Issues relating to disqualification of judges from Parliament and a parliamentary Committee on judiciary-related matters

389.  The Committee considered two issues in relation to the removal of judges from Parliament.

-  Should senior judges who hold peerages be disqualified from sitting and voting in the House of Lords? If so, how should that disqualification be effected? (Clause 94)

-  Should a parliamentary committee with responsibility of oversight of judiciary-related matters be established?

We consider these issues below.

Should senior judges who hold peerages be disqualified from sitting and voting in the House of Lords? If so, how should that disqualification be effected? (Clause 94)

390.  Clause 94(2) of the bill disqualifies from sitting and voting in the House of Lords:

1. ·  judges of the Supreme Court;
2. ·  members of the supplementary panel of the Supreme Court (i.e., retired judges of the Supreme Court and some other retired senior judges);[40]
3. ·  other serving judges who hold peerages.[41]

391.  In future, serving judges will not be granted peerages. Judges who hold peerages at the time when Clause 94 is brought into force will remain in receipt of a writ of summons but will be barred from taking part in the legislative and scrutiny work of the House.

392.  The senior judges who hold peerages are able to take a formal part in the non-judicial business of the House of Lords in a number ways. First, they may contribute to debates and other proceedings in the Chamber, though in doing so they are constrained by the conventions set down in the 22 June 2000 statement made by Lord Bingham of Cornhill. Since then, of the currently serving Lords of Appeal in Ordinary, 8 have not spoken in debate and 2 others have spoken only once (both in respect of the current reforms). The two remaining Lords of Appeal in Ordinary have spoken on 5 occasions (Lord Hope of Craighead) and 11 occasions (Lord Scott of Foscote). A table is to be found at Appendix 8.

393.  Serving Law Lords are also, by tradition, appointed as chairmen of Sub­Committee E of the European Union Committee. Serving or retired Law Lords chair the Joint Committee on Consolidation Bills and the Ecclesiastical Committee. The Committee for Privileges is made up of 15 peers, including four serving Law Lords.

394.  Removing serving judges from the House is, as previously discussed in Chapter 3, conceptually distinct from the creation of a Supreme Court. The Committee heard various views about the future of senior judges in the House, including support for the:

1. ·  separation of roles of judges and legislators, as provided for in the bill
2. ·  removal of their right to vote but otherwise retaining senior serving judges as members of the House
3. ·  retention of the current arrangements, whereby all members of the United Kingdom's highest court and some other senior judges (notably the Lord Chief Justice of England and Wales, the Lord President and the Lord Chief Justice of Northern Ireland) receive peerages and are able to speak and vote in the House. Their participation in the non-judicial work of the House would continue to be guided by the 22 June 2000 statement.

395.  In their response to the Department of Constitutional Affairs consultation in July 2003, the then serving Law Lords expressed differing views (p 116). Some considered that the President of the Supreme Court, the Lord Chief Justice of England and Wales, the Lord President of the Court of Session and the Lord Chief Justice of Northern Ireland should be appointed members of the House[42]. Others considered that "complete effect should be given to the separation of judicial and legislative activity"[43].

396.  The responses to the Department of Constitutional Affairs Consultation paper showed a mix of views. In response to the question "Should the bar on sitting and voting in the House of Lords be extended to all holders of high judicial office?" 78% of respondents were in favour of a bar and 22% were not. Respondents who argued for a bar were split between wanting a complete bar (e.g. JUSTICE and the Faculty of Advocates) and allowing some members of the higher judiciary to remain in the House (as proposed by Lords Nicholls of Birkenhead, Hope of Craighead, Hutton, Hobhouse of Woodburgh, Millett, Scott of Foscote, Rodger of Earlsferry and Walker of Gestingthorpe). This was the position of the Judges' Council in their response to the consultation paper: "...the bar should not extend to the Lord Chief Justice of England and Wales, the President of the Supreme Court, the Lord President of the Court of Session or the Lord Chief Justice of Northern Ireland." Those who objected to a bar included Lord Cullen of Whitekirk and the Senators of the College of Justice but they did suggest that a convention that peers who hold high judicial office would not vote might be appropriate (CP(R) 11/03 pp 19-20).

THE CASE FOR CHANGE

397.  The Government's case for removing the right to sit and vote from the Lords of Appeal 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[44] and in speeches in Parliament.[45]

398.  The Government consider it a matter of principle that senior serving judges should not be in the legislature—they are there to rule on laws not to make them (p 1). Removing the right of Supreme Court judges to sit and vote is part of the movement towards a greater separation of powers which is the principle behind the Constitutional Reform Bill and embodied in the establishment of the Supreme Court.

399.  While the replacement of the Appellate Committee by a Supreme Court would help simplify the constitutional situation, confusion could still remain if the Supreme Court judges were members of the House. None of our witnesses were aware of any study on public perception of the position of the Law Lords but the point was illustrated by anecdotal evidence from Lord Bingham: "I was being driven home last night and my driver said 'Have you made some good laws today?' and I said 'I do not really make laws, I am a judge'. Long silence: 'Have you ever sat in a court?' he said" (Q 405). Several witnesses agreed with the Government that "appearances do matter" and therefore "the time has come to take the Law Lords out of the legislature." (e.g. Professor Robert Stevens Q 155).

400.  Although the House would be losing the expertise of the serving Law Lords upon their appointment as Justices of the Supreme Court, the House would not be deprived of judicial or legal expertise because of the presence of retired Supreme Court judges and other senior judges who are likely to be given life peerages, and of other distinguished lawyers in the House. We noted the Government's response to the Constitutional Affairs Committee's February 2004 report, in which the Government agreed with the Committee's recommendations that all Justices of the Supreme Court should be appointed to the House of Lords upon retirement (Cm 6150, para.22).

THE CASE AGAINST CHANGE

401.  Many of the arguments relating to public perception and separation of powers advanced in favour of retaining the judicial function of the House of Lords and considered at length in Chapter 3 can also be advanced in support of continued membership of the House of Lords for Supreme Court judges and other senior judges. We do not repeat these here.

402.  Critics of the proposals say that the Law Lords' membership of the House is beneficial to the House and vice versa. Lord Mackay of Clashfern told us he thought "the House would be all the better for some contributions" from the Law Lords (Q 258). Lord Hope of Craighead agreed pointing to Sub-Committee E of the European Union Committee as an example where the experience of Law Lords in the chair has been very helpful (Q 647). He suggested that the work involved in chairing committees was too much for a retired Law Lord to take on. His own experience was that chairing Sub-Committee E took eight or nine hours a week: "I would have reservations about a retired Law Lord taking the job on at the age of 75. I really do not think that is a sensible solution. If one is contemplating the absence of Lords of Appeal in Ordinary, one would really have to find other peers who were lawyers who were active enough and willing enough to give up eight or nine hours a week of time to spend on this work" (Q 649).

403.  Lord Nicholls of Birkenhead told us that membership of the House was also beneficial to the Law Lords: "…the law courts are judge­centred and when I came here I found that there was a broader and much more helpful perspective by being in a place which is not just judge­centred but has other activities of a legislative character and so forth that one could participate in and it gave one a broader perspective, and I think myself that the Law Lords benefit from this real advantage" (Q 390). Lord Hope of Craighead agreed, saying membership of the House gave them a forum to represent concerns to Ministers and although this could be done through correspondence or other means the alternatives would probably not be as effective (Q 652).

404.  It may also be said that the heads of the judiciary in England and Wales (the Lord Chief Justice of England and Wales), Scotland (the Lord President) and Northern Ireland (the Lord Chief Justice of Northern Ireland) will be better placed to represent the views of the judiciary to Parliament, the Government and the public if they are members of the House of Lords and entitled to take part in the proceedings of the House.

METHOD OF EXCLUSION

405.  The means of excluding the judges already holding peerages has also been called into question. We received evidence from the Clerk of the Parliaments drawing attention to the fact that Clause 94(3) "provides that a writ of summons will still be issued to a peer who is for the time being disqualified by reason of holding a judicial office". Other categories of peers who are disqualified from attending the House (e.g. bankrupts) do not receive a writ of summons. He suggests that there are two reasons why the provisions of Clause 94(3) might not the best way to disqualify senior judges from participation in parliament: "(a) It might be thought discourteous to the Queen to require her to issue a command, couched in peremptory terms, which is nugatory. It is also potentially confusing to recipients. (b) If the purpose of disqualification is to separate the judiciary from the legislature then this provision appears to weaken that separation. If, on the other hand, it is not thought necessary to make the separation complete, then it is arguable that disqualification is unnecessary and that it would be sufficient to expect peers who are judges to take leave of absence" (p 336).

406.  The Government suggested that Clause 94(3) was drafted in this way "to distinguish between [judges] and others who are disqualified from sitting—namely bankrupts" (p 336).

OPINION OF THE COMMITTEE

407.  There was a clear division of opinion within the Committee between those who agreed that senior judges who hold peerages should be disqualified from sitting and voting in the House and those who did not. Accordingly, we make no recommendation to the House.

Should a parliamentary committee with responsibility for oversight of judiciary related matters be established?

408.  If the bill is enacted three channels of communication between the judiciary and Parliament will be abolished; namely the Lord Chancellor, the Lords of Appeal in Ordinary and other senior judiciary who have seats in the House. There would be "no direct channel between the Judiciary and Parliament" (General Council of the Bar; p 162). It has been suggested that it may therefore be appropriate to establish a parliamentary committee with responsibility for the oversight of judiciary related matters through which the judiciary could communicate with Parliament and through which the Lord Chief Justice could have a voice to Parliament.

409.  The Lord Chancellor supports some "identifiable channel to Parliament" through which the representative voice of the professional judiciary could be expressed: "I think it is for Parliament to decide what they think the best structure to allow that voice to be expressed is. It could be a Select Committee, it could be a Joint Committee, it might be other ways, and I am quite sure it is some structure like that rather than sitting as a normal legislator" (Q 4).

410.  The Lord Chief Justice told us that he valued being able to speak directly to the House but if he were unable to do that a committee would be a way to foster communication between the judiciary and Parliament (QQ 507-509).

411.  The General Council of the Bar and JUSTICE suggested such a committee would help protect the judiciary: "A Parliamentary Joint Committee on the Judiciary should be established along the lines of the very successful Committee on Human Rights. Its duty should be to consider and report upon the independence, impartiality, dignity, accessibility and effectiveness of the courts. It should receive appropriate reports, annual and otherwise, from the Minister and the Lord Chief Justice. This would involve both houses of the legislature in the preservation of judicial independence, and give the judiciary access to Parliament to raise any issues of concern" (JUSTICE p 93).

412.  Dr Kate Malleson, Professor Robert Hazell and Professor Robert Stevens suggested that senior judicial appointments should be subject to scrutiny by Parliament and that the best forum through which to do this would be a joint committee of both Houses. They proposed that very senior judicial appointees—proposed justices of the new Supreme Court and the four heads of division—should be invited to a scrutiny hearing by such a committee upon their appointment. Professor Hazell was clear that he did not intend such an introduction to be "a confirmation hearing of the kind that takes place in the United States because in our parliamentary system such a committee would have no power of veto… The main purpose of the hearing would be to introduce the new appointee to Parliament and to give the committee the opportunity to develop a dialogue with the most senior judges on constitutional, legal and judicial policy" (Q 152).

413.  The Government consultation paper considered confirmation hearings being held by Parliament but rejected the idea: "The Government sees difficulty in such a procedure. MPs and lay peers would not necessarily be competent to assess the appointees' legal or judicial skills. If the intention was to assess their more general approach to issues of public importance, this would be inconsistent with the move to take the Supreme Court out of the potential political arena" (CP 11/03, para.45).

414.  The House of Commons Constitutional Affairs Committee also considered this suggestion in their recent report. While they rejected the principle of a formalised introduction hearing they noted:

"That does not preclude a parliamentary committee from seeking formal opportunities to meet justices of the Supreme Court, including recently appointed ones… While we had no convincing evidence to indicate that confirmation hearings would improve the process of appointing senior judges, we recognise the potential benefits to public understanding of the role of the new Supreme Court if a practice were to be adopted of inviting judges, including recently appointed ones, to appear before an appropriate committee from time to time." (HC 48-I, para.85 and 87)

415.  Some of our witnesses, though not opposed to such a committee, sought to make it clear that they did not see such a structure as compensating for the potential loss of contact between the judiciary and Parliament that would come about if senior judges were not allowed to sit and vote in the House of Lords. Lord Nicholls of Birkenhead said: "The point that I have been seeking to make is not one that relates to structured discussions; it is perspective" (Q 397). Lord Hope of Craighead suggested that while there are many ways for the senior the judiciary to make Ministers aware of their concerns the best was meeting them face to face for a discussion, something easy to do as members of the House. "I could write, and sometimes have written, to ministers pointing out points of concern… but it is more helpful to do it in discussion, and it is easier if the minister knows the face of the person who is writing to him or her and can take it up directly" (Q 651).

416.  Sir Brian Kerr, Lord Chief Justice of Northern Ireland, told us that a joint committee of both Houses of Parliament inviting representations from the Lord Chief Justice "Would be one way of ensuring that the Lord Chief Justice of Northern Ireland could represent the views of his jurisdiction to Parliament" (Q 1026). However he went on to say "I have some slight reservations about the efficacy of that. It seems to me that it is perhaps a rather elaborate mechanism for receiving views that, for instance, the Lord Chief Justice may wish to communicate regularly or on an ad hoc basis" (Q 1026).

417.  Lord Alexander of Weedon's Working Party wrote, "Such a Committee's role would need to be carefully circumscribed. It would be wrong for it to impinge upon the independence of the judiciary by considering the conduct of individual judges or by holding judges to account for their judgements. It would also be inappropriate for the Committee to examine the merits of individual appointments or of complaints against judges. Equally, judges would need to be cautious in expressing views on legislation which they might have to consider in their judicial capacity. These limitations need to be set out clearly in the standing orders and terms of reference for the Committee. We consider that such a Committee would have a valuable function even if, as we recommend, the office of Lord Chancellor is retained" (p 473).

418.  There are two basic ways in which such a committee could operate: as a parliamentary committee, or as a statutory committee of members of the two Houses established in the bill. Establishing a parliamentary committee would be a matter for Parliament itself. The two Houses would decide whether it was desirable and would determine the form it would take (i.e. a committee of one House or a joint committee), its terms of reference and its membership. There are several examples of statutory committees, peopled by members of the two Houses, supported by staff in parliament and operating procedurally like select committees but with statutory functions. These include the Ecclesiastical Committee (established by the Church of England Assembly (Powers) Act 1919)—a joint committee—and the Speaker's Committee on the Electoral Commission (established by the Political Parties, Elections and Referendums Act 2000), a committee of MPs only.

419.  The advantages of a statutory committee is that its existence is protected by statute whereas a parliamentary committee has to be re-appointed by Parliament each Session and at each re-appointment its terms of reference, and very existence could be called into question. The powers of a statutory committee on the other hand can be enshrined in the Act. The disadvantage of a statutory committee is that its terms of reference and powers may be less flexible and therefore the development of its role is likely to be less fluid.

OPINION OF THE COMMITTEE

420.  The Committee agrees that it is desirable for a committee of Parliament to act as a bridge between Parliament and the judiciary, particularly in the event of the senior judges being excluded from the House. Such a committee should not seek to hold individual judges to account. The advantages of a statutory committee were not obvious to the Committee and a clear majority preferred the joint committee option. We recognise that Parliament itself will wish to consider this issue further.

41   These include, as of 24 June 2004: Lord Cullen of Whitekirk (President of the Court of Session-head of the Scottish judiciary); Lord Hardie (a judge of the Court of Session and the High Court of Justiciary); Lord Mackay of Drumadoon (who received his peerage in 1995 while serving as Lord Advocate and is now a judge of the Court of Session and the High Court of Justiciary); Lord Phillips of Worth Matravers (the Master of the Rolls); and Lord Woolf (the Lord Chief Justice of England and Wales). Sir Brian Kerr, who was appointed Lord Chief Justice of Northern Ireland in January 2004, does not hold a peerage. Back

42   Lords Nicholls of Bikenhead, Hope of Craighead, Hutton, Hobhouse of Woodburgh, Millett, Scott of Foscote, Rodger of Earlsferry and Walker of Gestingthorpe. Back

43   Lords Bingham of Cornhill, Steyn, Hoffmann and Saville of Newdigate. Back

44   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

45   See, especially: 26 January 2004, cols 12-30 (Judiciary-related functions of the office of 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