Liberal Democrat Lawyers’ Association

 

Evidence for Select Committee on the

Constitutional Reform Bill

 

 

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.  We welcome the Bill

 

2.                  Our views in summary are :

 

(a)   we support the abolition of the role of Lord Chancellor, but regret the transfer of powers to the Secretary of State for Constitutional Affairs, rather than to a Minister for Justice

 

(b)   we support the creation of a new Supreme Court for the United Kingdom which will replace the present judicial functions of the House of Lords.

 

(c)   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.  Ministerial involvement in the process should be kept to a minimum.

 

(d)   we regret that the reforms have not proceeded to their logical conclusion of creating a Ministry of Justice.

 

 

 

 

                  Part 1 – Arrangements to Replace the Office of Lord Chancellor

 

3.                  We broadly welcome the proposals to replace the office of Lord Chancellor.  The role is an historical anomaly which, over time, has become increasingly difficult to reconcile with the doctrine of separation of powers.  We believe the threefold role of the Lord Chancellor is an affront to people’s views of fairness.  It is notable that in the recent past Lord Chancellors have 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, including chairing Cabinet committees.  It is our view that the more each of the three powers is used, instead of being considered a theoretical function, the more this offends against constitutional proprieties.

 

4.                  We agree that it is no answer to this anomaly simply to abolish the position of Lord Chancellor.  However we believe that the mechanism for replacing the role of the Lord Chancellor would be much more logical if it were combined with the establishment of a Ministry of Justice, with the Secretary of State for Justice being responsible for the current ministerial functions of the Lord Chancellor.  We believe that the current proposals for the Secretary of State for Constitutional Affairs are as a consequence of a jurisdictional battle between members of the Cabinet and their departments, rather than a properly considered and measured response to an issue of immense importance.  We regret the lost opportunities which will result if the Bill is passed as currently drafted.

 

5.                  We strongly believe that the Government’s proposed reforms will be incomplete until responsibility for the making of the criminal law is transferred from the Home Office to the DCA, thereby creating a Ministry of Justice.  The Home Office should remain responsible for police and prisons.  The present division of responsibility for the courts and the law is a historic anomaly.  There is in fact no clear distinction between civil and criminal law – many acts may give rise both to a criminal prosecution and civil action for damages.  The abolition of the office of Lord Chancellor provides a unique opportunity to reconsider the division of responsibilities between the Home Office and what is now the DCA and to reconstitute it on a more logical basis.

 

6.                  We believe it is illogical for the Scottish Office and the Wales Office to be the Ministerial responsibility of the Secretary of State for Transport and the Leader of the House of Commons respectively, whilst being 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 Affairs (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?

 

7.                  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

 

8.                  We believe the new Supreme Court should be accorded the status it deserves.  The current House of Lords is rightly respected throughout the world.  The value we set in our judiciary should be reflected in the arrangements made for the new court.  This should include a built-for-purpose court building, with public access.  It should also include a separate budget, to be controlled by the Supreme Court staff, with provisions for an annual financial report to the Secretary of State for Constitutional Affairs.

9.                  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 the importance of it with regard to the exercise of executive power.  We take as our guide for this the role and standing of the US Supreme Court.

 

10.             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.  The 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.

 

11.             We believe that clause 17 does not go far enough.  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.  However, 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 offices 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. 

 

12.             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.

 

13.             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 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.

 

14.             We believe that the Supreme Court should normally sit in panels of 5.  In cases of exceptional importance however (such as those which are now heard by a panel of 7) the Court should sit as a single body containing all available members of the Court.  This would avoid the risk that the outcome might be seen to be affected 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.

 

15.             We believe that it would be desirable for the Supreme Court to be funded independently of the Department for Constitutional Affairs (“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.  

 

 

 

 

Part 3 – Judicial Appointments and Discipline

 

 

16.             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 different means.

 

17.             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 should make all appointments up to and including the level of circuit judge and recorder.

 

18.             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 offered 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 offered Rumpole alone, the Minister would find it much more difficult actually to reject Rumpole unless he or she had justifiable reasons for doing so.

 

19.             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.

 

20.             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. 

 

21.             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 office of Parliamentary Ombudsman.  The JAC should be required to lay an Annual Report before Parliament.

 

22.             We agree that the JAC should be a Non-Departmental Public Body, with power to recruit its own staff as provided for in Schedule 10 paragraph 20.

 

23.             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 CRA.

 

24.             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 practice 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 difficult for women with children to reach the top.  Women and solicitors are both at a serious and unjustified disadvantage under the present system.

 

25.             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.

 

26.             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 different 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.

 

27.             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 required 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.

 

28.             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.  Furthermore, we believe that the Secretary of State for Constitutional Affairs should have a particular and personal 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.  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.  This duty should not be capable of being transferred to another Minister by a Transfer of Functions Order. 

 

29.             We believe that the balance of lay people and professional lawyers as provided for in Schedule 10 paragraph 2 can be improved.  At present there are too many current judges or tribunal chairs required in the make up of the JAC.  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 sizable JAC is therefore appropriate.

 

30.             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.

 

31.             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.