Constitutional Reform: A New Way of Appointing Judges
This paper is
the response to the Consultation Paper from City of Westminster & Holborn
Law Society ("the Society") representing 1,100 solicitors in
In general terms the Society approves of the proposals contained in the Consultation Paper, both to satisfy the requirements of the Human Rights Act 1998, and also to ensure the independence of the Judiciary and the avoidance of any political interference in the appointment of Judges. The Society agrees that the fundamental requirement is to ensure that judicial appointments are made entirely on merit, and that the best people for the job are appointed as Judges. The Consultation Paper comments on the need for diversity but in the opinion of the Society this should be achieved by ensuring access to opportunities for qualification and relevant experience at an earlier stage.
It is noted that the appointment of all Judges, other than those of lesser rank, or part time, and also magistrates, are made by The Queen on the recommendation of the Prime Minister or the Lord Chancellor. The Society agrees that these appointments should continue to be made by The Queen, provided that any political interference can be avoided, with a view to reinforcing the power and independence of the Judges.
Do you prefer:
i. An appointing
ii. A recommending commission? or
iii. A hybrid commission?
What are your reasons?
The Society prefers an appointing commission. We believe it must be a cardinal feature of the proposed reforms that the judicial power is wholly separated and perceived to be separated from the executive power. This constitutional change must include a change in the way the Queen is advised on judicial appointments. If it should be feared that this risks placing Her Majesty in a situation of receiving conflicting advice, then the legislation should prohibit ministers from tendering advice to her on this topic. The only formal advice must come from the Commission.
If you favour a Recommending Commission, what degree of discretion do you think should be exercised by the Secretary of State or Prime Minister?
What are your reasons?
If you favour a Hybrid Commission, which appointments do you think should be made by the Commission and which should it recommend? How much discretion should the Secretary of State or Prime Minister have in relation to recommended appointments?
What are your reasons?
Do you have a view as to any special arrangements that will need to be made by the Commission in dealing with senior appointments from among the existing judiciary?
The Society does not consider that any special arrangements are required for dealing with Senior Appointments from among the existing judiciary. The Commission itself should appoint, or recommend to The Queen the appointment or promotion of, all Judges, and should not be required to consult the Secretary of State. The Society considers that the Secretary of State must not have any input into their appointment or promotion.
Do you agree that the Commission should not be involved in authorisations to allow judges who have retired before their compulsory retirement age to then sit part-time as deputies until they reach the compulsory age of retirement?
The Society considers that authority to allow retired Judges to sit part time as Deputies before their compulsory retirement age should be a decision for the Lord Chief Justice and not for the Commission. An informal process is all that is required and the Lord Chief Justice will have greater knowledge of the ability of retired Judges.
What arrangements should be made for the appointment of magistrates? In particular (a) should there be a continuing role for local Advisory Committees? and (b) what role should there be for the Judicial Appointments Commission?
The Society considers that local Advisory Committees should continue to be involved, in view of their local knowledge. The Society considers that the Commission should be responsible for the appointment of lay magistrates and that the Secretary of State should no longer be involved. It is noted that the Government wishes to see a "more representative magistracy", to reflect the community, but once again the fundamental requirement should be that the best people are appointed to the role.
Do you agree that the appointment of coroners should be brought into line with that of other judicial office holders?
The Society agrees that the Commission should be responsible for the appointment of coroners.
Do you agree that tribunal appointments should be the responsibility of the Judicial Appointments Commission, under the arrangements discussed in paragraphs 68-69?
The Society agrees that all Tribunal appointments should be the responsibility of the Commission, including those currently made by the Lord Chancellor and other Ministers.
Do you agree that the Commission should not be involved in the allocation of responsibilities, as described above?
The Society agrees that the Commission should not be involved in administrative arrangements and responsibilities. These should be the responsibility of the Lord Chief Justice, but not the Secretary of State.
Included amongst the responsibilities of the Lord Chief Justice should be the allocation of cases to particular Judges. Any possibility of political interference must be avoided.
Do you agree that there should be a separate body with a reviewing and complaints function once the Judicial Appointments Commission has been established?
The Society considers that the Commission should not be responsible for overseeing complaints about the appointments process, and therefore agrees that there should be a separate body with an Ombudsman role.
What formal status should the Commission have? Should it be:
i. a Non-Departmental Public Body?
ii. a Non Departmental Public Body supported by an agency?
iii. a non-Ministerial Department? or
iv. should it have some other status? If so what?
The Society considers that the Commission should be a non-departmental public body, in order to secure that it is wholly independent of government.
Do you agree that the Commission should take on those functions which relate directly to the appointments process (paragraph 88) and that the Government should retain responsibility for policy relating to appointments (paragraphs 90-92)? If not, please provide views on which responsibilities should, and which should not, pass to the Commission and why.
The Society agrees that the Commission should be responsible for improvements to the appointments process, dealing with the mechanics of appointments, and producing information on appointments. The criteria for appointment as set out in Paragraph 7 of the Consultation Paper should be established by statute, as a result of which any variations would require parliamentary approval.
As regards the numbers of Judges and Tribunal members, the Society considers that the Commission should recommend the numbers which it considers appropriate for the judicial system to flourish, and that it should also advise as to judicial recruitment, numbers, functions and pay. However the Society appreciates that the Government might have to remain responsible for fixing the budget of the judicial system, after considering the proposals from the Commission.
Do you agree that the Commission should be tasked with establishing how best to encourage a career path for some members of the judiciary?
The Society does not consider that, as in other countries, there should be a specific career path for certain members of the judiciary, and therefore does not agree that the Commission should encourage a career path.
What other steps could be taken by the Commission to encourage diversity?
The fundamental requirement is to ensure that the best Judges are appointed. The Commission should be required regularly to consider whether the best Judges are being appointed, and if not, then the Commission should consider and propose alternatives to ensure that the best Judges are appointed, including encouraging applications from suitably qualified candidates. It is understood that the proposals are designed to widen the backgrounds of those appointed to the judiciary, and, to further this end, steps should be taken at a far earlier stage in general education to ensure that suitably qualified candidates from all backgrounds are available for selection.
Should either (i) the Judicial Appointments Commission, or (ii) a body overseeing the work of the Commission, have a role in advising the Secretary of State for Constitutional Affairs or the Lord Chief Justice on complaints and disciplinary matters?
The Society does not consider that the new Commission should be responsible for dealing with complaints and disciplinary matters. These should be dealt with by the proposed Ombudsman who will consult with and advise the Lord Chief Justice on complaints and disciplinary matters. Suggestion should be given to an appeals process.
Should the Commission have a role in an internal grievance procedure? If so, what should that role be?
The Commission should be responsible for establishing an internal grievance procedure.
Should the responsibility of the Secretary of State for protecting judicial independence be enshrined in statute?
The Society agrees that statute should require that the Secretary of State is required to protect judicial independence. It is considered that a senior member of the Government needs to be required to have the role, knowledge and ability of defending the judiciary in government and elsewhere.
Who should be responsible for appointing Commission members?
The Society agrees that there should be a separate body responsible for appointing members to the Judicial Appointments Commission. It is critical that there should be no political interference in appointment of members of that Commission. Appointments should be made for periods of three or five years. The Society considers that the appointing body should be chaired by the Lord Chief Justice, and that the other members should consist of a solicitor appointed by the Law Society, a barrister appointed by the Bar Council, a senior civil servant in the Department for Constitutional Affairs and an Independent Assessor. Recommendations should be made direct to The Queen and not via the Prime Minister.
Should the Commission include judicial members, legally-qualified members and lay members as proposed?
If so, how should the balance between the membership groups be struck?
If not, how should the Commission be constituted?
The Society agrees that the Commission should comprise five Judges, five other legally qualified members and five lay members.
Who should chair the Commission?
A lay member could chair the Commission.
Should all Commission members be appointed following open competition?
If not, should some members be nominated?
If you think some members should be nominated, which bodies should be invited to provide nominations?
Should these bodies be given a statutory right to have a member on the Commission?
If not, should they be consulted by the separate recommending body to put forward candidates to apply for the selection process, under open competition?
The Society considers that all members of the Commission should be appointed by the new appointing body referred to in Question 18. Open procedures for applications for appointment to the Commission should be established. No other bodies should have the right to nominate members to the Commission.
Do you have any views on the working arrangements for Commission members?
The Society has no strong ideas regarding the working arrangements for Commission members. It is happy to accept the proposal that all the Members of the Commission would be part time.