Issues relating to the office of Lord Chancellor

10.  The Committee have identified the following issues arising in evidence which relate to the proposed replacement of the office of Lord Chancellor.

-  Is the policy of the bill to abolish the office of Lord Chancellor the correct one? If not, how should the office of Lord Chancellor be redefined and retained? (Clause 12)

-  Should the Minister hold a legal qualification? If so, should the Minister in addition swear a judicial oath upon appointment?

-  Should the Minister responsible for judiciary-related matters be a member of the House of Lords rather than the House of Commons ?

-  Should Part 1 be amended to place a statutory duty upon ministers generally, or the Minister in particular, to uphold the rule of law?

-  Should Clause 1 (Guarantee of continued judicial independence) be amended to:

-  prevent its implied repeal by later Acts of Parliament?

-  require the Minister to have more than merely "regard to" the factors set out in subclauses (4)(a)-(c)?

-  In relation to the Concordat,

-  should the principles set out in that agreement be put on a statutory footing even if the office of Lord Chancellor is retained?

-  should its continuing importance be recognised by making specific reference to it in the bill, in the Explanatory Notes, or in some other way?

-  should Clause 2 of the bill be amended to refer to the Lord Chief Justice's responsibility for ensuring that appropriate structures are in place for the deployment of individual members of the judiciary (Concordat, para.4(c))?

-  should the bill be amended to require the concurrence of the Lord Chief Justice before the appointment of Judges to public inquiries, etc by the Minister?

-  Should Clause 1 (Guarantee of continued judicial independence) be extended to Scotland?

-  Speakership of the House of Lords. (Clause 11)

We consider these issues below.

Is the policy of the bill to abolish the office of Lord Chancellor the correct one? If not, how should the office of Lord Chancellor be redefined and retained? (Clause 12)

11.  One of the main concerns of the Committee has been to examine whether it is right to abolish the office of Lord Chancellor, as proposed by Clause 12 of the bill. The question is not whether to return to the position on 11 June 2003,[5] but rather whether, as part of the reform process now underway,

• the office of Lord Chancellor should be abolished, or
• the office should instead be redefined and retained.

12.  One aspect of this question concerns simply the title of the office in dispute. Should it be designated (as in the first announcement of the Government's decision to make the change) as "Secretary of State for Constitutional Affairs"? Or should we retain the ancient title "Lord Chancellor", which has for centuries been part of the fabric of the United Kingdom's constitutional framework. This—or something like it—is a choice which will have to be made, when Parliament has determined the final shape of the bill. (Until then—and throughout this report—we propose to follow the example set in Clause 97 of the bill by using the neutral description "the Minister". For convenience, we refer to Lord Falconer of Thoroton—whose full ministerial title is "Secretary of State for Constitutional Affairs and Lord Chancellor for the transitional period"—simply as the Lord Chancellor.)

13.  The substantive criticism of Clause 12 is more far-reaching, concerning much more than the choice of name, and relates to the formal qualifications and personal characteristics of the person who is the Government minister

·  responsible for "judiciary-related matters" (a shorthand expression for the provision of systems to support the carrying on of the business of courts and tribunals, judicial appointments, and overseeing judicial discipline), and

·  who has special responsibilities as the "constitutional conscience" of Government, defending judicial independence and the rule of law in Cabinet.

14.  The bill proposes that this minister be a Secretary of State. The Prime Minister would be free to select a person without a background in the law and who might be a member of the House of Commons rather than the House of Lords. According to many critics of Clause 12, it is essential that this minister should continue to be a senior lawyer, a member of the House of Lords and accordingly a person of stature and status, without the pressures of party political career aspirations.

THE CASE FOR ABOLITION OF THE OFFICE OF LORD CHANCELLOR

15.  The Government's case for abolition of the office of Lord Chancellor is set out in the Lord Chancellor's written and oral evidence to the Committee (p 1, QQ 1-149), as well as in the Department for Constitutional Affairs' consultation papers issued in July 2003[6] and in speeches in Parliament.[7]

16.  In bare outline, the positive case presented to the Committee for abolition of the Lord Chancellor is that each of the functions currently performed by the Lord Chancellor—being a Cabinet minister responsible for judiciary-related matters, head of the judiciary of England and Wales, a judge, and Speaker of the House of Lords—"would be better performed if they were not fused in the office of Lord Chancellor" (Q 29). The bill therefore proposes that

·  the ministerial functions of the Lord Chancellor will be transferred to the Secretary of State for Constitutional Affairs,

·  the Lord Chief Justice of England and Wales will assume the role as head of the judiciary in that jurisdiction, with express statutory responsibilities for representing the views of the judiciary to Parliament and the Government,

·  the Lord Chancellor's role as a judge, in particular his entitlement to participate in the work of the United Kingdom's top-level courts, will end with the abolition of the office, and

·  the House of Lords will decide for itself its own arrangements for the Speakership.

17.  In relation to the ministerial functions, the Government's view is that the Prime Minister should have an unfettered choice in selecting a minister with the skills and attributes best able to deliver important public policy goals relating to the courts and constitutional matters generally. The departmental duties of the Lord Chancellor have grown dramatically since the mid-1970s, and today the Department for Constitutional Affairs and its executive agencies have tens of thousands of employees and a budget in excess of £3 billion. The Lord Chancellor told the Committee: "In performing his 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 office holder being drawn from a restricted pool—those with senior legal and political standing" (p 3).

18.  In relation to the head of the judiciary, the Government's view is that it is now appropriate to recognise that the Lord Chief Justice of England and Wales should exercise this role. Clause 2 of the bill makes provision for this. The Lord Chancellor told the Committee: "Once you take away the fact that he [the Lord Chancellor] is a judge—because everybody agrees he should not sit as a judge—once you take away the driving role in appointing judges, which again, everybody agrees that you should; once you take away his deployment and disciplining role in relation to judges, you cannot ultimately say with any degree of conviction he is this powerful judicial figure that historically he had been". (Q 9)

19.  The Government also rests its case for abolition of the office of Lord Chancellor on two areas of difficulty, said to be inherent in the office. First, it is said that the workload of the office, in relation to the Lord Chancellor's role as a minister, has increased significantly. Lord Bingham of Cornhill told us: "The old days when the Lord Chancellor spent the first half of his day sitting judicially and the second half sitting as Speaker for better or worse have clearly gone forever" (Q 415).

20.  Secondly, there are said to be a variety of tensions between the functions placed upon the Lord Chancellor. The Committee was told that it was increasingly difficult to reconcile being a member of the Cabinet, subject to collective responsibility, while at the same time having "a representative function on behalf of the judiciary" within Government. The Lord Chancellor told the Committee that the judges' "views on policy may well, quite understandably, be different from the views on policy that you as a Government Minister and your colleagues might take, the differences being perfectly legitimate" (Q 2). He gave as examples of such differences: views on criminal procedure as contained in the Criminal Justice Bill 2003; how particular tribunals operate; and reforms of trial by jury (Q 6). Although these are sometimes presented as rule of law issues, in reality they are "policy disagreements". The tensions have become greater in recent years as the judges have, since the abrogation of the Kilmuir Rules, been much more willing to express their views publicly about issues where they disagree with the Government (Q 17).

21.  The proposal for abolition of the office of Lord Chancellor broadly on the grounds advanced by the Government was supported by a number of witnesses and in written evidence received by the Committee (for example, Professor Diana Woodhouse p 106, Clifford Chance LLP p 336). Professor Vernon Bogdanor, in his written evidence, argued that the office of Lord Chancellor was defended because it "worked"—"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" (p 325). He pointed to three objections to the argument that the old system "worked". First, it has worked in a broadly satisfactory manner only in recent years. Second, "there have been cases when the supposed conventions were not observed, even in recent years". Thirdly and most importantly, Professor Bogdanor argues, "even if the conventions worked perfectly, it would still not be satisfactory to retain a system based so largely upon them. What may have been acceptable a hundred years ago is hardly likely to be acceptable to day 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 reforms 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".

CRITICISMS OF THE ABOLITION OF THE OFFICE OF LORD CHANCELLOR

22.  The Committee heard objections to the proposal to abolish the office. First, it may deprive the Cabinet of a senior lawyer able to influence Government thinking on important constitutional issues. One of the functions of the office of Lord Chancellor has been to protect important constitutional values at the heart of Government. The Law Lords, in their collective response to the Department's consultation paper, said that they were "very greatly concerned that the important constitutional values which the office of Lord Chancellor protected should continue to be effectively protected" (p 116). Lord Bingham of Cornhill, the Senior Law Lord, told us that while he doubted whether a minister responsible for judiciary-related matters could be regarded as head of the judiciary if he did not sit as a judge, he continued to have "a very strong belief in the role of the Lord Chancellor as a guardian of constitutional propriety" (Q 416). One aspect of this line of argument is the contention that the presence of the Lord Chancellor, as head of the judiciary, and as a member of the executive Government, has the advantage of providing "a link between two sets of institutions" (Lord Alexander of Weedon Working Party, p 465).

23.  A second and related concern is that the Secretary of State for Constitutional Affairs may in time become "over influenced by party political considerations", prompting the suggestion that the Secretary of State should by convention be a member of the House of Lords rather than the House of Commons (Law Society p 162). Lady Justice Arden stressed to us the importance of the judicial appointments process remaining apolitical—"something of which this country can be extremely proud". "It is, I would have thought, better to have, in the position of the Minister receiving the selections from his Appointments Commission, a person who is not in the throes of a political career" (Q 797).

24.  Thirdly, some fear that the Secretary of State for Constitutional Affairs may lack sufficient seniority. In the Full List of Her Majesty's Government published on 2 April 2004, the office of "Secretary of State for Constitutional Affairs and Lord Chancellor for a transitional period" was ranked 20th out of the 21 members of the Cabinet. The General Council of the Bar stated: "While we are neutral on whether it is appropriate to retain the title [of Lord Chancellor] 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 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" (p 162).

25.  As Lord Mackay of Clashfern said, the position of Lord Chancellor brought with it the long established convention of political seniority. "In my experience until then [12 June 2003] the Lord Chancellor, notwithstanding how junior he might be in the Cabinet in terms of service, was always regarded as a pretty senior member of the Cabinet" (Q 238). Lord Bingham of Cornhill said: "I would have no difficulty in agreeing that the protection would be the more effective the more clout the person had" (Q 456), a proposition with which Lord Woolf agreed (Q 523).

26.  Fourthly, some doubt was expressed as to whether the transfer of functions from the Lord Chancellor to the Secretary of State for Constitutional Affairs will do much to reduce some of the tensions associated with the former office. Under the bill, the Secretary of State for Constitutional Affairs will be under a statutory duty to defend the independence of the judiciary and, if amended to this effect, also to uphold the rule of law. Professor Robert Hazell told the Committee that there is a "tension which is universal between the values of justice on the one hand and the values of law and order on the other. Post 11 September 2001, the conflict between those two values has become really acute and very difficult…. this tension is universal, all governments have to address it and generally in most governments there is one figure, call him the Minister of the Interior or whatever, who upholds the values of order and there is another figure, often called the Minister of Justice, who upholds the values of justice. They will always clash" (Q 182). (See also Lord Alexander of Weedon Working Party pp 467-9.)

27.  A fifth concern is that the transfer of functions after the abolition of the Lord Chancellor will place unduly heavy burdens upon the office of Lord Chief Justice, who will assume the role as head of the judiciary in England and Wales. Administrative workload might, it was suggested, prevent the Lord Chief Justice sitting regularly as a judge; it might in future deter distinguished judges from taking up the office. Lord Bingham of Cornhill told us that "I have expressed worries to Lord Woolf and others that he is going to have so many responsibilities for appointing judges, disciplining judges, this, that and the other, as to whether he will still have enough time to give a serious and very important Judicial Office the judicial time it needs. This is a very real worry I have and although, of course, you can delegate and have assistant this and assistant that, there is always a good deal of most difficult decision making that ends up on the desk of the top man" (Q 427). Lord Mackay of Clashfern expressed similar concerns: "I wonder whether we will be appointing Lord Chief Justices in the future for their judgements or for their administration" (Q 251).

28.  For the Government, it was said that the Lord Chief Justice in practice already performs quite a lot of the functions (Lord Chancellor Q 39). The Senior Presiding Judge of England and Wales disagreed with the proposition that the Lord Chief Justice would be overloaded: "I am fairly sure, seeing this from the inside, that the Lord Chief Justice will be able to discharge all the functions and able to carry out what is his paramount duty which is to sit in court and judge" (Lord Justice Thomas Q 714).

THE COMMON GROUND

29.  Before setting out the case for redefining and retaining the office and title of Lord Chancellor, it is helpful to identify the common ground between the proponents and opponents of abolition.

30.  The first area of broad agreement is that it has long been impracticable for the Lord Chancellor to sit as a judge. Lord Bingham of Cornhill told the Committee that "the days when the highest court of the land should be presided over by somebody who, whatever his other qualities, has almost certainly not been selected for his qualities as a judge have gone and gone for ever" (Q 415). The Committee heard differing views on whether the practice of the Lord Chancellor sitting in the Appellate Committee of the House of Lords ran the risk of a successful challenge being made under Article 6 of the European Convention on Human Rights, which requires a court hearing a case to be "independent and impartial". Whatever the merits of the rival analyses, the practical constraints on the Lord Chancellor have long been clear. Lord Bingham of Cornhill said: "In the three years until Lord Irvine retired when I was here he sat on two cases. It was agreed between us that he could not do anything to do with crime because that affected his colleague, the Home Secretary, he could not deal with human rights because he piloted the bill through the House, he could not deal with judicial review because it was of governmental interest and he could not deal with commercial cases because they always went on for much longer than he could possibly sit. That left him 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 about the construction of a mortgage deed. This was the result of both of us trying to find cases on which he could sit. I came to form the view that really no useful purpose was served" (Q 415).

31.  A second point of broad agreement is that, whatever the future of the office of Lord Chancellor, the principles of "the Concordat" should be put into legislation in accordance with the strong views expressed by the Lord Chief Justice of England and Wales and the Judges' Council (the non-statutory body of 20 judges from all levels of courts in England and Wales which has the task of making collective decisions on behalf of the judiciary). In response to the Government's announcement of its proposals in June 2003, the Lord Chancellor and the Lord Chief Justice agreed a set of principles to determine the allocation of the Lord Chancellor's functions between the Secretary of State for Constitutional Affairs and the Lord Chief Justice, when the office of Lord Chancellor was abolished. The text has been published by the Department for Constitutional Affairs under the title Constitutional Reform: the Lord Chancellor's judiciary-related functions - proposals, and has come to be widely known as "the Concordat". It is re-published with this report at Appendix 6.

32.  In his oral evidence to the Committee, Lord Woolf said that the judges unanimously want to see the principles of the Concordat put into legislation "irrespective of whatever else happens as a result of this bill" (Q 493). It would, he said, "be a terrible shame if, as a result of other aspects of the reform, this, what I regard as a huge step forward which will really provide protection for the judiciary in the future should be lost" (Q 493). In a supplementary note, Lord Woolf told us: "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" (p 463). Lady Justice Arden, the chairman of the Judges' Council working group on the bill, confirmed that the judiciary's view was that the Concordat "should be given effect to as soon as it is reasonably practicable" (Q 724). Among the principles set out in the Concordat, to which the bill seeks to give effect, are:

·  the key respective responsibilities of the minister responsible for judiciary-related matters and the Lord Chief Justice should be set out in statute, so as to provide clarity and transparency in this relationship;

·  the minister will not be a judge and shall not sit in a judicial capacity;

·  it is important to ensure that the roles and responsibilities of the most senior judiciary are clear in the new arrangements;

·  it will not be appropriate for judges to be sworn in by the minister; those who do so now should instead take their oaths in the presence of the Lord Chief Justice.

33.  The Concordat, and the oral statement to the House of Lords by the Lord Chancellor on 26 January 2004, made clear that the proposals set out in the Concordat "are, of course, conditional on parliamentary approval". Subject to that, it is apparent that the Concordat places constraints on both the Government's policy for reform and those who argue for the retention of the office of Lord Chancellor. Lord Woolf sought to make clear to us "that the judiciary as a whole has not taken a position on the question of whether the office of Lord Chancellor should be abolished" (p 463).

34.  A third area of consensus is that there should be an independent judicial appointments commission for England and Wales. Although the Committee heard a range of views on the powers of such a commission, and the extent of the discretion (if any) left to the Government to reject appointees identified by the commission, almost no one doubted that a commission was a desirable development. A judicial appointments commission will significantly change the role of the government minister responsible for judicial appointments—whether he or she is a Secretary of State for Constitutional Affairs or a Lord Chancellor.

THE CASE FOR REDEFINITION AND RETENTION OF THE OFFICE OF LORD CHANCELLOR

35.  Several witnesses told us that, contrary to the policy of the bill, the office of Lord Chancellor should be retained in some way, including Lord Bingham of Cornhill (Q 415), Lord Mackay of Clashfern (Q 238; p 79), Lord Ackner (Q 313), Professor Robert Hazell (Q 156), Professor Robert Stevens (QQ 165-166), Professor the Lord Norton of Louth (Q 475), Lord Morris of Aberavon (p 478), and Lord Alexander of Weedon's Working Party (p 469). On the basis of this and other evidence, during our deliberations we were able to identify three principal options for the future of the office of Lord Chancellor.

·  To retain the title of Lord Chancellor and preserve and enhance several crucial features of the office, including that the minister be a senior lawyer and a member of the House of Lords, while recognising that the office should change following the Concordat.

·  To redefine the office of Lord Chancellor so that the office-holder is more of a judicial figure than a political one and transferring responsibility for major areas of spending (including legal aid) to other ministers.

·  To use the title "Lord Chancellor" for the ministerial post set out and called Secretary of State for Constitutional Affairs in the bill.

A common feature of all the proposals is that the Lord Chancellor no longer should sit as a judge.

36.  The first model seeks to retain not only the title, but also to preserve and enhance several crucial features of the character of the office of Lord Chancellor. Unlike the Secretary of State for Constitutional Affairs, the office of Lord Chancellor would be required to be held by a senior member of the legal profession who is a member of the House of Lords (rather than the House of Commons). Accordingly, the Lord Chancellor would continue to be a person who has reached the pinnacle as well as the culmination of his political and legal careers, without any need or expectation of further promotion. Not only would this ensure that the Lord Chancellor was a senior figure, it is likely to have the consequence that Lord Chancellors will continue to hold office for significantly longer periods than is typically the case for other ministers. A Lord Chancellor would, accordingly, be in a better position to exercise the duties set down by the bill relating to defending the independence of the judiciary and the rule of law than would an ordinary Secretary of State. In this model, the Lord Chancellor would continue to be the minister responsible for the whole range of court and judiciary-related policy areas, including legal aid (Lord Alexander of Weedon Working Party pp 471-2). There may, however, be merit in reversing some of the recent accretions of responsibility for areas of policy to the Lord Chancellor's Department/ Department for Constitutional Affairs—which are set out in the table below—to allow the Lord Chancellor to focus on judiciary-related matters. It is this first model that some members of the Committee, opposed to abolishing the office of Lord Chancellor, found most compelling. Further aspects of this option, including retaining the requirement that the minister responsible for judiciary-related matters be a lawyer and a member of the House of Lords, are examined further below.

37.  A second model for the future also envisages that the Lord Chancellor would continue to be a senior lawyer who is a member of the House of Lords—but the areas of policy falling within the remit of the Lord Chancellor would be very significantly narrower than those envisaged in the first model described above. Lord Mackay of Clashfern told the Committee that the Lord Chancellor's job should effectively be about "running the courts" (Q 238, Q 254). He supported the idea that responsibility for legal aid—which has risen to £2 billion in the past year—should be removed from the Lord Chancellor; and he envisaged that a minister, who might be in the House of Commons and who need not be a lawyer, could be responsible for legal aid and some other matters currently within the ambit of the Department for Constitutional Affairs (Mackay of Clashfern Q 256). He argued that Lord Chancellor should be "be a judicial rather than a political figure" (Q 246), and he might also have the formal title of President of the Supreme Court of England and Wales (the Government proposes to rename this The Senior Courts of England and Wales), though he would not sit as a judge (Q 243). In his written evidence, Lord Morris of Aberavon also suggested that the role of the Lord Chancellor should be reduced; he "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" (p 478). Given the "non-political and non-spending nature" of the functions, Lord Morris of Aberavon envisages the Lord Chancellor carrying out—including appointing judges on the recommendation of the Judicial Appointments Commission—there is, he argues, "no reason why it should be carried out by a minister of the Crown at all", prompting him to suggest that the office of Lord Chancellor should be held by the judge who is the senior Law Lord, or President of the Supreme Court of the United Kingdom (p 478).

38.  A third model is to use the title "Lord Chancellor" for the ministerial post referred to in the bill as the Secretary of State for Constitutional Affairs. Thus, it would not be necessary for the Lord Chancellor to be a lawyer. Nor would the title "Lord Chancellor" require the office-holder to be a peer. (A parallel may be drawn here with the office of Lord Privy Seal). Professor Robert Hazell, who proposed this model to the Committee, agreed that the difference between this model and the arrangements set out in the bill related only to the title of the minister (Q 160, Q 214). The rationale for this model is that the continued use of the title Lord Chancellor would help preserve the confidence and respect which has been attached to the office of Lord Chancellor in modern times. It may be added that the role of the Lord Chancellor has altered significantly since the 1970s without it being thought necessary (until now) to change the title of the office.

CRITICISMS OF THE PROPOSALS TO REDEFINE AND RETAIN THE OFFICE OF LORD CHANCELLOR

39.  One objection to the continued use of the title "Lord Chancellor", anticipated by the Department for Constitutional Affairs' consultation paper in September 2003, is that this would lead to confusion. "Some suggest that the title of Lord Chancellor (but not its current wide range of responsibilities) should be retained for use in relation to another public office to maintain the link with the past. However, until the office is abolished, clearly the title cannot be used in relation to any other office. Part of the purpose of reforming the office of Lord Chancellor is to address the confusion of roles his office has produced. To create a new office (or rename an existing one) will in all probability add to that confusion, rather than reduce it" (Constitutional reform: reforming the office of Lord Chancellor, CP13/03, para.8-9). In a supplementary note to the Committee, Lord Woolf warned that "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" (p 464).

40.  Secondly, some witnesses expressed the view that it was now too late to revive the office of Lord Chancellor. The reality of the situation is that, whether the minister is called a Secretary of State or Lord Chancellor, he "is not going to have the power and authority in Cabinet that the old office of Lord Chancellor had" (Dr Kate Malleson Q 183). Even Robert Hazell, who proposed the idea, conceded that "the damage may well have been done … The Government having decided to abolish the office in a way may have broken the vase and it may be too late to put the pieces together again" (Q 178).

41.  A third concern was a danger that the continued existence of the office of Lord Chancellor, occupied by a senior lawyer who is a member of the House of Lords, might now risk undermining the status and authority of the Lord Chief Justice of England and Wales, who by the bill is made head of the judiciary. Lord Woolf told us that this risk has to an extent already materialised in recent years: "What has happened up till now, and I hope that as a result of the legislation this would no longer be the situation, is that because of the Lord Chancellor's position as it had been, that he was the constitutional head of the judiciary, the role of the Chief Justice was undermined to that extent. A constitutional monarch does not get in the way of a Prime Minister. There are various views both within this jurisdiction and without, but to have somebody who is clearly the head of the judiciary who is a judge—as I see it now—is important" (Q 519). Lord Woolf in his supplementary note to the Committee rejected the idea that it might be appropriate to have two Heads of the Judiciary—the Lord Chief Justice as the "professional" Head and the Lord Chancellor as the "constitutional" Head: "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" (p 464).

42.  Fourthly, doubt was expressed about whether a Lord Chancellor, as envisaged by Lord Mackay of Clashfern in the second model described above, would be a "plausible political figure" (Lord Chancellor Q 22). This model envisages a Lord Chancellor with reduced departmental responsibilities. He would, in effect, be "a non-executive judicial chairman of a ministry of justice" (Q 13) or a "judge in the Cabinet" (Q 21), the Lord Chancellor told us.

OPINION OF THE COMMITTEE

43.  The Committee agrees that in view of the Concordat the future duties of the Lord Chancellor/ Secretary of State office-holder should be responsibility for "judiciary-related" matters (that is, the provision of systems to support the carrying on of the business of courts and tribunals, judicial appointments, and overseeing judicial discipline); and responsibilities as the "constitutional conscience" of Government, defending judicial independence and the rule of law in Cabinet.

44.  There was a clear division of opinion within the Committee between those members who considered that the office-holder should be called Lord Chancellor, be a senior lawyer, and sit in the House of Lords on the one hand; and those members who considered that the name of Lord Chancellor should not be continued (since its retention would be confusing), and that there was no necessity for the office-holder to hold a legal qualification or sit in the House of Lords on the other hand (that is, the policy of the bill). Accordingly we make no recommendation to the House.

45.  We are not attracted to the proposal to retain the traditional office of Lord Chancellor radically reduced in scope.

46.  Some of us wish to record that we are attracted to the idea that the minister responsible for judiciary-related matters should be called the Secretary of State, or Minister, for Justice. This title would carry more status and be more easily understood than that of Secretary of State for Constitutional Affairs. Those of us for whom the traditions of the Lord Chancellor's role remain of real practical importance believe that it would be possible to get the best of both worlds by retaining the title of Lord Chancellor, as head of the Ministry of Justice.

Should the Minister hold a legal qualification? If so, should the Minister in addition swear a judicial oath upon appointment?

47.  In modern times, as a matter of constitutional convention rather than law, Lord Chancellors have been lawyers of some seniority. Almost all have been members of the Bar of England and Wales, although Lord Mackay of Clashfern, Lord Chancellor 1987-97, held a qualification as an Advocate in Scotland. The office has never been held by a solicitor. The bill contains no requirement that the Minister be a lawyer.

48.  In the past, there was a statutory requirement that the Permanent Secretary to the Lord Chancellor's Department (now the Department for Constitutional Affairs) be a barrister or solicitor of at least 10 years' standing. This was modified in 1990 to enable the Permanent Secretary to be a barrister or solicitor of 10 years' standing, or a civil servant with 5 years' service in the Lord Chancellor's Department. These restrictions on appointment were removed by the Supreme Court (Offices) Act 1997.

49.  The bill opens up the prospect that, at some point in the future, neither the minister nor the department's most senior official will have any background in the law.

SHOULD THE MINISTER BE A LAWYER?

50.  The reason for suggesting that the Minister should be required to be a lawyer is the special nature of the duties placed upon this office by Clause 1 of the bill. In addition to the general duty on all ministers to uphold judicial independence:

·  the Minister will have a specific duty to defend that independence (Clause 1(4)(a));

·  if the bill is amended, the Minister may have placed upon him express duties in relation to upholding the rule of law;

·  the Minister will be required to make judgements about whether to reject nominations by the Judicial Appointments Commission for England and Wales, and the appointments commission that will make recommendations to fill vacancies on the Supreme Court;

·  he will also be involved in matters relating to judicial discipline and rule-making for the courts.

51.  For all these reasons, it may be thought that the Minister will be more than merely "another mainstream minister" and that the Prime Minister should be required to select as the office-holder only someone who has a legal qualification and perhaps experience as a practitioner. The Prime Minister's discretion is, of course, constrained in a similar way in relation to the Law Officers (Attorney General, Solicitor General) of Her Majesty's Government. Indeed, it was tentatively suggested to the Committee that the office of Secretary of State for Constitutional Affairs could be "perhaps defined as the senior law officer which would be classed in the list as separate from other members of the Cabinet and that would also provide the implication that the holder should be a lawyer, and the benefits which flow from that" (Norton Q 464).

52.  For the Government, it is said that to amend the bill to include such a requirement, or for there to be a constitutional convention that this ministerial post be held only by a lawyer, would cut across the rationale for change: "In performing his 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 office holder being drawn from a restricted pool—those with senior legal and political standing" (p 3). The Lord Chancellor and some other witnesses argued that it was unnecessary to be a lawyer to defend judicial independence and understand the imperative of upholding the rule of law: "The rule of law in the questions that we are talking about is not has the Government complied with the law … we are talking about big constitutional issues which are identifiable to all members of the Cabinet. The question boils down very often to is it only a lawyer who can identify these sorts of rule of law issues? I do not believe that it is, I believe that all constitutional politicians can spot them. How they respond in a particular case is a different question" (Q 50).

53.  Several witnesses agreed with the Government's view that it is not essential for the Minister to be a lawyer in order to carry out his functions under the bill (see for example Roger Smith of JUSTICE Q 291). Within the Scottish Executive, there is no requirement that the Minister for Justice be a lawyer and the Committee was told by Roy Martin QC, vice-dean of the Faculty of Advocates, that his assessment of the experience in Scotland—where, of the two Ministers for Justice since devolution, one was a lawyer and one was not—is that it does not make a particular difference (Q 837).

54.  A different view was expressed by Lady Justice Arden, who told the Committee that she sees a great advantage in the Minister being a senior lawyer. She expressed concern for maintaining an apolitical appointments process, "something of which this country can be extremely proud". She believes that it is better for the Minister receiving recommendations from the judicial appointments commissions, to be senior lawyer at the pinnacle of his career, "a person who is not in the throes of a political career" (Q 797).

IF THE MINISTER IS REQUIRED TO BE A LAWYER, SHOULD HE OR SHE SWEAR A JUDICIAL OATH UPON APPOINTMENT?

55.  While members of the public are familiar with the process whereby a telephone call from Number 10 starts a ministerial career, little tends to be known of the formal process by which ministers assume office. This normally happens at a meeting of the Queen in Council (i.e. a meeting of the Privy Council in the presence of Her Majesty). The oaths are tendered by the Clerk of the Council.

56.  The Promissory Oaths Act 1868 Act requires a Secretary of State to take both the oath of allegiance

"I, … , do swear that I will be faithful and bear true allegiance to Her Majesty Queen [Elizabeth II], her heirs and successors, according to law"

and the official oath

"I, … , do swear that I will well and truly serve Her Majesty Queen [Elizabeth II] in the office of … So help me God"

57.  The 1868 Act requires judges in England and Wales to take the following oath:

"I, … , do swear that I will well and truly serve our Sovereign Lady Queen [Elizabeth II] in the office of … , and I will do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill will. So help me God."

58.  It is often said that the Lord Chancellor is marked out as different from his fellow ministers not only by the fact that (until June 2003) he sat occasionally as a judge (although the last time a Lord Chancellor sat judicially was in 2001), but also by the fact that he has taken a judicial oath. Indeed, it was probably the fact of this oath, as much as his occasional presiding over the Appellate Committee of the House of Lords, that by convention led the Lord Chancellor to be accepted as head of the judiciary in England and Wales.

59.  We considered whether it would be appropriate for the Minister, because of his continued judiciary-related functions, to swear a judicial oath (QQ 797-801). Lord Woolf told us that, as any future Lord Chancellor will not sit as a judge, it would not be appropriate for him to take the judicial oath (p 464). Lady Justice Arden pointed out that, as an alternative, it would be possible to create a new form of oath (Q 800).

OPINION OF THE COMMITTEE

60.  There was a clear division of opinion between those members who thought that the Minister had to be a senior lawyer and those who considered that there was no need for the office-holder to hold a legal qualification. Accordingly, we make no recommendation.

61.  The Committee agrees that the future duties of the Lord Chancellor/Secretary of State office-holder are such as not to require the taking of a judicial oath.

62.  The Committee is divided on the question of whether some alternative form of oath should be taken by the Minister and leave this for the House to determine.

Should the Minister responsible for judiciary-related matters be a member of the House of Lords rather than the House of Commons?

63.  As noted above, one of the major differences between the office of Lord Chancellor and that of the Secretary of State for Constitutional Affairs is that while Lord Chancellors have been members of the House of Lords, the Prime Minister will be free in future to choose as the Minister someone who is a member of the House of Commons or of the House of Lords. The main justification for the Commons is that the Department for Constitutional Affairs has become a major spending department and it is therefore constitutionally appropriate for its ministerial head to be accountable to the House of Commons. Lord Morris of Aberavon told us that "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 follows that the head of a significant spending department should be directly accountable to the grantor of supply—the House of Commons" (p 478). The increasing budget of the Lord Chancellor's Department prompted the House of Commons to establish a select committee with oversight of its work in January 2003, now called the Constitutional Affairs Committee.

64.  In his evidence to us, Sir Hayden Phillips, the permanent secretary of the Department for Constitutional Affairs, described for us the changes that have and are taking place in the size and role of the DCA: "First, there has been a great growth in the nature and the size of the Department. … We are moving a staff now of 13,500, which is already very large, to 23,500 by April next year. It will grow beyond that when the unified tribunal service is created to a budget of between £3 billion and £4 billion and staff over the next two years getting nearer to 30,000, which is a major department of state. Second, the Department has come increasingly central to the delivery of Government policy, especially in relation to criminal justice and on asylum and immigration, indeed Lord Falconer is the Chairman of the National Criminal Justice Board along with the Home Secretary…. The third, between 2001 and 2003 we were given a range of responsibilities from across other parts of Government for a number of sensitive and complex constitutional issues—I will not go into the detail—and that added a whole new dimension to our work and to the Lord Chancellor's political importance" (Q 679). In relation to the budget of the Department, the increase is mainly attributable to its "core" judiciary-related functions—notably legal aid. Similarly, the increase in staff stems from court related matters, in particular the creation of Her Majesty's Court Service which, from April 2005, will bring the administration of magistrates' courts into a unified court service for the whole of England and Wales.

65.  Evidence we received suggested that there were several advantages to retaining the Minister responsible for judiciary-related matters as a member of the House of Lords. While making it clear that he did not have a strong view as to the whether the minister should be in the House of Lords or the House of Commons, Professor Hazell told us that the House of Lords "has a particularly important role to play as a guardian of the constitution. That was recognised in the report of the Royal Commission chaired by Lord Wakeham and I think has been endorsed in subsequent White Papers and comment and debate about the role of this House, however composed. If, as I have suggested, one important function of the Lord Chancellor or Secretary of State is to be a guardian of the constitution, then, in that respect, it is entirely appropriate for that minister to be a Member of this House" (Q 180). Secondly, a requirement that the minister be in the House of Lords may also help reinforce another desirable characteristic of the office of Lord Chancellor—that the minister be someone approaching the end of his political career rather than someone seeking further advancement. Thirdly, having the Lord Chancellor in the House of Lords also makes the House more effective in influencing Government. Lord Elton told us that "The House of Lords has, by convention, a direct line into the Cabinet in the person of the Leader of the House and the Lord Chancellor. Without some other, compensating step, the abolition of the office of Lord Chancellor would leave it with only a single voice in Cabinet secured to it by convention. … The influence of the House would thus be significantly diminished in a forum where it is of value" (p 353). Finally, as we have already noted (para.23 above) a number of witnesses saw advantage in keeping the Secretary of State in the Lords, out of the more politically charged atmosphere of the Commons (Law Society p 162, Arden Q 797).

OPINION OF THE COMMITTEE

66.  There was a division of opinion on the question whether there should be a presumption that the Minister responsible for judiciary-related matters should be a member of the House of Lords or, at the discretion of the Prime Minister, of either the Commons or the Lords.

Should Part 1 be amended to place a statutory duty upon ministers generally, or the Minister in particular, to uphold the rule of law?

67.  Part 1 of the bill, we were told, fails to make arrangements for the continued performance of one of the Lord Chancellor's principal functions—to act as a guardian of the rule of law within Cabinet and the Government more broadly. Lord Mackay of Clashfern spelt out his view of the ambit of the Lord Chancellor's function in relation to the rule of law, telling us that "… in the Cabinet his job is to ensure that the Cabinet decides and takes executive action in accordance with the law, but he is not the legal adviser. I think there have been mistakes in the past when the Lord Chancellor has assumed the task of advising the Government about the law. That is not the Lord Chancellor's function; the Lord Chancellor is a judge and it would be improper for him, in fact, to act as legal adviser in that sense. The legal adviser is the Attorney General, but the Lord Chancellor's job is to see that if an issue 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 question involved" (QQ 277, 278, 285).

REASONS FOR ADVOCATING A RULE OF LAW DUTY

68.  Lord Ackner told the Committee "that Clause 1 must in terms say that there is an obligation upon ministers to maintain and support the rule of law" (Q 313, and also p 100). Lord Ackner's view is that had such a statutory duty been in place, the current Lord Chancellor's support for the ouster Clause in the Asylum and Immigration (Treatment of Claimants etc) Bill "would have been automatically ruled out". Similar views were expressed by Lord Donaldson of Lymington (p 344). Lord Woolf supported the idea of a statutory duty, saying "It seems to me that it is very desirable that there should be a clear statement which reflects the need for the protection of the rule of law and I can well see that there is a very important role for the individual, whether he be called the Lord Chancellor or whether he be Secretary of State…" (Q 501).

69.  More generally, it may be thought that if one obligation that is currently placed on the Lord Chancellor as a matter of constitutional convention (that is, to defend judicial independence) is put on a statutory footing, then a duty to uphold the rule of law—undoubtedly another duty that currently exists as a matter of convention—should similarly be translated into legislative form.

REASONS FOR CAUTION IN CREATING A RULE OF LAW DUTY

70.  The evidence presented to the Committee suggests a number of reasons for caution in amending Clause 1 to include reference to the rule of law. First, the concept of the rule of law was said by some witnesses to be ill-defined or contested. Sir Thomas Legg QC, a former permanent secretary to the Lord Chancellor's Department, argued that the rule of law "is a very tricky, slippery concept a lot of the time, at least in general terms. My own feeling is there would not be very much to be gained from the protection of the public by putting a requirement into statute that ministers, and so on, should uphold the rule of law because in any given case people can have disagreement about what that means" (Q 689). The Lord Chancellor told the Committee that policy differences between the Government and the judiciary—on issues such as trial by jury and criminal procedure—were sometimes, wrongly, presented as rule of law issues (Q 6).

71.  Secondly, we were told that it was unnecessary to impose a rule of law duty specifically on the Minister. Professor Diana Woodhouse said that the Attorney General could fulfil the role as guardian of the rule of law. The fact that the Attorney General was not a member of the Cabinet was not significant; most government decisions affecting the rule of law were not made at Cabinet level (Q 378). (The Attorney General's current role is to give legal advice.)

72.  Thirdly, several witnesses warned us of the patchy history of Lord Chancellors in upholding the rule of law. Lord Ackner, who proposed amending Clause 1 to include a duty relating to the rule of law nevertheless said: "… we have history going back over 40 years when there were a number of very unsatisfactory Lord Chancellors and I think the strength of the executive is such that you could have that situation in the future" (Q 340). Lord Alexander of Weedon's Working Party accepted that "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." (p 468) Lord Bingham of Cornhill echoed this in his evidence. He had "very strong belief in the role of the Lord Chancellor as a guardian of constitutional propriety". He also noted that "anecdotally those people who have served in cabinets have tended to tell me that Lord X or Lord Y has been very silent and never opened his mouth. I simply do not know whether that is true or not" (Q 415). The Lord Chancellor made a similar point (Q 50). Fourthly, there were some concerns expressed that to impose a statutory rule of law duty could provide new grounds for litigation, which many felt would not be the appropriate method by which such issues should be resolved. Related to this there are concerns that such a provision could undermine Parliamentary Sovereignty and, possibly, the role of the courts.

OPINION OF THE COMMITTEE

73.  During our deliberations we were able to agree, without difficulty, that it is desirable for the bill to make reference to the rule of law. We also agreed, first, that the reference to the rule of law should replicate, as far as possible, the responsibilities in regard to the rule of law currently discharged by the Lord Chancellor. Secondly, we agreed that while other Ministers have responsibilities in regard to the rule of law (for example, they abide by decisions of the courts), the Lord Chancellor/Secretary of State for Constitutional Affairs has and should continue to have a special role in relation to the rule of law within the Cabinet.

74.  Most of us also agreed that the responsibility of the Lord Chancellor for the rule of law is not and should not be directly enforced through the courts, but stems from his position in Cabinet and is exercised by way of his influence in discussions with colleagues.

75.  We were unable to agree a new Clause tabled by the Lord Chancellor on the rule of law and accordingly leave this matter for the House to determine. (The new Clause amendment and other amendments on this issue which were moved and withdrawn may be found in the Minutes of Proceedings at Appendix 3.)

Should Clause 1 (Guarantee of continued judicial independence) be amended to:

- prevent its implied repeal by later Acts of Parliament?

- require the Minister to have more than merely "regard to" the factors set out in subclauses (4)(a)-(c)?

76.  The Committee received evidence expressing concern that the duties placed upon ministers by Clause 1, relating to the guarantee of continued judicial independence, were insufficiently robust. Evidence from a number of witnesses established that Clause 1 as drafted is a declaratory provision which is unlikely to be enforceable in the courts. Lord Woolf compared it to declaratory provisions that had been included in education and National Health Service legislation, and told the Committee that it was not intended that such declaratory provisions should be enforceable in the courts, and that a minister failing to fulfil the responsibilities set out in the Clause "would be answerable to Parliament and the public for the failure to do so" (QQ 501, 527-528). Other witnesses believed that the duties set out in Clause 1 might, in some situations, be enforced by a claim for judicial review; and Lady Justice Arden argued that, if it was required, it should be possible to draft a clause that was enforceable. Other witnesses expressed doubts as to enforceability (Lord Alexander of Weedon Working Party p 473).

PROTECTION AGAINST INADVERTENT IMPLIED REPEAL

77.  Lady Justice Arden, on behalf of a working group of the Judges' Council, argued that Clause 1 of the bill "… should be given some enhanced status to prevent inadvertent implied repeal. It is not a question of entrenching it because it would be open to Parliament to depart from judicial independence if it wished to do so, although it would have to use clear language. The enhanced status would be achieved by imposing an interpretative obligation along the lines of section 3 of the Human Rights Act 1998. That provides that, so far as it is possible to do so, primary and subordinate legislation must be read in effect in a way which is compatible with convention rights. We suggest that that could be adapted to Clause 1 of the Constitutional Reform Bill and what goes for the independence of the judiciary goes for the rule of law as well if Parliament thought it right to include that in Clause 1 or a similar Clause. We suggest that there is plenty of precedent for this approach. It may be found either in the Human Rights Act or in the Interpretation Act 1978 where other certain meanings apply in later legislation unless the contrary intention appears. It is also a principle by which the courts construe legislation implementing legislation of the European Union. How the principle should be expressed is of course a matter for parliamentary counsel, but, in essence, the effect would be that Clause 1 would apply unless Parliament expressly stated to the contrary or clearly stated to the contrary in future legislation" (Q 713). The Lord Chancellor raised two concerns in relation to amending the bill along the lines of section 3 of the Human Rights Act 1998 to prevent inadvertent implied repeal. He first observed that the Convention rights are a well-established body of law, refined and elaborated over many years by the case law of the European Court of Human Rights. An interpretative obligation linked in with this body of law therefore carries with it a significant degree of legal certainty, while the rule of law was untested as a stand-alone directly-applicable legal doctrine. He drew attention to the fact that both academic and judicial opinions on the rule of law differ substantially as to its meaning. Secondly, he was concerned lest such a provision might be thought to impinge upon the Sovereignty of Parliament, unless it was heavily qualified.

THE MINISTER'S OBLIGATION TO "HAVE REGARD TO…" (CLAUSE 1(4)).

78.  Lord Ackner told us: "I have also taken the phrase in Clause 1(4) 'must have regard to', as being pretty meaningless. You have regard to it if you consider it but, having considered it, you are perfectly within your entitlement to reject it. I have said that I think there is substance in the point made by JUSTICE in its memorandum to expand the phrase quite considerably in order the better to express what is needed. I think it should be borne in mind that the phrase 'independence of the judiciary' can be in any event open to doubt as to what it means" (Q 313; p 100). JUSTICE said, in its written evidence, that "The Lord Chancellor's role as guarantor of the independence of the judiciary within government has been removed. Clause 1(4) of the bill merely gives the Secretary of State the duty to 'have regard to … the need to defend [judicial] independence'" (p 93). Mr Roger Smith the Director of JUSTICE said: "The bill would be improved by some more ringing declaration of the independence of the judiciary rather than measly words requiring a Secretary of State to have regard to judicial independence" (Q 289). The Lord Chancellor informed the Committee that the purpose of the Minister's obligation to "have regard to" in Clause 1(4) was to create additional and special duties on the Minister, in line with the Concordat. In order to do this consistently with existing constitutional conventions, he considered it necessary to employ the distinctive language in the bill. The drafting of Clause 1(4) had been considered very carefully in consultation with the senior judiciary. The Lord Chancellor also argued that there was a risk that a change to the drafting could cut across the doctrine of Cabinet collective responsibility.

OPINION OF THE COMMITTEE

79.  The Committee is divided on the question of whether any further strengthening of the judicial independence provision in Clause 1 is required. Accordingly, we make no recommendation.

In relation to the Concordat,

- should the principles set out in that agreement be put on a statutory footing even if the office of Lord Chancellor is retained?

- should its continuing importance be recognised by making specific reference to it in the bill, in the Explanatory Notes, or in some other way?

- should Clause 2 of the bill be amended to refer to the Lord Chief Justice's responsibility for ensuring that appropriate structures are in place for the deployment of individual members of the judiciary (Concordat, para.4(c))?

- should the bill be amended to require the concurrence of the Lord Chief Justice before the appointment of Judges to public inquiries, etc by the Minister?

RECOGNISING THE IMPORTANCE OF THE CONCORDAT IN THE BILL

80.  Many of the powers and duties created by Part 1 and Part 3 of the bill are intended to give effect to the Concordat. The Concordat has no formal status and is not referred to in the bill. Lady Justice Arden, giving evidence on behalf of the Judges' Council, said "there is a role for the Concordat even after the bill has been enacted. If it is the intention of Parliament that the Concordat should pass into law, the intention of Parliament in that regard should be made clear either in the Act or in the Explanatory Notes. This point is very important to the smooth running of the Act in the years to come" (Q 713). She added "… not every iota of the Concordat can be reflected in statutory language. There are some matters which have to, as it were, survive within the Concordat and one way in which the Concordat may be relevant in future is when the court is construing what will then be the Constitutional Reform Act, it may be necessary for it to look at the Concordat. Now, it may not be possible for the court to do that unless there is a clear indication that it was Parliament's intention to implement the Concordat" (Q 726). The Lord Chief Justice also told us of his and the Judges' Council's desire to retain the provisions of the Concordat, "irrespective of whatever else happens as a result of this bill" (Q 493).

DEPLOYMENT OF INDIVIDUAL MEMBERS OF THE JUDICIARY

81.  In their written evidence to the Committee (p 213), the working party of the Judges' Council led by Lady Justice Arden draw attention to a number of respects in which the bill does not conform with the Concordat. Lord Woolf in a written note to the committee said that while Clause 2(2)(c) of the bill clearly stated 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, Clause 2 needed to be amended to more accurately reflect the Concordat. It should state that the arrangements for deployment include appointments of judges to committees, boards and similar bodies and the Lord Chief Justice should have to agree to such appointments where a serving judge is invited to sit on such bodies as a representative of the judiciary and/or where such an appointment could interfere with the performance of his judicial duties (p 464).

APPOINTMENT OF JUDGES TO PUBLIC INQUIRIES

82.  A further issue relating to the deployment of judges is the appointment of judges to chair public inquiries. Lord Woolf told us in a written note that this topic was overlooked in the negotiations leading up to the Concordat, but he and the Judges' Council had reached the firm view that the Lord Chief Justice should have to concur with any appointments to a public inquiry (p 464). Lord Woolf offered two justifications for this. First, the Lord Chief Justice must have the right to say whether a particular judge can be released to conduct an inquiry, as placing a serving judge on an inquiry prevents him from being deployed in his normal judicial duties. Secondly, "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 Lord Chief Justice should be entitled to say not only who, but whether, a judge should conduct an inquiry at all" (p 465).

83.  The Lord Chancellor told us on the other hand: "My own view would be that consultation is enough on the basis that a judgment has ultimately got to be made and there is a balance to be struck and, therefore, as long as there is appropriate consultation, that would be sufficient. … This is not about judicial deployment, although it involved judges, and a balance has got to be struck against the urgent demands of the judiciary to do, as it were, ordinary judicial business against the public interests. For example, there have been grievous losses sustained by the judiciary and the current Master of the Rolls spent a very long and productive time looking into BSE, I think it was, which resulted in a grievous loss to the judiciary while he was away, but obviously the public interest required that he do it" (QQ 732-733).

OPINION OF THE COMMITTEE

84.  The Committee agrees that the terms of the Concordat should be fulfilled and that, to the extent that statutory provision is required, this bill should be the vehicle for effecting those changes. Accordingly, we have made many of the amendments referred to by the Lord Chancellor in his paper "Government Amendments to the Bill" (pp 420-5) and a large number of minor and drafting changes.

85.  We do not consider it possible, beyond the provisions made by the bill, to accord the Concordat a quasi-statutory status. However, we have decided that greater publicity might be given to the document (hitherto published by the Department of Constitutional Affairs as "The Lord Chancellor's judiciary-related functions: Proposals") were we to publish it as an Appendix to this report. Accordingly, it may be found at Appendix 6.

86.  We agree that the Minister should consult the Lord Chief Justice over the appointment of judges to boards, committees and public inquiries, rather than seek his concurrence. We consider that convention will suffice and accordingly make no change to the bill in this connection.

Should Clause 1 (Guarantee of continued judicial independence) be extended to Scotland?

87.  Several witnesses expressed concern that Clause 1 of the bill, guaranteeing continued judicial independence, extended only to England and Wales. Section 1 of the Justice (Northern Ireland) Act 2002 creates similar duties in relation to Northern Ireland.

88.  The Law Society of Scotland said that "on the basis of symmetry applying throughout all the constituent jurisdictions in the United Kingdom", Clause 1 should extend to Scotland. "If it is not extended to Scotland then we could be in an anomalous situation. Ministers of the Crown are defined inter alia in the Scotland Act 1998, section 117, as those ministers who include Scottish ministers, so therefore Scottish ministers would be in the position of having an obligation to uphold the independence of the judiciary in England and Wales but would not, apparently, be under a similar duty quoad Scotland. That could be an anomalous situation. It would also create the situation that two Cabinet ministers, the Secretary of State for Scotland and the Advocate General for Scotland, who have a role more appropriately in the UK and would be definitely caught by this provision, would be responsible for upholding the independence of the judiciary in England and Wales. We think that all in all, on the basis of symmetry and to make sure that there are no difficulties about interpretation, this provision should have application in Scotland" (Q 594).

89.  Support for the extension of Clause 1 to Scotland also come from the Royal Society of Edinburgh (p 399); Professor Hector MacQueen (p 375); and the Lord President of the Court of Session and the other Senators of the College of Justice (p 249).

90.  On the other hand, the Lord Chancellor questioned whether the UK Parliament or the Scottish Parliament should deal with the application of this provision in Scotland. The Law Society of Scotland replied that "we might wait for some time for the Scottish Parliament to be able to enact a similar protection. For the purposes of symmetry and until such time as the Scottish Parliament has the opportunity to legislate on this issue this would be a useful mechanism to use." (Q 597)

91.  Part 1 of the bill relates to the arrangement to replace the office of Lord Chancellor. Historically, the Lord Chancellor has had little or no role in Scotland. It might therefore be thought incongruous for Clause 1 to extend to Scotland. There is a case for saying that it would be preferable for the Scottish Parliament to enact legislation to protect the independence of the Scottish judiciary. The Law Society of Scotland takes a pragmatic view: that the bill "provides a convenient vehicle" (Q 595) for creating such a duty and, moreover, Part 2 of the bill creating the Supreme Court of the United Kingdom, would apply to Scotland.

92.  The Lord Advocate, however, took a robust line. The Scottish Executive did not consider such an extension necessary. The provision as they see it arises out of the abolition of the office of Lord Chancellor and functions performed in respect of England and Wales, so "at the moment we are not inclined to say to Westminster that they should impose a similar duty on Scottish ministers…" (Q 1096). The Scottish Executive plan to introduce legislation to put the Scottish Judicial Appointments Board on a statutory footing and will consider at that time whether or not there should be a duty on ministers similar to that in Clause 1 (Q 1100). In their report on the bill, the Justice 2 Committee of the Scottish Parliament expressed the view that "if such a duty is required, the vehicle should be a Scottish Parliament bill and in those circumstances the Scottish Executive should seek an early opportunity to legislate" (SP Paper 163, para.30).

OPINION OF THE COMMITTEE

93.  We agree with the advice of the Lord Advocate and the opinion of the Justice 2 Committee of the Scottish Parliament that the provisions of Clause 1 should not be extended to Scotland.

Speakership of the House of Lords (Clause 11)

94.  Clause 11 and Schedule 6 provide for certain statutory functions in relation to the House of Lords currently performed by the "Lord Chancellor" to be performed from commencement by the "Speaker of the House of Lords". Lord Norton of Louth was alone in suggesting to us that the title Lord Chancellor be used for the person who performs the functions of Speaker of the House of Lords. He argued that the office of Lord Chancellor should be put "at the disposal of the House" (p 139) and "retaining the position of the Lord Chancellor for parliamentary purposes would provide for some element of continuity, not just formally but in practice" (p 140).

OPINION OF THE COMMITTEE

95.  The Committee takes the view that the question of the future of the Speakership of the House of Lords is not a statutory matter and so we make no comment on the policy whereby the Lord Chancellor would cease to sit as Speaker. Alternative arrangements are for the House as a whole, and not this Committee, to determine.

6   Constitutional Reform: reforming the office of the Lord Chancellor (CP 13/03); Constitutional Reform: a new way of appointing judges (CP 10/03); Constitutional Reform: a Supreme Court for the United Kingdom (CP 11/03). Back

7   See, especially: 26 January 2004, cols 12-30 (judiciary-related functions of the Lord Chancellor); 9 Feb 2004, cols 926-941 (Supreme Court); 12 February 2004, cols 1211-1324 (Supreme Court Judicial Reforms); 8 March 2004, cols 979ff (Second Reading of the Constitutional Reform Bill [HL]). Back