedule conferred on the Secretary of State for Constitutional A This clause will be amended so that it does not apply to the functions (Lord Chancellor Table 2) MINOR AND TECHNICAL AMENDMENTS CONSEQUENTIAL TO THE CONCORDAT magistrates and panel members for Standing Civilian Courts Chancellor’s function in section 6(3) is transferred to the Secretary of respect of excise duties. the Lord Chief Justice. value of a vessel for the purposes of providing relief to shipbuilders in Constitutional A Chancellor appoints a referee in a dispute about the open market Chancellor’s function in it is transferred to the Secretary of State for Chancellor concurrence of: the Lord Chief Justice (when the relevant Transport) of a board of referees, after consultation with Lord State for Constitutional A Transport Act 1962—appointment by Secretary of State (for Chancellor’s functions in them are transferred to the Secretary of to appoint referees the Lord Chief Justice. Lord Chancellor and Lord President of Court of Session of a selector Constitutional A Secretary of State (for Trade & Industry) after consultation with Chancellor’s function in it is transferred to the Secretary of State for Schedule 1 Section 6 of the Armed Forces Act 1976—Lord Chancellor appoints This provision will be amended in Schedule 1 so that the Lord Schedule 1 Paragraph 6(2) of Schedule 1 to the Finance Act 1966—Lord This provision will be amended in Schedule 1 so that the Lord Schedule 1 Sections 74 and 81 of, and paragraph 17(3) of Schedule 7 to, the These provisions will be amended in Schedule 1 so that the Lord Schedule 1 Section 170(9) of the Mines and Quarries Act 1954—nomination by This provision will be amended in Schedule 1 so that the Lord j011 New Clause amended by this amendment) Bill clause to beClause 96 Statute reference (only given where another existing statute is altered Explanation of amendment 9673871045 Page Type [E] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

444 constitutional reform bill [hl] committee: evidence airs, to V More Annex A airs will first consult the Lord Chief Justice. airs. In line with the terms of the Concordat, where airs. airs. airs, to be exercised only with the concurrence of airs. V V V V V V Constitutional A the proposed nominee is a serving judge, the Secretary of State for be exercised only with the concurrence of the Lord Chief Justice. Committee) Constitutional A Measure 1991 (Lord Chancellor nominates a member of the Rule Chancellor’s function in it is transferred to the Secretary of State for of the peace); Constitutional A Chancellor of Lord Mayor & Aldermen of City of London as justices Chancellor’s function in it is transferred to the Secretary of State for JPs) Constitutional A functions in relation to disapplication of residence qualification for Chancellor’s function in it is transferred to the Secretary of State for justice. Act 1990) from being an assessor of compensation for miscarriages of within the meaning of section 71 of the Courts and Legal Services or mental illness, a person (who has a 7 year general qualification, the Lord Chief Justice and Lord Chief Justice of Northern Ireland. removing, on the grounds of criminal record, bankruptcy or physical Constitutional A Defence Secretary requires Lord Chancellor’s consent when Chancellor’s function in it is transferred to the Secretary of State for appoints members of the conveyancing counsel of the Supreme Court it is transferred to the Secretary of State for Constitutional A concurrence Constitutional A Chancellor sets fees in magistrates courts’ proceedings with Treasury Chancellor’s function in it is transferred to the Secretary of State for Schedule 1 section 25 of the Care of Churches and Ecclesiastical Jurisdiction This provision will be added to Schedule 1 so that the Lord Schedule 1 Section 76(1) of the Access to Justice Act 1999 (appointment by Lord This provision will be added to Schedule 1 so that the Lord Schedule 1 Sections 6(2) of the Justices of the Peace Act 1997 (Lord Chancellor This provision will be added to Schedule 1 so that the Lord Schedule 1 Paragraph 6(a) of Schedule 1 to the Armed Forces Act 1991— This provision will be amended in Schedule 1 so that the Lord Schedule 1 Section 131 of the Supreme Court Act 1981—Lord Chancellor This provision will be amended in Schedule 1 so that the function in amended by this amendment) Bill clause to beSchedule 1 Statute reference (only given where another existing statute is altered Section 137(4) of the Magistrates’ Explanation Courts of Act amendment 1980—Lord This provision will be amended in Schedule 1 so that Lord 9673871045 Page Type [O] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

constitutional reform bill [hl] committee: evidence 445 More Annex A airs. V airs will ﬁrst consult the Lord Chief Justice. airs. In line with the terms of the Concordat, where airs will ﬁrst consult the Lord Chief Justice. airs. In line with the terms of the Concordat, where V V V V Chancellor’s functions in theSecretary provisions listed of State opposite to for the Constitutional A Constitutional A Constitutional A the proposed nominee is a serving judge, the Secretary of State for Constitutional A cer of any Y service matters); regular service or reserve force to advise the tribunal on any relevant the Tribunal); 1983; Code of Standards to membersthe of Immigration and a designated Asylum professional Act 1999; body) paragraph 4(3) and (4) (approvalduties requirement of and Lord consultation Chancellor where Home Secretary wants apply the Courts); the proposed nominee is a serving judge, the Secretary of State for and on appointment of lay members to the Arches and Chancery Constitutional A Chancellor consulted on appointment of a chancellor to a diocese, Chancellor’s function in it is transferred to the Secretary of State for nominates a member of the Fees Advisory Commission); Chancellor’s function in it is transferred to the Secretary of State for j011s the Court of Swainmote). New Schedule section 8 of the New Forest Act 1949 (appointment of verderers to j011s appoints, if tribunal requests, a serving or retired o j011sNew Schedule section 92(2) of the Reserve Forces Act 1996 (Lord receives Chancellor instrument of disclaimer of peerage); New Schedule section 1 of and Schedule 1 to the Peerage Act 1963 (Lord Chancellor j011s 1971 (Lord Chancellor appoints Chairman of an Advisory Body to New Schedule Schedule 3, paragraphs 13(1) and (2) to the Misuse of Drugs Act j011s patron), 102, 103(1) and (2) and 134(3) of the Mental Health Act become Court of Protection Visitors. New Schedule sections 96(5) (Lord Chancellor to exercise powers of patient as NB Lord Chancellor Visitors under sections 102, 103 and 134 will j011s Chancellor functions in relation to the supplemental list) New Schedule Sections 7(5) and (6) of the Justices of the Peace Act 1997 (Lord j011s appointment of Information Commissioner) of and Schedule 5, New Schedule section 83(2) (Lord Chancellor consulted by Home Secretary on j011s New Schedule Section 53 (incurring of expenses) of the Child Support Act 1991. This Schedule will be added to the Bill. It will transfer the Lord Schedule 1 sections 2 and 3 of the Ecclesiastical Jurisdiction Measure 1963 Lord This provision will be added to Schedule 1 so that the Lord amended by this amendment) Bill clause to beSchedule 1 Statute reference (only given where another existing statute is altered section 4 of the Ecclesiastical Fees Measure Explanation 1986 of (Lord amendment Chancellor This provision will be added to Schedule 1 so that the Lord 9673871045 Page Type [E] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

446 constitutional reform bill [hl] committee: evidence More Annex A ect as the amendment by clause V Supreme Court: consequential amendment identified late. late Supreme Court: correction to consequential amendment identified Supreme Court: consequential amendment identified late considered unnecessary because 1965 Actappropriate repealed, because but of now (distant) felt possibility of a transitional case. Supreme Court: consequential amendment identified late. explained below. provided by amendment in Part 7 of Schedule 15 to the Bill, this account). A consequential repeal is also needed, which is to be of which operate by referenceDisqualification to Act the 1975 and House so of require Commons no separate amendment on to ensure that disqualification forthat Northern for Ireland Scottish Assembly Parliament mirrors and National Assembly for Wales (both 94(1) of the House of Commons Disqualification Act 1975: required c Act 1888, s.17(5) Amend reference to House of Lords, so that it refers instead to the Y Schedule 1, Part 1, paragraph 1(a) Supreme Court: consequential amendment identified late. subss.(6)(b)(i), (8) and (9) reference to “Supreme Court”: consequential amendment previously Part 1 Disqualification Act 1975 to same e of Family Division, to reflectin accurately England order and of Wales. judicial precedence President of Queen’s Bench Division is immediately above President Schedule 8, Part 1 Judicature (Northern Ireland) Act 1978, Title of Part III Amend reference to House of Lords, so that it refers instead to the Schedule 8, Part 1 Legal Aid, Advice and Assistance (Northern Ireland) Order 1981, Amend reference to House of Lords, so that it refers instead to the Schedule 8, Part 1 Taxes Management Act 1970, s.58 Amend reference to House of Lords, so that it refers instead to the Schedule 8, Part 1 Administration of Justice Act 1969, Title to Part II Amend reference to House of Lords, so that it refers instead to the Schedule 8, Part 1 Backing of Warrants (Republic of Ireland) Act 1965, s.2A, In each place, for the reference to “House of Lords” substitute a Schedule 8, Part 1 Railway and Canal Tra amended by94 this amendment) Northern Ireland Assembly Disqualification Act 1975, Schedule 1, Amending Part 1 of Schedule 1 to the Northern Ireland Assembly Bill clause to be40(5) and 44(4) Statute reference (only given where another existing statute is altered In each place, amending order of list of “senior judges” so that Explanation of amendment 9673871045 Page Type [O] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

constitutional reform bill [hl] committee: evidence 447 he More Annex A ce” which are amended so as to ce” to the end of the definition ce” to the end of the definition Y Y Y ce within the meaning of Part 2 of ce within the meaning of Part 2 of Y Y ce” within the meaning of the Bill: Y refer to “high judicial o consequential amendment identified late. required agreement of Church authorities, now given. Committee of the Privy Council”: consequential amendment which the Constitutional Reform Act 2004 or membership of the Judicial required agreement of Church authorities, now given. Constitutional Reform Act 2004: consequential amendment which Court or members of the supplementary panel under section 30 of the Jurisdiction Act 1876)” and replace with “judges of the Supreme required agreement of Church authorities, now given. Committee of the Privy Council”: consequential amendment which the Constitutional Reform Act 2004 or membership of the Judicial and replace with “means such o late instead to the Supreme Court: consequential amendment identified Supreme Court: consequential amendment identified late. considered unnecessary because 1989 Actappropriate repealed, because but of now (distant) felt possibility of a transitional case. reference to “Supreme Court”: consequential amendment previously 2(2) Bill of references to “high judicial o s.31(1) and replace with “means such o Schedule 14, Part 2 Regulation of Investigatory Powers Act 2000, Schedule 3, paragraph Add this provision to list in paragraph 20(2) of Schedule 14 to t Schedule 14, Part 2 Care of Churches and Ecclesiastical Jurisdiction Measure 1991, Delete words after “high judicial o Schedule 14, Part 2 Ecclesiastical Jurisdiction Measure 1963, s.11(4) Delete “Lords of Appeal (within the meaning of the Appellate Schedule 14, Part 2 Ecclesiastical Jurisdiction Measure 1963, s.66(1) Delete words after “high judicial o Schedule 8, Part 1 Extradition Act 2003, s.61 and s.185(4) In each place, amend reference to House of Lords, so that it refers Schedule 8, Part 1 Proceeds of Crime (Northern Ireland) Order 1996, Article 13(6)(b) Amend reference to House of Lords, so that it refers instead to the amended by this amendment) Bill clause to beSchedule 8, Part 1 Statute reference (only given where another existing statute Extradition is Act altered 1989, s.10, subss. (7)(b)(i), (9) and (10) Explanation of amendment In each place, for the reference to “House of Lords” substitute a 9673871045 Page Type [E] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

448 constitutional reform bill [hl] committee: evidence n More Annex A ce” to the end of the deﬁnition Y ce within the meaning of Part 2 of Y explained above. disqualiﬁcation from membership of the Northern Ireland Assembly corresponding to the repeal ofthe s.15(1)(c) Bill, in and Part consequential 7 on of the Schedule amendment 15 to to clause 94 relating to which is probably spent, butconsidered which appropriate on to reconsideration repeal. it was repeal of that Act by the Bill. Consequential repeal of a provision consequential repeal. subsection (2). This preserves provisionsjudges relating which to would Northern have Irish been repealed in error. A correction of a Lord of Appeal in Ordinary” in subsection (1), and the whole of required agreement of Church authorities, now given. Committee of the Privy Council”: consequential amendment which the Constitutional Reform Act 2004 or membership of the Judicial and replace with “means such o Schedule 15, Part 7 Northern Ireland Act 1998, s.36(6)(a) Repeal of the words “other than a Lord of Appeal in Ordinary”, Schedule 15, Part 7 Judicature (Northern Ireland) Act 1978, Schedule 5, Part II Repeal reference to Appellate Jurisdiction Act 1876, consequential o Schedule 15, Part 7 Administration of Justice Act 1973, s.12 Amend so that the repeal of s.12 of the 1973 Act is of the words “as amended by this amendment) Bill clause to beSchedule 14, Part 2 Statute reference (only given where another Clergy existing Discipline statute Measure is 2003, altered s.43(1) Explanation of amendment Delete words after “high judicial o 9673871045 Page Type [O] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

constitutional reform bill [hl] committee: evidence 449

More Annex A

Constitutional Reform Bill Part 3 and Schedules 10, 11 and 12—Concordat-minor amendments

Judicial appointments and discipline

Clause Proposed amendment 87(2) I wish to introduce an amendment requiring that the definition of “subject to disciplinary procedures” and “under investigation for an oVence” must be prescribed in regulations made under clause 85, and therefore subject to Parliamentary approval, and not in rules under clause 87, which are not subject to Parliamentary approval. 56(2)(a), 59(2), 62, I have asked Counsel to consider whether it is necessary to introduce amendments 66, 67, 68 making it clearer that in every selection, the Commission selects one candidate for each vacancy it is asked to fill; it does not oVer the Minister a choice between diVerent candidates. 60 I will introduce an amendment to bring clause 60 into line with clause 54, by setting out that it is for the selection panel to determine the selection process to be applied to the selection of a Lord Justice of Appeal. 61 I will introduce an amendment to delete clause 61(3)(a), which would currently prevent a Lord Justice of Appeal from sitting on the selection panel to appoint another Lord Justice of Appeal; this contradicts clause 61(1)(b), which envisages that a Lord Justice might well be designated to sit on such a panel. 67 I have asked Parliamentary Counsel to confirm that the wording of clause 67(1)(b) (which requires the Commission to apply the selection process) does not prevent the Commission from delegating some of its functions. 74, 75, 76, 88, 90 I have asked Parliamentary Counsel whether it is necessary to introduce amendments to make it clear that the consideration of complaints is potentially a process with two or more stages: all complaints will be examined, and those which raise relevant issues will go on to be investigated. 75 I will introduce an amendment to provide that the time limit of 28 days for complaining to the Ombudsman runs from the receipt of the determination by the Commission, or Minister, concerning the complainant’s complaint. 76 I have asked Parliamentary Counsel to consider whether it would be advisable to introduce an amendment to ensure that the Ombudsman must prepare a report on any complaint he has examined under clause 75, and then decided to investigate; but not on those he decides do not need a full investigation. 81, 92 If Parliamentary Counsel considers it necessary, I will introduce amendments to ensure that “individual” in subclauses (2)(b), 3(a) and (5) in each of these clauses covers both the subject of the information and the giver of it. 88 I have asked Parliamentary Counsel to confirm that under the wording in clause 88, the Ombudsman’s role is to consider the handling of a complaint about the conduct of a judge, but not to consider the actual original complaint. The trigger point for considering a complaint will be 28 days after the notification of the various matters dealt with here. 90 I will introduce an amendment to provide that clause 90(3) should have the same eVect as clause 76(4), ie the recommendations for compensation must relate to loss which appears to the Ombudsman to have been suVered by the complainant as a result of maladministration. 90, 91 I will introduce an amendment to provide that the Ombudsman’s powers will include the setting aside of decisions relating to conduct and discipline, and remitting matters for reconsideration, including consideration at any particular stage in the prescribed procedure. 102 I will introduce an amendment to provide that this part of the Bill refers to both Great Britain and Northern Ireland in relation to some appointments. This is because some of the tribunal appointments with which the Commission will be involved relate to Scotland and Northern Ireland, as well as England and Wales. Schedule 10 I will introduce an amendment to ensure that the chairman of the Commission will be a lay person who will be selected specifically as Chairman, and not drawn from the lay 9673871045 Page Type [E] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

450 constitutional reform bill [hl] committee: evidence

Clause Proposed amendment Commissioners generally. Schedule 10 I will introduce an amendment to insert the word “other” after “1” in para 2(d); and para 2(e) should be replaced to read “1 other should be a lay justice member”. These two amendments are designed to provide that one member will be a tribunal member and one a JP, and that neither of these would also qualify as either a judicial member under 2(a) or a professional member under 2(b). This does not alter the make up of the committee, it merely clarifies the membership. Schedule 10 I will introduce an amendment which will ensure that the composition of the judicial membership of the Commission follows the Concordat ie 1 Lord Justice of Appeal; 1 puisne judge of the High Court; 1 other who must be either a Lord Justice of Appeal or a puisne judge of the High Court; 1 Circuit judge; and 1 district judge. Schedule 10 I will introduce an amendment to make it clear that the tribunal member and the magistrate member are separate categories of membership of the Commission. Schedule 10 I will introduce an amendment to make it clear that a lay member of the Commission must be resident in England and Wales, and not in the rest of the UK. The judicial members will inevitably be judges in England and Wales, and the lawyers practise in England and Wales. Requiring the lay members to be resident in England and Wales achieves consistency. Schedule 10 I will introduce an amendment to provide that a lay justice member is a justice of the peace who is none of the following—(a) a District Judge (Magistrates Courts); (b) a practising barrister in England and Wales; (c) a practising solicitor of the Supreme Court of England and Wales. Schedule 10 I will introduce an amendment to provide that a request to the Minister from the panel for appointment to the Commission must specify whether the appointment is of the Chairman. It must also specify which type of Commissioner is to be appointed, for example, judicial, professional, lay and so on. Schedule 10 I will introduce an amendment so that, before selecting a person for appointment as chairman or one of the professional members, the Minister must consider, in addition to whether the person has held judicial oYce which would make them inappropriate for appointment, whether they have also any past service as a member of a House of Parliament, as a civil servant, a Commissioner, a member of staV of the Commission or as a lawyer. Schedule 10 I will introduce an amendment so that responsibility lies with the panel and not the Minister, when selecting persons for appointment as lay members, including the chair, that, so far as practicable, that the persons so appointed include at least one who appears to the panel to have special knowledge of Wales. Schedule 10 I will introduce an amendment which will allow the Minister to have the power to pay the remuneration and expenses of the members of the advisory panel Schedule 10 I will introduce an amendment relating to the order-making power under para 7. I wish to make it clear that, when the power to increase the number of judicial members is exercised, a corresponding amendment is made to specify the numbers of each level of the Judiciary that will be Commissioners, so that the numbers of each type of Commissioner is kept in the same proportion as outlined in para 2. Schedule 10 I will introduce an amendment so that the Minister must seek the concurrence of the Lord Chief Justice before increasing the size of the Commission. Schedule 10 I will introduce an amendment so that the term “senior Head of Division” is defined, which will make it clear who performs the role of the Lord Chief Justice when the Lord Chief Justice is not available for any reason. The definition is (a) the Master of the Roll’s; (b) or if that oYce is vacant, the President of the Queen’s Bench Division; (c) if both these oYces are vacant, the President of the Family Division; (d) if all those oYces are vacant, the Chancellor of the High Court. Schedule 10 I will introduce an amendment to allow the possibility of the Minister making appointments of staV to the Commission even after he has appointed a Chief Executive, until the JAC determines that it no longer needs the assistance of the Minister. In so doing, the Minister will be required to seek the consent of the Chief Executive, once appointed. The Minister’s power to make appointments in this regard will not be exercisable after three years. 9673871045 Page Type [O] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

constitutional reform bill [hl] committee: evidence 451

Clause Proposed amendment Schedule 10 I will introduce an amendment to ensure that the consent of the Chief Executive, once appointed, should be required by the Minister when appointing staV and providing assistance to the Commission. Once the Commission is established then the Minister’s powers in this respect will conclude. Schedule 10 I will introduce an amendment to provide for a continuing power to transfer staV to the Commission for up to three years. Schedule 10 I will introduce an amendment to clarify that (a) the Minister may require the Commission to seek his consent in relation to spending specified amounts and (b) to clarify that the Minister’s power to issue directions to the Commission can relate to all of the Commission’s costs and expenditure, or to costs and expenditure of a specified description. Schedule 10 I will introduce an amendment to provide that the third member of the panel to appoint Commissioners cannot be a member of either House of Parliament. Schedule 11 I will introduce an amendment to provide that the Minister has the power to pay the Acting Ombudsman. Schedule 12 As stated in the Concordat, lay justices and General Commissioners of Income Tax are to be added to the remit of the Commission at such time as the Commission informs the Secretary of State that it is practicable to do so. I will introduce an amendment to make this possible. Schedule 12, Part 1 I will introduce an amendment to insert the oYces of Ordinary Masters and Registrars under the functions of section 89(3) of the Supreme Court Act 1981, as these posts should fall with the remit of the Commission. Schedule 12, Part 1 I will introduce an amendment to insert the oYces of Chief Child Support Commissioner and Child Support Commissioner under section 22(1) of the Child Support Act 1991and the oYces of Chief Social Security Commissioner and Social Security Commissioner under paragraph 1(1) of Schedule 4 to the Social Security Act 1998, as these posts should fall within the remit of the Commission. Schedule 12, Part 1 I will introduce an amendment to insert the oYces of Masters of the Queen’s Bench Division and Masters of the Chancery Division under under section 89(1) of the Supreme Court Act 1981, as these posts should fall within the remit of the Commission. Schedule 12, Part 1 I will introduce an amendment to provide that the oYce listed under section 89(3) of the Supreme Court Act 1981, currently referred to as ‘Chief Chancery Master of the Chancery Division’ be amended to ‘Chief Chancery Master’ (discussions are currently underway with Parliamentary Counsel to confirm that this is the appropriate title for the post.) Schedule 12, Part 2 I will introduce an amendment to insert the oYces of deputy Master of the Queen’s Bench Division and deputy Master of the Chancery Division under section 91(1) of the Supreme Court Act 198, as these posts should fall within the remit of the Commission. Schedule 12, Part 2 I will introduce amendments to delete references to Deputy Circuit Judge, Vice Presidents of the Criminal and Civil Divisions of the Court of Appeal and Deputy Judge of the High Court, as these are authorisation and deployment issues. In accordance with the Concordat, these functions will be carried out by the Lord Chief Justice in consultation with the Secretary of State. Schedule 12, Part 3 I will introduce an amendment to insert the appointment of the Common Sergeant under section 12(2) of the City of London (Courts) Act 1964, as this appointment should fall within the remit of the Commission. Schedule 12, Part 3 I will introduce an amendment to insert the appointment of a panel of persons experienced in land drainage under section 31(1) of the Land Drainage Act 1991, as this appointment function should fall within the remit of the Commission. Schedule 12, Part 3 I will introduce an amendment to insert nomination by the Minister of a list of persons eligible for membership of police appeals tribunals under para 1(1) of Schedule 6 to the Police Act 1996, as this function should fall within the remit of the Commission. Schedule 12, Part 3 I will introduce an amendment to remove reference to section 4(3) of the Taxes Management Act 1970 from Schedule 12, as this relates to a deployment function and, as such, should not be within the remit of the Commission. 9673871045 Page Type [E] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

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Clause Proposed amendment Schedule 12, Part 3 I will introduce an amendment to insert the appointment by the Minister of a panel of potential chairmen of tribunals under section 6 of the Tribunals and Inquiries Act 1992, as this function should fall within the remit of the Commission. Schedule 12, Part 3 I will introduce an amendment to insert appointments by the Minister to a panel of chairmen for England and Wales under Paragraph 6(2)(a) of the Deregulation (Model Appeals Provision) Order 1996, as this appointment function should fall within the remit of the Commission. Schedule 12, Part 3 I will introduce an amendment to insert Paragraph 2 of the Chemical Weapons (Licence Appeal Provisions) Order 1996 as this refers back to the Deregulation (Model Appeals Provision) Order 1996, which should also to be added to this Part (see above). Schedule 12, Part 3 I will introduce an amendment to insert the drawing up of a panel of deputy chairmen for each Agricultural Land Tribunal; panel of persons representing farmers; panel of persons representing the owners of agricultural land by the Lord Chancellor under Paragraphs 14(1), 15(1)-(3) of Schedule 9 to the Agriculture Act 1947, as these functions should fall within the remit of the Commission. Schedule 12, Part 3 I will introduce an amendment to insert appointment by the Minister of a panel of potential chairmen of Social Security Appeal Tribunals, Disability Appeal Tribunals, and Medical Appeal Tribunals under sections 41(4), 43(5) and 50 of the Social Security Administration Act 1992, as this function should fall within the remit of the Commission. Schedule 12, Part 3 I will introduce an amendment to insert appointment by the Minister of a President of VAT Tribunals under Paragraph 2(2) of Schedule 12 to the Value Added Tax Act 1994, as this function should fall within the remit of the Commission. Schedule 12, Part 3 I will introduce an amendment to delete reference to the “Ombudsman” and section 3(5) Car Tax Act 1983, as this is not an appointment function and should be moved to Schedule 1. Schedule 12, Part 3 I will introduce an amendment to delete reference to the “Ombudsman” and para 17(4) of Schedule 3 to the Customs and Excise Management Act 1979, as this is not an appointment function and should be moved to Schedule 1. Schedule 12, Part 3 I will introduce an amendment to delete reference to para 1(2) of Schedule 34 to the Education Act 1996 and to “Member of the legal panel for the constitution of Independent Schools Tribunals” as this Act has recently been repealed. Schedule 12, Part 3 I will introduce an amendment to delete reference to the “Ombudsman” and section 5(4) of the Tobacco Products Duty Act 1979, as this is not an appointment function and should be moved to Schedule 1. Schedule 12, Part 3 I will introduce an amendment deleting references to the Wireless Telegraphy Act 1949, as this Act has recently been repealed. 92 I have asked Parliamentary Counsel to consider whether it is advisable to introduce an amendment deleting clause 92(3)(b) on the basis that it is unnecessary, as clause 92(3)(c) appears to cover the position.

Annex B—Appointments Model

Convening and Composition of Supreme Court Appointment Commission (SCAC)

The SCAC Would Be: — Convened on an ad hoc basis if there is an actual or impending vacancy. — It will consist of the President and Deputy President as ex oYcio members—the former being chair of the commission—plus one member each of the national appointing commissions. — It will be up to each national appointing commission to recommend a candidate for the Commission but no member of the Commission can be put forward for appointment to the court. — The Secretary of State will be obliged to accept these recommendations but will have a long-stop power to ensure that at least one member of the panel is lay. 9673871046 Page Type [O] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

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— The Secretary of State will not formally convene the SCAC until he is satisﬁed that there is at least one lay member on the panel.

General Principles: — Merit will be the only criterion laid out on the face of the Bill (although it will not be deﬁned and it will be the responsibility of the SCAC to deﬁne what constitutes merit). — There will be a power in the Minister to give initial guidance to the SCAC, but no provision for further criteria. — The general guidance issued by the Secretary of State to the SCAC should always set out the starting position of the Court—that there should always be at least two Scottish Judges and this must be maintained as the bottom line. — The SCAC will also be under a duty to ensure the court has amongst its permanent members adequate knowledge and expertise of each jurisdictions within the UK (in practice this will mean retaining the convention that there are at least two Scottish Judges and normally one Northern Ireland Judge). — The Secretary of State will pass a recommendation to the Prime Minister. — The Prime Minister will pass this recommendation to Her Majesty. — Her Majesty will appoint the candidate by letters patent.

The Process

SCAC stage 1. The Secretary of State would invite the SCAC to ﬁll an actual or impending vacancy in the Court. 2. The Secretary of State would issue guidance to the SCAC as to any special factors that should be taken into account (eg issues of jurisdictional balance). 3. Once convened the SCAC would canvass eligible candidates from across the UK and draw up a shortlist from which they would ultimately select one name with reasons to forward to the SofS along with details of all other candidates they considered appointable (in issuing general guidance the Secretary of State would make it clear to the SCAC that this means only the leading contenders and not all who are technically qualiﬁed). 4. In so doing the SCAC would consider eligible candidates foremost on merit (to be laid out on the face of the Bill) but would also consider the territorial requirements of the court (in conjunction with any guidance given to it by the SofS). 5. The SCAC will be required to consult the senior judiciary in each of the jurisdictions (as long as they are not candidates for appointment) and the other Justices of the Supreme Court and the First Minister of Scotland, First Minister of Wales, the Deputy First Minister and Secretary of State for Northern Ireland and the Secretary of State for Constitutional AVairs (representing the England and Wales viewpoint.)

Secretary of State Stage 6. The Secretary of State on receiving a name from the SCAC will himself consult the senior judiciary in each jurisdiction (as long as they are not candidates) and the heads of the Devolved administrations 7. The Secretary of State then has three options: (a) Accept the recommendation. (b) Ask the SCAC to reconsider. (c) Reject the recommendation.

The SofS can invoke either of these three options at this stage eg he could ask the SCAC to reconsider or he could reject outright—See below — Under a) the SofS would pass the name forward to the PM who would recommend the Queen accordingly. 9673871046 Page Type [E] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

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— If the SofS selects option b) ﬁrst, he would ask the SCAC to reconsider if he considers that the evidence submitted does not demonstrate that the recommended candidate meets the criteria (merit or territorial balance) or if the evidence suggests that recommended candidate is not the strongest candidate. (He would not be able to suggest another candidate from the other names considered.) He must give his reasons in writing. After reconsideration the SCAC can still put forward the same name with further reasons or recommend an alternative. The SofS would not be able to ask the SCAC to reconsider a second time, but he could then put forward either of the recommended candidates (unless he chooses to reject the second candidate put forward by the SCAC—See below.) — Under c) the SofS can reject the name provided by the SCAC if he considers that there is evidence that the candidate cannot be considered for appointment to the Supreme Court. He must give his reasons in writing for this rejection. — If rejection follows reconsideration on the basis that the Secretary of State considers that the second candidate cannot be considered for appointment to the Supreme Court, the SCAC must submit an alternative candidate. At this point the SofS can either: (i) Accept this candidate (ii) Accept the candidate originally put forward before reconsideration — If the SofS rejects the original name provided by the SCAC on the basis that that he considers that the candidate cannot be considered for appointment to the Supreme Court (ie rejection before reconsideration), the SCAC must submit an alternative candidate giving reasons for their choice. At this point the SofS can either: (i) accept the second candidate. (ii) ask the SCAC to reconsider—The SCAC can then either resubmit the second candidate with further evidence or an alternative candidate. If an alternative candidate is put forward the SofS can then choose between the ﬁrst name following rejection or the new name following reconsideration.

Special Scenarios

Composition of the SCAC when appointing Ordinary Justices of the Court where there is no President and or Deputy President The selection process for appointing Ordinary Justices of the Court if there is no President and or Deputy President to sit on the SCAC will remain the same but the composition of the SCAC will vary:

If there is no President but there is a Deputy President — The Deputy President will chair the Commission and he will nominate the second most senior Permanent Justice of the court to sit on the Commission.

If there is a President but no Deputy President — The President will chair the Commission and he will nominate the second most senior justice to sit on the Commission.

If there is no President and no Deputy President — The most senior permanent Justice of the Court will chair the Commission and will nominate the second most senior Justice to sit on the Commission.

Composition of the SCAC when appointing President and Deputy President — The Selection process for appointing a President and Deputy President will be the same as when appointing an ordinary Justice of the Supreme Court. However the composition of the SCAC may vary. 9673871046 Page Type [O] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

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When Selecting a President — The general principle is that if the oYce of President becomes vacant the Deputy President should not sit as a member of the SCAC, unless he explicitly expresses his wish not to be considered for the oYce of President.

If there is a President and Deputy President who does not want to be considered — Nothing in the present arrangement need change ie the President will chair the SCAC and the Deputy President will sit as the second judicial representative.

If there is no president and a Deputy President who does not want to be considered — The Deputy President will chair and nominate from amongst the Permanent members of the court the next most senior Justice (so long as he is not a candidate.)

If the Deputy President is a candidate and the President is available to chair the SCAC — The President will nominate amongst the permanent Justices of the court the next most Senior Justice (so long as he is not a candidate)

If the President and Deputy President are both unable to sit on the commission — The next most senior permanent Justice of the Court (if he is not a candidate) will chair the commission and nominate the second most senior judge (if he is not a candidate) to sit on the Commission. Should the most senior Justice be a candidate for the position he will nominate the two most senior ordinary Justices from amongst permanent members of the Supreme Court (provided these Judges are not candidates).

If there is no President and Deputy President and if all of the ordinary Justices are unable to sit because they are candidates — The Secretary of State would convene a special commission comprising the Senior Judge in each of the UK Jurisdictions who is not himself a candidate for appointment. The most senior of these Judges based on tenure will chair the commission.

If the President is available to chair the commission but the Deputy and all Justices wish to be considered for selection OR: if there is no President and the Deputy does not want to be considered for selection but all Justices wish to be considered for selection — The Secretary of State would convene a special commission as above but would take into account the jurisdiction from which the President or Deputy President is from and then convene two further judges—one from each of the jurisdictions not represented by the President and Deputy President.

If there is not President and Deputy President and all bar one of the ordinary Justices are unable to sit because they are candidates — The Secretary of State would convene a special commission as above but would take into account the jurisdiction from which the Ordinary Justice able to sit is from and then convene two further judges—one from each of the jurisdictions not represented by the President and Deputy President. The Ordinary Justice would chair. 9673871046 Page Type [E] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

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When Selecting a New Deputy President:—

If there is a President but no Deputy President — The President will nominate the most senior permanent Justice who is not a candidate for the position of Deputy President to the SCAC .

If there is no President but there is a Deputy President — The Deputy President will chair the commission and nominate the most senior permanent Justice who is not a candidate for the position of the Deputy President to the SCAC.

If there is neither a President nor Deputy President — The most senior permanent Justice of the Court (who is not candidate for the position of Deputy President) will chair the commission and nominate the next most senior member of the court (who is not a candidate for the position of Deputy President) to sit on the commission.

If there is neither a President nor Deputy President and if all of the ordinary Justices are unable to sit because they are candidates — The Secretary of State would convene a special Commission comprising the Senior Judge in each of the UK Jurisdictions who is not himself a candidate for appointment. The most senior of these Judges based on tenure will chair the commission.

If one of the President or Deputy President is available but if all of the ordinary Justices are unable to sit because they are candidates — The Secretary of State would convene a special commission as above but would take into account the jurisdiction from which the President or Deputy President is from and then convene two further judges—one from each of the jurisdictions not represented by the President and Deputy President. The President or Deputy President would chair.

If there is neither a President and Deputy President and all bar one of the ordinary Justices are unable to sit because they are candidates — The Secretary of State would convene a special commission as above but would take into account the jurisdiction from which the Ordinary Justice able to sit is from and then convene two further judges—one from each of the jurisdictions not represented by the President and Deputy President. The Ordinary Justice would chair.

Memorandum by Sir Michael Wheeler-Booth 1. The Government appeared at ﬁrst not to wish to hear arguments on their recent proposals for constitutional reform for as was said in a Consultation paper “we are not commenting on the broad principles of the change” (CP13/03 September 2003 p 10). However, the decision to set up a Select Committee has made clear that arguments on the merits of the recent proposals for constitutional reform are now admissible. This note covers both wider issues as well as a few detailed points. The precedents indicate that it is open to the Committee, after hearing such evidence it wishes, to amend or even to kill the Bill. This is in contrast with the usual committee proceedings, where agreeing to the second reading of a Bill by the House implies acceptance of its general principles. The Committee can employ a parliamentary draftsman to help to amend the Bill, or alternatively can request the Government to do so on lines indicated. I have recently seen evidence from Professors GriYth and Bogdanor with whom I am broadly in agreement and which has provoked this note to supplement their evidence. It is brief in the knowledge that I am late and also that the committee has asked for short submissions. 2. Surely anyone studying the proposals will recognise that there are arguments both ways. Some authorities, like Lords Bingham and Alexander and Professor Robert Stevens favour the proposals, while others including the majority of the law lords (including Lord Nicholls and Hope) and Professor GriYth do not. I oVer this evidence with consequent diYdence. 9673871047 Page Type [O] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

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A. General Points

3. As we do not have a codiﬁed constitution, we do not have any special requirements for the passage of constitutional legislation into law as, for example, the requirement for a 2/3 majority in both Houses; as exists in most other countries. Our lack of formal safeguards should not, however, encourage the passage of such legislation without due care. The Constitutional Reform Bill would change our constitution radically, but it has been introduced without manifesto commitment in advance. A consequence of this is that the bill is not protected by the terms of the “Salisbury” convention. Further as it was introduced into the Lords as ﬁrst House, it is not potentially subject to the Parliament Acts procedure. These two facts are eloquent evidence of the innocent good faith of the Government when it made its proposals. The bill diVers from the earlier major constitutional changes carried out in the last Parliament, which had been clearly signposted in the 1997 Manifesto. The committee could recommend for the future that this should not be a precedent to follow.

4. Nor have the proposals been subjected to any major open enquiry, for example by a Royal Commission or a departmental committee, in which the views of the public could be sought. Nor has there been a White or green paper giving the Government’s thinking, which could have been debated and probed in Parliament.

5. Our constitution can be likened to a bird’s nest. It has slowly evolved over centuries. It is an elaborate construction of interconnected and interdependent sticks, fluV and straw all bound together. One element is dependent on another. Remove one twig and you aVect others, remove a number and the nest is in trouble. For “sticks and fluV” read “statute law”, “practice”, “parliamentary procedure”, “convention”, “the law and practice of parliament”, and the “rule of law”. This unwritten tradition, witnessed in Glanvill (c1187-9) and Bracton (c1250) is very old and as early as thereafter has had the advantage of being flexible and evolutionary.

6. Since 1997, bit-by-bit this old constitution so dependent on convention is being replaced by written texts, of which the Human Rights Act is perhaps the most important. The diYculty is that these changes are being made piecemeal and without indication of their interconnectedness with the other changes having been considered.

7. For example, the Scotland Act 1999 was partly based on the detailed work of the Scottish Convention, which sat in the 1990s and drew as a wide spectrum of evidence both within Scotland and elsewhere. As a consequence the White Paper on Scottish devolution was carefully constructed. In contrast, the Government’s proposals for a devolved National Assembly for Wales were little considered publicly within Wales in advance and their White Paper much less well prepared. The Labour party report “Shaping the Vision—a report on the Powers and Structures of the Welsh Assembly” of May 1995 had consisted of nine pages of typescript, a ﬂimsy document which contained a number of major recommendations which subsequently had to be jettisoned, including whether the elections to the Assembly should use the “ﬁrst past the post” system, or the AMS type of PR and whether the Local Government style government, instead of the cabinet system for the new Welsh executive should be used. A consequence of the failure to think things out in advance has been the Richard Commission on the Powers and Electoral Arrangements for the National Assembly for Wales, whose report has taken a year and a half to prepare. The resultant Acts setting up the devolved institutions bore little relationship the one to the other.

Most countries in the world have a codiﬁed constitution. Supreme Courts thereunder have the role of enforcing the constitution, even against the legislature. It follows that in such countries it is clearly desirable to have a separation of powers.

8. At present, the United Kingdom almost alone in the world still has an unwritten constitution with no separate Supreme Court. As the highest appellate court it has the Appellate Committee of the House of Lords and the Judicial Committee of the Privy Council. We stick to the old concept of parliamentary sovereignty— that is to say that “what the Queen in Parliament enacts is law”. The Government in all its constitutional changes so far has been careful to ensure that this doctrine is respected (although this concept is at present under creeping attack from the EU).

9. Historically the concept of the separation of powers is alien to our experience; on this issue Professor GriYth has written authoritatively. In the Middle Ages, the Crown in Council, and subsequently the Crown in Parliament was an amalgam of legislature, judiciary and executive. In the Rolls of Parliament this mixture of functions is evident. Montesquieu in his inﬂuential book L’Esprit des Lois (1748) Part 2, Chapter 6 “On the Constitution of England”, although he had spent two years, 1729–31, in England, fundamentally misunderstood the nature of the English constitution under George II, by erecting a mirage whereby there was a separation of powers at that time between the executive, legislative and judicial powers. 9673871047 Page Type [E] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

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10. A little earlier, in 1700, in the Act of Settlement which settled the succession of the Crown after Princess Anne’s death on the House of Hanover, laid down in 5. “That no person who has an oYce or profit or place of profit under the King or receives a pension from the Crown shall be capable of serving as a member of the House of Commons” after the death of King William and Princess Ann of Denmark. This provision was subsequently repealed in the Regency Act (4 & 5 Anne c20 5:28) before it had taken eVect. If it had not been repealed, it would have eVected a revolutionary change in our constitution, and the existing system whereby the executive sits largely in the House of Commons and dominates that legislative House—the system we now call the Westminster system—or “elective dictatorship”, would not exist. But in the event the change was never made and ever since as previously in this country we have not had a separation of powers. 11. There is a case for having a codified constitution, and going over to it, following lengthy consultation, as was done in the fledgling United States of America after the War of American Independence. The Constitutional Convention in Philadelphia 1787, the publication of the Federalist papers and vigorous debate led to the framing of the US Constitution and its subsequent unanimous ratification by the States. Similarly, the German Basic Law was agreed to in 1949, after lengthy discussion within the Federal Republic. 12. If we wish to be radical, there would be a case for a thorough reappraisal of our constitution from the bottom up, which might consider inter alia: the eVective separation of powers; no Government domination of the House of Commons; regular elections; a Supreme Court, separate from Parliament and able to strike down acts of the legislature; an elected President; the electoral arrangements for the Commons. Unfortunately, we seem at present to be stumbling towards a written constitution, without it having been thought out. 13. One such draft constitution for the UK has been drafted by the Institute of Public Policy Research, published in 1991, edited by Professor James Cornford. Professor Cornford has come to Oxford to make the case for his constitution, but in a seminar where his opponent was the late Dr GeoVrey Marshall, Cornford’s argument in support of a written constitution failed to get support. 14. Nowadays, the right of the US Supreme Court to strike down laws passed by the US Congress is regarded as a distinctive feature of the American system. In the original US Constitution of 1787 no such right was given to the Supreme Court, but the court subsequently arrogated to itself this power in the case Marbury v Madison in 1803. Although not part of the present proposals that a UK Supreme Court should have such a power, it is questionable whether a desire to extend their jurisdiction is a tendency confined to the American judiciary. 15. Other Courts, including the European Court of Justice and the European Human Rights Court, have shown a tendency to extend their competences and it is not unthinkable here. If this were to occur it would mean that unelected judges, unaccountable and virtually irremovable would gradually become the final arbiters in issues social and moral, as abortion or divorce, instead of Parliament, which is broadly accountable. Professor R Dworkin’s Freedom’s Law (OUP 1999) described the working of the US system—hardly one to replicate here. 16. Since the Reformation, the concept of Parliamentary sovereignty has been central to our constitution. Before then, as Professor Russell has shown in his paper “Cromwell’s Doctrine of Parliamentary Sovereignty” (Transactions of the Royal Historical Society, 6th series (1977 pp 235-246)) in the middle ages. More and others previously had believed that Parliament was subject to a higher order law. And now since the Human Rights Act, Lord Steyn and others have argued that an independent Supreme Court will be the guardian of the fundamental laws of the country. The implications of such a change would be far-reaching. 17. The previous two great administrations of the left of the 20th century—Campbell-Bannerman and Asquith (1905–16), and Attlee (1945–51), both enacted much legislation with large social and economic impact on the country. Both Governments were resolute in their determination to keep the courts out of their legislation and they so enacted. By contrast, the present Labour Government has greatly extended the ambit of the courts. It is too early to judge which strategy will prove the more eVective. 9673871047 Page Type [O] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

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Minor Amendments

18. Having taken time on the general merits of the proposed legislation, I will be brief. On specific points, in particular considering whether an objective is being achieved as economically as possible—both in terms of the statute book, and trouble and expense. 19. The present bill, although it may reflect faithfully the drafting instructions, is unnecessarily long and detailed and would be improved if it could be curtailed radically. To say that “Ministers . . . must uphold the continued independence of the judiciary” is to say the obvious. The provisions relating to a Judicial Appointments Commission are welcome and overdue. For reasons connected with the appointments of the Senior Law Lord and LCJs and Masters of the Rolls under Lord Chancellors MacKay and Irvine, the “Minister” under the Bill should have discretion to reject the Commission’s view. To have this power must imply an ability to be in a position to exercise judgement on the merits of the individuals concerned, which must mean that in practice the Secretary of State will have to be someone with an informed view of the senior judiciary. 20. A feature of judicial administration which is not tackled in the Bill is that of the choice of law lords to sit— whether it be in the House of Lords or Privy Council or in the new Supreme Court. It is not widely known that up until Coldstream’s time as Permanent Secretary to the Lord Chancellor (1954–68), it was the Permanent Secretary under the Chancellor’s guidance who made the choice of those who sat on appeals. Since Coldstream’s time, this selection has been taken over by the “senior law lord”, a significant development of the independence of the judiciary from the executive, which has taken place quietly and without being remarked either by academic writers or the press. Indeed the whole development of the post of “senior law lord” is of recent origin, an entirely organic and evolutionary development, made little by little. 21. Till now, however, the choice of law lords or other judges to chair commissions, tribunals and committees of enquiry has remained with the executive—a point of significance as shown recently, for example, in the choice of Lord Scott for Arms to Iraq, or Lord Hutton for the “dossier”. 22. A further related matter which is not covered by the Bill is the use of en banc courts as distinct from selected membership of five or occasionally seven. As the importance of issues to come before the highest court is likely to rise as a consequence of devolution and human rights this might be considered, unless it is felt that this can safely be left to the discretion of the Lords of Appeal, under the guidance of the senior law lord. 23. The case for the abolition of the ancient oYce of Lord Chancellor seems to stem in part from a suspicion of the antiquity of the post, which is credited with having been established about 600 AD. I am not aware of evidence for this dating. A further factor may be the mockery by Gilbert and Sullivan in Iolanthe. Given the picture painted by Professor Stevens of Lord Chancellor Halsbury, it may not have been unwarranted in 1900. But now things have moved on—he is no longer required to wear silk tights—and his dress and functions could be further modified to be more in keeping with modern conceptions. 24. There may be practical arguments why he should no longer sit judicially for which the manifold new functions thrust on him in the last 40 years leaves little or no time: there is also the issue of conflict of interests (see the McGorell case). Since the war, only two Lord Chancellors have had judicial experience before appointment, and it has been apparent that this lack of experience has sometimes been a cause of irritation to the other law lords. 25. Perhaps, too, he should no longer be burdened with the titular Speakership of the House—though since Lord Gardiner’s time (1964–70), Lord Chancellors have spent less and less time on the Woolsack—except for a brief period at the beginning of each day, and when they have had business in the House. And the task of presiding has been delegated to unpaid Deputies: a paid Speaker will be more expensive to little end. 26. But it is questionable whether these objectives could not be met without the very cumbersome legislation required to abolish the oYce. Would not a blanket clause to replace “Lord Chancellor”, wherever it occurs on the statute book, with “Secretary of State for Constitutional AVairs and Lord Chancellor” be a much quicker and cheaper way of achieving the same objective? The Lord Chancellor’s role thereafter, if denied, would wither on the vine. 27. Finally, if the Lord Chancellor is to be abolished, what is the case for the retention of the Great Seal? 28. A new Supreme Court. As for the present, Phase 2 of House of Lords reform is not being proceeded with, it seems inopportune to go forward with this change at present by way of legislation. The lack of accountability of the present membership of the Lords provides a cogent reason why the present twilight phase cannot long endure. 9673871047 Page Type [E] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

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29. If it is desired to give the House of Lords judicially a more acceptable face a cheaper method would be to regulate their participation in legislation by means of a Standing Order. I hold to the arguments put forward in the Royal Commission Report on the House of Lords Cm 4534, chapter 9 why the continuing presence in the Lords of the law lords is of advantage to the body politic, and also—for the reasons advanced by Lord Nicholls, is good for the character and standing of the law lords. A Standing Order would be much cheaper and less trouble than the provisions in the bill for a Supreme Court. It would not prevent the law lords from being provided with more infrastructure, and alternative accommodation outside the Palace of Westminster, if desired and when it becomes available. Common membership of the House with lay peers makes the law lords less remote and more human than if they were totally removed. Although the law lords are an endangered species, we should not neglect their human rights.

30. Despite the criticisms in this note, it is genuinely intended to be helpful to the committee in its diYcult task. The amendments suggested above would greatly shorten the Bill and make its passage through Parliament quicker. But I very much hope that the Committee in its report may address some of the issues raised in Part A “General Points” of this evidence. Legislate in constitutional matters at speed and repent at leisure. May 2004

Memorandum by Lord Cooke of Thorndon

1. Being unable to be in England on 25 May 2004, I cannot accept the Committee’s invitation to give oral evidence and must beg to submit this writing.

2. From ﬁrst-hand experience of both the British and the New Zealand legal systems, I can see nothing in the New Zealand system or its history which could be relevant to the proposals in the Bill for a separate Supreme Court or for abolishing the oYce of Lord Chancellor.

3. New Zealand has never had a House of Lords or a Lord Chancellor. The highest court for New Zealand was until recently the Judicial Committee of the Privy Council. Its replacement by a new local Supreme Court has been occasioned by a sense that the country is now suYciently mature to take responsibility for its own national legal identity, rather than submitting to a tribunal on the other side of the world with little knowledge or experience of New Zealand conditions. None of this applies to the judicial functions of the House of Lords for the United Kingdom.

4. My views about the proposals in question are, in short, that the Supreme Court one would represent a needless sacriﬁce of the judicial functions of the House of Lords, and a corresponding downgrading of the Law Lords. It would not have the slightest eVect on their independence. A unique British institution, admired as such world-wide, would be abandoned in the name of a doctrine—the separation of powers— which has never been part of the constitution of the United Kingdom.

5. As to the Lord Chancellor, which is a separate issue, all that was needed was a convention that he should no longer sit as a Judge. Such a convention was beginning to develop.

6. These views are more fully stated in a lecture for the Chancery Bar Association entitled The Law Lords: An Endangered Heritage, delivered in June 2002 and published as an article in The Law Quarterly Review for January 2003. I understand that this has been or is to be circulated to the Committee. The content of the article is not adequately represented by the present brief paper.

7. The article was not motivated by any political considerations. It was published before the proposals in the Bill became political issues. Perhaps it is not out of place to add that, as far as I am aware, no one has sought to challenge speciﬁcally any of the points made in the article.

8. I am not totally against the proposed constitutional changes, recognising that there is a case for a Judicial Appointments Commission. Robin Cooke Wellington, New Zealand 18 May 2004 9673871049 Page Type [O] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

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Government response to the Justices’ Clerks’ Written Evidence to the Constitutional Reform Select Committee

Introduction 1. The role of justices’ clerks is a hybrid one in that they perform both an independent function in the advice they provide to magistrates and an administrative one in their management role within the magistrates’ courts. 2. The provisions of the Courts Act 2003 mean that justices’ clerks will become civil servants within the uniﬁed courts agency along with the other staV of the magistrates’ courts committees when that is established in April 2005. In that way, they can continue to play a real part in the management of local areas as they currently do but also ensure that their essential independent advisory role to the lay justices is respected. A number of justices’ clerks or former justices’ clerks have already been appointed to senior management roles in the new agency where their experience can be brought to play within rather than outside the organisation.

The Constitutional Reform Bill 3. The Constitutional Reform Bill provides the transfer of existing functions in primary legislation of the oYce of Lord Chancellor upon abolition of that oYce. These provisions follow the agreement set out in the “Concordat” agreed between the Secretary of State for Consitutional AVairs and the Lord Chief Justice. The Government believes that transferring justices’ clerks into the new agency is consistent with the policy agreed in the Concordat and given eVect to in the Bill. In particular, we would note that Parliament enacted legislation placing justices’ clerks in the Civil Service only last year (in the Courts Act 2003). We would note that justices’ clerks have no formal judicial status; they do not conduct trials or sentence oVenders and they do not take the judicial oath. They currently report to a Justices’ Chief Executive who is an administator. 4. Moreover, staV employed by the Court Service (and who are therefore civil servants) already perform a number of judicial functions. In particular, they list cases on behalf of the judiciary in a similar role to that performed by the justices’ clerks in the magistrates’ courts and they take judicial decisions are oYcers of the court; for example, judgment orders and conducting oral examinations. 5. The Court Service has built up a particularly strong partnership with the judiciary where the boundaries of judicial independence are fully understood and respected. This relationship underpins the concordat reached with the judiciary and the Government wants this relationship to be further improved when the uniﬁed courts agency is established.

The Courts Act 2003 6. The independence of the advice of justices’ clerks to magistrates or when exercising a function exercisable by a magistrate is speciﬁcally provided for by section 29 of the Courts Act. This provides that: “A justices’ clerk exercising: (a) a function exercisable by one or more justices of the peace; (b) a function speciﬁed in section 28(4) or (5) (advice on matters of law, including procedure and practice); or (c) a function as a member of the Criminal Procedure Rule Committee or the Family Procedure Rule Committee; is not subject to the direction of the Lord Chancellor or any other person. An assistant clerk who is exercising any such function is not subject to the direction of any person other than a justices’ clerk.” This is a clear and unambiguous statement of the need to protect the independence of the advice of justices’ clerks to magistrates. Clause 1 of the Constitutional Reform Bill further enhances this by placing a duty on the Secretary of State, along with all Ministers, to uphold judicial independence and places on him a particular duty to have regard to the need to defend judicial independence. 7. Additionally, section 27(3) of the Courts Act 2003 provides that the Lord Chancellor must assign each justices’ clerk to one or more local justice areas. Section 27(4) provides that before changing the assignment of a justices’ clerk, the Lord Chancellor must consult the chairman of the lay justices’ assigned to those areas. Section 27(4) was introduced by way of government amendment at Report stage in the House of Lords. The Government did not dispute at any stage the principle that bench chairmen should be consulted prior to any 9673871049 Page Type [E] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

462 constitutional reform bill [hl] committee: evidence reassignment but only questioned whether this was suitable for inclusion in primary legislation. (10 February 2003 Hansard—column 482). It brought forward its own amendment at Report stage in the House of Lords to provide for this. (8 May 2003 Hansard—columns 1245–7)

Further Safeguards of Independence

8. The senior judiciary has been concerned that the independence of the advice from justices’ clerks to magistrates should be protected but the Government does not believe that this extends to support of the proposition that justices’ clerks should not be civil servants. The Government has been working with the senior judiciary to put in place further safeguards to protect this independence if they are needed. 9. In particular, the senior judiciary has proposed that an Area Judicial Forum and Justices Issues Group should be established in each of the 42 management areas of the new agency. These fora will provide the opportunity for justices’ clerks to raise any matters relating to their work supporting lay justices, including issues surrounding their independence, if they arise. The Government supports this and believes they will act as a mechanism for dealing with issues or concerns should it be needed as they could be taken up to the Presiding Judges, on to the Senior Presiding Judge, and, ultimately, to the Lord Chief Justice himself. 10. The Lord Chancellor currently appoints justices’ clerks in line with his statutory functions for the magistrates’ courts. He assumed these functions in 1992 from the Home Secretary. The Government believes that it is appropriate for the Secretary of State to be accountable to Parliament for the administration of the courts, and for the justices’ clerks to be civil servants. However, to reﬂect the Clerk’s hybrid roles the Government is proposing to bring forward an amendment to section 27(1) in the Constitutional Reform Bill to provide that this should be in consultation with the Lord Chief Justice. In practice this will be achieved by including a judge or magistrate on the local selection panel for any justices’ clerk appointments. This is in line with other appointments for the new agency where judges and magistrates have been members of the selection panels. The Government is also prepared to bring forward an amendment to the Bill to strengthen section 27(4) of the Courts Act 2003 by providing that a reassignment of a justices’ clerk should only take place after consultation with the Lord Chief Justice (in practice a Presiding Judge of the region concerned) as well as with the relevant Bench Chairmen.

Examples of “Inappropriate”Guidance Cited by the Justices’Clerks Society

11. The Government’s comments on the examples cited by the Justices’ Clerks Society in its written evidence are at Annex B. Governments are entitled to decide on new initiatives, approaches, or improvements to the system. Similarly, it is entirely right that where the judiciary considers that these initiatives have implications, which may undermine judicial independence, or interfere with areas of work for which responsibility is vested in the judiciary, they should point that out. The matter can then be considered and resolved. That is the spirit in which the DCA (and previously the Lord Chancellor’s Department) has acted in partnership with the judiciary and, indeed, the Justices’ Clerks Society.

The Justices’Clerks Society Proposal

12. Section 1 of the Courts Act 2003 places accountability to Parliament for the administration of the courts with the Lord Chancellor. The Concordat provides (at paragraph 4(a)) that this duty is to transfer to the Secretary of State for Constitutional AVairs (and this is achieved in the Bill by virtue of paragraph 363 of Schedule 1, which amends section 1 of the Courts Act). This is a clear provision and will signiﬁcantly improve the current position where accountability for administration of the magistrates’ courts rests with the 42 independent Magistrates’ Courts Committees. 13. The proposal of the Justices’ Clerks Society would blur this accountability and confuse reporting arrangements. For example, the legal advisers (who would be civil servants) would report to justices’ clerks who would not be. Moreover, the justices’ clerks could not report to Courts Boards on “performance” as the Courts Boards will be non executive bodies and will therefore not be acountable for the performance of the administration of the courts. 14. Justices’ clerks do not fulﬁl the functions of judges so it would not be appropriate for them to appointed by the Judicial Appointments Commission nor to take the judicial oath. 9673871049 Page Type [O] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

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Conclusion 15. The Courts Act 2003 provides that justices’ clerks will become employees of the uniﬁed courts agency along with other employees of the magistrates’ courts. The Government believes that the provisions contained within the Courts Act 2003 protect the independent role of the justices’ clerks. It is, however, proposing to bring foward amendments to the Constitutional Reform Bill to provide that selection of justices’ clerks should be in consultation with the Lord Chief Justice and that reassignments of justices’ clerks should take place in consultation with the Lord Chief Justice as well as bench chairmen.

Annex B

Truancy This letter was written after consultation with the Senior District Judge (Magistrates’ Courts). The issue resulted from the introduction by the DfES of a new fast track procedure to bring prosecutions for truancy, which was expected to increase the workload of the courts. The assistance of a District Judge was oVered “if it were considered appropriate.” The DCA and the Justices’ Clerks Society were both represented on a working group considering these initiative.

“Operation Payback” The “Operation Payback” planning document was in no way intended to interfere with due legal process. It was intended as a guidance framework for Magistrates’ Courts committees to assist with their local planning. The document suggested that a Bench representative and legal advisor be present at a “conﬁrmation” meeting 24 hours before the event. This meeting was primarly a communications meeting to ensure that those in the court were aware that the initiative was taking place and therefore aware of any subsequent increase in business that might occur. When DCA was made aware of concerns by both the Justices’ Clerks Society and the Senior Presiding Judge, these were addressed.

Transfer of Fine Orders The Justices’ Clerks Society was one of several stakeholders to whom the draft document was circulated in order to safeguard against administrative or legal inaccuracies. A number of these stakeholders, in addition to the Justices’ Clerks Society, raised concerns that the document needed to be more explicit that the decision to transfer a ﬁne was a judicial one, and the document was duly amended to clarify this.

Under 14’s Attendence at Court The guidance contained in the letter had been provided by the Justices’ Clerks Society itself in response to a complaint received by Christopher Leslie MP concerning a school visit to a Magistrates’ Court that had not been handled well by court staV. Following a request for clariﬁcation to the guidance given in that letter, the Society has considered the matter further and provided the DCA with advice which will be issued shortly.

Supplementary memorandum by The Rt Hon The Lord Woolf 1. I have been asked by the Chairman of the Select Committee to clarify my view of the consequences of the retention of an oYce with the title “Lord Chancellor”. I have also been asked by Lord Lloyd to respond to the suggestion that the abolition of the oYce of Lord Chancellor and the establishment of the new Supreme Court should be deferred. This note is my response to those two requests. I have not, in the time available, had an opportunity to ask the Judges’ Council to endorse its contents,* but I have consulted as many of my senior colleagues as possible, including all the Heads of Division. They have indicated their support for the views I express. 2. I start by making clear that the judiciary as a whole has not taken a position on the question of whether the oYce of Lord Chancellor should be abolished. Nothing in this note seeks to change that fact. 3. By far the most important outcome that the judiciary are seeking from the current Parliamentary process is the implementation of the concordat which has been reached between the judiciary and the Government. The concordat seeks to define the relationship that should exist, in future, between the Lord Chief Justice, as Head of the Judiciary, and the Government Minister who will exercise the responsibilities which fall properly to the Executive in respect of the judiciary and the courts. My firm support for the concordat reflects the fact 9673871050 Page Type [E] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

464 constitutional reform bill [hl] committee: evidence that I see no diYculty with a Government Minister exercising any of the functions assigned to the Secretary of State for Constitutional AVairs by the concordat. I do not consider that such a Minister requires any enhanced status or particular title to enable him or her to exercise those functions. There is benefit in that Minister being a lawyer. However, the Minister’s ability to defend the independence of the judiciary and the rule of law and ensure that the courts are adequately resourced will, to an extent, depend upon his or her standing within cabinet. This is a matter about which it is impossible to legislate, since it is in the hands of the Prime Minister of the day. 4. The concordat is predicated on the fact that the Lord Chief Justice of the day will be the Head of the Judiciary of England and Wales. As the senior judge in that jurisdiction and the President of the Courts of England and Wales, he has to represent the Judiciary in its dealings with the other two arms of the State. There should be no scope for confusion on this point. 5. It has been suggested that it might be appropriate to have two Heads of the Judiciary—the Lord Chief Justice as the “professional” Head of the Judiciary and the Lord Chancellor as the “constitutional” Head of the Judiciary. Such an approach would create a serious risk of confusion and the potential for future conflict between the two oYce holders. It would be quite possible for them to have very diVerent ideas as to the proper boundaries of their respective roles. It is precisely this lack of clarity, and the consequent risk of encroachment on the independence of the judiciary, that the concordat is intended to avoid. I would strongly oppose the retention of a Lord Chancellor who was considered to be the “constitutional” Head of the Judiciary. The judiciary must be represented by a judge. 6. If it proved possible to define an oYce, bearing the title Lord Chancellor, which met the concerns I have expressed, I would not object to that oYce. Indeed, as I indicated when I gave evidence, I have an emotional attachment to this historic title and understand why many members of this House are seeking to find ways to preserve it. However, because of an accumulation of events, including the fact that the role of the Government Minister envisaged in the concordat is very diVerent from the historic role of the Lord Chancellor, I have real reservations as to whether it is possible to retain the title while avoiding the damaging consequences I set out above. 7. I am also aware of a suggestion that a future Lord Chancellor might take the judicial oath. As any future Lord Chancellor will not sit as a judge, it would be inappropriate for him to do so. The judicial oath is not used for those who are not judicial oYce holders. 8. As to the question of whether the establishment of the new Supreme Court should be postponed, this is not a matter upon which I am in a position to express a view on behalf of the judiciary of England and Wales whom I represent. * This supplementary memorandum was subsequently endorsed by the Judges’ Council. 24 May 2004

Supplementary memorandum by the Rt Hon the Lord Woolf I have been asked by the Select Committee on the Constitutional Reform Bill to clarify my position on the deployment of judges, including the appointment of judges to committees, boards and similar bodies. My response not only reflects my personal view but I reply also in my capacity as chairman of the Judges’ Council. The concordat recognises that the deployment of judges is a matter for the judiciary and not the executive. This is accurately reflected in clause 2(2)(c) of the Bill which clearly states that the maintenance of appropriate arrangements for the deployment of the judiciary of England and Wales and the allocation of work within courts is the responsibility of the Lord Chief Justice. This wording should remain. However, in order to more accurately reflect the concordat, this clause should be amended to state that the arrangements for deployment include appointments of judges to committees, boards and similar bodies. Exactly the same rationale applies to serving judges who are asked to represent the judiciary on such bodies, as it does to the deployment of judges to hear cases. Where a serving judge is asked to take on such responsibilities it is extremely important that these appointments should also be the responsibility of the Lord Chief Justice. The Judges’ Council would therefore strongly support any amendment to clarify the position, that such appointments, fall under the definition of deployment and are a matter for the Lord Chief Justice. In saying this, we do not suggest that the Lord Chief Justice should have to agree to every appointment of a judge to any committee/board etc, but only those where he is invited as a serving judge to represent the judiciary and/or where his appointment could interfere with the performance of his judicial duties. There may, of course, be other responsibilities a judge may take on, in a personal capacity and not aVect his judicial duties, such as positions of responsibility within one of the Inns of Court. These would not be a matter for the Lord Chief Justice. 9673871051 Page Type [O] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

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If drafting problems do arise in deﬁning the sorts of bodies concerned, I am sure that these could be resolved through close consultation between the Judges’ Council Working Party and the oYcials at the DCA.

The oYcials at the DCA have raised with us the alternative possibility of amending the explanatory notes to refer to the relevant paragraphs of the concordat. If there is an alternative manner of achieving the same objective we would be content. However, having regard to the period during which the new constitutional arrangements are likely to apply it is probably desirable to make amendment to the Bill, despite the short term inconvenience of doing so.

The position regarding appointments to public inquiries is slightly diVerent as they were overlooked in the negotiations leading up to the concordat. However, I have since made clear in correspondence with the Lord Chancellor that I am ﬁrmly of the view that the Lord Chief Justice should have to concur with any appointment to a public inquiry. I have arrived at my position for two reasons: (1) I must have the right to say whether a particular judge can be released to conduct an inquiry. Placing a serving judge on an inquiry prevents him from being deployed on his normal judicial duties. (2) Whilst some inquiries are appropriate for a judge to sit on, other inquiries are of a highly politically sensitive nature and it is not appropriate for a judge to be involved. The LCJ should be entitled to say not only who, but whether, a judge should conduct the inquiry at all.

The Judges’ Council support this position and in fact I would be extremely surprised if any judge in practice would accept an appointment if the acceptance was not endorsed by the Chief Justice of the day. 7 June 2004

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 aYliation. 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. 9673871052 Page Type [E] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

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Background 5. In July 2003, the Prime Minister announced by press release that the oYce of Lord Chancellor was to be abolished and replaced by a Secretary of State for Constitutional AVairs. 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 diYcult 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 AVairs 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 suYcient 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 oYce 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 eVective 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 OYce 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 9673871052 Page Type [O] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

constitutional reform bill [hl] committee: evidence 467 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 aVect 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 diVers 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 aVecting 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 eYcient 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 suYcient staV to ensure that courts are administered eYciently 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 diVerent 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 “eYcient 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 oYce 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 oYce 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 oYce 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 diYculty 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 diYcult to believe that there is no necessity for the existence of such a personality, imbued on the one hand with legal ideas 9673871053 Page Type [E] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

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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 oYce 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 oVer 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 diYculties 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 diYculties. 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 AVairs Committee of the House of Commons1: “Whoever carries out the functions of the oYce 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 diVerence 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. 1 Judicial Appointments and Supreme Court. First report of Session 2003–04: HC48-I, para 13. 9673871053 Page Type [O] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

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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 oYce 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 oYce: — Judicial appointments; — 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. 9673871053 Page Type [E] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

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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 diYdent 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 oYcer. 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 eVect, “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 oYce 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 diVerent location would serve to emphasise the separation of power. 9673871053 Page Type [O] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

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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 diYculties 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 diYcult 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 staV became civil servants and their funding was provided centrally by that Department. The Lord Chancellor, essentially, provides the staV 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 staV 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 staV 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 aVecting 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 oVered to them which is within their expertise provided that they have the 9673871054 Page Type [E] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

472 constitutional reform bill [hl] committee: evidence 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 diVerent 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 suYcient 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 aVord legal representation is causing diYculties for the courts. We are aware of research that suggests that it is becoming diYcult 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 diVerent 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; 9673871054 Page Type [O] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

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— Other matters and proposals aVecting 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 oYce 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 AVairs 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 eVectiveness 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 AVairs 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 eVect 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 diYculties 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 AVairs 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 diYcult 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 ineVective, 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. 9673871055 Page Type [E] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

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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 oYce 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 OYce, 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. 9673871055 Page Type [O] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

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70. We recognise that there are diYculties 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 suYcient expertise to exert similar levels of influence within future cabinets (paragraphs 15–21). 2. A modified oYce of Lord Chancellor should be retained (paragraph 23). The functions of this new oYce 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 oYce 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 suYcient 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

Annex 1

MEMBERS OF THE WORKING PARTY

Members of the House of Lords Lord Alexander of Weedon QC (Chairman) Lord Dahrendorf of Clare Market KBE Lord Mayhew of Twysden QC DL Lord Millett of St Marylebone Lord Morris of Aberavon KG QC Professor Lord Skidelsky Baroness Warnock DBE Lord Wilson of Dinton GCB 9673871055 Page Type [E] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

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Advisor Professor Anthony Bradley

Members of the Bar Richard Drabble QC Richard Salter QC Nicholas Lavender Gordon Nardell Emily Windsor

Secretariat Mark Stobbs James Woolf

Memorandum by South Wales Bench Chairmen/Cadeiryddion y Fainc De Cymru

UNIFIED ADMINISTRATION AND THE ROLE OF THE JUSTICES’ CLERK The South Wales’ Magistrates’ Courts Bench Chairmen’s Forum, comprising the Chairmen of the eight Benches in the Area, write to express their extreme concerns over the prospect of Justices’ Clerks being civil servants answerable to the Executive under the constitutional reforms within the Courts Act 2003. The key principle behind the abolition of the oYce of Lord Chancellor enshrined in the Act is the need to separate Executive and Judicial powers within our Constitutional arrangements. Whilst the “concordat” between the Lord Chief Justice and the Lord Chancellor safeguards independence for the professional Judiciary it is imperative that appropriate arrangements are made for Justices’ Clerks in order to safeguard Judicial independence in the Magistrates’ Courts. It is an oft-quoted statistic that Magistrates’ Courts deal with 97 per cent of criminal cases. They also deal with a significant volume of Family Proceedings and Civil work. It is accepted that Justices’ Clerks will have a predominantly legal role under Unified Administration. Justices’ Clerks exercise Judicial Powers under the Justices’ Clerks’ Rules and they are responsible for delegating those powers appropriately to legal and administrative staV. Justices’ Clerks are responsible for the legal advice provided in their name to Lay Justices and District Judges (Magistrates’ Courts). As Lay Justices we must have complete confidence that that the advice being provided to us is (and is perceived to be) independent. In South Wales we have been fortunate in being able to retain five high quality Justices’ Clerks who combine legal expertise with administrative leadership. The Justices’ Clerks have a proven track record in achieving and surpassing National Performance Targets and we take a collective pride in the achievements. We have had confidence in the advice provided to us knowing that our Justices’ Clerks have been answerable for their performance to a Justices’ Chief Executive who is a lawyer and a former Justices’ Clerk with sensitivities to the Administrative/Judicial divide. Ultimately the Justices’ Clerks have been accountable to the Magistrates’ Courts Committee whose members are predominantly Justices of the Peace with similar sensitivities to the need to maintain the independence of the Courts. The prospect of Justices’ Clerks being Civil Servants answerable to a politician (the Secretary of State for Constitutional AVairs) and/or a possibly non-legally qualified Area/Regional Director raises serious and genuine concerns about the independence of the Justices’ Clerk in the future. As Government strives for greater eYciency, eVectiveness and consistency in the delivery of public services, objectives which we share, there are increasingly demanding performance targets set and directives given that run the risk of encroaching on Judicial independence. Examples include; Street Crime Initiative, Narrowing the Justice Gap, Non School Attendance, Operation Payback, pronouncements on the use of custody and the size of the prison population. 9673871056 Page Type [O] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

constitutional reform bill [hl] committee: evidence 477

If it is perceived that Justices’ Clerks are at risk of discipline, removal or career demotion as a result of providing advice that may diVer from the Executive directive. or be counter to an Executive performance target, the conﬁdence of lay Justices, professional practitioners and the public at large in the Criminal Justice System is at risk of being fundamentally undermined.

Whilst “consistency” is a laudable aim in many areas it should not be imposed by executive directive on issues of legal interpretation. Justices’ Clerks must be free to interpret legislation and case law in accordance with their own professional judgement and conscience. The purpose of the Higher Courts is to provide rulings and guidance on legitimate diVerences of legal opinion.

Section 29 of the Courts Act 2003 seeks to protect Justices’ Clerks from interference in the legal advice which they, or their Assistant Clerks, provide. This does not go far enough. Arrangements must ensure that the appointment, training, relocation, and removal of Justices’ Clerks are outside of Executive control. We must also have conﬁdence that the training provided to us by our Clerks is free from executive direction.

This principle has been maintained consistently by the Justices’ Clerks Society and was supported at the JCS Annual Conference in May by Lord Justice Igor Judge. It has been supported by Lord Justice Thomas and by the National Magistrates’ Association. In a speech to the Inner London Magistrates’ Association on 18 May 2004 Lord Woolf, Lord Chief Justice for England and Wales stated “we must ensure that Justices’ Clerks cannot be put under undue pressure to comply with directions that conﬂict with their independence as judicial oYcers. I am involved in discussions on this issue and am paying particular attention to arrangements for the appointment, relocation and removal of Justices’ Clerks”.

Our Justices’ Clerks are not seeking to be unaccountable. They are accountable for the legal advice they give to the Superior Courts and they are content to be accountable for their administrative performance to an Area Director. They accept that they are accountable for the performance of their legal advisers and for the quality of the advice that they provide.

As Bench Chairmen, we ask that our Justices’ Clerks be appointed as “Judicial OYcers” with their promotion, discipline, training and removal being under Judicial lines rather than through the Uniﬁed Administration. Whether or not they are deemed to be “civil servants” this protection from real or perceived interference is of crucial Constitutional signiﬁcance. It is essential that important Constitutional changes protect individuals and the system from what could happen in the future even if reassurances can be given that powers are not likely to be abused in this way. 24 May 2004

Letter from the Faculty Ofﬁce of the Archbishop of Canterbury to the DEA

I consulted the Master of the Faculties about his matter. We are, for the most part, content with the proposals save that, whilst it would be acceptable for the Chancellor of the High Court to nominate another Judge to exercise his functions under the section, it would not be appropriate for a Master to do so. These are after all functions belonging at present to the OYce of the Lord Chancellor. Moreover, this is by way of an appeal against the decision of the senior judge of the Church of England. The Master and I, therefore, feel strongly that the words “or master” should be removed. This would also make for consistency with the proposal concerning section 5 of the Public Notaries Act 1843.

With regard to the repeal of section 8 of the 1533 Act, the Master and I are somewhat disappointed with your response. I can do no better than to refer you back to my letter of 29 March and also the Master’s submission dated 21 April. It is clear from research done in this oYce and in the Faculty OYce archives at Lambeth Palace that this section has not been used for over three centuries and is clearly otiose. It is my understanding that it is the policy of the Government to repeal legislation which has not been utilised for a long period and which no longer has any useful purpose. I hope, therefore, that this matter can be reconsidered. 29 April 2004 9673871057 Page Type [E] 29-06-04 00:16:11 Pag Table: LOENEW PPSysB Unit: PAG1

478 constitutional reform bill [hl] committee: evidence

Memorandum by Lord Morris of Aberavon, KG, QC May I, as a long-standing proponent of the transfer of functions of the Lord Chancellor to another Minister in the Commons, express my thoughts as to the future of the oYce and construct some kind of template of what the oYce functions might be. I am told that the over 800 years old oYce is the constitutional link between Her Majesty the Queen and the Judiciary. On either ground we should not lightly seek to replace it unless one is satisfied that there is no better way. I believe the way forward is a redefined and modified oYce. It should no longer have any responsibility as a Minister of the Crown for any significant spending accountability, many of which have accrued since the advent of Legal Aid and the Beeching reforms, coupled with a recent transfer of many duties, including responsibility for Magistracy. At the last count, the Department is staVed by more than 12,000 civil servants and has a spend of £3 billion per annum. Recent changes may well have increased this. Such responsibilities lie properly on the shoulders of a Minister in the Commons. It is constitutionally inappropriate and politically unacceptable for such a department to be headed by a Minister in the Lords, other than for a short period, when a particular need counter-balances the usual constitutional proprieties. Since the last half of the 17th Century, it became established that the granting of supply and its appropriation was a matter for the Commons. It is one of the hard-won liberties of our democracy. It follows that the head of a significant spending department should be directly accountable to the grantor of the supply—the House of Commons. A Parliament Secretary, or the like, does not adequately fulfil the need for accountability. Many are concerned whether the present role of the Lord Chancellor, in balancing the constitution and protecting the independence of the Judiciary, can be adequately undertaken by a Secretary of State, as proposed in the Constitution Reform Bill. I share that concern. The more frequent the involvement of so many of the organs of government before the courts, the greater need to be doubly satisfied that there is no diminution in the machinery to ensure the safeguarding of the independence of the Judiciary. The redefined Lord Chancellor should be at the peak of the process of safeguarding judicial independence. I see no diYculty in having responsibility for acting on the recommendations of the Judicial Appointments Commission in the appointment of judges. I also cannot see how a Secretary of State could properly second- guess the Appointments Commission and one is concerned where he will get his advice from other than the Appointments Commission. There may be fields of a generally non-contentious nature and of a very limited financial responsibility that the Lord Chancellor could properly carry out. Who should be entrusted with this role, given its non-political and non-spending nature? I see no reason why it should be carried out by a Minister of the Crown at all. In debate on 12 February 2004, I canvassed the alternatives of the holder being either the Lord Chief Justice, in his new role as President of the Courts of England and Wales and Head of the Judiciary, or the Senior Law Lord. Having reflected, however, I am now convinced that the Lord Chief Justice has a more than adequate role. It may well be that he also will have a major interest in some of the tasks of the Lord Chancellor, obviously independently, but I believe the oYce could be better held by the Senior Law Lord, who would be, of course, styled “Lord Chancellor”. 21 May 2004

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