Issues relating to judicial appointments and discipline

287.  The Committee have identified the following issues arising in evidence which relate to judicial appointments and discipline.

-  Is the proposal for a "recommending" Commission (rather than one that makes appointments directly) appropriate?

-  Should the work of the JAC be subject to audit?

-  Are the provisions relating to lay involvement with the Judicial Appointments Commission adequate? (Schedule 10)

-  Are the arrangements for appointments panels satisfactory?

-  Should a Judicial Appointments and Conduct Ombudsman be established? (Clause 50)

-  Should the arrangements for defining "merit" be amended? (Clause 51(4))

-  Should Chapter 2 of Part 3 of the bill be amended to impose a duty upon the Judicial Appointments Commission to engage in a programme of action designed to secure, so far as it is reasonably practicable to do so, a judiciary reflective of the community in England and Wales?

-  Should the Minister be placed under an express statutory duty to reject or require a reconsideration of a selection only in "exceptional" circumstances? (Clauses 57, 63 and 69)

-  Should the Minister be required to consult the Lord Chief Justice before withdrawing a request to the Commission to make a selection? (Clauses 66 and 72)

-  Does the amendment of section 27 of the Courts Act 2003, proposed by para.380 of Schedule 1 to the bill, adversely affect the continued independence of justices' clerks and assistant clerks?

-  Are the proposals of the bill relating to confidentiality adequate? (Clause 81)

-  Should the Lord Chief Justice's disciplinary powers be dependant on the agreement of the Minister? (Clause 83(2)).

We consider these issues below.

Is the proposal for a "recommending" Commission (rather than one that makes appointments directly) appropriate?

288.  Chapter 2 of Part 3 of the bill provides that the Commission recommends names to the Minister for appointment to all levels of the judiciary in England and Wales (other than for members of the Supreme Court). It is the Minister and not the Commission who has the power to make the final decision on all appointments.

289.  In his written evidence the Lord Chancellor (p 18) put forward three options:

1. ·  "a commission that recommends candidates for appointment by the Secretary of State for Constitutional Affairs (or, for the more senior judges, appointment by Her Majesty on the recommendation of the Secretary of State);
2. ·  "an appointing Commission that would make appointments or advise Her Majesty directly for the more senior appointments; and
3. ·  "a hybrid of the two, which would appoint the more junior judiciary, but make recommendations to the Secretary of State for the more senior appointments".

290.  An appointing commission was not a popular option amongst our witnesses. However several did support the hybrid model, often on the grounds that the recommending model would be unnecessarily bureaucratic. It was suggested that for the lower levels of the judiciary the Minister would only be rubber-stamping the decision of the Commission. Professor Sir Colin Campbell (the First Commissioner for Judicial Appointments) told us: "The consultation paper from the Government asked if the JAC should be appointed by recommending or hybrid. It is our view that the JAC should be a hybrid, appointing candidates for up to the Circuit Bench and then recommending candidates for the High Court and above. We can see the point about public accountability for the High Court and above, so there should be a carefully circumscribed Ministerial check. We think the idea of there being a Ministerial check on the appointments below that, some 2,000 a year, could lead to wasteful bureaucracy or be a rather hypocritical rubber stamp"
(Q 938).

291.  In their response to the Government consultation paper, the Law Society also favoured a hybrid commission with all appointments up to the Circuit Bench being made by the Commission. They did however acknowledge that there needed to be democratic accountability for more senior appointments.

292.  Sir Colin Campbell agreed that there is a need for democratic accountability for more senior appointments but he did not think this argument held for all levels of the judiciary: "I can understand the Government's argument that there is a public interest in who is appointed to the High Court and it does seem to me that a Commission then should put their arguments, their nominations to the Secretary of State, whose powers are circumscribed but they are there, and he can challenge because… even the JAC might become a little eccentric. However, below that there is such an amount of grinding work to be undertaken I cannot see the point of that going to the Secretary of State because he either rubber stamps it, and why bother, or else he has to have another rather expensive bureaucracy to replicate the JAC" (Q 955).

293.  However the Government's position is that a recommending Commission is the best option. The Lord Chancellor, in his written evidence to the Committee, wrote that: "appointing judges is a central function of the State. Parliamentary accountability for the appointments system must therefore be retained, through the Secretary of State. It follows that a Secretary of State who is accountable for appointments should have a real, albeit carefully tempered, discretion in those appointments… The recommending model also preserves the Constitutional convention that The Queen acts solely on the advice of her Ministers" (p 18). The Lord Chancellor argued that, for junior appointments, the fundamental principles outlined above remain the same.

OPINION OF THE COMMITTEE

294.  Some members of the Committee recognise that there is some force in the argument that the Judicial Appointments Commission might be given responsibility for making appointments itself—rather than merely making recommendations—at the lower levels. Some members would in principle have preferred a hybrid commission. However, they recognised the importance of the agreement reached between the Lord Chancellor and the Lord Chief Justice (the "Concordat"), and the desire of the magistrates to be included in the appointments to be made, and were willing to accept the proposals in the bill for a recommending Commission rather than reopen that issue. Accordingly, we do not recommend any change in the recommending role that is envisaged for the Commission.

Should the work of the JAC be subject to audit?

295.  Currently judicial appointments are subject to audit by the Commission for Judicial Appointments. (The Commission for Judicial Appointments already exists. It was set up in 2001 to oversee the procedures by which judicial appointments are made in England and Wales.) The bill does not make comparable provision that appointments by the statutory Commission will be audited. Sir Colin Campbell said: "as drafted the current audit function which the CJA possesses would not continue, there is no self interest for us and this would be a serious mistake. You can get some things from investigating complaints for three years but you do not get other things and systemic audits done from time to time can throw up findings that individual complaint investigations would not. For example our investigation of silk found the old process so flawed that we still have not managed as a country to come up with a new version. Our audit of the tribunal and deputy district judge also encouraged the Department to proceed in one way rather than another. We are now trying to complete our audit of High Court appointments which, again, will show things that no one has previously seen, and some of them are quite disturbing. This is not a plea for my Commission to continue to audit; it is a plea for somebody to continue to audit because even the JAC might develop bad tendencies which somebody might be able to flush out" (Q 938).

296.  The Lord Chancellor disagreed with this proposal. He told us that the audit function will no longer be needed as the system is being made more transparent: "The Judicial Appointments and Conduct Ombudsman will handle complaints from individuals. But he will not have a general audit function, such as that which the existing Commissioners for Judicial Appointments have performed. The existing Commission was set up to audit an appointments system that is an integral part of the structure of the executive, in the hands of a single Government Minister and which is seen as closed and opaque. However, we are seeking to put in place something very different. A key first-principle, grounding each aspect of our policy, has been recognition of the need to devise a significantly more open and transparent system. I believe we have achieved that, not least in the provisions for the Commission's independent status, the appointment and composition of its membership, and the freedom it will have to organise and run appointments. In addition to this, we will have the safeguards of a rigorous complaint handling system, backed up by an independent Ombudsman and, of course, I will remain accountable to Parliament for the appointments system as a whole. We see no need to have the additional layer of a separate auditing body, or to invest such a role in an existing body" (p 22).

297.  The Lord Chancellor told us that this situation mirrors his agreements with the judiciary as set out in the Concordat (para.100-102, see Appendix 6). Finally he points out that the National Audit Office (NAO) could examine the Commission in the same way as it can examine any non-departmental public body and that Parliament will have a scrutiny role because the Commission and the Ombudsman will have to lay their annual reports before Parliament.

OPINION OF THE COMMITTEE

298.  The Committee agree that no further provision in respect of audit of appointments need be made.

Are the provisions relating to lay involvement with the Judicial Appointments Commission adequate? (Schedule 10)

299.  Schedule 10 to the bill provides that there will be 15 members of the Judicial Appointments Commission. We made amendments to the bill, proposed by the Government, to make clearer that the chairman holds an office distinct from the other 14 Commissioners. The chairman must be a lay member. The amended Schedule provides that of the five Commissioners who are judicial members,

1. ·  1 must be a Lord Justice of Appeal
2. ·  1 must be a High Court judge
3. ·  1 must be either a Lord Justice of Appeal or a High Court judge
4. ·  1 must be a circuit judge
5. ·  1 must be a district judge

300.  There will be one practising barrister, one practising solicitor, a lay justice. One further member must be a holder of an office listed in Part 3 of Schedule 12 (that is, one of the large number of tribunal chairmen, tribunal members and arbitrators established under a variety of Acts of Parliament). In total, the Commission will accordingly consist of six lay members (people who have never held a judicial office or been a practising barrister or solicitor), five professional judicial office-holders, two practitioners, a lay justice, and a tribunal member.

301.  We amended the bill to permit the Minister, with the agreement of the Lord Chief Justice, by Order to increase (but not decrease) the number of Commissioners. The making of such an Order may have the effect of altering the balance between judicial and lay members (an important issue, discussed further below). The Committee's view is that the requirement of concurrence between the Lord Chief Justice and the Minister as to the number and category of Commissioners in any proposed increase is a sufficient safeguard against disproportionately disturbing the composition of the Commission.

302.  Whilst the largest single group on the Appointments Commission will be lay members, some witnesses called for the Commission to have a clearer lay majority. Professor Sir Colin Campbell (Q 938) told the Committee that the Commission for Judicial Appointments believe, quite strongly, there should be a lay majority on the Judicial Appointments Commission. The value of a lay majority is partly that it would be "symbolically important." (Q 956). But a lay majority, Sir Colin argued, had more tangible benefits too. He succinctly laid out the arguments for a lay majority in his supplementary memorandum to the Committee:

"There are two main reasons why it is essential for the Judicial Appointments Commission to have a lay majority:

1. ·  To ensure that the Judicial Appointments Commission is informed by the widest possible range of appointments and HR expertise.
2. ·  To enhance public confidence in the independence and impartiality of the judiciary and the appointments process. It would symbolise that the appointments process is led by HR expertise.

The judiciary clearly have a central role in the appointments process, providing input into the formulation of job and person specifications. The judiciary are also likely to be an important source of information about candidates' ability to perform in post. The Commissioners see the role of the judicial members as ensuring that the Commission access this expertise (although it is likely that the judicial members of the Commission will have detailed knowledge of all candidates in only a minority of competitions)"
(p 278).

303.  In his oral evidence, Sir Colin emphasised that a central role of the Commission will be to manage a large-scale appointments process, and that this role is often better fulfilled by people with professional expertise outside the law: "What this Commission will need is enormous organisation, management and HR skills. It is important, if I may say so, to remember that while the exciting material might be appointed to the High Court and above actually the most material, the grind going on day after day for 2,000 inferior appointments is much more likely to be well organised by the people I have met rather than by senior judges." (Q 946) "What I am asking for", Sir Colin told the Committee, "is a marriage between lay expertise and public accountability and the indispensable judicial expertise." (Q 948)

OPINION OF THE COMMITTEE

304.  The Committee agrees that the provisions relating to the overall composition of the Judicial Appointments Commission, and in particular to lay involvement, as set out in Schedule 10 are satisfactory and adequately represent the different voices that are required to be heard in the appointments process.

305.  The Committee agrees that an order to increase the number of Commissioners should be subject to the affirmative resolution of both Houses of Parliament and we are satisfied that the bill as currently drafted and the provision of Clause 99(4)(c) reflects that view.

Are the arrangements for appointments panels satisfactory?

306.  Given the number of appointments to be made, it will not be possible for every Commissioner to be directly involved in every recommendation. It is envisaged by the Government that there will be:

1. ·  Two distinct senior appointments panels for Heads of Division appointments and Court of Appeal appointments;
2. ·  Committees of the Commission (which will in turn be able to form sub-committees); and
3. ·  Assessment panels, which will do the work of selecting and sifting etc. for may appointments.

This is provided for in the bill (Schedule 10, para.18-19).

307.  In relation to recommendations for appointment below the Court of Appeal the bill requires that panels must not contain fewer than three Commissioners. The bill does not as it stands, however, make any requirements as to the composition of these panels.

308.  The Lord Chancellor has told the Committee that: "It is a matter for the Appointments Commission to determine who makes up the panels. In some cases it may not be panels that would be appropriate rather than some sort of assessment centre approach, for example, as was taken recently in relation to a round of appointments of deputy district judges. Ultimately it is for the Judicial Appointments Commission to decide how it runs the selection system." (Q 143) However, he accepted that it would be desirable to introduce an amendment to ensure both lay and judicial representation on appointments panels (Q 144), notwithstanding the principle that that it is for the Commission to determine who sits on its panels.

309.  The Lord Chancellor indicated his intention to bring before the Committee an amendment to ensure that both lay and judicial expertise is present on each panel, and that the panel includes a Judge who is at least as senior as the position to which the appointment is being made. This is a "Concordat amendment" (p 423). We agreed this amendment (para.316).

APPROPRIATENESS OF SPECIAL SELECTION PANELS FOR SENIOR APPOINTMENTS

310.  The bill provides for specially constituted panels, consisting of two senior judicial and two lay members (including the Chairman of the Commission) to make recommendations for the offices of Lord Chief Justice and Heads of Division (Clause 55) and Lords Justices of Appeal (Clause 61). One question is whether, although selection panels will be necessary in order to process the very large number of judicial appointments each year, selection panels are appropriate when making the most senior judicial appointments in England and Wales (considered by the Law Society and JUSTICE to be the High Court and above, and by the Bar Council, the Judges' Council, and the Equal Opportunities' Commission to be the Court of Appeal and above).

311.  The arguments for not using selection panels for senior appointments are, first, that the whole Commission needs to take ownership of such senior appointments, and, secondly, that involvement of all members of the Commission in these decisions adds importance and value to the work of both the Commission as a whole and also its individual members.

APPROPRIATENESS OF ARRANGEMENTS FOR APPOINTMENT OF HIGH COURT JUDGES

312.  Clauses 65 to 71 of the bill and Schedule 12 make the same arrangements for appointment of Justices of the High Court (who are also known as puisne judges) as for circuit judges, recorders, district judges, district judges (magistrates' courts), and a number of other judicial office holders in the lower courts. Some of us consider this to be inappropriate and that High Court judges should instead be appointed in a manner similar to Lords Justices of Appeal (who sit in the Court of Appeal). The numbers of various categories of full-time judges at 1 May 2004 are set out in the table below.

313.  The main difference in the bill for the appointment for High Court judges and Lords Justices of Appeal is that the selection panels for the latter must include two senior members of the judiciary (the Lord Chief Justice or his nominee and a Head of Division or a Lord Justice of Appeal) and two lay members (the chairman or his nominee and one other lay member) with the Lord Chief Justice having a casting vote. In contrast, the bill does not specify the size or composition of sub-committees to which the task of appointing puisne judges, circuit judges and district judges may be delegated save that (following an amendment we have made) such sub-committees must include at least one judicial member and one lay member.

314.  In some ways it can be said that the High Court judge is the key appointment in the judicial system. Thus the case for requiring that High Court judges be appointed by panels similar to those to be used for Lords Justices of Appeal is that these two ranks of judge have more in common with each other than do High Court judges, circuit judges and district judges. The High Court and Court of Appeal are both superior courts of record. The rules of law enunciated in the judgments of these courts (in contrast to the county courts and magistrates' courts) may be reported in the law reports. Both courts determine claims for judicial review through which the legality of governmental decisions may be challenged. In civil claims, the High Court generally deals with cases where the facts, law or evidence are more complicated, and the financial value of the claim is greater, than those cases heard in the county courts. Moreover, High Court judges and Lords Justices of Appeal share the same stringent safeguards against improper removal from office: dismissal may occur only following Addresses of both Houses of Parliament to Her Majesty—an exceptionally rarely used power. In contrast, circuit and district judges under current arrangements may be removed from office on grounds of incapacity or misbehaviour by the Lord Chancellor, with the agreement of the Lord Chief Justice. In relation to disciplinary powers to be transferred to the Minister by the bill, Clause 84(4) continues to differentiate between "senior judges" on the one hand (defined as high court judges, Lords Justices of Appeal and Heads of Division) and all other judges.

315.  The Lord Chancellor told the Committee that he rejected the proposal that the bill be amended to equate the appointment of High Court judges with Lords Justices of Appeal. Appointment to the latter post is almost always by way of promotion—in contrast to the appointments of high court judges, circuit judges and district judges which share the common feature that they are all typically first appointments to the bench of people in full-time practice as barristers and solicitors (though in common with other judicial appointees they may well have already occupied part-time judicial positions). From the perspective of human resource management, therefore, the process of appointment of high court judges has more in common with circuit judges and district judges than Lords Justices of Appeal. The principal justification for requiring judicial greater input into the appointment of Lords Justices of Appeal is that their promotion will require assessments to be made of the quality of their written judgments. It has also to be remembered that High Court judges and circuit judges both sit in the Crown Court. The Lord Chancellor told us that the Lord Chief Justice was content with the arrangements for appointing high court judges set out in the bill and that they reflected the Concordat.

OPINION OF THE COMMITTEE

316.  We have agreed amendments proposed by the Lord Chancellor to ensure that every panel shall include a judicial member and a lay member.

317.  The Committee cannot agree on whether high court judges should be "Schedule 12 appointments" or whether they should be appointed in like manner as Lords Justices of Appeal and accordingly make no recommendation.

Should a Judicial Appointments and Conduct Ombudsman be established? (Clause 50)

318.  The bill, in line with the majority view expressed in the Department for Constitutional Affairs' consultation, creates a separate body, with a reviewing and complaints function, to be established alongside the Judicial Appointments Commission. The DCA received much evidence in support of the appointment of the Ombudsman, and it is included in the Concordat (para.100-102).

319.  In his written evidence, the Lord Chancellor told the Committee: "The Judicial Appointments and Conduct Ombudsman will deal with complaints from candidates for judicial office about the way in which their application was handled, and judicial appointments matters referred to him by me. He will also provide recourse to anyone who has complained about a judge (or the judge complained of) if they are unhappy with the handling of the complaint" (p 21).

320.  We nevertheless heard views critical of the proposed Ombudsman. The British and Irish Ombudsman Association in their written evidence told us: "In relation to dealing with complaints about the appointments process, we consider that this would be compatible with and appropriately handled by the Office of the Commissioner for Public Appointments. We understand that Dame Rennie Fritchie, the Commissioner, would have no objection to this" (p 308). And on judicial conduct they said: "we have grave doubts as to whether the limited functions envisaged in the proposal add up to anything that is really an ombudsman role. The proposal says more about what the Ombudsman will not be able to do rather than what he or she will be empowered to do. In para.21 it is proposed that the Ombudsman would 'review the handling of the complaint and may make recommendations to the Lord Chief Justice and Secretary of State'. In para.23 it is proposed that the Ombudsman's report will say whether a complaint about the handling of the process was found to be justified. If the Ombudsman's role is to be confined to examining whether procedures have been properly followed without commenting on the merits of the complaint, it is unlikely that the Ombudsman will be able to satisfy anyone, or add much by way of underpinning confidence in the system as a whole. Given that the lessons of enquiries into judicial (misconduct ought sensibly to feed into the process of making new appointments, there may be a case for embedding the proposed task within the Judicial Appointments Commission, and assigning this as a particular function to one of the Commissioners" (p 329).

321.  The Council on Tribunals also expressed reservations, telling the Committee that "In the Council's view, complaints about appointment procedures and complaints relating to conduct do not sit happily together. The Office of the Commissioner for Public Appointments seems an appropriate body to consider complaints about the judicial appointments process. The very limited remit proposed for the new Ombudsman in matters relating to judicial conduct hardly seems to amount to a true ombudsman role" (p 343).

OPINION OF THE COMMITTEE

322.  A substantial body of opinion on the Committee did not consider that the appointment of a Judicial Appointments and Conduct Ombudsman under Clause 50 was necessary but, in the absence of agreement on the point, we leave this question for the House to determine.

Should the arrangements for defining "merit" be amended? (Clause 51(4))

323.  We received no evidence questioning the merit of the judiciary at the moment. On the contrary, all our witnesses made clear that the calibre of the judiciary is respected the world over. In their written evidence the Law Society stated that "no one disputes the calibre of the judges who are appointed" (p 184). The Government's written evidence stated "There can be no doubt that we are served by judges, tribunal members and magistrates of the very highest calibre, in many ways the envy of the world" (p 17). There was agreement amongst witnesses that merit should continue to be the criterion for the recruitment of judges. This is reflected in the bill (Clause 51(3)).

324.  Selecting on merit can be understood in two ways: selecting "the best candidate"; or setting a very high threshold of competences above which other factors may be taken into account. Sir Colin Campbell's view was that "merit is a threshold" and that when selecting for a post there are often several candidates who each pass this threshold (Q 963). He suggested that at that point it is sometimes appropriate to select between them using other criteria such as the need for diversity (this is discussed further below). He also said (see para.344 below) that finely graded distinctions of merit can be "quite spurious" (Q 963).

325.  Currently the guiding principle underpinning the Lord Chancellor's policies in selecting candidates for judicial appointment is that appointment is strictly on merit. "The Lord Chancellor appoints those who appear to him to be the best qualified regardless of gender, ethnic origin, marital status, sexual orientation, political affiliation, religion or disability. Decisions on merit are based on assessments of candidates against the specific criteria for appointment" (Department for Constitutional Affairs Consultation Paper, Constitutional reform: a new way of appointing judges, CP 10/03, July 2003). The bill does not propose to change this principle and therefore the debate is about who should elaborate on existing criteria.

326.  The bill provided that after consulting the Lord Chief Justice the Minister may prescribe considerations that are to be taken into account in assessing merit and these would be subject to affirmative approval in Parliament. However, at Second Reading the Lord Chancellor announced his intention to bring forward amendments to Clause 51. He told us that he intended to "look to the Commission to refine and improve our existing definitions of merit" and that, with the involvement of recruitment experts and a range of judges, the Commission will be uniquely well placed to do so (p 21). He therefore wished to amend Clause 51 of the bill so as to delete subsections (4) and (5) so that the Minister no longer has a power to specify considerations that are to be taken into account in assessing merit.

327.  This amendment was welcomed by all our witnesses who commented on this question (e.g. Arden Q 777, Malleson Q 154, Clifford Chance LLP p 336) and is line with the recommendation of the House of Commons Constitutional Affairs Select Committee (HC 48-I, para.159).

328.  The bill provided that the Commission must have regard to any guidance issued by the Minister when selecting judges. At Second Reading the Lord Chancellor stated that the Government wished to amend Clause 52 and he told us that the amendment would: "… stipulate that the Lord Chief Justice must first be consulted about any guidance issued by the Minister to the Commission under this section, and that guidance must be issued in the form of a statutory instrument laid before Parliament and subject to the affirmative resolution procedure. The Clause should also provide that such guidance may, for example, relate to such matters as the need to encourage applicants for judicial appointments from a more diverse pool of candidates…"(p 419).

329.  There will therefore be parliamentary oversight of the guidance to which the Commission will work. Lady Justice Arden told us that this guidance will essentially be "like a code of practice" (Q 777) and that "it is particularly useful to have a code of practice where you wish to ensure flexibility for the future or impose a requirement which may not necessarily be adhered to the letter in a given situation" (Q 742).

330.  We considered the drafting of Clause 51(3) which provides that "Selection must be on merit". The Committee agreed that selection must, indeed, always be on merit and that it is right for the bill to state this expressly. Some of us, however, would prefer the Clause to be amended to provide that "Selection must be solely on the basis of merit" in order to put the matter beyond doubt and to remove any suggestion that the merit criterion is in some way or other qualified by considerations of diversity (such as the amended provision in Clause 52(3) that the Minister may issue guidance to the Commission "for the encouragement of diversity in the range of persons available for selection"). We noted that Section 3 of the recently enacted Justice (Northern Ireland) Act 2004 provides that judicial appointments in that part of the United Kingdom "must be solely on the bases of merit" and some of us take the view that it is unwise to use different forms of words to achieve the same policy in different jurisdictions. We noted also that para.28 of the Concordat states that "primary legislation should provide that the sole criterion for making judicial appointments is merit", but the Lord Chancellor told us that the Government's view is that to use the words "solely on the basis of" in Clause 51(3) may be otiose.

331.  Another suggestion was made to us that the bill should go further to include definition of "the 'merit' qualification for judicial appointment" (Lord Alexander of Weedon Working Party p 469).

OPINION OF THE COMMITTEE

332.  The Committee agrees that "merit" should not be defined by the Minister and we have accordingly made an amendment, tabled by the Lord Chancellor, to leave out subclauses 51(4) and 51(5).

333.  Although we agree that selection should be on merit alone, as a drafting issue we are unable to agree whether the addition of "solely on the basis of" to the merit provision is necessary or not and accordingly make no recommendation.

334.  The Committee does not accept that the merit criterion is to be understood as a threshold.

335.  The Committee also agreed to make the further amendment proposed by the Lord Chancellor to provide that any guidance issued under Clause 52 relating to appointments be subject to consultation with the Lord Chief Justice and made by regulations under affirmative resolution procedure.

Should Chapter 2 of Part 3 of the bill be amended to impose a duty upon the Judicial Appointments Commission to engage in a programme of action designed to secure, so far as it is reasonably practicable to do so, a judiciary reflective of the community in England and Wales?

336.  The Committee were told that the social make-up of the senior judiciary does not reflect that of society as a whole, or the legal professions, in terms of the proportions of women and people from ethnic minorities. In their recent Interim Report on Women Working in the Criminal Justice System, the Fawcett Society state that only 7 per cent of High Court judges are women, 8 per cent of Lords Justices of Appeal are women, 11 per cent of Circuit Judges are women and yet 59 per cent of law graduates are women. They point out that "Women were first admitted to the legal profession in the early part of the last century, yet it is only this year that the first woman was appointed to the highest judicial body, the House of Lords". The Association of Women Barristers agreed: "The very low number of women at Circuit Bench, High Court, Appeal Court and House of Lords level is regarded by some as a national disgrace, given the number of eligible women lawyers" (p 321). The Law Society made a similar point: "While the number of women, minority ethnic and solicitor members of the legal profession who would meet the criteria for appointment have grown substantially, they remain significantly under-represented in the senior ranks of the judiciary. Research has indicated that women, in particular, are under-represented even when allowance is made for the proportion they form amongst lawyers of appropriate seniority" (p 164).

337.  While the bill expressly preserves merit as the sole criterion for appointment to the bench, the bill makes no express provision to address the other factor that almost all our witnesses recognised as essential: progress towards a judiciary that includes more women and people from ethnic minorities. The bill does not, for example, place any statutory duty on the Judicial Appointments Commission to engage in a programme of action designed to secure, so far as reasonably practicable to do so, a judiciary which is reflective of the community—a provision that is included in the provisions of the Justice (Northern Ireland) Act 2002 setting up the Judicial Appointments Commission in that part of the United Kingdom. Issues relating to diversity will instead be dealt with by means of ministerial guidance issued under Clause 52.

338.  We received evidence from witnesses who want the Commission to have an express statutory duty to undertake a programme of action to secure that a range of persons reflective of community is available for consideration when appointing judges. It has been suggested that there is contradiction between the Government's position that "One of the key areas in which the Commission must provide improvements is the diversity of the bench" (p 18) and the absence from the bill of a statutory duty to promote diversity. However the Lord Chancellor told us that he believes the bill will encourage diversity by opening up the pool of candidates who apply for judicial posts. "Increasing the pool, I believe, will increase the diversity of the bench" (Q 130). The pool will be opened up through the use of modern human resources practices. Whether the Commission would be required to increase the size of the pool further, through policies specifically designed to encourage applicants from minority groups, will depend on what guidance the Minister chooses to lay under Clause 52 of the bill. It was suggested, for example, that the Commission should not wait "passively for candidates to apply" (Lord Alexander of Weedon Working Party p 469).

339.  There was agreement that the narrow pool of candidates is one of the factors leading to the lack of diversity in the senior judiciary. Clifford Chance LLP agreed with the Lord Chancellor that "Widening the pool… would greatly increase the field of potential candidates, and so tend to drive up quality over time, to the benefit of the public interest" (p 337). In their written evidence the Fawcett society told us "There are few women and no black or ethnic judges in the higher courts which is the pool from which the very highest echelons are drawn. Recruiting on the basis that experience in the High Court is essential, when that is confined to this narrow social pool, excludes otherwise qualified candidates and may be indirectly discriminatory." (The Fawcett Society, Women and the Criminal Justice System, p 28).

340.  Dr Kate Malleson: told us "What the bill does not have is any statutory requirement that the Commission should take account of diversity and I think there should be one… It is common in most commissions around the world" (Q 154). In comparative research conducted by Kate Malleson it was found that the judicial appointments commissions in other countries that are more successful in broadening the diversity of the judiciary "are those which have been specifically tasked with this aim and have the political backing to achieve it."[39]

341.  Professor Diana Woodhouse agreed: "What I want the statute to do is state clearly that [promoting diversity] is a priority… that their first and paramount job is to appoint the best possible judges that they can, but their equally important job is to do that while encouraging greater diversity in the judiciary" (Q 185). Baroness Hale of Richmond also supported this idea and said that "It would be extraordinary if the equivalent bodies in Scotland and Northern Ireland were set such a task but the body in England and Wales was not" (p 363).

342.  The Government have placed a statutory duty on the Northern Ireland Judicial Appointments Commission to secure a judiciary reflective of the community in the recently enacted Justice (Northern Ireland) Act 2004. They have made it clear that "reflective of the community" relates as much to the under representation of women than to the community background of the judiciary in Northern Ireland. The 2004 Act amends the Justice (Northern Ireland) Act 2002 to provide that:

"5.—(8) The selection of a person to be appointed, or recommended for appointment, to a listed judicial office (whether initially or after reconsideration) must be made solely on the basis of merit.

(9) Subject to that, the Commission must at all times engage in a programme of action which complies with subsection (10).

(10) A programme of action complies with this subsection if—

(a) it is designed to secure, so far as it is reasonably practicable to do so, that appointments to listed judicial offices are such that those holding such offices are reflective of the community in Northern Ireland;

(b) it requires the Commission, so far as it is reasonably practicable to do so, to secure that a range of persons reflective of the community in Northern Ireland is available for consideration by the Commission whenever it is required to select a person to be appointed, or recommended for appointment, to a listed judicial office; and

(c) it is for the time being approved by the Commission for the purposes of this section."

343.  The non-statutory Judicial Appointments Board of Scotland has as part of its remit to make recommendations "on merit, but in addition to consider ways of recruiting a Judiciary which is as representative as possible of the communities which they serve."

344.  The Committee inquired whether a requirement to seek the most meritorious candidate and a requirement to increase diversity are compatible. Sir Colin Campbell told us he was a "little bit suspicious of people who say we only appoint on merit end of argument because I find that quite spurious. I think merit is a threshold and anyone who confidently says about 100 QCs or 100 professors he is 96 and he is definitely not 95 loses my support" (Q 963). He went on to stress that this would not mean you would not appoint the best candidate for the job but simply that sometimes there is not one best candidate and when you have to choose between several candidates of equal merit the need for diversity can be factored into the decision. As Professor Robert Stevens put it "Merit is not synonymous with, there is only one possible candidate and, if you really want to make a more diverse bench, then it is not impossible to make a more diverse bench without retreating from the notion of merit" (Q 184).

345.  The question is whether the Government's intended objective of the Commission leading to a more diverse bench would be better achieved by including a statutory duty similar to that in the Justice (Northern Ireland) Act 2002 on the face of the bill rather than relying upon guidance issued by the Minister under Clause 52.

OPINION OF THE COMMITTEE

346.  The Committee agrees that diversity among the judiciary should be promoted. This diversity should be achieved without diluting the principle of merit. While agreeing on this, we were unable to agree on the question whether a statutory duty should be placed on the Judicial Appointments Commission to engage in a programme of action to promote diversity along the lines of the Justice (Northern Ireland) Act 2002 and accordingly make no change to the bill as drafted. We have however agreed an amendment to Clause 52 so as to include the "encouragement of diversity in the range of persons available for selection" in the provision on guidance.

Should the Minister be placed under an express statutory duty to reject or require a reconsideration of a selection only in "exceptional" circumstances? (Clauses 57, 63 and 69)

347.  Clauses 53-58 of the bill deal with the selection of the Lord Chief Justice and Heads of Division. Clauses 59-64 deal with the selection of Lords Justices of Appeal. Clauses 65-71 deal with the selection of High Court (puisne) judges and other office holders. When a vacancy arises, the Judicial Appointments Commission appoints a selection panel, and the selection panel reports to the Minister, stating who has been selected. Under Clauses 57, 63 and 69, the Minister has three options:

1. ·  to recommend the appointment of the person selected;
2. ·  to reject the selection;
3. ·  to require the panel to reconsider the selection.

348.  If the Minister requires the panel to reconsider the selection, then the panel may select the same or a different person; where the Minister rejects the selection, the panel must select a different person. The Minister cannot reject or require the reconsideration of a candidate more than twice in regard of any one vacancy. The bill, therefore, removes the Minister from being in charge of the process, and limits the Minister's power to reject candidates.

349.  Under this procedure, the selection panel will pass to the Minister, not only the details of the candidate it recommends, but also the details of those candidates whom it thinks are "appointable" but are not being recommended for appointment (Q 132). The Lord Chancellor said that this was necessary "Because one of the aspects of appointment is bound to be the relative merit of the individual with reference to others" (Q 133).

350.  The Lord Chancellor defended the continued involvement of a Cabinet Minister in the appointment of judges. At the moment, the Lord Chancellor is in charge of the system. Under the bill, the Secretary of State would be involved in the appointment of judges, but in a different way. The Minister will still be supplied with all the applications which fulfilled the formal criteria for the post, in addition to those of the candidate or candidates which the Judicial Appointments Commission are recommending, "Because one of the aspects of appointment is bound to be the relative merit of the individual by reference to others" (Q 134). The Minister might use this information to determine whether the nominated candidate is the "best suited" to the post.

A CONSTITUTIONAL CONVENTION?

351.  The Judges' Council has been concerned that the powers of the Minister might be used quite extensively. Lady Justice Arden told the Committee that: "For my own part, when the consultations took place, I submitted, as my primary argument, that Ministers should not be involved in the [appointments] process, but in my evidence and in my response I put in the alternative that if there was to be a power, it should only be used exceptionally and there would be a parallel then between, for instance, the acceptance by the Prime Minister on nominations for people's peers or the acceptance of outside candidates selected for senior Civil Service. In other words, it seemed to me that the best route of retaining, the best route of balancing the need for accountability of the Minister in making recommendations to the Queen with the consideratum that appointments be non-political is that the powers to reject should only be exercised in exceptional circumstances and that that should be the convention. I am not suggesting a provision in the statute, but a convention." (Q 735) "I am not suggesting it be a provision of the bill, merely a convention, but it can be dealt with by a statement by the Minister in the course of the passage of the bill, if that is what Parliament thinks that the position should be" (Q 775).

COULD THE RECOMMENDATIONS BE MADE TO THE LORD CHANCELLOR?

352.  When questioned about why the Judicial Appointments Commission could not recommend names to a Lord Chancellor, rather than a Secretary of State, the Lord Chancellor told the Committee that "once you are no more than in receipt of recommendations, which is what we are proposing in the bill, you are doing a completely different job in relation to that from what you were doing when in fact you were running the whole system, and indeed, are actually looking at all the evidence and choosing between a whole variety of candidates. It is a different sort of function" (Q 45).

THE OPTIONS

353.  Three options therefore present themselves:

1. ·  To place the Minister under an express statutory duty to reject or require a reconsideration of a selection only in "exceptional" circumstances;
2. ·  To make a statement during the passage of the bill;
3. ·  To leave the bill as it is, without either creating an express statutory duty or attempting to establish a constitutional convention.

PROPOSED SUBSTANTIVE AMENDMENT BY THE LORD CHANCELLOR

354.  The Lord Chancellor proposed substantive amendments to the bill. "Clauses 57 and 58, 63 and 64, and 69 and 70 enable the Minister to reject the selection made by the Commission and require it to make a new selection, or to require the Commission to reconsider its selection. I wish to amend these provisions in order to make it clear that the Minister may only reject a selection if he considers that the selected candidate is unsuitable for that judicial appointment; and that he may only require the Commission to reconsider if he is not satisfied that the selected candidate is the best suited to the post. In either case, the Minister will have to give reasons for his decision in writing" (p 420).

OPINION OF THE COMMITTEE

355.  The Committee agrees that the discretion of the Minister to reject or cause reconsideration of a selection made by the Judicial Appointments Commission is too widely drawn in Clauses 57, 63 and 69 as they stand. We therefore welcome the amendments tabled by the Lord Chancellor to this part of the bill which make it clear that the Minister may reject a selection only if he considers that the candidate is unsuitable and require the Commission to reconsider only if he considers that the selected candidate is not the best suited to the post. We have amended the bill accordingly.

356.  Although not consistent with the terms of the bill as drafted, some members of the Committee considered that, where candidates of equal merit presented themselves, the Judicial Appointments Commission might submit more than one name to the Minister in respect of posts under Part 3 of the bill.

Should the Minister be required to consult the Lord Chief Justice before withdrawing a request to the Commission to make a selection? (Clauses 66 and 72)

357.  The issue here is that while under Clause 66 the Minister is required to consult the Lord Chief Justice before requesting the Commission to make a selection under Part 2 of the bill, under Clause 72 he is not so required in respect of withdrawing such a request. In their written evidence to the Committee, the Judges' Council Working Party on the bill states that the Concordat does not deal with this matter expressly. "The bill provides that the Minister may withdraw a request at any time before the making of the appointment for which the JAC was requested to make a selection. The power is in general terms. We propose that the Minister should be required to consult the Lord Chief Justice before he exercises the power to withdraw a request" (p 215).

358.  Lady Justice Arden, the Chairman of the Working Party, reinforced this written evidence with her oral testimony before the Committee: "At the moment under the bill, the Minister may withdraw a request for a selection at any time before the appointment for which that selection is required is actually made. Now, this power was not actually in the Concordat. We do not want to see this power capable of being used as a backdoor route to rejecting the selection made by the Judicial Appointments Commission. We accept there may be cases where the Minister wishes to withdraw a request after he has received a selection, for instance, because he has since learnt that some other member of the judiciary has indicated his wish to retire which makes it appropriate to choose a candidate with different attributes. However, if this sort of flexibility is desired, then there should be safeguards and we suggest that the appropriate check and balance in this case would be a requirement to consult the Lord Chief Justice" (Q 713).

OPINION OF THE COMMITTEE

359.  The Committee agrees that the bill should provide that that the Minister should consult the Lord Chief Justice before withdrawing a request to the Commission to make a selection. Accordingly the Committee has agreed to an amendment brought forward by the Lord Chancellor to that end.

360.  An amendment applying this provision to the appointment of Lords Justices of Appeal will be brought forward at a later stage.

Does the amendment of section 27 of the Courts Act 2003, proposed by para.380 of Schedule 1 to the bill, adversely affect the continued independence of justices' clerks and assistant clerks?

361.  Concerns were expressed to us that the independence of justices' clerks and assistant clerks are detrimentally affected by a provision of the bill.

362.  Justices' clerks have a hybrid role. They are engaged in management within magistrates' courts and also provide legal advice to lay magistrates. In the provision of that advice and related roles, the importance of the independence—as a matter of fact and in public perception—of justices' clerks is widely acknowledged. Section 29 of the Courts Act 203 provides:

"29. - (1) A justices' clerk exercising -

(a) a function exercisable by one or more justices of the peace,

(b) a function specified in section 28(4) or (5) (advice on matters of law, including procedure and practice), or

(c) a function as a member of the Criminal Procedure Rule Committee or the Family Procedure Rule Committee,

is not subject to the direction of the Lord Chancellor or any other person.

(2) An assistant clerk who is exercising any such function is not subject to the direction of any person other than a justices' clerk."

363.  When Her Majesty's Courts Service (the unified courts agency) is established in April 2005 under the provisions of the Courts Act 2003, all staff employed by magistrates' courts committees—including justices' clerks—will become civil servants. In their written and oral evidence, the Justices' Clerks' Society made plain their view that as a matter of principle justices' clerks "should be outside the civil service" (p 399). That, however, is a matter outside the remit of the Committee, and a status that arises from recently enacted legislation.

364.  A more particular concern of the Justices' Clerks' Society, which does relate to the bill, is the transfer of responsibility for appointing justices' clerks from the Lord Chancellor to the Secretary of State for Constitutional Affairs. The bill achieves this by amending section 27 of the Courts Act 2003 by substituting "Secretary of State for Constitutional Affairs" for "Lord Chancellor" for the purposes of appointment and assignment of justices' clerks and assistant clerks (see para.380 of Schedule 1 to the bill).

365.  The Justices' Clerks' Society stated:

"The public will require confidence and expect transparency in any new system. The current situation, on abolition of the post of Lord Chancellor, would result in Justices' Clerks and Legal Advisers being appointed by a politician, in the form of the Secretary of State for the Department of Constitutional Affairs. (At present the appointment by the Lord Chancellor is an appointment in his judicial capacity). If the Justices' Clerk is a civil servant he or she will be bound by the civil service code and, although theoretically protected by statute, the day to day pressures could easily result in the Government's view of legislation, rather than an independent view, being presented. The clear separation of roles inherent in the proposal to abolish the role of the Lord Chancellor, will be specifically reversed in relation to Justices' Clerks, who are the legal advisers to the branch of the Judiciary that delivers 97% of all criminal cases and a large percentage of Family cases. It is difficult to envisage how a member of the public could conclude that a civil servant appointed by a Government Minister will be open and transparently independent in the advice given in any situation"
(pp 308-9).

366.  In his evidence, Mr Neil Clarke of the Justices' Clerks' Society told us that, while justices' clerks did not seek to be judges, they should be appointed by the Judicial Appointments Commission and bound by an appropriate judicial officer's oath for the office held (p 310). The South Wales Bench Chairmen echoed this, stating "Arrangements must ensure that the appointment, training, relocation, and removal of justices' clerks are outside of Executive Control" and "As Bench Chairmen, we ask that our justices' clerks be appointed as 'judicial officers' with their promotion, discipline, training and removal being under judicial lines rather than through the unified [courts] administration. Whether or not they are deemed to be 'civil servants', this protection from real or perceived interference is of crucial constitutional significance" (p 477).

367.  The Government responded to such proposals by saying that "Justices' clerks do not fulfil the functions of judges so it would not be appropriate for them to be appointed by the Judicial Appointments Commission nor to take the judicial oath" (p 462). Moreover,

"The Lord Chancellor currently appoints justices' clerks in line with his statutory functions for the magistrates' courts rather than his judicial capacity. He assumed these functions in 1992 from the Home Secretary who previously appointed justices' clerks and who is not a judicial figure. The Government believes that it is appropriate for the Secretary of State to continue to appoint justices' clerks given their hybrid role but it is proposing to bring forward an amendment to section 27 (1) in the Constitutional Reform Bill to provide that this should be in consultation with the Lord Chief Justice. In practice this will be achieved by including a judge or magistrate on the selection panel for any justices' clerk appointments. This is in line with other appointments for the new agency where judges and magistrates have been members of the selection panels. The Government is also prepared to bring forward an amendment to the bill to strengthen section 27 (4) of the Courts Act 2003 by providing that a reassignment of a justices' clerk should only take place after consultation with the Lord Chief Justice (in practice a Presiding Judge of the region concerned) as well as with the relevant Bench Chairmen" (p 462).

OPINION OF THE COMMITTEE

368.  Some members of the Committee agreed with the Lord Chancellor that with the creation of Her Majesty's Court Service in April 2005, justices' clerks should become civil servants, but with the Lord Chief Justice consulted on appointment, deployment and role. Others felt that the Judicial Appointments Commission should appoint justices' clerks. We therefore make no recommendation.

Are the proposals of the bill relating to confidentiality adequate? (Clause 81)

369.  Some witnesses have been particularly concerned that the confidentiality of applicants for judicial office, at all levels, should be preserved. However, the confidentiality provisions of Clause 81 extend only to the Judicial Appointments Commission and staff.

370.  In his oral evidence to the Committee, Professor Sir Colin Campbell emphasised that he feels "very, very strongly" that the confidentiality of applicants must be preserved. (Q 972) Sir Hayden Phillips, the permanent secretary of the Department for Constitutional Affairs, concurred, telling the Committee: "In any application system for any job confidentiality of the identity of those who come forward should be preserved whether it is in the judicial system, the civil service area or in public appointments generally, that must be the rule." Although, he said, "We all know in life there are (a) leaks and (b) gossip and those, I am afraid, the appointed authorities cannot always absolutely control", he agreed with the policy of strict confidentiality (Q 686).

371.  Clause 81 imposes a statutory duty upon members of the Commission not to "disclose confidential information, except with lawful authority". But the provision relates only to the Commissioners and their staff. In evidence, the Committee has heard some concern that, if a nominee was rejected or referred by the Minister, the fact of this rejection or referral, or the reasons given, might become known.

372.  The issue weighed heavily with Professor Sir Colin Campbell who told the Committee: "I think that the Minister's power should be circumscribed. He or she should not be able to supplant a new name. He or she should be able to ask for it to be reconsidered, which is sending out a very strong signal that this could probably still be done protecting confidentiality. One should think long and hard about the Minister being able to reject. There is an argument in favour, which is parliamentary sovereignty and accountability. There is an argument against, which is the systemic damage that will be done if very distinguished people are publicly humiliated" (Q 998). Dr Kate Malleson pointed out to the committee that there were tensions between holding the Minister to account for his or her decision to reject or refer a candidate, and the need to maintain the confidentiality of that candidate (Q 154).

OPINION OF THE COMMITTEE

373.  The Committee agrees that a duty of confidentiality relating to the judicial appointments process should extend beyond the Commissioners and staff (as currently provided for in Clause 81) to others involved in the appointments process. Amendments to that effect will be brought forward by the Lord Chancellor at a later stage in the bill.

Should the Lord Chief Justice's disciplinary powers be dependant on the agreement of the Minister? (Clause 83(2)).

374.  Clause 83 sets out the Lord Chief Justice's powers of discipline over the judiciary but under subsection (2) he may exercise these powers only with the agreement of the Minister. This has been criticised on several levels. Issues include:

1. ·  Is there a need for the consultation procedure?
2. ·  Are there any circumstances on which a Minister could say "no"?
3. ·  Is the level of power held by the Minister appropriate?
4. ·  Should there be a link between the person who hires and the person who disciplines?

IS THERE A NEED FOR THE CONSULTATION PROCEDURE?

375.  JUSTICE (p 95) told the Committee in written evidence that it supported the conclusions of the House of Commons Constitutional Affairs Committee that "any new system of discipline will need to be firmly within the control of the judiciary in individual cases and we believe that the Lord Chief Justice should be the person primarily responsible for it" (HC 48-I, para.165). JUSTICE told us "that the making of new disciplinary provision for the judiciary is justifiable but we have considerable doubts about the approach taken in the bill, whereby the new disciplinary powers may be exercised by the LCJ only with the agreement of the Secretary of State for Constitutional Affairs. In particular, we believe it wrong that the LCJ should be able to give advice, warning or a formal reprimand to a judge only with the agreement of the Secretary of State. This would mean the injection of an inappropriate bureaucratic relationship into matters of judicial conduct that should in principle be entrusted to the LCJ, working in accordance with procedures approved by the Judges Council. In so far as provision in the bill may derive from present practice within the Lord Chancellor's Department, that practice is justifiable only because the Lord Chancellor is head of the judiciary."

376.  Professor Diana Woodhouse concurred, stating that she did "not see why there is a need for the Lord Chief Justice to consult over disciplinary matters with the minister" (Q 383). Lord Woolf, however, told the Committee that "In discipline, as I mentioned in my earlier remarks, he [the Minister] already has a central role in discipline and the only difference now will be that this question of consent will be in a statutory form. The correspondence passed almost daily between the Lord Chancellor and myself on matters of discipline" (Q 510).

ARE THERE ANY CIRCUMSTANCES IN WHICH A MINISTER COULD SAY "NO"?

377.  Lord Ackner told the Committee: "I do not think the Secretary of State should be able to say that he does not agree to any disciplinary action which the Lord Chief Justice has proposed" (Q 313). It is arguable that, except in the most extreme situation, the Minister could not advise against a disciplinary procedure, lest he or she be accused of interfering politically with the judicial process. In this situation, therefore, the consultation might become no more than a statutory rubber stamp.

378.  Lord Justice Thomas considers that judicial self-restraint and self-regulation is insufficient. He told the Committee of his own view: "if judges are allowed to discipline judges there will come a point in time where their independence could be undermined because it is said, 'Well, they're just looking after themselves'" (Q 767).

IS THE POWER HELD BY THE MINISTER APPROPRIATE?

379.  One of the criticisms of the requirement for the Lord Chief Justice to consult the Minister is that this will be an overly-cumbersome procedure, which will both be too time-consuming and will force the abandonment of more subtle—and more effective—disciplinary mechanisms. Lord Justice Thomas pointed out to the Committee that not all disciplinary matters required the concurrence of the Secretary of State: "one of the problems that often used to arise … was judges not getting judgments out in time. That is a matter which will in future be dealt with entirely by the Lord Chief Justice. Justice—the ordinary running of the system—that is actually what matters." (Q 767)

380.  Certainly, it seems that it is not the intention of the bill to prevent informal cajoling and disciplining of judges by the Lord Chief Justice, as the Lord Chancellor noted: "It is most certainly not intended that the Lord Chief Justice should not be able to have a quiet word, or even a noisy word, with a judge about particular pieces of his or her conduct in particular circumstances. I think it is clear from the context of Clause 83 that advice in that context is a formal disciplinary conclusion, as it were" (Q 769).

SUSPENSION

381.  Lord Justice Thomas addressed the concern that the Minister's powers were drawn so broadly that they would lay the judiciary open to potential interference. He told the Committee: "powers that are put in are often expressed in terms which are necessarily broad, but you can only use the power for a proper purpose. It would be the independent judiciary that would be preventing the improper use of this power. If this Clause is thought to be too broad (and I personally do not think so) it could always been looked at again. My reading of this Clause is that it is a broad suspensory power because, regrettably, it does happen from time to time that the question arises of a judge being suspended. I do not think presently I can think of any case where a problem has arisen and a judge has not agreed to take a voluntary position of not sitting; but the power has to be there in case someone did not behave honourably" (Q 773).

382.  A further criticism made of the suspensory powers contained in the bill is that they apply to "senior judges" (defined in the bill as High Court judges, Lords Justices of Appeal and Heads of Division) and judges of the lower courts alike. Some members of the Committee believe that it is wrong for the Minister to have any power to suspend a senior judge. Since the Act of Settlement 1701, judges of the superior courts—which today are the High Court and Court of Appeal—may be removed from office only following an Address of both Houses of Parliament to Her Majesty the Queen. This is a formal constitutional safeguard of great significance in ensuring the independence of the judiciary. Clause 83(6) of the bill as introduced allows the Minister to "suspend a senior judge for any period during which the judge is subject to proceedings for an Address", which on one view undermines the protection conferred by the Act of Settlement. Lord Woolf let the Committee know his view that in relation to senior judges, the powers of suspension should be more limited than those contained in the bill as introduced.

SHOULD THERE BE A LINK BETWEEN THE PERSON WHO APPOINTS AND THE PERSON WHO DISCIPLINES?

383.  Lord Mackay of Clashfern told us that the responsibility for discipline should rest with the person who nominates candidates for appointment to the Queen, and that "so long as the Minister, the Lord Chancellor (if that is the way it was still to be) has responsibility for nominating to the Queen or appointing, depending on the level of the judicial officer, then I think it would be appropriate that that person should have responsibility for discipline. I find it very, very difficult indeed to share this discipline business." (Q 253). The Liberal Democrat Lawyers Association, on the principle that there should be a link between the body appointing judges and the body disciplining judges, suggested a role for the Judicial Appointments Commission in the disciplining of Judges (p 370).

OPINION OF THE COMMITTEE

384.  The Committee agrees that the general approach of Clause 83 is correct in respect of formal disciplinary procedure, but it is open to further consideration by the House as to whether "advice" offered under subsection 83(3)(a) should require agreement of the Minister under section 82(2).

385.  The majority of the Committee believe that it is necessary and desirable for some form of suspensory power to exist in relation to senior judges. It is open to further consideration by the House whether the powers contained in the bill as introduced strike the correct balance between protecting the public and safeguarding judicial independence.

Summary of changes made or recommended by the Committee to Part 3 of the bill

386.  It will be helpful to pull together the changes we have made to Part 3 of the bill, largely as a result of amendments proposed by the Government.

SUMMARY OF AMENDMENTS TO THE BILL AS INTRODUCED

387.  First, we made clearer that the chairman holds an office distinct from the other 14 Commissioners (para.299). Secondly, the bill is amended to permit the Minister, with the agreement of the Lord Chief Justice, to increase the number of Commissioners (para.301). Thirdly, we have made an amendment to ensure that every selection panel of the Judicial Appointments Commission shall include a judicial member and a lay member (para.316). Fourthly, we removed the power of the Minister to define "merit"; the bill as amended makes this a matter for the Judicial Appointments Commission (para.332). Fifthly, the guidance to be issued by the Minister to the Judicial Appointments Commission is made subject to consultation with the Lord Chief Justice and the guidance is to be made by regulations under affirmative resolution procedure (para.335). Sixthly, the bill has been amended to include expressly as one of the matters on which the Minister may issue guidance to the Judicial Appointments Commission the "encouragement of diversity in the range of persons available for selection" (para.346). Seventhly, amendments have been made to restrict the discretion of the Minister to reject a selection so that this may be done only if he considers that the candidate is unsuitable, and for the Minister to order a reconsideration of a selection only if he considers that the selected candidate is not the best suited to the post (para.355). Eighthly, the bill now provides that the Minister should consult the Lord Chief Justice before withdrawing a request to the Commission to make a selection (para.359).

FURTHER AMENDMENT PROPOSED BY THE GOVERNMENT

388.  The Lord Chancellor indicated to us his intention to bring forward amendments at a later stage to extend the duty of confidentiality relating to the judicial appointments process beyond the Commissioners and its staff (para. 373).