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Business
3.6 p.m.
The Lord President of the Council (Baroness Amos): My Lords, with the leave of the House, my noble and learned friend the Lord Chancellor will, in a moment, make a Statement on judicial aspects of constitutional reform. The Lord Chief Justice, the noble and learned Lord, Lord Woolf, is in his place, and I am sure that the whole House will wish to hear what he has to say. As Leader of the House, I have been asked whether—exceptionally—we can allow him to speak at greater length than the brief comments and questions permitted by the Companion, without taking time from other Back-Benchers.
It is, of course, a matter for the House. I have consulted the usual channels, and I have their agreement to propose that, unless any noble Lord objects, the noble and learned Lord, Lord Woolf, be heard for up to 10 minutes, after the 20 minutes of Front-Bench exchanges. My noble and learned friend the Lord Chancellor will respond to the noble and learned Lord, Lord Woolf, and there will then be a full 20 minutes for other Back-Bench exchanges. As I said, it is proposed as an exceptional procedure for an exceptional case.
Lord Rees-Mogg: My Lords, I would be grateful if the noble Baroness the Leader of the House could tell us what subsequent arrangements are being made for a debate on a matter of the highest constitutional importance. Of course, we would all be delighted to hear the noble and learned Lord, Lord Woolf, for 10 minutes; that is not a problem. However, we ought to be told in advance that there are satisfactory arrangements for debating such extremely important constitutional issues.
Baroness Amos: My Lords, I am aware of the concern about the need to debate the matter in the House. A provisional date has been agreed for a debate just prior to the Recess.
Constitutional Reform
3.8 p.m.
The Secretary of State for Constitutional Affairs and Lord Chancellor (Lord Falconer of Thoroton): My Lords, with the leave of the House, I should like to make a Statement on the judiciary-related functions of the office of Lord Chancellor.
On 14 July, I published consultation papers on the establishment of a new way of appointing judges, the creation of a new Supreme Court and the future of Silk. In September, I published a paper on the abolition of the office of Lord Chancellor. We are grateful to those who responded to our consultation process. The Government are today publishing summaries of those responses.
As set out in the gracious Speech, we intend to bring forward legislation to enact these changes. It is for Parliament to consider that legislation, and my proposals today are conditional upon parliamentary approval. Today, I wish to set out our proposals for the future handling of those functions of the office of Lord Chancellor which relate to the judiciary.
I have had detailed discussions with the Lord Chief Justice, who has been speaking on behalf of the judges on these issues. I am pleased to be able to tell the House that the terms of today's Statement have been agreed with the noble and learned Lord the Lord Chief Justice. The Lord Chief Justice's agreement is, of course, conditional on Parliament's approval of our proposals. I think it is right that Parliament should be told first of the results of those discussions.
In making changes, we must secure embedded, enduring judicial independence; good working relationships between the judiciary and the executive; high quality judges; and high public confidence in the judiciary. I believe that, taken together, our reforms and the proposals in this Statement will help to secure those aims.
The reforms seek to clarify and embed in statute the principle of judicial independence. Judges must enforce, impartially, the law made by Parliament. The executive must continue to guarantee security of judicial tenure and remuneration, and ensure that the judiciary is supported by an efficient and effective system of court administration.
We propose that there should be a general statutory duty on the Government, all those involved in the administration of justice and all those involved in the appointment of judges to respect and maintain judicial independence. In addition, there should be a separate specific duty falling on the Secretary of State for Constitutional Affairs to defend and uphold the continuing independence of the judiciary.
But the judiciary does not operate in a vacuum. It is part of a constitutional framework in which Parliament is the supreme law-making body. The Government, through Parliament, must ensure that the needs of the public are fully served by our legal system. Parliament must be able to hold the Government to account for the operation of the justice system and the resources provided for it.
That clearly requires a partnership; the Lord Chief Justice and I are determined that the successful partnership between my department and the judiciary should be sustained and entrenched for future generations. But to maintain this partnership without blurring the boundaries of responsibility requires clarity and transparency. To that end, we intend to define in the forthcoming Bill the respective
responsibilities of the Secretary of State for Constitutional Affairs and those of the Lord Chief Justice, as the most senior judge in England and Wales.The Bill will make it clear that the Secretary of State is responsible for the administration of the courts; that he is accountable to Parliament for the efficiency and effectiveness of the court system; and that he is responsible for supporting the judiciary in enabling it to fulfil its functions.
The Lord Chief Justice will lead the judges, with the authority that comes from being appointed as chief judge. He will be responsible for ensuring that the views of the judiciary are effectively represented; he will be responsible for the education and training of judges; and he will be responsible for the decisions on deployment of individual members of the judiciary.
The Lord Chief Justice should therefore be given the additional title of "President of the Courts in England and Wales". He should also no longer be the President of the Queen's Bench Division of the High Court. That should become a new post in its own right.
As regards deployment, we propose that responsibility for setting the overall framework for the organisation of the court system should be exercised by the Secretary of State, in consultation with the Lord Chief Justice. When it comes to the posting of individual members of the judiciary within that framework, however, responsibility should fall to the Lord Chief Justice.
I announced in July the Government's proposals for a judicial appointments commission and consulted over the summer on the detail. Central to the appointments process will be a new, clearly independent, judicial appointments commission. The commission will have full responsibility for the process of advertising vacancies and evaluating candidates for judicial appointment. No candidate will be appointed to the judicial posts for which the commission will be responsible unless recommended by the commission. The sole criterion for the commission in making its recommendations will remain that the appointments must be made on merit.
To ensure proper accountability to Parliament, the final decision on whom to appoint—or whom to recommend to the Queen for appointment—should remain with the Secretary of State. However, the Secretary of State's discretion must be severely circumscribed. He should be able to appoint only candidates recommended by the commission and should have strictly limited powers to challenge those recommendations. It is not right that a political appointee (albeit one always acting in good faith) should be able to cut across the system to appoint who he or she thinks is right.
Magistrates are a very important part of the judicial family and we propose that equivalent arrangements apply to the magistrates' appointments. On the advice of the local advisory committees, the judicial appointments commission will make recommendations to the Secretary of State, who will have the same limited powers to reject as he does in relation to the professional judiciary. For administrative reasons, the commission will not be able
to begin dealing with the appointment of professional judges and magistrates at the same time. We propose, therefore, that for an interim period the Lord Chief Justice will fulfil the role of the commission for magistrates' appointments.It is vital that the commission itself should incorporate the expertise of the judiciary and the legal professions, but also the demonstrable impartiality and wider experience of those who are not from the legal world. We propose, therefore, that the chair of the commission should be neither a lawyer nor a judge, and that the largest single group on the commission should be members who are neither lawyers nor full-time judges. The commission will include members of each level of the judicial hierarchy, up to the Court of Appeal, and will be required to consult the Lord Chief Justice during the recruitment process. The Lord Chief Justice will be able to engage judicial colleagues. That will ensure the commission is able to benefit from the views of the judges about potential candidates, and about any particular requirements for a vacancy.
In order to ensure that the system is as open and accountable as it can be, and that it is independent of government, we propose that the commission should be fully responsible for the appointments process itself. It should recruit its own staff and submit an annual report detailing its activities over the year. To provide a further guarantee of the impartiality of the system, the commission should establish a system for handling complaints from candidates who are unhappy with the way that their application has been handled. We will provide for an ombudsman to deal with those instances where a candidate remains dissatisfied.
I want to make it clear that appointments will continue to be strictly on merit. But our proposals will greatly improve the transparency, openness and fairness of the appointments system. By doing so, they will help to ensure that the judiciary of the future fully reflects the diversity of the community that it serves—a goal that both the Government and the judiciary seek.
I am also pleased to announce that Dame Rennie Fritchie, the Commissioner for Public Appointments, has agreed to chair the appointing panel for the commissioners. The Lord Chief Justice will also sit on the panel, as will one other member (who will be neither a member of the Government nor a civil servant) to be nominated by the Commissioner for Public Appointments. Once appointed, the chair will be on the panel for the appointment of the other commissioners.
The education and training of the judiciary is the responsibility of the Judicial Studies Board, which is chaired by a senior member of the judiciary and, although staffed by members of my department, is under the control of the judiciary. The Lord Chief Justice will be responsible for the provision and sponsorship of judicial training, within the resources provided by the Secretary of State, with a continuing role for the Judicial Studies Board. We will further propose that the Lord Chief Justice should in future
appoint both the chair and members of the Judicial Studies Board, after consultation with the Secretary of State.The Secretary of State and the Lord Chief Justice will both continue to have a role to play in relation to judicial discipline and conduct. That partnership reflects the importance of respecting the independence of the judiciary, of providing assurance to the public that complaints about judges are subject to proper scrutiny, and of providing accountability to Parliament for the complaints system.
In the most serious cases, in which it falls to be considered whether a judge should be removed from office for incapacity or misbehaviour, removal will be by the Secretary of State with the agreement of the Lord Chief Justice. It will not be possible unless they both agree. For the higher judiciary, removal will continue to be by Her Majesty the Queen on an address from both Houses of Parliament. Such cases will be first investigated by a judge of appropriate seniority and will be able to be referred to a review body.
In less serious cases, the Lord Chief Justice and the Secretary of State will need to agree on any penalties short of dismissal to be applied to a judge. They will be supported in this work by a complaints secretariat, and they will both be consulted about all complaints of any substance, as well as receiving regular reports about all other complaints dealt with. For all cases involving magistrates, local input will continue. The Secretary of State will be accountable to Parliament for the efficient and effective operation of the complaints system as a whole and will continue to deal with correspondence from Peers and Members of Parliament on the subject.
To provide greater certainty and transparency about the process of handling such complaints, the Bill will provide for a complaints procedure to be agreed by the Lord Chief Justice and the Secretary of State that will be set out in secondary legislation. As a further guarantee of the openness and fairness of the new complaints process, we propose that the complainant or the judge concerned should be able to refer the handling of the complaint to the ombudsman.
There are a number of posts, such as the senior presiding judge and the presiding judges, that do not involve formal promotion to a more senior judicial level. Those roles, which are held for a relatively short term by different judges in succession, entail a degree of judicial leadership and a range of administrative functions. We propose that in the future such appointments should be made by the Lord Chief Justice, either in consultation with, or with the concurrence of, the Secretary of State.
The making of rules of court is a key means of giving effect to policy decisions approved by Parliament. Responsibility for the making of rules will remain with the relevant rule committee. The Secretary will allow or disallow rules. We propose, however, that the power to alter rules should be repealed. Instead, we will propose a new power allowing the Secretary of State to require a rule committee to make new rules, or to change existing rules, to achieve a particular desired
outcome. It would then be for the committee to consider how best to frame the rules to meet such a requirement, and to submit or resubmit them to the Secretary of State.The policy that I have outlined today covers the position in respect of England and Wales. My responsibilities also extend to Northern Ireland. Consideration will be given to the future handling of my functions that relate to the Northern Ireland judiciary. That process, which is currently under way, will include consultation with the Lord Chief Justice of Northern Ireland, and will be based on the same guiding principles as in England and Wales, taking into account any provision already made for Northern Ireland to give effect to the recommendations of the Northern Ireland Criminal Justice Review.
The Lord Chief Justice and I will listen carefully to views expressed today in your Lordships' House and elsewhere. Your Lordships will have a further opportunity to consider those issues in more detail when legislation is introduced. To assist in such consideration, we have today placed in the Libraries of both Houses an explanatory document setting out the proposals in more detail.
With parliamentary approval, the reforms that I have set out will guarantee that the independence of the judiciary is protected for future generations. The reforms will clarify the relationship between the executive and judicial arms of the state, improve each arm's accountability, and promote and strengthen partnership, so as to serve the public better.
My Lords, that concludes the Statement.
3.22 p.m.
Lord Kingsland: My Lords, the noble and learned Lord the Lord Chancellor and the noble and learned Lord the Lord Chief Justice have been courtesy itself in keeping me informed of the progress of their negotiations and their conclusions on the agreement. They have also kindly let me have foresight of the relevant documents and, indeed, of their speeches in draft. I understand that the same privilege has been extended to the noble Lord, Lord Goodhart.
I am delighted, as I am sure are all your Lordships, to see the noble and learned Lord the Lord Chief Justice in his place. I understand that he has come down to your Lordships' House to explain the judiciary's approach to the agreement. Long may the noble and learned Lord the Lord Chief Justice and his successors exercise their right to speak their mind about vital judicial matters in your Lordships' House. However, I understand it to be the intention of the noble and learned Lord the Lord Chancellor that this will prove to be one of the last times we shall see the noble and learned Lord the Lord Chief Justice in your Lordships' House. Indeed, that privilege will also be denied to his successors.
In the context of today's Statement, I find that fact rather ironic. The philosophy behind the Statement of the noble and learned Lord the Lord Chancellor is to remove the judiciary from the legislature, so that the judiciary will in some way become decontaminated of
the influence of the law-making process. Yet, we have an agreement that has been carefully negotiated, albeit in secret, and which will end up as clauses in a Bill that will be placed before your Lordships; and the noble and learned Lord the Lord Chief Justice is here to express his endorsement of that agreement, and those subsequent clauses, even though his right to do so is now threatened by the Government.I hope that I am not alone in finding the Government's approach to those negotiations, and the welcome given to their conclusion by the noble and learned Lord the Lord Chancellor, somewhat illogical. Perhaps some of your Lordships might even think it—dare I say—hypocritical.
The details of the proposals will be debated at length on 12 February. I wish today simply to place them in the broader context of what I understand to be the Government's legislative proposals. I shall do so, first, by looking at the manner in which the agreement was reached, and, secondly, at its scope.
As to the manner, I trust that I am not alone in thinking that matters of such importance as the independence of the judiciary and the selection of judges should not have been conducted in negotiations in confidence between the executive and the judiciary without any participation by either House of the legislature.
The conclusion that has been reached is rather strange. The party of government has been more enthusiastic than any other political party of this country about pre-legislative scrutiny. I can think of no better set of proposals to undergo that process than those that will be contained in the Bill. I recall when I was involved in the draft Financial Services Bill three or four years ago how successful the pre-legislative scrutiny of that Bill turned out to be. Would not it have been helpful to your Lordships' House, for example, for the proposals in the agreement to be compared with the existing situation? Evidence from senior judges who have direct experience of judicial selection under the existing situation could have been taken. That could have been considered in the context of what the noble and learned Lord the Lord Chancellor has said to your Lordships this afternoon.
To take another example, we understand that not only will the noble and learned Lord the Lord Chief Justice depart from your Lordships' House, but the noble and learned Lord the Lord Chancellor will disappear altogether. Who will guarantee that Ministers will not criticise judges, following judgments that displease them? That already happens from time to time, but I am sure that the restraining hand of the noble and learned Lord the Lord Chancellor being in the Cabinet has meant that there are far fewer examples than there would otherwise have been.
It is not too late for the Government to hold a pre-legislative review. The agreement reached between the noble and learned Lord the Lord Chancellor and the noble and learned Lord the Lord Chief Justice could form the basis of such a review.
In saying all that, I am in no way criticising the noble and learned Lord the Lord Chief Justice for what he has done. The noble and learned Lord was not given the option of a pre-legislative public review. He had to do the best he could in the circumstances in which he was placed. There can be no criticism of him whatever.
As to the scope of the agreement, it is vital to emphasise that, in the context of the whole Bill, it is fairly narrow. First, as the noble and learned Lord the Lord Chancellor said, it does not bind the legislature. Secondly, there is nothing in the agreement about the Supreme Court, which, of course, is not surprising. The noble and learned Lord the Lord Chief Justice is responsible for the judiciary in England and Wales. The scope of the Supreme Court runs much wider to the whole of the United Kingdom.
Thirdly, there is nothing in the agreement about the preservation of the rule of law. In this respect, the role of the Lord Chancellor in the Cabinet is vital. The Lord Chancellor is invariably a member of the Cabinet of jurisprudential distinction and is, of course, the head of the judiciary. He is a man—it might be a woman—who has attained the pinnacle of his career. He has nothing more to hope and nothing more to fear. In British politics there is no better figure to ensure that the rule of law is not overrun by political expediency. Why does the Prime Minister want to remove such a figure from the Cabinet? Noble Lords may find that the answer to that question does not pose a severe test to the intellect.
What of the removal of the Lord Chief Justice, the Master of the Rolls and the Lords of Appeal in Ordinary from your Lordships' House? I view this with alarm. The judiciary is one of the three great arms of the constitution. To deprive noble and learned Lords of their intimate involvement in the legislative process will be to isolate the judiciary in this country and to turn it into a mere political pressure group. Moreover, it is wholly illogical to remove the judiciary from the legislature without giving the same treatment to the executive.
As a party in opposition we are not against change, but it must be change which harmonises with our past. The present arrangements have existed for over 400 years. They have been tested by every generation and not found wanting. As I said in the debate on the gracious Speech, what is so special about 2004?
3.31 p.m.
Lord Goodhart: My Lords, I start by repeating the thanks of the noble Lord, Lord Kingsland, for the opportunity given to myself as well as to the noble Lord to see in advance the draft documents which have been released today. Unlike the noble Lord, Lord Kingsland, I propose to say something about the terms of the agreement. The noble Lord's speech left me and, I suspect, every other Member of the House, absolutely in the dark about the views of the Conservative Party on the substance of the matter under debate.
Members on these Benches warmly welcome the Statement. We have long believed that it was wholly improper for judges to be appointed by a Cabinet Minister. Of course recent Lord Chancellors have been unquestionably impartial in making their appointments, but in the future there is a real and increasing risk that the appointments process will be politicised if things are left as they are.
We do not agree with all the proposals put forward by the Government. We are concerned, for example, about the make-up of the proposed judicial appointments commission. It may be that too high a proportion of the members are holders of judicial office; it will be seven out of 15 if we include the representatives of the lay magistracy and tribunal members. We shall raise that and other issues during our discussions in debate on the Bill.
However, we recognise the enormous constitutional importance of the concordat now arrived at between the noble and learned Lord the Lord Chancellor and the judiciary, represented by the noble and learned Lord, Lord Woolf. That concordat will get the new system off to a far better start than if the Government were seeking to force a new system on an unwilling judiciary. Therefore we shall not seek to unravel the agreement reached in the concordat.
This is not the time to go into the detail of the terms of the concordat, but we very much welcome the specific statutory duty on the Secretary of State to defend the independence of the judiciary. However, I have to say that that does not go far enough because the independence of the judiciary is useless if its powers are excluded or improperly restricted. A plain example of that is Clause 10 of the Asylum Bill now before the House of Commons which excludes judicial review of decisions in asylum cases. That is a constitutional abomination. Clause 10 is a threat to the integrity of the legal system. It is not just a question of the rights of asylum seekers; it is one of the powers of the High Court to review the decisions of inferior tribunals. That is a fundamental principle of our constitution. I believe that the noble and learned Lord the Lord Chancellor should have insisted that judicial review should be retained. I do not know whether he failed to object to Clause 10 or whether he objected and was overruled. Either way, the present system has failed. To make future failures less likely, the statutory duty of the Secretary of State must be extended to include not only the defence of the independence of the judiciary, but also the defence of the integrity of the legal system.
We must preserve not only the independence of the judiciary, but the independence of the legal profession. That means that if appointments to Queen's Counsel or an equivalent rank under another name are to continue, those appointments must also be independent of government. I should add that Schedule 5 to the Access to Justice Act 1999 gives the Lord Chancellor considerable powers over the rules of professional bodies. Those powers should either be transferred to the Lord Chief Justice or require his concurrence.
Let me finish by mentioning briefly two matters that need to be looked at in the longer term. First, the forthcoming Bill will be of the utmost constitutional importance. It will determine the relationship between the executive and the judiciary, but it is to be contained in an ordinary Act of Parliament which could be repealed by any other Act. In the past we have prided ourselves on our unwritten constitution, but that constitution is no longer unwritten; bits and pieces are scattered in various statutes, of which the constitutional reform Act will be one. They need to be brought together into a single, written constitution.
Secondly, it is time that we created a proper ministry of justice and brought responsibility for our substantive criminal law into the Lord Chancellor's Department or the Department for Constitutional Affairs, and out of the Home Office.
This is the beginning of a long debate which will resume at much greater length on 12 February and again in March when we have the Second Reading of the constitutional reform Bill. I have not yet seen the detailed proposals for the creation of the Supreme Court, so I cannot comment on them, but I believe that the concordat represents an important step forward towards what is a vital constitutional reform.
3.37 p.m.
Lord Falconer of Thoroton: My Lords, I am grateful to both noble Lords for their thanks. It was right to keep them informed throughout the process. The noble Lord, Lord Goodhart, was correct to point out that, having listened to the noble Lord, Lord Kingsland, unfortunately we have no idea what the Conservative Party thinks about these proposals, so I shall not comment on that.
Like the noble Lord, Lord Goodhart, I welcome the fact that the noble and learned Lord the Lord Chief Justice is in his place this afternoon and I am glad that he will take the opportunity to set out in this House what he thinks of these proposals. There has been no element of secret negotiations here. The moment that an understanding was reached between us, we came straight to the House and explained the purpose. I am not sure what the noble Lord, Lord Kingsland, had in mind. Should we have detailed on the website precisely where we were in our correspondence? I do not think that even the noble Lord would suggest that.
I turn to the remainder of the remarks made by the noble Lord, Lord Kingsland. At the heart of the understanding between myself and the noble and learned Lord the Lord Chief Justice is the proposition that the Lord Chief Justice for England and Wales should become, in effect, the acknowledged leader of the judges. I can think of no other process that would more strongly embed the rule of law and ensure that the independence of the judiciary is guaranteed.
I am glad that the noble Lord, Lord Goodhart, has welcomed these proposals. He is right to say that they are of very considerable constitutional significance and, as my noble friend Lady Amos has said, there will be a chance to debate them before we reach the Bill itself. Turning to his remarks about a written
constitution, our constitution has always been based on the supremacy of Parliament. If a written constitution is set above Parliament then in effect that supremacy is lost. Of course some things should be set out in statute but, like all other statutes, they should be subject to the will of Parliament. As regards Clause 10, I think that that should be debated on another day.3.39 p.m.
Lord Woolf: My Lords, I am most grateful to the House for allowing me extra time to respond on behalf of the judiciary to the Statement made by the noble and learned Lord the Secretary of State and Lord Chancellor. Before making my statement I consulted the Judges' Council, and the judiciary of the High Court and the Court of Appeal. It is therefore with their agreement that I welcome the Lord Chancellor's Statement and make these remarks.
After the Government announced on 12 June last that they were proposing to abolish the office of Lord Chancellor, the judiciary regarded it as of the greatest importance that if this were to happen there should be a new constitutional settlement, reflected in legislation, that would protect the administration of justice in England and Wales for the future.
A settlement responding to the proposed new situation would have to ensure: first, that the judges retain the confidence of the public; secondly, that the independence of the judiciary is maintained; thirdly, that the quality of the judiciary continues to be outstanding; fourthly, that there is an appropriate and harmonious relationship between the judiciary, Parliament and the Government; fifthly, that the resources essential to an effective and efficient court system are provided.
The arrangements just announced by the Secretary of State and Lord Chancellor are the result of detailed discussions between the noble and learned Lord and myself. If they are accepted by Parliament, their implementation will have my firm support.
If you compare what is announced with the response of the Judges' Council to the Government's consultation papers on constitutional reforms, you will find significant differences. However, the judiciary recognises that there is more than one way in which its objectives can be achieved. During the course of our discussions, the Lord Chancellor and I have been willing to accommodate the views of the other as long as they do not involve impinging upon the important principles that we each believe have to be secured by an agreement that safeguards the interests of the public.
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.
I shall explain shortly why the judiciary considers that the package of proposals is acceptable. Before I do so, it is important that I make clear that these proposals do not deal with all the issues which will have to be determined as a result of the proposed changes announced by the Government last year. The package of proposals about which I speak today deals
with the issues that arise as a consequence of the Lord Chancellor ceasing to be the head of the judiciary. Once there is no longer a Lord Chancellor who is head of the judiciary, it is vitally important to the administration of justice that there are provisions in the legislation which protect the judiciary in its task of providing justice for those who come before the courts. This, in the judgment of the judiciary, is what the present proposals achieve.This package of proposals does not deal with other issues which have not, as yet, been the subject of discussion between myself and the noble and learned Lord—that is, the question of the creation of a new Supreme Court and the question of whether senior judges should continue to sit in this House, an issue to which the noble Lord, Lord Kingsland, referred. Nor does it cover the future of the silk system.
On a similar note, I should make clear that, in engaging in these discussions with the noble and learned Lord, I have not sought to address the question of whether the office of Lord Chancellor should indeed be abolished. It seems to the judiciary that that is a matter for Parliament.
Subject to these qualifications, I can say that the proposals are satisfactory because, first, the appointments commission will be wholly independent of the executive and appointed by a body that is equally independent. The commission will be qualified to appoint and promote our judiciary in the future. It will not be a commission dominated by the judiciary but there will be sufficient members who sit, full time, as judges to ensure that the commission benefits from their experience as to the qualities that judges must have. The sole criterion for making appointments will be merit, and it will be an important part of the commission's role to work out ways of increasing the diversity of those who apply for judicial appointments so that there will be a wider range of applicants from which to choose. A lay chair will be able to devote the time to this role that such an important post deserves. For appointments of a specialist nature, those who have the requisite expertise will be able to contribute to the selection process.
Secondly, the Secretary of State is to be involved in the appointments process to an extent necessary to meet his responsibilities to Parliament and the public, but his involvement is suitably restricted. He can ask for a proposed appointment to be reconsidered or for a different name to be submitted, but he cannot propose a candidate for appointment and he will have to identify why he considers that a particular candidate is not acceptable. 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.
Thirdly, the security of tenure of the judiciary is preserved. However, an important aspect of its independence is that members of the judiciary fulfil their responsibilities in a way that does not adversely affect the public's confidence in the judiciary. There must therefore be an appropriate system for dealing with complaints and discipline, and this the proposals contain. Again, the Secretary of State has a part to play in the system proposed and, again, his role is carefully limited so as to protect the independence of the judiciary. He will be answerable for the complaints system to Parliament; he can require a judicial investigation or review; but no judge can be removed or any other sanction imposed without the agreement of both the Secretary of State and the Lord Chief Justice of the day. Together they will consider the findings of the investigating judge or review body and agree whether the recommendations should be implemented. In addition, the administrative support for the disciplinary and complaint process will be provided by a separate section of the staff of the department working to an independent chief executive.
Fourthly, the Secretary of State, unlike the Lord Chancellor, will not be head of the judiciary. The previous position of the Lord Chancellor as president of the existing Supreme Court will pass to the Lord Chief Justice of the day, but the Lord Chief Justice will assume the new title of President of the Courts of England and Wales. The Lord Chief Justice will have the statutory responsibility and therefore the authority to speak on behalf of the judiciary on matters that concern the judiciary. The Secretary of State is, however, to continue to have a clear statutory responsibility to provide administrative support for the judiciary and the resources to enable it to perform its duties. This includes providing the Lord Chief Justice with a properly resourced staff and office.
Fifthly, the Judicial Studies Board is to continue to be independent of the executive.
Sixthly, as to resources, the judiciary is to have, for the first time, non-executive membership of the boards of both the department and the Unified Courts Administration. This should lead to a closer involvement of the judiciary in the decision-making process.
Seventhly, in addition to the proposed specific duty on the Secretary of State for Constitutional Affairs to defend and uphold the continuing independence of the judiciary, there will be a general statutory duty on the Government, all those involved in the administration of justice and all those involved in the appointment of judges to respect and maintain judicial independence.
In agreeing the proposals, the judiciary has regarded as its primary responsibility, not the protection of its own interests but the protection of the independence of the justice system for the benefit of the public. I urge your Lordships to study the proposals, the details of which have been placed in the Library. If you do, I hope that you will agree with the judiciary that this is a package which will contribute to achieving the new
constitutional settlement that the abolition of the Lord Chancellor requires. If you agree, I am sure that you will endorse the judiciary's view.
In lending my support to the proposals as a whole, I acknowledge that the noble and learned Lord has been commendably prepared to listen and respond to the proper concerns of the judiciary. An important consequence is that the close working relationship—or, as it is sometimes described, the partnership—between his department, the Court Service and the judiciary is more likely to be preserved. That close working relationship is a special quality of our justice system, which, in the interests of the public, it is important to preserve. I thank your Lordships.
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