Annexes
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By The Lord Falconer of Thoroton
Secretary of State for Constitutional Affairs and Lord Chancellor
This consultation paper constitutes part of the Government's continuing drive to modernise the constitution and the legal system for the purpose of making it more relevant and effective for today's world. The paper seeks views on the form and responsibilities of a new, independent Judicial Appointments Commission which will take responsibility for the selection of judges in England and Wales. A further paper seeks views on a new Supreme Court. Separately and together they deal with issues of great constitutional importance because they focus on changes to the judiciary's relationship with the Executive and the Legislature.
Judges preside not only over the cases which arise in the criminal and civil justice systems but their decisions affect society in many other areas such as human rights, judicial review, family law, mental health and immigration. They are very often entrusted to chair major inquiries whenever an impartial, independent investigation is required.
In all these areas of work England and Wales are well served by judges of the highest calibre. At all levels of our justice system, we are fortunate to have a strong, independent judiciary respected nationally and internationally. We must ensure independence and quality are maintained and strengthened.
Since the Government came to power in 1997, it has made a number of significant improvements to the judicial appointments system. It has made the system more open, and more efficient.
But that is not enough. In a modern democratic society it is no longer acceptable for judicial appointments to be entirely in the hands of a Government Minister. For example the judiciary is often involved in adjudicating on the lawfulness of actions of the Executive. And so the appointments system must be, and must be seen to be, independent of Government. It must be transparent. It must be accountable. And it must inspire public confidence.
There is a second point. As the existing Commission for Judicial Appointments pointed out in its first annual report, the current judiciary is overwhelmingly white, male, and from a narrow social and educational background. To an extent, this reflects the pool of qualified candidates from which judicial appointments are made: intake to the legal professions has, until recently, been dominated by precisely these social groups.
Of course the fundamental principle in appointing judges is and must remain selection on merit. However the Government is committed to opening up the system of appointments, to attract suitably qualified candidates both from a wider range of social backgrounds and from a wider range of legal practice. To do so, and, to create a system which commands the confidence of professionals and the public, and is seen as affording equal opportunities to all suitably qualified applicants, will require fresh approaches and a major re-engineering of the processes for appointment. Those processes must be resourced with the appropriate professional skills and expertise and underpinned by modern human resource best practice.
Accordingly the Government intends to establish an independent Judicial Appointments Commission to recommend candidates for appointment as judges on a more transparent basis. There is already such an independent commission in place for selecting judges in Scotland and one forms part of the agreed settlement in Northern Ireland. There will now be one for England and Wales.
Once appointed, judges have security of position - judicial independence depends upon it. So the decision to appoint must be the right one, in every case. But one of the Commission's central tasks will also be to look at the appointment procedures to see if new and better ways can help in attracting a wider range of people to the judiciary: more women, more minority members, and lawyers from a wider range of practice. Developing a judiciary more broadly reflective of society at large will not be easy and the introduction of an independent Commission will not be enough in itself to bring about change. It will need a close partnership with the current judiciary and the legal profession, as well as the Government to examine fresh ideas about the nature of judicial careers. The Government does not believe that a career judiciary on the continental model would be appropriate for the common law system of England and Wales but they do believe that new career paths should be looked at to promote other opportunities and diversity in appointments.
Another central theme will be accountability. Those responsible for judicial appointments must be accountable to Parliament without it becoming part of the political process and consideration will need to be given to ensuring that this is achieved.
Furthermore it is important to consider how members of the new Appointments Commission are themselves appointed since the independence from Government of the new Commissioners must be beyond question. These reforms are of very real and lasting importance. They must be implemented in a way which commands the widest possible support.
This paper is intended to promote widespread discussion and debate among the legal profession and the public. I hope that as many people and with as wide a range of views as possible will respond.
Lord Falconer of Thoroton
Secretary of State for Constitutional Affairs and Lord Chancellor
This paper seeks views on an issue of constitutional importance. That is proposals for a new Judicial Appointments Commission for England and Wales, on a statutory basis, to recommend candidates for appointment as judges.
This consultation is aimed at as wide a range of people as possible, and is being conducted in line with the Code of Practice on Written Consultation issued by the Cabinet Office. It falls within the scope of the Code. The Code criteria set out in Annex E have been followed.
An initial analysis of the potential changes to the judicial appointments process discussed in this paper did not indicate any impact on businesses, charities or the voluntary sector. Consequently, no formal Regulatory Impact Assessment is attached to the current consultation document but the position will be reviewed in the light of responses to it.
A full list of consultees can be found at Annex D. Those being consulted include the judiciary, legal professional bodies, other professional bodies, Government departments and public bodies.
Please send your response by 7 November 2003 to:
Kerri Sephton
Department for Constitutional Affairs
Legal and Judicial Services Group
5th Floor
PO Box 38528
30 Millbank
London SW1P 4XB
Tel: 020 7217 4800
Fax: 020 7217 4882
Email: Kerri Sephton
Representative groups are asked to give a summary of the people and organisations they represent when they respond.
The Department may wish to publish responses to this consultation paper in due course. Please ensure your response is marked clearly if you wish your response or name to be kept confidential. Confidential responses will be included in any statistical summary of numbers of comments received and views expressed.
Further copies of this consultation paper can be obtained from Kerri Sephton at the above address or by phoning 020 7217 4800.
Welsh language copies of this consultation paper are available on request.
The consultation paper deals with proposals for a new Judicial Appointments Commission, which would handle applications from those seeking appointment at all levels of the judicial system.
This paper seeks views on what form and role the new Judicial Appointments Commission will take.
The paper starts with an overview of the current judicial appointments process and a description of recent improvements made by the Government to that process, including the role of the current Commission for Judicial Appointments.
The paper includes a detailed description of the three broad models possible for the Commission. These are:
a Commission which would take over the Lord Chancellor's role in directly making appointments up to the level of Circuit Judge [Endnote 1] and in advising The Queen on appointments at that level and above; or
a Commission which would make recommendations to a Minister as to whom he or she should appoint (or recommend that The Queen appoint); or
a Commission which combines the functions above by directly making more junior appointments (for example, part-time judicial and tribunal appointments) and by recommending more senior appointments.
The paper examines additional functions which a new Commission might carry out, and the division of responsibilities between the Commission and the Department for Constitutional Affairs. In particular, views are sought on whether the responsibility of the Secretary of State for Constitutional Affairs for preserving judicial independence should be enshrined in statute.
The paper finishes with a closer look at how the membership of a new Commission might be structured. This includes discussion about whether the Commissioners might be appointed by Ministers, by a separate appointing body, by nominated professional bodies (e.g. the Bar Council or the Law Society) or by some combination of the above.
The paper provides an indication of the Government's preferred model for a Judicial Appointments Commission. In brief, the Government proposes that:
The Commission should be a recommending Commission, putting up a short-list of candidates for appointment to the Secretary of State paragraphs 32, 42-48;
A separate judicial Ombudsman should be established by legislation (broadly fulfilling the role of the existing Commission for Judicial Appointments) paragraphs 74-76;
The Commission should be a fully independent Non-Departmental Public Body, established by legislation paragraphs 77-83;
The Commission should take day-to-day responsibility for issues related directly to appointments, and for the development of the appointments process paragraphs 88-89;
The Department for Constitutional Affairs should retain policy responsibilities for appointments paragraphs 90-92;
The Department for Constitutional Affairs should task the Commission with establishing how best to attract a more diverse range of qualified candidates to apply for judicial posts paragraphs 93-97;
Most Commission members should be appointed following open competition by an appointing panel (made up of the Permanent Secretary, a senior judge, a senior figure, not connected to the legal system and an independent assessor) paragraphs 116, 126-130;
The Commission should have 15 members (five of whom should be judges, five should be lawyers, and five should be non-lawyers) paragraphs 118-121.
More detailed information on the existing appointments process along with comparative information on judicial appointments arrangements in a selection of other jurisdictions, including Scotland and Northern Ireland is at Annex B.
This chapter provides a brief overview of the current appointments process. It also describes recent improvements to the process and explains why we now need to establish an independent Judicial Appointments Commission.
References to the Lord Chancellor in this paper should be read in the context of the Government's wider constitutional reforms. Lord Falconer was appointed as the first Secretary of State for Constitutional Affairs at the head of the new Department for Constitutional Affairs, which replaced the Lord Chancellor's Department on 12 June 2003. Lord Falconer was also appointed to the office of Lord Chancellor (including responsibility for the current judicial appointments system), pending the abolition of the existing office of Lord Chancellor. This chapter therefore describes the judicial appointments process as it currently stands in that context.
Appointments to the offices of Lord of Appeal in Ordinary, the Heads of Division of the Supreme Court and Lord Justice of Appeal are made by The Queen on the recommendation of the Prime Minister as the Sovereign's principal adviser. It has been practice that the Prime Minister seeks advice from the Lord Chancellor in the first instance.
Appointment to the offices of High Court Judge, Circuit Judge, Recorder, District Judge (Magistrates' Courts), Social Security Commissioners, the Judge Advocate General and the Judge Advocate of Her Majesty's Fleet are made by The Queen on the recommendation of the Lord Chancellor.
The Lord Chancellor bears personal responsibility for making a wide range of full-time and part-time appointments to the judiciary, including to the offices of District Judge (Civil) and Deputy District Judge, and to a wide range of tribunals.
The administration of the judicial appointments system is carried out on the Lord Chancellor's behalf by staff of the Legal and Judicial Services Group in the Department for Constitutional Affairs. A principal function of the Group is to supply all the information and advice which the Lord Chancellor requires to enable him to fulfil his responsibilities in this field, and to provide him with the material on which to make a fair and informed judgement about every appointment. This includes corresponding with, informing and interviewing those who are, or may become, candidates for appointment; consulting judges, members of the profession and others as required; recording and filing the results; administering the selection procedures; following and executing the Lord Chancellor's instructions and guidance, both on individual appointments and candidates; providing feedback as required on individual applications, and on his general policy. There are currently 140 staff working in these areas. In 2001-2002 the Department received 4225 applications for judicial posts and made 915 appointments (not including appointments to the lay magistracy, which totalled 1783). The annual cost of this aspect of the Government's work is £9m [Endnote 2].
The Lord Chancellor may only appoint (or recommend for appointment) to judicial office those who meet the statutory qualifications. Beyond that, the guiding principle which underpins 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.
In summary the criteria for appointment are:
The Lord Chancellor has considered it important that those seeking full-time judicial appointments have relevant experience of sitting part-time, and will not normally appoint someone without such experience. The Lord Chancellor has not, however, regarded advocacy experience in itself as an essential requirement for legal appointments to judicial office.
A detailed description of the appointments process is provided in Annex A. The appointments process works differently for different levels and types of judicial appointment. Briefly, however, there are six parts to the general selection procedure:
The first part is the application process. For appointments up to and including the level of Senior Circuit Judge it is necessary to apply in writing to be considered for appointment. Posts are advertised. Application forms state the criteria for the job and require candidates to assess themselves against the criteria for appointment.
The second part is consultation with those who can provide an assessment of the suitability of the candidate. For some competitions, there are consultees who are consulted as a matter of course. Candidates are informed who these consultees are. Candidates may also nominate other people they would like to be consulted. Consultees must link their comments to the criteria for the post, and must provide specific objective evidence.
The next stage of the process is the sift. The sift is carried out by a panel including a judge from the relevant jurisdiction, a senior official from the Department for Constitutional Affairs, and an independent non-lawyer. The panel consider the candidates application and self-assessment, and the written evidence of consultees.
The fourth stage is the interview. A shortlist of candidates for interview is put together by the sift panel. The interview panel will either be the same as the sift panel or will be similarly constituted. Questions must be related to the criteria for appointment, and the panel's assessment must be linked to the criteria.
The fifth stage is the appointment decision. After the interview the candidate is rated against each of the criteria. Each panel member reaches an independent conclusion and then views are discussed and an overall assessment reached. The Lord Chancellor personally considers all the information available to him on each candidate interviewed, before he makes his final decision. The successful candidate will have best demonstrated they meet the criteria during the whole of the selection process.
The final stage is feedback. Feedback is offered for unsuccessful candidates, on the views expressed about them in the consultation, and, where appropriate, on their performance at interview.
Since 1997 the Government has worked to improve the system of appointments. A key step in this process came in 1999 when the then Lord Chancellor, Lord Irvine of Lairg, asked Sir Leonard Peach, formerly Commissioner for Public Appointments, to scrutinise the appointments process.
Sir Leonard's Report concluded that the procedures were "as good as any" which he had seen in the public sector. But he also made a number of recommendations which the Government has taken forward.
The central recommendation of the Peach Report was that an independent Commission for Judicial Appointments be established to provide oversight of the appointments process.
The Commission was established in March 2001, when Sir Colin Campbell was appointed First Commissioner for Judicial Appointments. In addition to the First Commissioner, there are seven Deputy Commissioners, one of whom also serves as Commissioner for Judicial Appointments in Northern Ireland. None of the Commissioners is a practising lawyer or judge.
The Commission's role is:
to conduct an ongoing audit of the judicial appointments and Silk procedures (Commissioners have the right to observe sifts and interviews and have access to every piece of paper, every assessment and every opinion relating to every appointment);
to consider complaints in individual cases about the application of those procedures;
to receive comments from individuals and organisations about the appointments processes; and
to make recommendations to the Lord Chancellor for improvements to the processes.
The Commission published its first Annual Report in October 2002. The report found that the requirement to make judicial appointments entirely on merit was unquestioned and that the system's record of ensuring the appointment of well-qualified people of impeccable probity was very good. The Commissioners also identified areas of the system that could be improved. They noted, for example, that the quality of responses from consultees was variable, that there was not a clear audit trail for all decisions, and that there was undue delay in the appointments process. The Government recognised these concerns and has instituted a programme of work to address them.
It should be stressed that nothing in this paper is intended as a criticism of the existing Commission for Judicial Appointments, which has had a successful first two years. The work of scrutinising the appointments process, and considering complaints about it, is valuable in its own right, and the Commission has already demonstrated its worth in this area. Consideration is given in Chapter 2 to what should happen to the work of the existing Commission when the new Judicial Appointments Commission is established.
Other reforms to the appointments process since 1997 have been designed to make the system more open, more accessible and more effective. In terms of openness, key steps have been opening up the system of appointments to the High Court Bench which had been by invitation only, through allowing all qualified candidates to apply; publicising criteria and appointments procedures at events and conferences, on the Department's web site and on video; and introducing a judicial appointments annual report to provide an overview of the appointments process, to describe reforms introduced over the year, and to give figures on the appointments made. To make the process more accessible, the Government has removed lower age limits for most appointments and upper age limits for those applying for professional judicial offices [Endnote 4]. To make the system more effective, the Government has: involved judicial and lay members in the sift stage as well as the interviews themselves, and piloted an Assessment Centre for the appointment of Deputy District Judges in England and Wales.
Despite this programme of improvements to the current system of appointments, many of the most fundamental features of the system, including the role of the Lord Chancellor, remain rooted in the past. Incremental changes to the system can only achieve limited results, because the fundamental problem with the current system is that a Government minister, the Lord Chancellor, has sole responsibility for the appointments process and for making or recommending those appointments. However well this has worked in practice, this system no longer commands public confidence, and is increasingly hard to reconcile with the demands of the Human Rights Act.
In the same way, the central role he has played in the selection of judges has taken up much of the time of successive Lord Chancellors. This has inevitably diverted their attention from the core business of administering the justice system, and in particular running the courts.
The time has now come for a radical change to the judicial appointments system to enable it to meet the needs and expectations of the public in the 21st century. Any system which is introduced must, in addition to ensuring quality, also guarantee judicial independence. A Commission will provide a guarantee of judicial independence, will make the system for appointing judges more open and more transparent, and will work to make our judiciary more reflective of the society it serves. A Commission will also free the Department to focus on its core responsibilities. These benefits are considered in more detail in the following paragraphs. But the Secretary of State for Constitutional Affairs will have a continuing responsibility for ensuring judicial independence. He will, both within Government and publicly, be responsible for defending judicial independence from any attack. Consideration should be given to whether the responsibility should be embodied in statute setting up the Commission.
At present, the entire process for the appointment of judges is effectively in the hands of the Lord Chancellor. It is increasingly anomalous for a minister to run the process in this way. While it is not suggested that the power to appoint judges has been abused in modern times, there is undoubtedly a view that this power is a potential source of patronage over the judiciary and the legal profession which has no place in a modern democratic society. The judiciary today is more than ever before involved, through judicial review, in adjudicating on the lawfulness of actions of the Executive. This role has expanded since the coming into force of the Human Rights Act 1998. If the judiciary is to be seen and trusted as independent of the government of the day, it must be appointed by a process which must be seen to be open and independent.
The creation of an independent Judicial Appointments Commission with the appropriate responsibilities and powers will end this breach of the separation of powers, and will bolster judicial independence. But to do so the Commission itself must be truly independent, rather than merely handing the responsibilities which currently reside with the Lord Chancellor to a political appointee or appointees.
In order for the judiciary to continue to command public confidence, it is vital that the process by which judges are selected and appointed must also command confidence. The present judicial appointments system has come under increasing scrutiny and challenge in recent years. Rightly or wrongly, the existing procedures are commonly seen as unaccountable and lacking in transparency. They are perceived by many to be systemically biased. Whether or not the system really is biased, the perception has an impact which is real enough. This perception may damage public confidence in the administration of justice and deters some potential candidates from applying for judicial office.
An independent Judicial Appointments Commission will be able to bring a wide range of experience, professional background and fresh ideas to the process, to help ensure that judicial appointments are underpinned by best practice in recruitment.
This requires the creation of the processes, systems and culture which are needed to ensure that the selection and appointment procedures are fair, equitable and transparent to all, and which help to ensure the widest range of candidates for the modern judiciary.
As the existing Commission for Judicial Appointments pointed out in its first annual report, the current judiciary is overwhelmingly white, male, and from a narrow social and educational background. To an extent, this reflects the pool of qualified candidates from which judicial appointments are made: intake to the legal professions has, until recently, been dominated by precisely these social groups. The Government, however, is committed to opening up the system of appointments, both to attract suitably qualified candidates from a wider range of social backgrounds and from a wider range of legal practice. To do so, and, to create a system which commands the confidence of professionals and the public, and is seen as affording equal opportunities to all suitably qualified applicants, will require fresh approaches and a major re-engineering of the processes for appointment. An independent Judicial Appointments Commission with appropriate powers will be well placed to take this forward.
It should be noted in the context of opening up the appointments process that the fundamental principle in appointing judges is, and must remain, selection on merit. The public must have confidence that judges are independent, impartial and of complete integrity, as well as possessing the intellectual skills and personal qualities of the highest calibre which are required for the discharge of their duties. The present system of making judicial appointments in England and Wales has been successful in ensuring the appointment of judges who have the necessary independence, integrity and ability. There have been no suggestions of the sort of judicial corruption or scandals which have occurred in some other countries. That is a record to be proud of. No changes to the appointments system should risk undermining confidence that the judiciary will continue to uphold that record. The role of the independent Judicial Appointments Commission must be to reinforce the standards of the judiciary.
Working with the Government, the judiciary, and the legal profession, a Commission will play an important role in examining how best to increase the diversity of the judiciary, while maintaining its quality. This paper seeks views on how best that can be done.
Our judiciary enjoy the highest international standing. The Government wants to ensure that the way in which they are selected is as well regarded. It is committed to ensuring that judges and other judicial office holders are selected by a transparent process, independently conducted. It will legislate to make the appointments process the responsibility of an independent Judicial Appointments Commission for England and Wales [Endnote 5], which will provide a public guarantee of that independence and transparency.
The Lord Chancellor made over 900 judicial and tribunal appointments in 2001-2002. Although he formally made or recommended all of these appointments, and all final decisions were subject to his approval, he could not personally undertake the very heavy programme of sifting and interviewing and his degree of involvement necessarily varied considerably, depending on the level of appointment. The routine work of assessing candidates for all but the most senior posts was carried out by panels involving his civil servants, the judiciary, and lay or specialist members who undertook the sifting and interviewing process. About 140 staff of the Department for Constitutional Affairs are currently involved in this work, including the necessary administrative support.
The Commission will be able to look afresh at its tasks and the existing procedures, and to innovate and adapt to make sure that it follows best modern practice - for example, to encourage applications from a more diverse range of qualified candidates, as discussed in the previous chapter. It will need the flexibility to adapt its procedures to meet the needs of its role efficiently and effectively. It will be given a free hand to decide what it will need to do in-house and what might be more effectively carried out by contracting with professional recruitment consultants and Human Resources experts.
However, even with a Commission of, say, 15 members, it will not be possible for every sift or interview to be conducted by one or more of the Commissioners. They will not routinely conduct interviews themselves (although they might well wish to take a direct part in some competitions, to ensure that they were satisfied with the quality of procedures and of decision-making). But all decisions on whom to recommend or to appoint will be sent to them for ratification and approval, and they will be able to send for all the relevant papers to satisfy themselves if necessary. It is likely that, as with the Lord Chancellor, their direct personal involvement will be most focused on the more senior appointments, and in ensuring that other appointments are dealt with appropriately. There will therefore be an important role for the staff of the Commission, as well as for the Commissioners.
One factor which will affect the work of the Commission fundamentally is the precise role it is charged with carrying out in the appointments system. There are three main models on which the Government seeks views:
an Appointing Commission which would itself make those appointments which the Lord Chancellor currently makes personally and directly advise The Queen on appointments above that level without any ministerial involvement; or,
a Recommending Commission which would make recommendations to a minister as to whom he or she should appoint (or recommend that The Queen appoints); or,
a Hybrid Commission in which the Commission would act as an appointing commission in relation to the more junior appointments (for example, part-time judicial and tribunal appointments) and as a recommending commission in relation to more senior appointments.
In this model, after running the appointment process and assessing the candidates, the Commission would itself make the decision whom to appoint, with no involvement by ministers at any stage. It would directly appoint candidates to those posts which the Lord Chancellor has directly made appointments to, and would recommend appointments directly to The Queen for posts above that level. Ministers would not be formally consulted about whom to appoint, although they would of course be informed of the outcome. The Commission would, in other words, take over the full powers of the Lord Chancellor and Prime Minister in this area.
This model bears some resemblance to the systems operated in some continental European countries, as described in Annex B.
Having a Commission which appoints judges without any ministerial involvement would remove any potential for allegations that particular judicial appointments were made according to a minister's direct personal preference or party affiliation, although, depending on the way in which such a Commission were appointed and who sat on it, there might still be room for argument that political or professional influence was involved. The Commission would be required under statute to show the maximum transparency about the processes it employed, and to report on its handling of those processes to Parliament. Its procedures and policies, and any overall trends (but not individual appointments) would be subject to scrutiny by a Departmental Select Committee.
It is however important to note that removing the role of a minister would entail a significant change to our wider constitutional arrangements. In England and Wales, judges hold office under the Crown and are (in the case of the more senior appointments) appointed personally by The Queen. One of the limitations on the power of the Crown, in our constitutional monarchy, is that The Queen acts formally on the advice of Her Ministers, who are accountable to Parliament. As one aspect of this principle, it is constitutional practice that The Sovereign, when making appointments, does so only on the advice of Ministers. This ensures that Ministers and not the Crown personally can be held accountable to Parliament for the appointments process.
The same arguments apply, in a slightly different way, to the greater number of more junior appointments made every year by the Lord Chancellor himself. He does this as a Minister of the Crown and as a member of the Government, which is accountable to Parliament. Appointments made directly by an appointing Commission, with no involvement by anyone else, would not be accountable to Parliament in the same way.
The powers of Parliament to change the normal constitutional arrangements in this respect by legislation are effectively without limit. If it were thought desirable, Parliament could of course decide to pass legislation that would empower a Judicial Appointments Commission either to advise The Queen directly or simply to appoint judges by itself. There are independent regulatory bodies with no ministerial involvement in their work. Such bodies include the Electoral Commission which works within a framework laid down by Parliament.
However, this path has not been followed in Scotland or Northern Ireland when establishing their appointments commissions. Removing all ministerial accountability to Parliament in relation to judicial appointments would be a major innovation and would require very careful consideration.
A Recommending Commission would take responsibility for the application, sifting, interviewing and recommendation stages of the appointments process. It would differ from the Appointing Commission model, however, in that it would pass those recommendations to the Secretary of State for Constitutional Affairs (or the Prime Minister, for the most senior appointments), and the final decision whom to appoint, or recommend to The Queen for appointment, would rest with the Minister.
It would be possible to approach this model in different ways, according to the amount of discretion the Minister had in relation to individual appointments.
If the Minister were to have a very wide discretion, the Commission, having conducted the selection process, would submit to the Minister a list of all those candidates who met the relevant criteria and could properly be appointed, together with supporting information. Candidates might be ranked according to the Commission's assessment of their suitability. The Minister would then be free to decide to appoint anyone from that list, and also free to decide whether to accept any ranking suggested by the Commission. If the Minister found all the names unsatisfactory he would be able to tell the Commission to reconsider its recommendations and submit other names.
If the Minister were to have a more limited discretion, the Commission would put forward the names of those candidates it thought most suitable in a ranked order of preference. This might perhaps be only two or three candidates. There would be an expectation that the Minister would make the first appointment suggested by the Commission, although he would retain the power, if he thought it necessary, to choose another name from the list, or, if necessary, to reject the Commission's proposal and require it to submit different names. This would be something like the procedure which currently applies in relation to the appointment of Diocesan Bishops in the Church of England.
A still more restrictive version of this proposal would be for the Commission to put only one name, of its preferred candidate, to the Minister. He would still retain the option of rejecting the Commission's proposal and requiring it to submit a different name.
It is arguable that if the Minister were to reject the proposals of the Commission in this way, that fact ought to be made public, or reported to Parliament. The drawback of this approach is that it would be likely to damage the credibility of whoever was finally appointed, and it might also be professionally damaging to a practitioner if it became public that their name had been rejected for a judicial appointment. It might be possible, however, for statistics on the number of recommendations, if any, rejected by the Minister to be anonymised and included in the Commission's annual report.
While retaining ministerial involvement and accountability, this model would significantly curtail that involvement by placing the entire appointments process (prior to the appointment itself) in the hands of the Commission. However, the Minister would still remain ultimately accountable to Parliament for the appointments process. This model therefore preserves the constitutional convention that The Queen acts on the advice of Her ministers and also retains formal accountability to Parliament for the appointment of judges, a central function of the State.
As in the other two models, a Commission of this kind would take responsibility for the application, sifting, interviewing and recommendation stages of the appointments process in all cases. In relation to most appointments it would go on to make the appointments itself as if it were an Appointing Commission. In the case of the more senior appointments, however, it would act as a Recommending Commission and advise the Secretary of State or Prime Minister. The degree of discretion the Minister had in relation to appointments might vary as described above.
The point of having a Commission of this kind would be to gain the advantages of having a fully independent appointments process as far as possible in relation to most appointments, while avoiding the constitutional problems which may arise if The Queen is unable to rely on a Minister's advice in relation to those appointments which are formally made by Her, and if the appointments process, at least in relation to senior appointments, is not formally accountable to Parliament through a Minister. Which appointments are regarded as senior in this context would be a matter of some importance. The obvious dividing line would be that those appointments currently made by The Queen should count as senior.
This produces some anomalies, however. In England and Wales civil District Judges, who have permanent judicial appointments, are currently appointed by the Lord Chancellor, while Recorders, who are practising lawyers with only part-time judicial appointments, are appointed by The Queen. The legislation to establish an Appointments Commission will provide an opportunity to consider alterations to these arrangements, if that is thought desirable.
On balance, the Government's view at this stage is that the best combination of independence, accountability and propriety in safeguarding the constitutional position of The Queen and Her relationship with Her ministers is achieved by a Recommending Commission, combined with severely circumscribed ministerial discretion, in which the Commission would generally put forward only one name to the Secretary of State, who could however reject that name and require another to be put forward. Different considerations might apply in relation to the most senior appointments - those to the Court of Appeal and Heads of Division. These senior appointments are considered in paragraphs 54-58, below.
| Question 1: |
Do you prefer: a. An appointing commission? What are your reasons? |
| Question 2: |
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? |
| Question 3: |
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? |
One factor to be taken into account in establishing a Commission is the range and number of appointments to be made. The Commission will be responsible for the full range of appointments currently made by the Lord Chancellor, including not only the small number of high profile senior judicial appointments made each year which attract most attention, but hundreds of other appointments in courts and tribunals. Depending on the outcome of this consultation it may also have some role in the appointment of lay magistrates and coroners.
In England and Wales, some appointments, such as those of Recorder, tribunal members and Deputy District Judge will generally be first appointments, made from a very wide potential pool of applicants with no prior judicial experience. Others, such as District Judge, District Judge (Magistrates' Courts) some more senior Tribunal appointments, and Circuit Judge will generally be made from the more limited pool of those who already have at least some part-time judicial experience. High Court appointments may be made by promoting existing Circuit Judges, or by appointing senior Counsel or solicitors with experience as Recorders or Deputy High Court Judges. Appointments to the Court of Appeal and House of Lords have, in modern times, been made exclusively from among existing members of the senior judiciary.
In some cases, such as considering applicants for High Court appointments, for example, the Commission will probably be faced with candidates with a range of experience, some of whom will have gained extensive experience as Circuit Judges, and others of whom will have sat only part-time as Recorders. Obviously in these cases all candidates will have to go through the same process in order to ensure fairness between them.
In cases where the Commission is considering different candidates all, or almost all, of whom are existing judges, its role is likely to be different from that which it plays in recruiting a new judge from a broad pool of candidates. This distinction will be more marked the smaller the pool of potential appointees is. In considering potential appointments to the Court of Appeal, for example, the views of a Commission might not be as well informed or useful as the detailed and first-hand knowledge of the different candidates which the senior judges are able to bring to bear under the current system.
It may be that the Commission should form different sub-committees to deal with different levels of appointment, and that the most senior appointments - those to the Court of Appeal, and Heads of Division - would be dealt with by a small sub-committee, presided over by the Chair of the Commission.
The Government believes that appointments to the Court of Appeal, and Heads of Division appointments, should certainly stay within the scope of the Commission. Nevertheless, in view of the overall public interest in a balanced and high quality group of judges, the Secretary of State may wish to have a more direct input into their appointment than in relation to more junior appointments. Under the Appointing Commission model, therefore, the Commission might be required to consult the Secretary of State for Constitutional Affairs before making recommendations on these appointments to The Queen. Under the Recommending or Hybrid models, the Secretary of State might wish to consult the senior judiciary personally before reaching a decision, in addition to taking the advice of the Commission.
| Question 4: |
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? |
Some judges who retire before their compulsory retirement age nevertheless agree to sit part-time as deputies until they reach the compulsory age of retirement. This is a purely administrative arrangement, which assists the Court Service by giving it the additional flexibility of being able to call on part-time judges to sit in some cases. These authorisations are currently made by the Lord Chancellor, but it would probably not be necessary, or appropriate, for the Commission to be involved in an attempt to assess whether a judge should continue to sit in these circumstances. The only relevant factors are whether there is an operational need for judges to continue to sit as deputies and whether a particular judge is willing to do so. It is suggested that in the future these arrangements should be authorised by the Lord Chief Justice, and notified by him to the Secretary of State, so that the Court Service is aware of and able to make use of the judges concerned.
| Question 5: |
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? |
A particular issue arises in relation to appointments to the Supreme Court, which the Government intends to create to take over the judicial functions of the House of Lords. The initial appointments will consist of the existing Lords of Appeal in Ordinary. The Supreme Court will be a court of the United Kingdom as a whole, and not only of England and Wales. While it will doubtless continue in practice to have a majority of judges from England and Wales, with a smaller number of Scottish and Northern Irish judges, it would not be appropriate for appointments to that Court to be made or recommended solely by the Judicial Appointments Commission for England and Wales. The arrangements for appointments to the Supreme Court are considered further in the Constitutional Reform: A Supreme Court for the United Kingdom consultation paper.
The current arrangements for the appointment of lay magistrates differ from those for the judiciary. There are about 30,000 lay magistrates, who try more than 95% of criminal cases, as well as having a significant family jurisdiction and some civil jurisdiction. In 2001-2002, 1786 appointments to the lay magistracy in England and Wales were made. The administration of magistrates' courts, which has been conducted locally by Magistrates' Courts Committees will be unified with the administration of the other courts by the Courts Bill currently before Parliament. Magistrates are appointed by the Lord Chancellor [Endnote 6], and the process is currently overseen by his officials, but magistrates have until now been appointed to a particular area, and the nominations are made locally by local Advisory Committees.
There are 104 Advisory Committees in England and Wales (including the Duchy of Lancaster's). Their functions include:
determining the number of magistrates to be recommended each year, taking into consideration the Lord Chancellor's [Endnote 6] requirements on sitting levels, the views of the Magistrates' Courts Committee (MCC), Bench Chairmen and Justices' Clerks;
recruiting and recommending for appointment as magistrates, candidates with the necessary qualities, taking into account the need for Benches to be diverse in terms of age, gender, ethnic origin, disability, occupation, geographical spread and political affiliation;
ensuring that Benches do not include a disproportionate number of magistrates who are members of any one group or organisation.
Each Advisory Committee prepares annual reports for the Lord Chancellor on such matters as he may from time to time determine. Included in these reports are statistics on the make up of the bench in terms of gender, ethnicity etc. Advisory Committees also investigate complaints about magistrates and make recommendations, where appropriate, to the Lord Chancellor on what action should be taken against them.
The Courts Bill will give lay magistrates a jurisdiction covering England and Wales for the first time. However, the Government considers the local input into their appointment to be important. One option for keeping this local input would be to maintain the current role of Advisory Committees, and for the Committees to advise the Secretary of State direct on appointments to be made, without any role for the Commission. Given the expertise that the Commission will develop, however, and its overall responsibility for the appointments process, consideration should be given to the Commission having a role in the process for appointing magistrates.
A second option, therefore, would be for the local nominations of lay magistrates to be forwarded by the local Advisory Committees to the Commission, either for formal appointment by them or for transmission to the Secretary of State, depending on the model of Commission selected. This would have two advantages. It would make the practice in the appointment of magistrates conform more closely to that in other judicial and tribunal appointments, and would emphasise the independence and transparency of the process, which is no less important in relation to the appointment of lay magistrates than of professional judges.
A third option would be for the Commission to take responsibility for magistrates' appointments. This would provide coherence for the appointments process, with all the judiciary in England and Wales being appointed by the same body and the same process. It would also enable the Commission to examine the appointments process for lay magistrates, to identify areas where it can be improved, and to encourage applications from a wider range of suitable candidates, as it will do for other judicial appointments. The Government wants to see a more representative magistracy that can really be seen to reflect the community. Adding responsibility for the 1700 or so magistrates appointments a year would, however, significantly increase the workload of the Commission. If the work was to be managed centrally, local input into the appointments process could also be lost. If the Commission was to take on this sort of role, it would therefore need to be supported by local panels which would undertake most of the day-to-day responsibility of the Commission.
| Question 6: |
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? |
At present coroners are appointed by local authorities, although the Lord Chancellor has the power to remove them from office in certain circumstances. The Luce Report (Death Certification and Investigation in England, Wales and Northern Ireland - The Report of a Fundamental Review 2003, Home Office, June 2003) recommended that when the new national coroner jurisdiction for England and Wales is introduced, all responsibilities for the appointment and discipline of coroners should be brought together in the Department for Constitutional Affairs. The Government's intention is that the appointment of coroners should be assimilated to that of other judicial office holders, and will be one of the responsibilities of the Judicial Appointments Commission, with appointments made either by the Commission itself or by the Secretary of State on the recommendation of the Commission, according to which type of Commission is created.
| Question 7: |
Do you agree that the appointment of coroners should be brought into line with that of other judicial office holders? |
The Government previously announced its intention to form a unified Tribunal Service under what is now the Department for Constitutional Affairs, and to make all tribunal appointments the responsibility of the Lord Chancellor. The Lord Chancellor is already responsible for many tribunal appointments in England and Wales. In some cases, the jurisdiction of those tribunals extends to Great Britain. The Government now proposes that the Lord Chancellor's tribunal appointments responsibilities will pass to the Judicial Appointments Commission, and the Commission will assume the Lord Chancellor's statutory duties in relation to tribunal appointments, including the requirement to consult other bodies before making appointments. For Scottish interests in these appointments and other aspects of tribunals policy, discussions are continuing between the Scottish Executive and the Department for Constitutional Affairs.
Tribunal appointments in England and Wales which are not currently the responsibility of the Lord Chancellor are made by different ministers according to the legislation governing the particular tribunal concerned. The objections to judicial or quasi-judicial appointments made by a Minister other than the Lord Chancellor are at least as strong as, if not stronger than, the arguments against appointments by the Lord Chancellor, who has historically had a hybrid judicial and ministerial role and has often been perceived as playing a less directly political part than other ministers. These appointments should now be brought into line with the arrangements that will apply to tribunal appointments currently made by the Lord Chancellor.
| Question 8: |
Do you agree that tribunal appointments should be the responsibility of the Judicial Appointments Commission, under the arrangements discussed in paragraphs 69-70? |
In addition to his involvement in appointments as such, the Lord Chancellor has also been involved in many decisions to give different judges authorisations to sit in particular jurisdictions. Whether a particular judge is given a particular authorisation will reflect an assessment by the Presiding Judges or relevant Head of Division of their aptitude for a particular type of work, but these are essentially administrative arrangements. It is convenient for some judges to have a degree of specialisation, and receiving a particular authorisation does not constitute a promotion or affect the pay of the judge concerned. In order to emphasise that authorisation to sit in a particular category of case does not constitute a promotion, these arrangements have now largely been devolved to the Heads of Division, and it has also been emphasised that where authorisations are no longer used or not needed they will be withdrawn. It is not proposed to disturb these arrangements or to involve the Commission in these decisions.
The Lord Chancellor assigns Circuit Judges to Circuits on their appointment, assigns High Court Judges to particular Divisions, and appoints certain High Court Judges to sit in specialist jurisdictions such as the Patents, Admiralty or Commercial Courts. He is also able to authorise judges to change Circuits or Divisions. These are administrative arrangements designed to meet the business needs of the courts, and where possible to suit the personal requirements of the judges concerned, and it will not be necessary for the Commission to be involved in decisions of this kind. These will therefore not be a matter for the Commission to be involved in.
Nor will the Commission be involved in decisions to give judges particular administrative or representational roles. For example, different Lords Justices of Appeal currently serve as the Senior Presiding Judge, as the Vice-Presidents of the Civil and Criminal Divisions of the Court of Appeal, as Vice-President of the Queen's Bench Division and as Chairman of the Judicial Studies Board. Around a dozen High Court Judges at any one time are involved as the Presiding Judges of the different Circuits; and many other judges at all levels are asked to fulfil other administrative functions or to represent the judiciary on different bodies.
These administrative responsibilities are designed to enable the judiciary, and particularly the Lord Chief Justice, to discharge their wide range of responsibilities as effectively as possible, or are part of the partnership between the judiciary and the administration which is essential for the work of the justice system to be carried on. Taking on these responsibilities does not constitute promotion to a higher level of the judiciary, and most of these posts are held in rotation by different judges for a limited term. The Commission will not have the knowledge of particular judges to be able to suggest meaningfully which ones should discharge which administrative functions, and these decisions should continue to be made by the Lord Chief Justice and the Secretary of State for Constitutional Affairs, as appropriate, in order to ensure that the practical needs of the Court Service in relation to the deployment of the judiciary are met.
| Question 9: |
Do you agree that the Commission should not be involved in the allocation of responsibilities, as described above? |
One of the main improvements to the existing appointments process has been the creation of a Commission for Judicial Appointments charged with oversight of the appointments process and able to consider complaints from applicants [Endnote 7]. Whichever of the models for a new Commission is considered most appropriate, a decision will be needed about whether there should be a continuing role for a body like the existing Commission in scrutinising appointments.
Having created this function the Government believes it would be a retrograde step to abolish it. One option would be to create two distinct bodies - a new Commission to run the appointments process, and a separate body with an Ombudsman role, along the lines of the current Commission. As under the existing arrangements, an Ombudsman could audit the appointments process, recommend areas for improvements, and consider complaints from candidates about the appointments process. These complaints would include grievances about decisions made by the Commission, the way it has applied its processes, quality of service and so on. Such an arrangement would give the public, Parliament and indeed the Government the assurance that the Appointments Commission was operating effectively, that its procedures were working and that its decisions were fair.
A second option would be not to have a separate reviewing body, and for the Commission to establish formal internal procedures for dealing with complaints. Complaints that are not resolved under these formal procedures could ultimately be referred (by the complainant's MP) to the Parliamentary Ombudsman, for independent review. This option reflects practice in other jurisdictions [Endnote 8] but the Government believes that public confidence in the transparency and independence of the Judicial Appointments Commission would be better served by a separate complaints and review body with an Ombudsman role established in legislation.
| Question 10: |
Do you agree that there should be a separate body with a reviewing and complaints function once the Judicial Appointments Commission has been established? |
In addition to the three types of Commission which might be created, in terms of the work it will perform, there is also a choice to be made in relation to the formal basis on which the Commission is legally constituted. The Government intends that the Commission will be established by legislation, and that it will have legal personality, rather than being a mere emanation of the Department for Constitutional Affairs.
There are three main options, varying in the degree of formal independence from Government that they afford and in the nature of the financial arrangements and accountability that would be put in place.
First, the Commission and its staff might together constitute a Non-Departmental Public Body, with the Commission responsible for recruiting and employing its own staff. (This of course does not preclude it - as many bodies have done in the past - deciding that it wished to have a mix, with at least some staff being civil servants on loan.) The Commission would be independent of Government but would be sponsored by the Department for Constitutional Affairs and would look to the Department for its funding. As a Non-Departmental Public Body the Commission would be subject to the scrutiny of a Parliamentary Select Committee and would be required to submit to Parliament an Annual Report.
The second option is for Commissioners to constitute a Non-Departmental Public Body, but with its staff provided separately by civil servants of the Department for Constitutional Affairs, perhaps working in a distinct executive agency under a chief executive who would also be the Secretary of the Board. Arrangements of this kind can be very effective, and the Commission's accountability to Parliament would be as in the first option above, but there might be concerns that the Commission's independence was in reality or in appearance affected by it not being able to hire any of its own staff, who would all be civil servants.
The third option would be for the Commissioners and their staff together to constitute a non-ministerial department. This would mean it was financially accountable to Parliament, and not dependent on the Department for Constitutional Affairs for its resources, but it would remain a Government department and not formally independent of Government.
In making a decision on the best way forward, the Government will need to take account of the need to establish the Commission on a clearly independent basis, the need to ensure proper accountability to Parliament, the potential costs of duplicating existing personnel and other functions in a new organisation, and the desirability, at least in the first years of the new commission's life, of maintaining some continuity of expertise from the judicial appointments teams in the Department for Constitutional Affairs.
The Government's initial view is that the Commission should be fully independent and should constitute a Non-Departmental Public Body, with its own staff. Arrangements would have to be made in establishing the Commission for a transitional period in which it could benefit from the existing expertise in the Department for Constitutional Affairs.
| Question 11: |
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 current cost of running judicial appointments processes within the Department for Constitutional Affairs is £9m per year. A Commission would be handling the same number of appointments. Costs might rise in the short term from the need to pay Commissioners, and if a Commission was to require its own accommodation, and recruit its own staff, separate from the Department for Constitutional Affairs. Costs might also increase if the Commission were to pursue improvements such as the assessment centre approach to making Deputy District Judge appointments, which has been piloted by the Department. This pilot has been assessed very favourably, but was more expensive than the process currently used for other appointments.
In total it is estimated at this stage that the initial additional cost of establishing a Commission is likely to be around £3m a year more than the existing system. However, a Commission would be tasked with improving the efficiency of the current system, and should therefore be able to produce some savings to offset this, at least in part, in the longer term.
In addition, if it were decided to maintain a separate body with a scrutinising and complaints function, the £0.5m per annum costs of the existing Commission would continue for the future.
In addition to making (or advising The Queen on making) appointments to the judiciary, the Lord Chancellor currently has overall responsibility for various other functions which relate to the judicial appointments system, or to the judiciary more generally. As explained earlier in this paper, the Government intends to abolish the current office of Lord Chancellor. This, along with the creation of the Judicial Appointments Commission, creates an opportunity to consider where it is most appropriate for those functions to lie in future.
Whichever of the three models of Commission outlined in Chapter Two is chosen, the Government believes that the Commission should also take responsibility for:
any improvement to the appointments process itself;
dealing with the mechanics of appointments once they have been approved by The Queen;
taking forward work to encourage applications from lawyers and other professionals from a diverse range of backgrounds; and
producing statistical information on appointments.
These are functions directly relating to the appointments system, so it would seem logical to give the Commission responsibility for them, subject to the overall responsibility of the Secretary of State for ensuring that the appointments system is efficient and effective. This would ensure that the system operates effectively from start to finish, and that day to day responsibility for the process is in the hands of one body. Views are invited on which, if any, of the functions listed above should or should not be placed in the hands of the new Commission.
The judiciary, of course, plays an integral role in the Government's objectives to ensure the effective delivery of justice, and to improve the level of public confidence in the criminal justice system. The criteria for judicial appointment (as set out in Chapter 1) are designed to ensure that those appointed to judicial office are the most suitably qualified and able to perform their role in meeting those objectives. On a more individual level, the criteria form the basis for ensuring that the appointments system provides judges and tribunal members best able to meet the continuously evolving day-to-day challenge of working in the courts and tribunals. The Government is in an ideal position to determine how well the criteria are suited to achieving that end. It is therefore fundamental that the responsibility for defining the criteria for appointment remains a duty of Government.
Decisions on the numbers of judges and tribunal members, and their deployment, are also central to the delivery of justice. The Government must therefore, in consultation with the judiciary, continue to set the number of new judicial appointments, as it is best placed to interpret the demands of new areas of work in the justice system as a whole. In addition, policy relating to judicial recruitment, numbers, functions and pay requires primary or secondary legislation, or financial decisions by a Minister accountable to Parliament.
For these reasons, setting overall policy in relation to judicial appointments should remain a Government responsibility. The Judicial Appointments Commission will nevertheless be in a position to make a valuable contribution on these issues and the Government will therefore seek to establish a formal requirement to consult with the Commission about them.
| Question 12: |
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. |
As is noted in Chapter 1, the judiciary is currently not reflective of the society it serves. The Government believes more can and should be done to enable the judiciary to be more reflective without reducing quality. One step would be to improve the appointments procedures, and question 12 seeks views on the Government's proposal that the Commission take responsibility for developing the appointments process. There are, however, other significant obstacles to increasing diversity in judicial appointments outside the appointment procedures themselves. For example:
One of the main benefits of a Judicial Appointments Commission is that, in widening the range of decision makers, it gives the opportunity for fresh thinking about how to tackle these issues. As stated above, overall policy in relation to appointments policy should remain with the Government. However, the Commission could be tasked by the Department for Constitutional Affairs with examining how improved appointment procedures might encourage applications for judicial office from a wider range of qualified candidates; and to work with the judiciary, the legal profession and the Government to find more diverse and representative judges. For example, the Commission could examine whether the traditional pattern of entry into the judiciary at particular levels, with some, though limited, scope for promotion thereafter, means that opportunities are being missed to identify and develop people who already hold less senior judicial offices.
The Government does not believe that a fully career judiciary on the Continental model would be appropriate for the common law system of England and Wales. However, an identifiable career path which enabled practitioners - whether barristers or solicitors - to apply for a first judicial post after a number of years in practice, with a realistic prospect of progression to higher office through that route as an alternative to remaining in practice and entering the judiciary at the higher level, could open new opportunities and help to promote diversity in appointments. This approach would encourage the development of those who may, for example, have elected to become District Judges or members of tribunals because this fitted in better with their professional or family commitments at the earlier stages of their career.
This sort of approach might also be applied to barristers or solicitors who have left their professions for a career break, or who have only been able to work part-time while their colleagues have been gaining experience. Such candidates might have the potential to make very successful judges, but their lack of experience might count against them under the current arrangements. The Commission could establish how far it is possible to overcome this difficulty. One option which has been suggested and which could be examined would be to reserve a number of places for them at Recorder or District Judge level, but it would be vital that any such scheme did not run contrary to the principle of appointment on merit.
Under each of these approaches, if this pool of talent is not to be wasted, some way will have to be found of ensuring they can acquire the necessary qualifications for appointment to the higher judiciary. Through sitting part-time, therefore, they could gain the necessary experience, and, through the Judicial Studies Board, the necessary training, to apply for appointment to the circuit bench and from there to the High Court. Mentors could be provided to assist their development. The Commission will need to ensure that the appointments procedures for higher office do not discriminate against them.
| Question 13: |
Do you agree that the Commission should be tasked with establishing how best to encourage a career path for some members of the judiciary? |
| Question 14: |
What other steps could be taken by the Commission to encourage diversity? |
Some might argue that, as well as responsibility for the judicial appointments process, the new Commission should be given a 'follow through' role in personnel/human-resources management of the judiciary, as exists in conventional employer-employee relationships. However, the status of a judge, once appointed, is that of an office-holder not of an employee, and the Commission is not in an analogous role to an employer. Above all else, this ensures that judges retain their constitutional independence. It is therefore inaccurate to see the relationship between the judges and the authority that appoints them (be that Government or a Commission) as that of employee and employer. Notwithstanding these considerations, there may nevertheless be merit in the Commission having a role in some aspects of the working-life of judges once they are appointed. The issues are discussed below.
Judicial pay and pensions are funded from the public purse. There must therefore remain Ministerial responsibility and accountability to Parliament for these matters and it would not be appropriate to devolve this area to the Commission. There may however be a role for the Commission in giving evidence to the Senior Salaries Review Body on the appropriate level of judicial salaries.
Permanent judges hold office during good behaviour, as a protection of their independence, and cannot normally be removed from office. Judges of the High Court and above can only be removed from office by The Queen, acting after receiving a formal address from both Houses of Parliament. At present, the Lord Chancellor has the statutory power to remove Circuit Judges and below from office on the grounds of incapacity or misbehaviour. Consequently he receives and considers complaints about the personal conduct of members of the judiciary in England and Wales. The Lord Chancellor does not consider complaints about judicial decisions, which are a matter for the appeal courts.
Around 85% of the 1,200 or so complaints about the judiciary received each year by the Lord Chancellor are entirely about judicial decisions. These are sifted out and the complainants are advised that they should seek legal advice as to the possibility of an appeal, which is the proper and only recourse in such matters. However, complaints which, if true, would give cause for concern about the judge's personal conduct, even though they would not raise any question of removal from office, are formally investigated by the Lord Chancellor's officials, who then submit advice and recommendations to him. In these cases, the Lord Chancellor can, if appropriate, advise or warn a judge as to his or her future conduct, or issue a formal reprimand.
On the very rare occasions that the Lord Chancellor receives a complaint of such seriousness that, were it to be found justified, it would raise the possibility that he might seek to remove the judge concerned from office, he asks the Lord Chief Justice to nominate a judge to conduct an investigation. Following that investigation, the nominated judge reports to the Lord Chief Justice and Lord Chancellor who then decide together what action, if any, to take (subject to any representations from the judge under investigation). The Lord Chancellor only exercises his power to remove a judge with the agreement of the Lord Chief Justice [Endnote 9].
The Lord Chancellor's current role in personal conduct complaints about the judiciary has stemmed partly from his statutory power of dismissal, and partly from his traditional position as Head of the Judiciary. The judiciary have recently agreed with the Lord Chancellor a formal protocol governing procedures for the handling of complaints. In view of the announcement that the post of Lord Chancellor is to be abolished, it will be necessary to consider how these disciplinary functions will be exercised in the future. There are a number of options in this respect.
One possibility is that the Lord Chancellor's former disciplinary role and powers should pass to the Lord Chief Justice, as his effective replacement as Head of the Judiciary of England and Wales. The Lord Chief Justice of Northern Ireland could provide a similar function in that jurisdiction. This would reflect the role that the Lord Chief Justice already plays in the most serious disciplinary cases, and would uphold the independence of the judiciary and their separation from the Executive.
It may however be desirable, in order to ensure public confidence in the process, that judicial discipline and complaints should not be entirely in the hands of the senior judiciary. In other professions there is often an independent lay element involved in the consideration of complaints and disciplinary matters. Even if there is a substantial judicial element in the complaints process, and it is ultimately placed under the control of the Lord Chief Justice, such an independent lay element might still be usefully incorporated. This could perhaps be achieved by involving the Judicial Appointments Commission in considering and advising the Lord Chief Justice on complaints and disciplinary matters.
However, discipline and complaints might not sit comfortably in an organisation if it were otherwise exclusively concerned with judicial appointments. Alternatively, therefore, if the role of the existing Commission for Judicial Appointments in providing external oversight of the appointments process and dealing with complaints from applicants for judicial office is retained, it might be more logical for that body to also have a role in judicial discipline and complaints about judges.
As a further alternative, this lay element might be provided entirely separately from any Judicial Appointments Commission, by appointing a lay person or body specifically to work on matters of judicial discipline and complaints. The Government remains open-minded about the best procedure for handling complaints and invites views on the options set out above.
In addition to those cases involving judges, the Lord Chancellor may become involved in disciplinary matters involving members of tribunals, lay magistrates or coroners, where he also has statutory powers of removal. Complaints against lay magistrates and members of tribunals are dealt with, in the first instance, at a local level or by the President of the tribunal concerned, only reaching the Lord Chancellor if the complaint is of a serious nature. Complaints against coroners in England and Wales are handled in the first instance by the Home Office and referred to the Lord Chancellor if they are serious. It may not be appropriate for the Secretary of State to exercise powers of removal in these cases, and procedures might need to be adjusted to reflect whatever arrangements are made for the judiciary more widely, while preserving the local or tribunal level input into these cases.
| Question 15: |
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 Judicial Studies Board (JSB) provides training and instruction for all full-time and part-time judges in the skills necessary to be a judge. It also has an advisory role in the training of lay magistrates and of chairmen and members of tribunals. The Board's area of responsibility is for England and Wales.
An essential element of the philosophy of the JSB is that the training of judges and magistrates is under judicial control and directions. The JSB has a technical and formal status which ensures that it maintains a suitable level of independence from the Department for Constitutional Affairs. The Board and its programme of training are run by committees of judges, with only administrative support from the Department, and judges provide the training itself. The training requirements of the different jurisdictions are the responsibility of six committees, criminal, civil and family law, magistrates, tribunals and equal treatment and diversity.
The focus of the JSB, therefore, as well as its expertise and its membership, are all very different from the Commission, and the Government believes that the JSB remains the appropriate home for judicial training.
To follow modern best practice, the Government is considering the best way to establish an internal grievance procedure for use by judges in cases where they have a complaint against the Court Service, its staff, the Department, the Lord Chancellor or other judges. New UK legislation will come into force later this year to ensure that the UK adheres to European Union anti-discrimination directives. This means that judicial office holders who believe they have suffered discrimination on the grounds of their race, gender, sexuality and so on will be entitled to seek redress through the Employment Tribunal. A formal internal grievance procedure would aim to resolve any grievances before redress through the Employment Tribunal became necessary. It might be possible for such grievances to be referred to the Commission, or to the judicial members of the Commission, or to a body with an Ombudsman role as referred to in paragraph 74-76 above.
| Question 16: |
Should the Commission have a role in an internal grievance procedure? If so, what should that role be? |
The future of the rank of Queen's Counsel is subject to a separate consultation exercise [Endnote 10]. Consequently, no consideration will be given at this stage as to the Commission having a role in the appointment of Queen's Counsel.
This is a role the Lord Chancellor has traditionally undertaken. It is of real constitutional significance. Whilst the effect of the changes frees up the Secretary of State for Constitutional Affairs to be a more normal Cabinet minister, he should still retain the role of protecting judicial independence both within and outside Government. Because the post is new, to provide clarity about this, it may well be sensible to enshrine this responsibility in statute.
| Question 17: |
Should the responsibility of the Secretary of State for protecting the judicial independence be enshrined in statute? |
The new Judicial Appointments Commission for England and Wales will be made up of Commission members to direct and oversee the appointments process, and either make appointments or recommend them, with a supporting staff to administer the process itself. This chapter sets out the Government's proposals for how Commission members should be appointed, what the size and balance of membership of the Commission should be, what qualities Commission members should possess and what working arrangements and tenure the members can expect.
The Government proposes that members of the Judicial Appointments Commission for England and Wales are appointed using open and transparent methods, in accordance with the Nolan principles [Endnote 11]. The Government does not believe that appointments should simply be made by the Secretary of State for Constitutional Affairs, as this would leave the decision about who sits on the Commission solely in the hands of the Executive. The preferred option would be to have the appointments made by The Queen. The Permanent Secretary of the Department for Constitutional Affairs would chair a separate recommending body, whose recommendations would be passed up to the Prime Minister who would make the formal recommendation for appointment to The Queen. Other members of that recommending body might be a senior judge, for example, a senior figure entirely removed from the Department and the judiciary, and of course an Independent Assessor, appointed in line with the Code of Practice for Public Appointments Procedures.
| Question 18: |
Who should be responsible for appointing Commission members? |
The Government proposes that the Commission has 15 members. This would make it large compared to the senior boards of other similar bodies, but that figure is proposed due to the sheer scale of the appointments process in England and Wales. Approximately 900 judges and tribunal members are appointed each year, considerably more than any comparable jurisdiction. Even if the majority of the appointing work is handled by panels and support staff, there will still be a considerable role for the Commission members, in directing and overseeing that work and making appointments or recommendations as appropriate. This input will increase further if the Commission members are to have a direct role in more senior appointments. The figure of 15 members is proposed in order to have enough members to handle that work, but not so many to make the Commission an unwieldy body. Views are sought on the most appropriate size of the Commission.
Commissions in other jurisdictions are mostly a combination of judges, practising lawyers, and lay people (often including those with experience of personnel management and appointments). The Judicial Appointments Board in Scotland, for example, is comprised of ten members (including the Chairman), with an equal balance of lay members from varying backgrounds, and legal members, drawn both from the judiciary and legal professions. The current Chairman is from a senior local government background. Two lay members have backgrounds in business. The two other lay members are university professors with a background in academic law. In Northern Ireland, the Justice (Northern Ireland) Act 2002 has set out the framework for establishing the Northern Ireland Judicial Appointments Commission which will be comprised of a Chairman (who will be the Lord Chief Justice) and 12 members. There will be five judicial members nominated by the Lord Chief Justice from each layer of the judiciary, two legal professional members (a barrister nominated by the Bar Council and a solicitor nominated by the Law Society) and five lay members who have never held judicial office or been barristers or solicitors and who should as far as possible be reflective of the community in Northern Ireland.
Both examples have a membership which includes judicial representatives, legally-qualified members and lay members. The Government believes this to be the right model for the membership of a Judicial Appointments Commission for England and Wales. Judicial representatives provide expert knowledge of the requirements of judicial posts, legal members provide representation from the pool from which candidates are drawn, and lay members provide input from outside the legal world and represent the community served by the courts.
The key to establishing a successful, well-respected, independent Commission is to get the balance of members right. The Government is keen to ensure a good balance of members from a reasonably wide range of different groups and backgrounds so that no one section dominates and the Commission can form a strong identity, distinct from the vested interests of the groups from which its members are drawn. If some members of the Commission for England and Wales were to be judges, and others legally qualified, it would be important to ensure the Commission did not simply represent their views, but took into account the input of non-legal members.
The Government's preferred option would be for the judges, legally qualified members and lay members to be equally represented. If the Commission were to have 15 members, there would be five judicial members [Endnote 12], five legally qualified members, and five lay members. The Government would propose to include any academic lawyers in the five places reserved for the legal profession, rather than in the five lay places.
| Question 19: |
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 Chair of the Commission will be a critical role. The Chair will have overall responsibility for the running of the judicial appointments process, and will need to ensure that the Commissioners work effectively together. The commitment will almost certainly be more significant than for other members of the Commission.
There are two options for who could chair the Commission. The Chair would be drawn from one of the membership groups discussed above. An eminent non-legal person as Chair, would help to ensure that the lay voice in the Commission was heard, and could enhance public confidence in the independence of the Commission.
An alternative option would be to have a senior judge as Chair, such as the Lord Chief Justice. This option would strengthen the judicial representation on the Commission, and would certainly bring prestige to the Commission and ensure that it commanded the respect of the judiciary and the legal profession.
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