The committee's inquiry follows the Government's announcement of proposals for a new Supreme Court and a new Judicial Appointments Commission and for the abolition of the office of Lord Chancellor.

The proposals involve a considerable number of complex points. The inquiry based its evidence on the responses to the Government's consultation papers on Constitutional reform: a Supreme Court for the United Kingdom and Constitutional Reform: a new way of appointing judges as well as oral evidence.

A major part of the role of the Lord Chancellor is the protection of the judiciary from political pressure. The way in which these fundamental proposals were announced, as a part of a Cabinet reshuffle and therefore without consultation or advice, has created anxieties amongst the senior members of the judiciary among others, and was felt by some supporters of the changes to have been unhelpful in presenting the case in favour of them. These are not simple matters on which to legislate.

The Supreme Court

The present system for appeals works. The arguments for change were about principle and perception.

The Consultation Paper proposes that there be little change in the jurisdiction of the final court of appeal. Complex issues arise relating to Scottish appeals and to cases arising under the devolution Acts.

The Constitutional Reform Bill will need to make clear provision for the arrangements relating to representation of the various parts of the United Kingdom. It will need to set out clearly the principles under which members of the new court are appointed.

The Government put forward three possible models for a special appointing commission for members of the Supreme Court which would recommend candidates to the Prime Minister for nomination as members of this new court. The Government has left vague the staffing arrangements for such a commission. We see no need for a permanent bureaucracy to serve the Commission but there have to be arrangements for continuity of practice and the development of recruitment policy. The Government does not explain how each jurisdiction might have a role to play in recruitment.

The new court will require a completely new set of arrangements for its administration which recognise its absolute need for independence and its United Kingdom role. It is not an English court and the administrative and funding arrangements cannot be part of the English system. The Department of Constitutional Affairs is not the appropriate organization to run the new court: it is too associated with the England and Wales court system and would give the Government control over the administration of the new court.

The new court will need an appropriate setting for its work. Delay in finding suitable accommodation makes it possible that the new court might continue to sit in the House of Lords. However, this would result in the same people doing the same job, in the same place (possibly with the same staff). If more time is needed to establish the court as a distinct body then the timing of its introduction should be adjusted accordingly.

Judicial Appointments

The impact of abolition of the office of Lord Chancellor will be crucial for the system of appointing judges to all courts in England and Wales below the final court of appeal. Up to now, the office has had the confidence of the judiciary and has produced judges who are highly regarded internationally and have the utmost integrity.

The balance of democratic accountability for judicial appointments and judicial independence is hard to strike. Witnesses who generally agreed on the need for reform disagreed on the extent to which the Government should have the final say in appointments.

One of the main aims of the Government expressed in its consultation paper is to promote diversity in the appointments to the Bench. This is a laudable aim, but the proposed methods of approaching this are not universally agreed.

To some extent, the Judicial Appointments Commission will be a more expensive way of doing what is done now. It is vital that the new Commission should represent an improvement in the system of appointments, without taking money away from other departmental budgets, such as the Court Service, the Community Legal Service and the Criminal Defence Service.

The Government's view is that the new Commission should be fully independent and should constitute a Non-Departmental Public Body, with its own staff. There is no identifiable strand of generally agreed opinion on the precise balance between lay and judicial or legal members, although the choice of approach between a predominantly lay Commission and one dominated by judges depends on the degree to which the judiciary are seen as potentially appointing members of the profession in their own likeness. The Appointments Commission in Scotland has worked successfully without a majority of judges or even of lawyers. The question of who should chair the new Commission is of key importance: a judge or a lay person? We note the argument in favour of a lay chair of the Commission. Notwithstanding the arguments in favour of a lay Chair, we believe that the Commission should be chaired by a judge.

Conclusion

The proposed changes consequent on the redistribution of responsibilities and proposed abolition of the office of Lord Chancellor are being bundled together and dealt with over a very short timescale as a single reform. This is unwieldy and, in the case of some of the proposals, precipitate. The proposed changes could be brought in incrementally.

The consultation process has been too short and the legislative timetable is too restrictive to deal with changes which are so far reaching in their effects. The reason for haste seems to be primarily political.

The Committee recommends that the Government proceed with the Bill as draft legislation to enable proper scrutiny of these fundamental changes.