Lord Chancellor

ABOLITION OF THE OFFICE OF LORD CHANCELLOR (CLAUSE 12)

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

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

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

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

LEGAL QUALIFICATION OF THE MINISTER

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

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

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

LORDS V. COMMONS

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

RULE OF LAW (CLAUSE 1)

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

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

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

JUDICIAL INDEPENDENCE (CLAUSE 1)

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

CONCORDAT

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

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

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

EXTENSION OF CLAUSE 1 TO SCOTLAND

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

SPEAKERSHIP OF THE HOUSE OF LORDS (CLAUSE 1)

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

Supreme Court

ESTABLISHMENT OF THE SUPREME COURT (CLAUSE 17)

438.  There was a clear division of opinion within the Committee between those members who agreed that the Appellate Committee of the House of Lords should be replaced by a Supreme Court of the United Kingdom and those members who did not. Accordingly, we make no recommendation to the House.

439.  We are agreed however that, were a Supreme Court to be established, it should be housed in a building befitting its importance but it is not for us to make the choice.

440.  Given the necessarily limited range of financial information provided to the Committee and the lack of figures for costs of accommodating the current occupiers of premises capable of housing the Supreme Court, the Committee agrees that no conclusion can be arrived at by us as to cost and benefit.

A SUPREME COURT BUILDING AND COMMENCEMENT (PART 2 AND CLAUSE 103)

441.  The Committee is divided on the question of whether commencement of Part 2 of the bill should be delayed pending a move to permanent premises and make no recommendation to the House.

TITLES (CLAUSE 17)

442.  The Committee agree, with varying degrees of enthusiasm, that if the bill is enacted the name "Supreme Court of the United Kingdom" and the title "Justice of the Supreme Court" are appropriate. The Supreme Court of England and Wales and the Supreme Court of Judicature of Northern Ireland should be renamed and, where necessary to avoid possible confusion, the short titles of legislation relating to those courts should also be changed.

THE NUMBER OF JUSTICES (CLAUSE 17)

443.  The Committee agrees that the number of Supreme Court judges should be 12. We have amended the bill to allow the Minister by Order in Council (by affirmative resolution of both Houses of Parliament) to increase that number. It should remain a convention that within that number at least two Supreme Court judges should have been Scottish judges. The Committee further agree that the Supreme Court should sit in panels, the size of which may be varied at the Court's discretion according to the importance of the case.

QUALIFICATION FOR OFFICE (CLAUSE 19)

444.  The Committee agrees with the qualifications for appointment to the Supreme Court as provided in Clause 19. The Lord Chancellor has undertaken to consider further the issue of eligibility of judges of the European courts.

THE SELECTION COMMISSION (CLAUSE 20)

445.  We agree that at least one member of the commission to select a Supreme Court judge should be lay and on the basis of an amendment proposed by the Lord Chancellor have inserted a new Schedule on Supreme Court selection which includes such a provision.

446.  Members of the Committee expressed the view that the selection commission should have equal number of judges and lay members, in reflection of the arrangements in the bill for appointing judges to the Court of Appeal of England and Wales. We make no recommendation and leave the matter for further consideration by the House.

SELECTION OF SUPREME COURT JUDGES (CLAUSE 21)

447.  We agree that a commission for the selection of a Supreme Court judge should provide the name of only one candidate for appointment. Accordingly, we have amended the bill on the basis of a new Clause amendment proposed by the Lord Chancellor.

CONSULTATION (CLAUSE 21)

448.  The majority of the Committee took the view that consultation with senior judges and devolved administrations should be undertaken by the selection commission before submitting their choice to the Minister. They saw no need for the Minister to repeat that consultation. However, having heard from the Lord Chancellor that it is the wish of the Scottish Executive that there be Ministerial consultations too, the Committee agreed to amendments moved by the Lord Chancellor to provide for both.

449.  The Committee further agreed, so far as concerns consultation with the devolved administrations, that such consultation should be exclusively with the First Minister in Scotland, the First Minister in Wales and the First Minister and deputy First Minister in Northern Ireland (or the Secretary of State for Northern Ireland until such time as the relevant powers are devolved). This issue remains to be resolved so far as concerns the National Assembly for Wales.

THE ROLE OF THE PRIME MINISTER (CLAUSE 21)

450.  We agree that the role of the Prime Minister in the procedures for appointing a Supreme Court Justice should solely be to act as a conduit between the Minister and The Queen. We see no reason to make any change to the provisions of the bill in this regard.

ACTING JUDGES AND THE SUPPLEMENTARY PANEL (CLAUSES 29 AND 30)

451.  The Committee agrees that acting judges should be drawn from the appellate courts.

452.  The Committee agrees with the other arrangements in the bill for "acting judges" and we understand that, by virtue of sections 5 and 24 of the Interpretation Act 1978, Northern Ireland judges will also be eligible to serve.

453.  The Committee also agrees with the arrangements for the supplementary panel. The Lord Chancellor has undertaken to amend Clause 30 to ensure that the Lords of Appeal within the meaning of section 5(3) of the Appellate Jurisdiction Act 1876 who are currently eligible to assist by sitting on appeals in the House of Lords will also be available to assist the Supreme Court.[46] This will fill a lacuna in the bill as currently drafted.

SUPERIOR COURT OF RECORD (CLAUSE 31)

454.  The Committee sees no need to change the designation of the Supreme Court as a "superior court of record" under Clause 31.

SCOTTISH APPEALS (CLAUSE 31)

455.  The Committee sees no need to change the provisions of the bill in respect of Scottish civil and criminal appeals at Clause 31 (3), which reflect current practice.

DEVOLUTION JURISDICTION (CLAUSE 31)

456.  We agree with the proposals to transfer devolution jurisdiction from the Privy Council to the Supreme Court.

LEAVE TO APPEAL IN SCOTTISH CASES (CLAUSE 31)

457.  The Committee see no reason for changing the leave arrangements for Scottish civil appeals.

RULES (CLAUSES 35 AND 36)

458.  We do not think that the Minister should be able to allow or disallow such Supreme Court Rules as may be submitted to him by the President of the Supreme Court. Instead, we agree that the rules should be made by the Supreme Court in consultation with the Minister who will have no power to amend them. An amendment to that effect will be brought forward by the Lord Chancellor at a later stage of the bill.

459.  We accept that, in the changed circumstances which would be brought about if the bill were enacted, the rules should be contained in statutory instruments subject to annulment, as proposed in Clause 36(4).

FINANCIAL AND ADMINISTRATIVE AUTONOMY (CLAUSES 38 TO 41)

460.  While some members of the Committee agree with those witnesses who saw some advantage in the financial and administrative arrangements provided for in the bill, a majority considered that the Supreme Court should have greater financial and administrative autonomy than currently envisaged under Clauses 38 to 41. The Committee therefore agree that the Supreme Court should be established according to the model of a non-ministerial department. Funding would go direct from the Treasury to the Supreme Court (not into the DCA's budget). The degree of ministerial involvement would be slight, but remains an issue for some members of the Committee. The Lord Chancellor will bring forward amendments at a later stage of the bill.

FEES (CLAUSE 44)

461.  So far as concerns the setting of the Supreme Court's own fees, the Committee broadly agrees with the provisions of Clause 44 as drafted, although one member wished to see them pegged in real terms to the fee structure currently in force.

462.  So far as concerns the Government's intention to recover the civil appeal administrative costs of the Supreme Court from fees charged by the civil courts system as a whole, opinion within the Committee differed. The Committee acknowledges that these arrangements lie outside the scope of the bill and are matters for the Treasury and the rest of the civil court system. Nevertheless, the issue is an important one which we draw to the attention of the House.

THE SEPARATE JURISDICTIONS

463.  The Committee agrees that an amendment which safeguards the separate jurisdictions to be exercised by the Supreme Court in respect of Scottish, Northern Irish, and English and Welsh law is desirable. An amendment to that effect will be brought forward by the Lord Chancellor at a later stage of the bill.

Judicial Appointments and Discipline

APPOINTMENT VS. RECOMMENDATION

464.  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.

AUDIT OF APPOINTMENTS

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

OVERALL COMPOSITION OF THE JUDICIAL APPOINTMENTS COMMISSION

466.  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.

467.  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.

COMPOSITION OF SELECTION PANELS ETC (CLAUSE 49 AND SCHEDULE 10)

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

469.  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.

OMBUDSMAN (CLAUSE 50 AND SCHEDULE 11)

470.  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.

MERIT (CLAUSE 51) AND GUIDANCE (CLAUSE 52)

471.  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).

472.  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.

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

474.  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.

DIVERSITY

475.  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.

MINISTER'S POWER TO REJECT (CLAUSES 57, 63 AND 69)

476.  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 for the post. We have amended the bill accordingly.

477.  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.

WITHDRAWAL OF REQUEST TO SELECT (CLAUSE 72)

478.  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.

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

JUSTICES' CLERKS

480.  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.

DUTY OF CONFIDENTIALITY (CLAUSE 81)

481.  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 of the bill.

DISCIPLINE (CLAUSE 83)

482.  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) ought to require agreement of the Minister under section 82(2).

483.  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.

Judges and Parliament

PARLIAMENTARY DISQUALIFICATION (CLAUSE 94)

484.  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.

A PARLIAMENTARY COMMITTEE

485.  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.