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Constitutional Reform Bill [HL] HOUSE OF LORDS Select Committee on the Constitutional Reform Bill [HL] 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. 9674111001 Page Type [SO] 28-06-04 20:11:49 Pag Table: LOENEW PPSysB Unit: PAG1 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 2 constitutional reform bill [hl] committee: evidence 1 April 2004 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.
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