Copies of the individual responses to this consultation are also available.
This document is the post-consultation report for the consultation paper, Constitutional reform: a new way of appointing judges
It will cover:
the background to the report;
a summary of the responses to the report;
a detailed response to the specific questions raised in the report; and
the next steps following this consultation.
Further copies of this report and the consultation paper can be obtained by contacting Kerri Sephton at the address below:
Judicial Appointments Commission Policy Team
Department for Constitutional Affairs
2nd Floor Selborne House
54-60 Victoria Street
London
SW1E 6QW
Telephone: 020 7210 8250
Email: Kerri Sephton
This paper forms part of a series of summaries on the responses to the constitutional reform consultations. The others cover:
The Prime Minister announced on 12 June 2003 the Government's intention to establish a new Judicial Appointments Commission to be responsible for the selection of judges in England and Wales. In July, Lord Falconer, Secretary of State for Constitutional Affairs and Lord Chancellor, published a Consultation Paper, Constitutional reform: a new way of appointing judges, seeking views on the form and role of the new Judicial Appointments Commission. The paper included a detailed description of the three broad models possible for the Commission. These are:
an Appointing Commission which would take over the Lord Chancellor's role in directly making appointments up to the level of Circuit Judge and in advising The Queen on appointments at that level and above; or
a Recommending Commission which would make recommendations to a Minister as to whom he or she should appoint (or recommend that The Queen appoint); or
a Hybrid Commission which combines the functions above by directly making more junior appointments and by recommending more senior appointments.
The Consultation paper also examined functions that a new Commission might carry out, the division of responsibilities between the Commission and the Department for Constitutional Affairs, and how the membership of the new Commission might be appointed and structured.
The Consultation period closed on 7 November 2003 and this report summarises the responses. A list of respondents is at Annex A.
A total of 270 responses to the consultation paper were received. Approximately one half of responses were from members of the judiciary (including tribunals), the magistracy and associated bodies. Approximately one quarter of respondents were members of the legal professions (primarily barristers and solicitors). Six members of the House of Lords responded. Four of those are serving or retired Lords of Appeal. The remaining responses were from a broad cross-section of groups and individuals including, for example, public bodies, human rights organisations, professional academics and members of the public.
This summary analyses the numbers of responses received, as well as the different views expressed, and in some cases the summary gives percentage breakdowns of the numbers of responses favouring particular options. These figures need to be treated with some caution for several reasons. Not all respondents addressed every option given, or cast their replies in a form which obviously reflected the format of the question. The percentage figures may also be misleading in suggesting the overall balance of views in favour of or opposed to particular proposals; some responses (for example those from the Law Society, the Bar Council and the Judges' Council) represent the views of large numbers of people. Others represent the views of an individual respondent. These differences have not been taken into account in calculating the percentages, which are merely a reflection of the numbers of separate responses received.
This summary includes quotations from some responses. These are included simply as illustrations of different points made - they should not be taken as necessarily reflecting either the balance of all responses, or the overall tenor of the individual responses concerned. The full text of responses which were not sent on a confidential basis are available on this website.
Some respondents offered views on all of the issues in the consultation paper whereas others focussed on particular questions or issues. All the responses have been analysed and a summary for each question forms the main body of this report. We are grateful to everyone who responded.
1. Do you prefer:
What are your reasons?
There were 134 responses to this question, of which 122 express a choice as to the type of Commission they would favour.
The breakdown of the responses is:
53% favour an Appointing Commission
24% favour a Recommending Commission
13% favour a Hybrid Commission
10% do not want a Commission of any sort or favour an alternative arrangement.
Many of the responses which favour an Appointing Commission argue that this is necessary in order to achieve a separation of powers between the judiciary, and executive and to remove any political influence over the selection of judges.
The City of London Law Society argues: "The appointment process must be, and must be seen to be, independent of political influence".
The human rights group, Liberty, says that: "..an Appointing Commission is the only option that will remove the role of the executive to a satisfactory degree".
Lord Justice Buxton comments: "..the purpose of the reforms was to insulate the selection of judges from politicians and the political process".
Lord Justice Schiemann suggests: "That objection [to the Lord Chancellor having been a member of the Government] applies far more strongly to a normal minister...he may well be looking for promotion and will thus be particularly susceptible to the popular emotions of the moment".
Lord Alexander of Weedon QC is one of several respondents who suggest that the need to separate the roles of the judiciary and the executive is becoming increasingly important now that:"..the judiciary is often engaged in adjudicating on the lawfulness of government actions. This is a vital, sensitive increasingly important role, and critical to our democracy".
In summary, those respondents who favour an Appointing Commission do so for the following reasons:
all political involvement in the appointments process should be removed;
this will enhance judicial independence from the executive;
the process will be open and transparent.
The responses that favour the Recommending model point to the following factors:
it provides Ministerial accountability to Parliament;
it is closest to the existing system;
an Appointing Commission could lead to "safe" appointments.
In supporting a Recommending Commission, the Society of Legal Scholars suggests that this would ensure that: "..an appropriate degree of accountability is retained in the system".
A QC says: "An appointing Commission could not be properly accountable to Parliament, and responsibility for appointments, or advising the Queen on appointment, should rest with a member of the government who, although it may happen rarely, must be constitutionally answerable in Parliament".
Another QC says: "I think that it is important that an identified individual should have the ultimate responsibility for the appointment of judges. That appointment will be more open to scrutiny than if the appointments are made by the more broadly based commission".
A legal academic agrees: "This [a Recommending Commission] ensures an appropriate degree of accountability is retained in the system."
However, not all respondents agree with this argument. The London Solicitors Litigation Association says: "The suggestion that some Ministerial accountability to Parliament is justified is in our view misplaced. Accountability to Parliament could only mean the involvement of Parliament which would be inimical to the objective of separating the political from the judicial appointment process (an objective which the paper otherwise endorses)".
Also in support of a Recommending Commission, another respondent suggests that an appointing Commission could lead to "safe" appointments which "could lead to a subtle but perceptible erosion of the quality of the judiciary".
There are relatively few responses in favour of a Hybrid Commission, but these include some of those most closely concerned in the appointments system, including the Bar Council and the Law Society. The Judges' Council puts forward its own proposal, which amounts to a version of a Hybrid Commission. These respondents also represent large numbers of members of the legal profession and judges, and in that sense their responses carry greater numerical weight than responses from individuals. The arguments in favour of a Hybrid Commission reflect those in favour of a recommending Commission, but limit these to the most senior and important appointments.
The Law Society suggests that a Hybrid Commission would: "..allow for substantial reform of the appointment process but would avoid some of the constitutional problems which could arise if the Queen were unable to rely on ministers' advice in relation to those appointments which are formally made by Her".
The Bar Council also favour a Hybrid Commission and says that:: "..it is important to avoid a situation where the judiciary can be portrayed by a hostile executive as an un-elected body responsible to no-one should there ever be genuine constitutional conflict".
The Equal Opportunities Commission (EOC) says:"The EOC recognises the need to maintain accountability to Parliament but advocates the equal need for the independence of the judiciary...a Hybrid Commission preserves the independence of the appointment of the judiciary to a greater extent than either of the other two models".
However, as with the Recommending Commission, some responses express concern about 'political interference'. As one respondent suggests: "..a hybrid commission will give the worst [outcome] for, again, the decision will ultimately depend on the view of a senior politician and could well give rise to allegations of pressure from the political side".
The Hybrid option is criticised by some for being a compromise. Liberty says: "The implication is that a Hybrid Commission cannot be trusted to make the most important decisions" whilst another respondent simply refers to this option as "a confusing muddle".
In summary, those who favour a Hybrid Commission point to:
the removal of political involvement in junior appointments; and
the continuing accountability of a Government Minister in respect of senior appointments.
Those who oppose it say that:
the political involvement is akin to a Recommending Commission and is undesirable for the same reasons; and
it is a not a bold enough step forwards and does not seize the initiative that is available to create a transparent system.
Finally, there are a number of respondents who either favour no change or whom have put forward an alternative suggestion.
One of the strengths of the existing system is said by these respondents to be the skill and ability of successive Lord Chancellors in being able to execute their judicial appointments role separately from their political role. For example, a QC says: "An unfounded fear, allegedly entertained by unspecified people, that a power might be misused is hardly a justification for abolishing the power when no misuses of it has occurred in modern times". Lord Lloyd of Berwick quotes Sir Leonard Peach's view that: "The existing system is as good as any".
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?
There were 43 responses to question 2 and 31 to question 3, reflecting the fact that the majority of responses to question 1 did not favour these options. The issues raised by the questions are similar in many respects and many of the points made apply equally to both:
a wide discretion would run the risk of 'political' appointments;
a very narrow discretion would in effect amount to an Appointing Commission;
a wide discretion would provide greater accountability to Parliament;
transparency of process is paramount regardless of the scope of the discretion;
reasons for the exercise of any veto must always be given, again, regardless of the scope of the discretion; and
no one should ever be appointed without a recommendation from the Commission.
The majority of respondents support a narrow discretion for the Minister (75% of respondents state a preference for either limited discretion or for one name only to be put to the Minister). The main argument for a narrow discretion is that to offer a wider discretion would open the process up to criticism that it is subject to political influence.
The Society of Legal Scholars says: "Discretion should be limited so as to avoid the danger of inappropriate political influence."
A retired Lord Justice says: "The Minister would not be able to choose a candidate not recommended by the commission...Only in the most exceptional circumstances would the Minister not appoint one of the recommended candidates".
Another respondent says of limiting discretion: "This would mean that the commission would not be regarded as powerless; however it would remain the minister's ultimate responsibility".
Restricted Ministerial discretion is generally said by responses to be best achieved through:
limiting the number of names put forward for each post; and
any veto being backed up by written reasons which would be subject to scrutiny.
In favour of putting forward one name only, The Law Society says: "..we believe the absence of any appearance of cronyism is vital to establishing a positive public perception of the appointments process. It is also a safeguard for appointees".
The Bar Council also favours very narrow discretion (one name only with reasons for refusal to be given to the Commission and to be subject to scrutiny).
A limited discretion is also preferred by the Judges' Council. It comments: "..we would argue that, in relation to appointments to the Court of Appeal and below, the Secretary of State should be expected simply to pass on the nomination with such advice as he considers appropriate. If it is felt that the Executive must play a greater role in relation to the appointment of the Heads of Division in particular, then that role should involve no more than the power to reject a nominated candidate, giving reasons for so doing, and to call for a second candidate to be nominated. The Appointments Commission should also be able (but not required) to put forward two candidates at the outset if it wished to do so".
The Commercial Court Users Committee (which favours an Appointing Commission) suggests that putting forward more than one name could compromise the future pool of candidates: "Some [of the best applicants] may be reluctant to commit themselves to a process under which they may fall at a number of hurdles, the last of which is determined by the Minister's discretion to prefer an alternative. Moreover, if such a candidate were to be rejected in favour of another, we doubt that he or she would be minded to submit to such a process again".
A minority of respondents favour wider Ministerial discretion and do not think that this opens the process up to possible accusations of political bias. The existing Commission for Judicial Appointments says: "The answer to such concerns is that any and all names put forward would have been put through the prescribed process and found suitable by the Commission". The Association of Women Barristers would be content with three names whilst the Society of Legal Scholars favours two. Lord Mackay of Clashfern suggests that it is appropriate for the Minister to have such discretion as to make him or her properly answerable to Parliament. The Society of Black Lawyers says that: "The Secretary of State or the Prime Minister should have the widest possible discretion. In the final analysis, accountability for the appointment should rest with them".
Whatever degree of discretion may be available to the Secretary of State (either in connection with a Recommending Commission or a Hybrid Commission), might ultimately involve the application of a veto on appointment. Among those respondents who favour either a Recommending Commission or a Hybrid Commission, views as to how the veto might be exercised in practice can be summarised as follows:
the veto should only be used in exceptional circumstances, e.g. the Minister believes that the Commission has failed to uphold equal opportunities policies or the Minister holds information about the candidate that would not have been available to the Commission;
any veto must be backed up with written reasons to the Commission. Lord Justice Keene urges that there should be transparency: "..there should be a statutory requirement that its exercise should be reported to parliament, so as to achieve the desired 'openness' in the process".
confidentiality is crucial for the individuals concerned. There are concerns about the possible public discussions of any applicant's name that may have been vetoed. A QC says: "I find paragraph 47 very persuasive. In practice it is plain...that Legal Correspondents would not take long to ascertain the name of the rejected candidate"
a number of respondents suggest that the veto should not be used until after the Minister has consulted the Chair of the Commission. As one respondent puts it: "..if, after taking account of adverse Ministerial comments, the Commission maintained its recommendation, rejection by the Secretary of State would, one hopes, be unthinkable".
In relation to the Hybrid Commission option, respondents were asked which appointments should be made by the Commission. Because of the limited numerical support for this model, the statistical data is based upon only a small number of responses to this question:
Nine (including the Bar Council, the Law Society and the Commissioners for Judicial Appointment) suggest direct appointments by the Hybrid Commission up to and including Circuit Judge level;
Six (including the Committee on Standards in Public Life) suggest direct appointments for the appointments made currently by the Lord Chancellor rather than The Queen; and
Three (including the Equal Opportunities Commissioners and the Judges' Council) suggest direct appointments up to and including High Court Judge level.
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?
There were 99 responses to this question, of which 76 expressed a definite view. Responses differed in some cases as to what should be viewed as senior appointments. For example, the Law Society and JUSTICE regard High Court appointments and above as being senior, whereas the responses from the Bar Council, the Judges' Council and the EOC suggest that this applies only to the Court of Appeal and above. The suggestion in the Consultation Paper was that special arrangements might need apply to Court of Appeal and Heads of Division appointments, and that the Secretary of State for Constitutional Affairs might wish to consult the senior judiciary personally before reaching a decision.
Not all responses accept the view that greater Ministerial involvement is justified in these cases.
A QC says: "The Minister should keep well out of it. It weakens the authority of the Commission and it is it which should consult the senior judges personally not the Minister. The way the Consultation Paper is phrased suggests that the Commission cannot be trusted in this area".
Lord Justice Buxton can see such a role being no more than a nominal one and says: "The proper concern of Parliament should be with the general way in which the Commission functions, and with the principles that it adopts; not in relation to individual appointments".
The Commission for Judicial Appointments agrees: "In order to maintain and enhance the independence of the judiciary from the executive, it is vitally important that these senior appointments in particular are, and are seen to be, free of political influence".
However, there is a wide acceptance of the important input that the existing senior judiciary should have in these appointments.
Lord Justice Keene argues: "The fact is that existing Court of Appeal and House of Lords/Supreme Court judges are undoubtedly in the best position to assess the merits of candidates for the Court of Appeal, because they see the civil judgments and/or criminal summings-up of High Court judges every working day".
A QC comments: "The present system of consultation of the senior judiciary is an important part of the appointments process and this should continue".
A retired Lord Justice says: "..for most senior posts the Secretary of State... should be entitled to consult members of the senior judiciary personally before making a recommendation to HM the Queen".
The Law Society says: "[a] different prospect for the Commission in that most of the applicants (but not all) will be existing judges. We accept that there may need to be a partnership approach between the senior judges and the Commission about candidates".
The Commission for Judicial Appointments says: "Senior judges will have views which are of particular value. The process should include a method of capturing those views, and should also involve senior members of the judiciary in the selection panel".
Justice: "The views of senior judges will be particularly relevant to any appointment at a senior level if only because the postholder must command the necessary level of respect from his or her peers. The Commission should follow a public protocol in consulting a number of specifically nominated postholders e.g. the Lord Chief Justice".
Lord Mackay of Clashfern suggests that the views of the Heads of Division will be crucial in making senior appointments and he would expect the Commission to accept those views. If not, the Commission would have to give written reasons for not accepting their choice.
The Constitutional and Administrative Law Bar Association agree that the views of the senior judiciary are important as they are best qualified to assess the legal abilities of candidates.
Following on from this widespread support for judicial consultation on senior appointments, the question arises as to how these would be dealt with in practice. Many responses agreed with the suggestion that a sub-committee of the Judicial Appointments Commission, including representatives of the senior judiciary, should be established to handle senior appointments.
The Judges' Council have explicit views on how this sub-committee might look and function: "Appointments of the Heads of Division and to the Court of Appeal should be made on the recommendation of a Promotion Panel consisting of the Chairperson of the Commission (who would chair the panel), the Lord Chief Justice, the Master of the Rolls, the President of the Family Division, the Vice-Chancellor and two lay members of the Commission. The Panel could also include the Senior Law Lord (or President of the new Supreme Court) or his deputy (if the President is not a former member of the English and Welsh judiciary) if this was thought necessary".
Similar views are expressed by many of the other respondents. The Committee
on Standards in Public Life agrees with the proposal, but wishes to ensure
that all panels include a lay member (as does the Commission for Judicial
Appointments). The Bar Council agree with the suggested sub-committee but
cautions against the outgoing office-holder being involved in case it becomes
necessary to review his/her performance.
There are also a range of other views put forward that can be summarised
as follows:
Assessment Centres should be used. This is recommended by the EOC: "The EOC views this as the only method of preserving the integrity of the judiciary, and public confidence in it, when appointing senior judiciary from the existing judiciary"
the EOC also favour the use of an appraisal system for judges, "..for all appointed judiciary to monitor and assess the skills of an individual";
The Law Society suggests that candidates of all backgrounds should be able to enter the judiciary at senior levels.
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?
There were 92 responses to this question, of which 73% agree that the Commission should not be involved in authorising retired judges to sit part-time as deputies.
Points frequently made in this group of responses include:
this is not an appointments issue;
it is beyond the remit of the JAC; and
it is an administrative matter that should be dealt with by the Court
Service or, alternatively, by the Lord Chief Justice.
In support of this position, the Judges' Council says: "They do not hold an appointment. In the case of the senior judiciary, the authorisation should be by the Lord Chief Justice. In the case of less senior judges, the responsibility should be exercised by the Senior Presiding Judge on behalf of the Lord Chief Justice. For tribunals, the President or similar office-holder within the tribunal can perform this function. In the case of the Supreme Court, the President of that Court should have the responsibility".
On the other hand, one respondent argues that the Commission should be involved because: "..the process should be open and transparent - which it would not be if left to the LCJ".
Another respondent says: "The extensive use of retired judges will slow down the appointment of new ones which runs counter to the views expressed in the Consultation Paper about 'opening up' the judiciary".
The Society of Legal Scholars also suggests that: "The use of deputies has historically been a weak link in the system and provides the potential for undermining judicial independence".
Another respondent points out that there may be "other (and better) candidates for the vacancy".
The Chancery Bar Association is also concerned about the use of retired judges. They suggest that a retired judge may be perceived to be less up-to-date with current law and practice, and that deputy judge roles should be used principally for assessing the suitability of candidates for judicial posts.
Those who favour a role for the Commission in these appointments suggest that it will ensure that retired judges are still competent to sit and that standards are maintained.
JUSTICE acknowledges the "administrative usefulness of using retired judges", but also says: "The Commission should, at the least, approve the list of those retired judges who are willing to sit and approved to do so...Continuing mental alertness and physical health are relevant factors. Their determination raises delicate issues but they go to the essence of competence. A role for the Commission in approving annually a list of those approved to sit part-time would allow for light supervision of competence".
The Commission for Judicial Appointments suggests that: "In so far as these authorisations involve any selection as between potential candidates, the new Commission should act as a guarantor of the fairness of the process through the exercise of a monitoring function".
The Equal Opportunities Commission agrees that there must be a: "clear, transparent and objective application process for the selection of the most appropriate candidate".
These concerns are summed up by the Bar Council: "..if the existing process in fact involves questions of whether an individual is suitable to continue sitting as a judge or if the process was in subsequent years to start to include any such issue, then we consider that the only suitable body to make decisions on whether individuals should continue to sit as judges would be the Judicial Appointments Commission, both because it would be the only body with the appropriate degree of experience to make such a decision and to avoid suggestions that the executive was able by the back door to influence the judges that in fact sat in the courts."
Finally, other respondents have suggested that it is perhaps too early to decide this matter and that it should be deferred until the Commission has experience of how the existing system works. It has been suggested that this should be linked with the issue of the appraisal of judges and how this might contribute to an assessment of their capability to sit after retirement.
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?
Of the 175 responses to this question 88% are in favour of there being a continuing role for Local Advisory Committees in the appointment of magistrates.
Eleven respondents favour the new Commission taking direct responsibility for the appointment of magistrates. Many respondents suggest that it is impractical at the outset for all of the appointments to pass to the Commission, although some say this can be reviewed in 3-5 years time.
The Local Advisory Committees argue that their role in local recruitment is important in preserving the local input and involvement that currently exists, for example, the Isle of Wight Committee mentions the importance of local factors such as knowledge of: "problems of higher than average unemployment outside the summer months, the tourism factor, transport implications of the Solent crossing, its prisons, low percentage of high rate taxpayers, etc which could not be understood or known about if the role was centralised".
The Association of Lord-Lieutenants says there should be a continuing role for local Advisory Committees: "Advisory committees contain a balance of local JPs and lay members (all unpaid volunteers), well placed to gauge the social structure of their area and needs of their communities. Importantly, such local committees are the best way to encourage diversity in applications and have proved flexible and responsive to Government initiatives. Advisory Committees work to this end - not only with applicants but also with local employers".
Some respondents acknowledge the steps already taken to make the magistracy more representative of the community it serves. For example The Association of Women Barristers says: "the lay magistracy has a good gender balance. Their contribution to the administration of justice is universally acknowledged to be outstanding...if the Commission is to replace the Lord Chancellor, the local advisory committees should be preserved to enable the existing good practice to be continued..."
There is support for the Judicial Appointments Commission having a role in the appointment of magistrates. Over 74% of respondents to this question (and almost all Advisory Committees) argue that Local Advisory Committees should forward nominations for appointment to the Commission for ratification.
The Judges' Council agrees that Local Advisory Committees should make recommendations to the new Commission: "It is most important that the existing method of appointment is incorporated into the new arrangements, involving local Advisory Committees with a duty to seek applications from candidates representative of their area".
Some respondents think, that the Commission could take over the monitoring of diversity issues, have a quality monitoring role, share good practice, and streamline and speed up of the appointments process.
A small number of respondents propose that the JAC should be directly responsible for all appointments; for example, the EOC argues that: "dual systems for appointment of different types of judiciary give rise to inconsistency". They continue "..care should be taken to ensure, due to the large numbers of magistrates, that sufficient resource is allocated to a Commission in order to carry out its function competently".
Do you agree that the appointment of coroners should be brought into line with that of other judicial office holders?
Of the 87 responses to this question 90% agree that the appointment of coroners should be brought into line with that of other judicial office holders.
Most of those who agree say that it is intrinsic to both the success of the new Commission generally and to diversity issues that all judicial and quasi-judicial appointments are the responsibility of the Commission. This includes the Law Society, the Judges' Council, and the Bar Council: "There is just as much need for these appointments to comply with the fundamental principles identified in Section B of this Paper as in relation to any other part of the judiciary".
Those who disagreed with the proposal argued that there is no need to change appointment of coroners by local authorities as coroners have a sufficiently distinct - and local - role that they should be considered separately.
Do you agree that tribunal appointments should be the responsibility of the Judicial Appointments Commission, under the arrangements discussed in paragraphs 68-69?
Of the 96 responses to this question 89% agree that responsibility for tribunal appointments should pass to the Judicial Appointments Commission. Many responses, including those from tribunal chairpersons and members, mention the proposed Unified Tribunals Service and say that it is now opportune for all aspects of the tribunals system to be streamlined and centralised.
The Judges' Council, The Bar Council and The Law Society all agree that the appointment of tribunal members should be centralised under the new Commission. The Bar Council says that: "...proper arrangements would need to be put in place to ensure that the Commission and its staff have the appropriate resources and the appropriate expertise to make more specialist appointments".
The Law Society says that: "The skills, aptitudes and calibre required of tribunal members and the important work they undertake requires that they should be selected and appointed with as much rigour as other members of the judiciary".
Some respondents, such as the Commission for Judicial Appointments, also say that: "Many tribunals are involved in adjudicating on disputes between the individual and the state. The state may also be a party to proceedings in "party and party" tribunals - e.g. as an employer before the Employment Tribunal. It is unacceptable that Ministers whose Departments may have an interest in the outcome of proceedings before tribunals should make appointments to those tribunals".
There is also a common thread amongst the responses that alludes to career and diversity issues. Some suggest that there is an untapped pool of judicial talent held within the tribunals system. The Society of Legal Scholars points to "..a good recruitment pool for the mainstream judiciary, which will create greater diversity in composition". JUSTICE suggests that legally qualified chairpersons could graduate from tribunals as part of a strategy to encourage lawyers in their 30s into a judicial career.
Those who disagree, suggest that tribunals are distinct and should be dealt with separately or that only quasi-judicial tribunals should be dealt with by the Commission, and that appointments should be a ministerial responsibility with the Minister answerable to Parliament.
Do you agree that the Commission should not be involved in the allocation of responsibilities, as described above?
NB This refers to 'ticketing' (authorisation to hear certain types of case) and the allocation of administrative responsibilities.
There were 110 responses to this question, of which 84% agree that the Commission should not be involved in authorising judges to sit in particular kinds of case or in allocating administrative responsibilities to different judges.
Suggestions as to how these matters should be dealt with, from those who expressed an opinion, can be summarised as follows:
the Lord Chief Justice should be responsible, in consultation with the Secretary of State (67%);
the Lord Chief Justice or other senior judges should be solely responsible (19%);
the Judicial Appointments Commission (9%);
the Court Service (1%); and
others (4%).
Points made by those supporting the proposal include the following:
The Judges' Council suggests that where the Lord Chancellor presently has a statutory responsibility for an appointment of this sort, the new legislative framework should ensure that the responsibility is transferred to the Lord Chief Justice, or to another appropriate judicial office holder with a statutory duty to consult the Secretary of State when it is appropriate to do so.
Lord Justice Keene says: "I cannot see how it can be appropriate for a government minister who is no longer head of the judiciary to make any of these appointments. He may have an interest in certain of them, either financial or administrative, but that could and should be catered for by requiring the Lord Chief Justice to consult him before making a decision".
The Law Society is concerned with accountability for these decisions and suggests that this mechanism can be provided via the House of Commons Constitutional Affairs Select Committee.
On the other hand, there was some support for the Commission taking a role in respect of the assignment of duties or 'tickets' that may be seen to amount to promotion. Points made by those broadly supporting this view include the following.
The Bar Council says that: "..although such appointments may have no effect on pay, they are seen as being promotions and therefore fall naturally within the remit of the Commission, given that the Commission would have responsibility for making recommendations in respect of other promotions e.g. from High Court to Court of Appeal".
Similarly, the Association of Women Barristers says: "..we suggest that there should be consultation or liaison with the Commission to prevent any covert gender discrimination in policy, practice and procedure."
The EOC says: "Whilst authorisations may not strictly amount to promotion they will, in some instances, convey status. The EOC wishes to see that the basis upon which administrative responsibilities and authorisations are delegated are transparent, objective and justifiable in the same manner as for the appointment of the judiciary."
One particular issue that is raised by several responses is the allocation of judges to specialist courts, such as the Commercial, Patent and Mercantile Courts. For example, the Judges' Council says: "The Commercial and Admiralty Courts are world leaders. Crucial to their standing internationally is, not only the integrity and calibre of the nominated judges, but also their experience...The quality of these two Courts makes London the jurisdiction of choice for dispute resolution. Our position is hard-earned in a very competitive market place. Great care will need to be exercised to avoid sacrificing it".
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 majority (84%) of the 100 respondents to this question favour the creation of a new body, or the adaptation of an existing body, to take over the reviewing and complaints functions of the existing Commission for Judicial Appointments. The possibility of the new Commission itself taking on this role is not generally seen as practicable or transparent. The Society of Legal Scholars sums up this view: "To [give this function to the JAC] would produce a tension in its functions and further increase its workload".
There are different views as to how a reviewing and complaints body might be constituted. The main proposals can be summarised as follows:
the existing Commission for Judicial Appointments could take on this role, albeit under a different name so as to avoid confusion; or
an Ombudsman could take this on; or
The Department for Constitutional Affairs or the Court Service should handle complaints.
Those who have expressed explicit views are split fairly evenly between the options of the existing Commission under a different name and an Ombudsman. In practice these may not differ very significantly.
The Judges' Council suggests that the existing Commission should retain its present role.
The existing Commissioners themselves believe that this could certainly happen during a transitional period. They are more concerned with ensuring that the new Commission establishes itself as open and transparent in its processes, and that it does not become inward-looking. They also suggest that review and complaints functions should be embedded in the new Commission from the outset, with one or two Commissioners being given specific responsibility "...for sponsoring and championing the review and complaints functions at Commission level". If these processes are put in place then in the long term they see the oversight role passing to a body such as the Office of the Commissioner for Public Appointments.
The Bar Council suggests that: "...public confidence in the judicial appointments process would be best assured by this role being undertaken by an independent body." The Law Society agrees that the existing Commission has been highly effective (this is in fact the general feeling across all of the responses to all questions). The Society suggests that the separate roles and functions of the Ombudsman Service and the Commission for Judicial Appointments would have to be delineated carefully but, on balance, they believe that an Ombudsman Service is "...the best model for securing transparency and public confidence".
The Committee on Standards in Public Life reiterates their views on this subject: "The principle of external scrutiny as an effective mechanism for achieving and maintaining standards in public life has been asserted on many occasions by this Committee". The Commission for Racial Equality suggests that, regardless of where the function is located,"the complaints procedure must be independent, thorough and empowered to order a remedy or enforce its decisions but it should also be carefully constructed so as not to operate as an inhibiting factor on those making appointments: the judicial appointments commission should not feel that it operates in a culture of complaints and neither should potential candidates be deterred from applying for fear of complaints against their possible appointment".
From the minority of respondents (16%) who have stated that they do not see the need for any such separate body, the arguments can be briefly summarised:
it should be the function of the JAC (one respondent says: "The role of the new commission will already be a transparent one. In those circumstances it is not easy to see what added value a separate scrutinising commission would bring"). One notable agreeing voice is that of JUSTICE, which takes the viewthat: "Bodies without direct executive powers should be avoided...The Commission should be perfectly able to manage its own complaints procedures. Proliferation of bodies should be avoided. The Commission for Judicial Appointments was really a halfway house to a full Judicial Appointments Commission";
it should be a Judicial Review or nothing;
a separate reviewing body would be too costly and complex;
a separate body is not required for ensuring probity and fairness; and
judges should not be accountable to Parliament.
Finally, some respondents considered that any oversight body would not necessarily need to be in place permanently. For example, the EOC is: "...very strongly of the view that...having implemented a clear, transparent and objective appointment process the need for an external Ombudsman may need to be reviewed in the long term".
What formal status should the Commission have?
Should it be:
The responses to this question (99 in total) show support for the new commission to be a Non-Departmental Public Body:
77% favour a Non-Departmental Public Body;
6% favour a Non-Departmental Public Body supported by an agency;
7% favour a Non-Ministerial Department;
7% favour an alternative scenario (see below); and
3% express no preference.
Those who support the Commission having Non-Departmental Public Body (NDPB) status include the Committee on Standards in Public Life, who agree with the Better Regulation Taskforce report that for a public body to be independent from Government, it must be accountable to Parliament and independent in Finance, Personnel, Operations and Enforcement. The Committee cautions however, that the Commission needs to be assured of its level of resources at all times.
The Judges' Council prefers a NDPB with its own staff and budget as this will "increase its independence and will enable it to establish the appropriate administrative support".
The Bar Council suggests that the Commission would initially need to take staff from the DCA, but that "...in the longer term, it is more desirable for the Commission to employ its own staff...since this would prevent the Commission's independence or appearance of independence being affected by employing civil servants who would subsequently return to Government Departments." The Bar Council emphasises the need for the Commission to be seen to be independent of Government, and suggests that it could submit an annual report and be subject to scrutiny by a Parliamentary Select Committee.
The Law Society wants the Commission to recruit and employ its own staff. This, says the Society, "would guarantee the greatest independence of operation to the Commission and also provide a channel of scrutiny to Parliament". The Law Society also suggests that it could report annually to Parliament and be subject to scrutiny by a House of Commons Constitutional Affairs Committee. It also points out that a mix of staff (including HR and recruitment expertise) will be required.
Among those who support the second option, a Non-Departmental Public Body backed by an agency, a former Lord Justice comments: "I believe it might be easier for the Commission to recruit staff of high quality if they remained civil servants, and thus knew that they would be able, when they had the prospect of promotion, to move elsewhere within the civil service".
A QC adds that he does not "share, or recognise as sensible, any concept that civil servants cannot serve such a (semi-independent) Commission, or that its impartiality and independence are questionable if it cannot hire and fire its own staff".
Supporters of a Non-Ministerial Department include the Commission for Judicial Appointments, who argue that this arrangement would provide "a greater degree of autonomy- including financial independence from the Department - than NDPB status would provide".
Liberty agrees that the Commission should be fully independent from any government department and that it should have its own staff.
Those respondents who do not favour any of the three options discussed above have produced alternative suggestions that are loose in composition or constitute a hybrid of what has been formally proposed in the Consultation Paper. These suggestions are summarised below:
an independent, free-standing, statutory body;
the body should have status, created by primary legislation, that best guarantees its independence of the government and with its own budget which would be voted by Parliament;
an organisation independent of government and similar to the Royal Commission in that its staff would be civil servants and it would be accorded a status appropriate to its role in advising The Crown;
a body with the same status as the Law Commission; and
the Commission's budget could be charged on the Consolidated Fund to ensure independence.
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 majority (80%) of the 94 respondents to the first part of this question agree that the functions listed in paragraph 88 of the Consultation Paper are appropriate functions for the Commission to carry out.
The Judges' Council and the Law Society are content for the Commission to take on the appointment functions set out in paragraph 88. The Committee for Standards in Public Life is content that: "the proposed division of functions between the Commission and Government appears sensible, and would not adversely affect issues of standards in the appointment process or the operational independence of the Commission".
Those who oppose the first proposal do so because they think that the Commission should focus on its core task of appointing judges, rather than concerning itself with ancillary matters. For example, one respondent says: "The Commission should not get involved in these functions but should concentrate solely on supplying the quotas demanded of it".
The majority of the responses to the second part of the question (57%) agree that the Government should retain responsibility for policy relating to appointments, although in many cases this agreement is qualified by an indication that the Government should not be able to dictate to the Commission what processes it should operate or decisions it should take.
Many respondents also argued that the Government's duty to consult the Commission should be formalised. Others, such as the Bar Council and the Law Society suggest that the criteria for appointment should be laid out in statute.
Those who oppose the second proposal, mainly do so on the grounds that there must be no risk of political interference in the appointing of judges. The Judges' Council, for example, is concerned that this proposal "will amount to the Government of the day having the ability to dictate to the new Commission how it performs its role". Again, the Judges' Council argues that the criteria for making appointments should be included in the legislation creating the Commission.
The Commission for Judicial Appointments states that, although it concedes that setting the number of judges and judges' pay is a Government role, the setting of criteria for appointment (perhaps within broad parameters laid down in legislation) could actually be part of the Commission's role.
Do you agree that the Commission should be tasked with establishing how best to encourage a career path for some members of the judiciary?
There are 104 responses to this question, of which 74% agree that the Commission should be responsible for establishing how best to encourage a career path for some members of the judiciary.
There is a clear distinction that those who agree with the proposal favour a 'career path' and not a 'career judiciary' on the European model, for which there is very little support.
The main issues which the respondents raise are:
the need to re-think promotion policies for the 'untapped' pool of talent that exists within, for example, the District Bench and the Tribunal Judiciary;
the need to take positive steps to improve the judicial career prospects for solicitors and legal academics; and
the need to re-consider the structure of judicial posts to encourage those who may otherwise feel unable to apply, e.g. part-time, salaried appointments.
In general terms, the Judges' Council agrees with the proposal for a career path but "..subject to the overriding requirement that candidates be appointed on merit".
The Committee for Standards in Public Life agrees that: "..such an approach could encourage greater diversity".
The Bar Council does not rule out the concept of promotion of junior judges, but says that: "it should remain the case that appointments are mainly made to the Circuit and High Court Bench from practitioners rather than more junior judges, since many of the individuals most suitable for appointment to the High Court Bench, for example, would not be willing to serve as District Judges or Circuit Judges and would thus be lost from the appointments process if service in these more junior judicial roles was a pre-requisite of appointment".
The Commission for Judicial Appointments says: "An identifiable career path, open to both barristers and solicitors, which enabled them to apply for a first judicial appointment after a number of years in practice, say 8 to10, and offered realistic prospects of further progression thereafter to higher office, would provide an alternative route alongside the traditional route of remaining in practice and entering the judiciary at the higher level. A scheme on these lines might enable young practitioners to make sensible early decisions about balancing their professional and family lives".
The EOC is one of several respondents who mention the lack of judicial opportunity currently afforded to legal academics.
Dame Elizabeth Butler-Sloss, the President of the Family Division, proposes that opportunities and training should be provided for lawyers returning from career breaks. She also seeks a move away from traditional career assumptions and says that: "...better opportunities for a progressive judicial career structure should be explored".
There is some opposition to the idea of a new career path for the judiciary. The London Common Law and Commercial Bar Association suggests that: "..the Commission will be judged on the quality of the justice dispensed by those whom it appoints...It would not be fair on the Commission to expose it to the risk of criticism for having favoured a particular candidate simply as part of a policy designed to establish a career path".
What other steps could be taken by the Commission to encourage diversity?
There are 112 responses to this question, all of which accept the importance of the issue and which generally welcome the diversity aims set out in the consultation paper. There are no respondents who make a case for anything other than appointment on merit being the first criterion for all appointments.
There are three distinct strands to the responses:
that diversity is important and should be looked at by the Commission, but it must not override the importance of appointing on merit;
that positive steps must be taken to address the lack of diversity across the judiciary (most particularly at High Court Bench level and above); and
that diversity is an important issue, but there is no need to take any specific steps because the diversity imbalance will address itself over time, helped particularly by the creation of the new Judicial Appointments Commission (the 'trickle up' concept).
Dame Elizabeth Butler-Sloss believes that those who have left the legal profession to take a career break are unable to return easily and that they should be encouraged into the judiciary if suitably qualified. She believes that opportunities to sit as part-time judges and re-training would assist, and says that: "The encouragement of re-entry into the profession for those who take a career break would be a gender-neutral step, although it is likely to redress a hurdle which currently indirectly discriminates against women".
Many respondents, including the Commission for Racial Equality say that improving diversity does not have to be achieved at the cost of quality.
A legal academic suggests that closer work with the Law Society, the Bar Council, the DCA and the judiciary will ensure the creation of collective strategies for widening the recruitment pool and addressing inequalities which start early in the legal career.
The Commission for Judicial Appointments suggests the use of the "..magistracy and tribunal appointments as breeding grounds for those who might subsequently be interested in a judicial career. There needs to be the clear opportunity for someone to achieve the highest honours by unconventional routes".
The Institute of Legal Executives suggests that the proposals in the Consultation Paper do not go far enough and urges the Government to "..remove that first criterion for appointment which is that all candidates for judicial appointment must be a solicitor or barrister of 7 years standing. In itself, this criterion says nothing about the relevant skills of the individual and inhibits the appointment of competent individuals".
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?
There were 160 responses to this question, which break down as follows:
42% for the Judicial Appointments Commission;
34% for an overseeing body;
6% for either of the 2 main options;
4% for the Lord Chief Justice;
7% for none of these or other suggestions;
7% only responded in respect of issues relating to magistrates;
The Consultation Paper pointed out that the Lord Chancellor has exercised a disciplinary role in relation to lay magistrates, as well as the professional judiciary. Complaints against magistrates are dealt with, in the first instance by Local Advisory Committees, and these contributed significantly to the response. Of the 69 responses which favour the Judicial Appointments Commission having a role in the disciplinary procedure, 44 are from Local Advisory Committees. Of the 56 which favour an overseeing body being in control of the complaints process, 7 are from Local Advisory Committees. The Local Advisory Committees are generally of the view there should continue to be a local input into the disciplining of magistrates; only in serious cases (this is predominantly held to be where dismissal may be deemed appropriate) should the matter be referred upwards.
Arguments cited in favour of the new Commission taking on this disciplinary role, include the following:
the need to avoid over-regulation;
the appointments system would be improved by lessons learned from complaints; and
the sensitivity of disciplinary matters makes it more appropriate for the Commission to act on them.
Reasons put forward as to why the Commission should not take on this role, include a concern that it may be unethical for the appointing body to also have a (possible) role in dismissal.
The Law Society favours this role going to the Judicial Ombudsman, "in consultation with the Lord Chief Justice". The Society does not think that involving an additional body would help matters.
The EOC does not believe that: "..the body responsible for appointing the judiciary should be involved in the disciplining and potential removal of the judiciary. Conflicts arising from such an arrangement would reduce public confidence in any Judicial Appointments Commission and the judiciary." The Commission also favours an independent element, such as an Ombudsman, and suggests that this could be extended to all layers of the judiciary.
The London Solicitors Litigation Association states that it would be "odd" for the JAC to deal with appointments and discipline. It too favours an Ombudsman role.
The Association of Women Barristers points to the need for an independent body with the appropriate expertise, so that complaints are dealt with "..fairly, confidentially and consistently in the public interest...a new independent body is likely to encourage potential complainants who have confidence that a fair hearing and an unblighted career are possible. If the separate body provides an annual report, answers to a select committee and is accountable, it could have a valuable role in encouraging good practice and exposing bad and discriminatory practice".
The Bar Council wishes to see a split between the appointments and the disciplinary process. It favours initial sifting by the Department for Constitutional Affairs with remaining complaints being dealt with by the appropriate senior judge (the Lord Chief Justice to have ultimate responsibility).
The Judges' Council would also prefer to see control of disciplinary matters vested within the judiciary. It is concerned that: "The freedom of the judiciary from interference and the independence of the judiciary after appointment, is at least as important as freedom from interference and independence as to appointments". Its suggestion is that the Lord Chief Justice should broadly inherit the existing role of the Lord Chancellor in these matters.
The existing Commission for Judicial Appointments does not believe that the disciplinary role would sit well against the appointing role and suggests that the primary responsibility for these should rest with the Lord Chief Justice as Head of the Judiciary. The Commission says: "The systems for judicial appointment, training, appraisal, promotion and discipline should be designed to complement and calibrate with each other...There is a strong argument for an independent lay element in the complaints, disciplinary and grievance processes, but we do not consider that it would be an appropriate role for the new Judicial Appointments Commission".
Should the Commission have a role in an internal grievance procedure? If so, what should that role be?
There were 83 responses to this question, of which the majority (61%) argued that the Commission should not be given such a role. Twenty seven per cent of responses agreed that the Commission should have such a role. The remaining responses either suggest that it is too soon to be able to answer this question properly, or state no preference.
A variety of arguments are put forward as to why it would be inappropriate for the new Commission to be involved in the proposed grievance process:
it might give rise to a conflict of interests. For example, the Equal Opportunities Commission argues that it is important for there to be "..an independent investigation into any issues, complaints, etc";
JUSTICE says: "The Commission is concerned with, and will be expert in, judicial appointment. A separate grievance procedure should be established";
the handling of grievances is a personnel function that already exists elsewhere, for example, within the DCA;
to have the appointments and grievance procedure within the same unit might deter judges (or potential judges) from raising grievances. As one respondent puts it: "..there is always a perception that making a grievance will somehow spoil one's chances of promotion"; and
it is a matter of resources- the Commission will already have its hands full setting up the new appointments system.
Suggestions as to other bodies that might discharge this function include:
the proposed Judicial Ombudsman;
a new, distinct body;
the existing Commission for Judicial Appointments;
The Lord Chief Justice or other senior judge; and
The Secretary of State for Constitutional Affairs.
Those who support the new Commission taking on a grievance handling role point to the following:
grievance procedures should be internal so that lessons can be more easily learned;
the Commission will be seen to be an independent body and this in itself will ensure that grievances are independently handled; and
as complaints may well be about the Commission, they could deal with grievances initially but provide a right of appeal to a separate body.
Of those respondents who state no particular preference, the Black Solicitors Network is more concerned to make sure that whoever takes on this role ensures "..that good employment practice is being operated by the Commission. One of the complaints of ethnic minority judges, who are at the lower levels of the judiciary, is that the opportunity for promotion appears very distant and not transparent. There should clearly be a means whereby those junior members of the judiciary have an opportunity to raise issues of promotion if they believe they are being unfairly overlooked".
Should the responsibility of the Secretary of State for protecting judicial independence be enshrined in statute?
There were 111 responses to this question, of which 76% agreed that the Secretary of State should be given this duty.
Those who agreed that the Secretary of State's responsibility should be enshrined in statute argued that "[this] might enable the public to have greater confidence in the government's ability to respect the democratic bedrock of a free and independent judiciary". (The Association of Women Barristers). Others who supported the proposal also pointed out that this would not obviate the need for the Commission to be completely independent.
Fifteen per cent of responses opposed this proposal, but a minority of these, including that from the Judges' Council, did so on the basis that the duty should extend to all Ministers and not be confined to the Secretary of State.
The Judges' Council explained the importance of judicial independence. "Judicial independence is not given to judges as a privilege which goes with their office. It is an essential safeguard of individual liberty and of the community's entitlement to have its disputes, particularly those with the Government of the day and the institutions of the community, heard and decided by a judge who is independent of them all."
The Judges' Council goes on to argue that: "It would be inappropriate for a Minister who is no longer the Head of the Judiciary to be seen as the spokesperson of the judiciary."
Some of the responses which support a statutory duty for the Secretary of State also argue that the responsibility for protecting judicial independence should be extended to some or all other Government Ministers. For example, the Bar Council would also extend it to the Prime Minister if required, and "consider it vital that the role of Secretary of State for Constitutional Affairs is seen as a senior appointment, and that individuals appointed to this position have seniority and standing which is commensurate with the importance of this duty".
Some respondents felt that this obligation should also be extended to the Judicial Appointments Commission itself. The Commission for Judicial Appointments suggests that: "All those involved in the appointments process - the Commission as well as the Secretary of State - should be required by the legislation to exercise their functions in such a way as to safeguard and promote the independence of the judiciary".
Finally, a small number of respondents suggest that it is simply too early to say how these important matters should be determined.
Who should be responsible for appointing Commission members?
There were 101 responses to this question. The majority agree that appointments should be made by a recommending body although there are varying views on the composition of that body. There is also widespread support that 'Nolan principles' should apply.
A number of respondents, including the Judges' Council and the Society for Legal Scholars, suggest the Permanent Secretary of the Department for Constitutional Affairs should not chair the recommending body. The Judges' Council says this would "..send quite the wrong message in relation to independence". Some of those who argued that the Permanent Secretary should not chair the panel, nevertheless felt that it would be appropriate for him to be a member of the panel or to observe its proceedings.
Other proposals suggest that the panel could be chaired by the Lord Chief Justice and other members could include, for example, the First Civil Service Commissioner, the Commissioner for Public Appointments, the Chairman of the Committee for Standards in Public Life and an independent assessor.
The Society of Labour Lawyers is generally content with the proposal, but advises against being too specific at this stage as to membership of the recommending body. The Society remains concerned that as it is currently proposed "..taking on board the nature of the post holders that it could operate to perpetuate the existing elitist system". It also suggests that the panel should contain at least one person with a specific equal opportunities role.
The Commission for Judicial Appointments suggests that a small number of judicial members should be appointed to the Judicial Appointments Commission ex officio, such as the Lord Chief Justice, the Master of the Rolls or the Senior Presiding Judge. The Commission also suggests the inclusion of an appropriate member of the Supreme Court of the United Kingdom, particularly in a Senior Appointments Board. The remaining members would be appointed "by The Queen on the advice of the Prime Minister following an open and transparent competition. The Chair of the new Commission should be involved in the selection of the other Commissioners, apart from those appointed ex officio".
Among those who point out the need for clear criteria for appointment to the Commission are the EOC: The appointment process should follow the transparent and objective model as has been advocated for the judiciary. Again, the EOC would like to see clear procedures, along with assessment and selection criteria, for the appointment of Commissioners after an open advertisement and interview exercise, as has been advocated for the appointment of the judiciary themselves".
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?
Seventy four per cent of the 128 responses to this question agree that the new Commission should be composed of judicial, legal and lay members. There is general agreement that there should be no more than 15 members on the Commission as any greater number would be too unwieldy.
Thereafter, there is divergence as to how membership should be divided amongst the three groups. The breakdown is as follows:
an even split (43%);
a judicial majority (18%);
a legal (non-judicial) Majority (2%);
a lay majority (16%);
other, e.g. equal split between lay/legally qualified (21%).
The Commission for Racial Equality says: "No single category should dominate. Either as a lay member or as an additional category there ought to be a member or members with proven experience of promoting equality, for example a commissioner from an equality commission".
The Judges' Council favours a composition that provides for a smaller Commission (11 plus chair). They suggest five judges (for example, the Deputy LCJ or Senior Presiding Judge, a member of the Court of Appeal, a High Court Judge, a Circuit Judge and a District Judge/Master. The remaining groups would contribute six members thus: two lay judiciary, two lawyers and two lay members (they see magistrates and tribunal members as a fourth category - lay judiciary). The lay members and lawyers could therefore combine and outvote the judicial members.
The Bar Council prefers to see a Commission of 15 with a majority, eight, judicial members. It recognises that this may lead to a perception that the judiciary will perpetuate itself in terms of social background and political outlook but it does "..not consider that this alters the self-evident fact that the group that has the greatest experience and understanding of the characteristics required from judges are judges themselves, and that they are also the group most likely to protect the independence of the judiciary". The Council believes that concerns can be met by ensuring a broad range of experience across the other members.
Several respondents point to the diversity that a lay majority would bring, not only to the Commission itself but also to appointments.
The Law Society mentions the success of the existing Commission for Judicial Appointments, and favours a system whereby one half of the members are lay and with a lay chair, three judges, three lawyers and one academic. The Society says that the success of the CJA "..demonstrates clearly that if people of the right calibre are appointed they are well able to grapple with the complex issues surrounding the appointment of judges." It also believes that a strong lay element will help seek out people from non-traditional backgrounds.
The CJA itself agrees that seven lay members plus a lay chair (to provide the majority) is more appropriate. The Commission believes it is crucial that members are appointed for the skills, experience and personal qualities they can bring to the Commission and not as representatives of interest groups.
Who should chair the Commission?
There were 112 responses to this question.
45% favour a judicial chair;
27% favour a lay chair;
2% favour a legal, non-judicial chair; and
26% do not come down in favour of any particular option
Those who favour a judicial chair say that it will be an ambassadorial role and this should be reflected by the appointment of a senior chair to give the post prestige and to enhance confidence in the appointments process.
However, there are practical difficulties in expecting a serving judge to serve as chair of the Commission. These are reflected in the response of the Judges' Council which, "reluctantly concluded that the Chairperson's weighty responsibilities mean that it would not be practical for the role to be undertaken by a serving judge".
This view is supported by the Law Society, which, citing the example of the existing Commission, suggests that it is too onerous a task for a senior judge with judicial responsibilities.
This view is also shared by the Bar Council which says that time elements in particular prevent the role being given to a serving judge.
In addition, those who favour a lay chair say that:
the experience of the existing Commission for Judicial Appointments and other Commissions (such as Scotland and Canada) is that a lay chair brings fresh ideas and inspires confidence in the independence of the Commission; and
it will ensure the independence of the Commission - JUSTICE refers to: "An eminent lay person whose competence, integrity and independence is unassailable".
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?
More than half of the 106 respondents to this question (52%) believe that some members of the Commission, for example judicial members, should be appointed following nomination; 27% suggest that all members should be appointed following open competition; 9% support the view that one or more of the professional bodies should have a statutory right to nominate members.
Those who favour the nomination of some or all members of the Commission generally suggest that this should be by the Judges' Council (or the Lord Chief Justice). Those who support professional bodies also being allowed to nominate suggest the Law Society, and the Bar Council as the bodies which should be invited to nominate. This is a proposal favoured by the Judges' Council.
Arguments in favour of appointment by open competition for some or all members include:
nominations from various bodies would mean the Commission was working in partnership with them, whereas it should be a neutral body;
there would be difficulties in identifying specific groups who could play a long term role on behalf of particular constituencies;
the Commission, and its members, need to be fair, open and independent, which is best achieved via open competition;
nominations may give the perception of improper influence. The EOC says that failure to carry out an independent process would "..involve the question of inherent imbalance and subjectivity which would go the root of the independence and integrity of any Judicial Appointments Commission and so the judiciary";
it will increase the diversity of membership; and
there have been positive experiences with other appointing Commissions. The Law Society favours open competition for this reason although it would not rule out itself, the Judges' Council and the Bar Council being encouraged to identify members to apply for appointment.
The Bar Council prefers ex officio appointments for some members, e.g. the Lord Chief Justice and the Master of the Rolls, and for the Judges' Council to nominate judicial members. Also the appointment of barrister and solicitor members by itself and the Law Society, with the lay members and the chair appointed by an independent appointing body in accordance with Nolan principles.
Do you have any views on the working arrangements for Commission members?
Of the 80 responses to this question, 24% put forward no specific views as to the working arrangements for Commission members.
The majority of responses support Commission members being able to work part-time (if this is practical and manageable, depending on the Commission's workload) and particularly so for judicial and legal members. The EOC suggests that: "The ability of members to continue in other roles will enhance their input and skills as members".
As well as support for part-time members, it is suggested that arrangements be flexible enough to allow for the whole range of part-time working options, including job sharing and term-time and evening working.
There is agreement that security of tenure is desirable (save for misconduct) if the Commission is to be able to function independently and effectively. The majority of respondents who expressed an opinion are in agreement that membership terms be of five years in duration. An exception is the Bar Council which has a concern: "That a commitment of this length may put off potential candidates. We consider a tenure period of 3 years to be more appropriate with the option for one extension."
The Judges' Council suggests that the Commission will have to work through a series of sub-committees.
The responses summarised here concern proposals for the establishment of a new Judicial Appointments Commission for England and Wales and were offered in response to the Consultation Paper, Constitutional reform: a new way of appointing judges. Changes to the way judges are appointed are part of the Government's programme to modernise the constitution and to reform the office of Lord Chancellor. Responses summarised here have informed the development of this important and wide ranging reform. In due course the Government will announce its finalised proposals, and intends to introduce to Parliament a Bill to enable the proposed changes to be made.
Members of the House of Lords (who are or have been Lords of Appeal)
The Right Honourable The Lord Cullen of Whitekirk PC (Lord President of
the Court of Session)
The Right Honourable The Lord Hobhouse of Woodborough PC
The Right Honourable The Lord Lloyd of Berwick PC DL
The Right Honourable The Lord Mackay of Clashfern KT PC FRSE
Other Members of the House of Lords
The Right Honourable The Lord Alexander of Weedon QC
The Right Honourable The Lord Morris of Aberavon KG PC QC
Judiciary, Tribunal Members & Associated Bodies
The Right Honourable Dame Elizabeth Butler-Sloss DBE (President of the
Family Division)
The Right Honourable Lady Justice Arden DBE
The Right Honourable Lord Justice Buxton
The Right Honourable Lady Justice Hale DBE
The Right Honourable Lord Justice Keene
The Right Honourable Lord Justice Mance
The Right Honourable Lord Justice Mummery
The Right Honourable Lord Justice Schiemann
The Right Honourable Sir Iain Glidewell
The Honourable Mr Justice Burton (President of the Immigration Appeal Tribunal)
The Honourable Mr Justice Holland
The Honourable Mr Justice Jacob
The Honourable Mr Justice Lloyd (Vice-Chancellor of the County Palatine
of Lancaster)
The Honourable Mr Justice Ouseley
The Honourable Mr Justice Tomlinson (Chairman of the Commercial Court Users
Committee)
His Honour Judge Thomas Coningsby QC
Her Honour Judge Linda Davies
His Honour Judge Michael Harris (President of the Appeals Tribunal)
His Honour Judge Gary Hickinbottom (Chief Social Security and Child Support
Commissioner)
His Honour Judge Keith Hollis
His Honour Judge Richard Holman
His Honour Judge Peter Jackson
His Honour Judge David Mackay
His Honour Judge David Radford (Representing the judiciary of Snaresbrook
Crown Court)
District Judge Adam Taylor
District Judge John Friel
Judge Advocate John Camp
David Sneath (Regional Chairman of Employment Tribunals, Leeds)
Martin Wood (Chief Parking Adjudicator)
The Commonwealth Magistrates and Judges' Association
Council of Employment Tribunal Members' Associations
The Ecclesiastical Judges Association
The Judges' Council
National Association of General Commissioners in England, Wales and Northern
Ireland The Social Security Commissioners (Scotland)
UK Association of Women Judges
Magistrates, Associated Persons & Bodies
Eileen Baglin-Jones JP
Paul Fellingham
Sheila Green JP
D R Matthews JP
Dr J M Moore JP (Chairman, South Worcestershire Bench)
Bob Newton
Mike Owen JP
Ian Reynolds
Alec Samuels JP
Association of Lord-Lieutenants
The Cheshire Branch of the Magistrates Association
Essex Magistrates' Courts' Bench Chairman's Forum
Hertfordshire Magistrates' Court Service Bench Chairmen's Group
Inner London Branch of the Magistrates' Association
Lincolnshire and South Humberside Magistrates' Association
Greater Manchester Magistrates' Courts Committee
Chairmen of the six petty sessions areas Merseyside
Merseyside Magistrates' Courts Committee
Merseyside Magistrates' Courts St Helen's Bench Committee
North Sefton Bench Committee
South Sefton Bench Committee
Suffolk Magistrates' Courts Committee
The Lord Chancellor's Advisory Committees on Justices of the Peace for
:
Avon
Barnsley and Sheffield
Batley, Dewsbury and Huddersfield
Bedfordshire
Royal County of Berkshire
Black Country Region
Bradford
Bristol
Buckinghamshire
Calderdale (Halifax)
Carmarthenshire
Ceredigion
Cheshire
North Cleveland
South Cleveland
Clwyd
Cornwall
Cumbria
Cumbria (South-East Area)
Central Devon
County of Devon
Dorset
Durham
Essex
Grimsby and Cleethorpes
Gloucestershire
Gwent
Hampshire
North Hampshire
Hereford and Worcester
Central Hertfordshire (Sub-Committee)
West Hertfordshire (Sub-Committee)
Humberside (East Riding Sub-Committee)
The Isle of Wight
Keighley
Kent
Kingston upon Hull
Leicester and Leicestershire
Leeds
Lincolnshire
North East London Area
South East London Area
Mid-Glamorgan
Middlesex
Newcastle upon Tyne
Norfolk
Northamptonshire
Nottingham & Nottinghamshire
Oxfordshire
Pembrokeshire
City of Plymouth
Pontefract and Wakefield
Powys
Rochdale Advisory Committee
Rotherham (also on behalf of Doncaster Advisory Committee)
Shropshire
Solihull
Somerset
South Somerset
Staffordshire
Suffolk
Surrey
East Sussex
West Sussex
Walsall
Warwickshire
Wigan and Leigh
Wiltshire
North Yorkshire
The Chancellor of the Duchy of Lancaster's Advisory Committees on Justices
of the Peace for:
Lancashire
Manchester
Merseyside
Oldham
Salford
Stockport
Trafford
Legal Professionals and Associated Bodies
Allen and Overy
Michael Beckman QC
Peter Careless
Clifford Chance
David Cocks QC
Beryl Cooper QC
Anna Edmundson (response on behalf of named individual barristers and staff
from Matrix Chambers)
Edwin Coe Solicitors
Darren Finlay
Gary Flather OBE QC
Fountain Court Chambers
John Franks
Christopher Frazer
Robert Gay
Roger Goodier (Chairman of Criminal Injuries Compensation Appeals Panel)
Nicholas Somerset Haggan QC
David R Harris
Herbert Smith
Barbara Hewson
B A Hytner QC
Sir Godfray Le Quesne QC
Lovells
Charles Macdonald QC
Cameron McKenna
Flora Page
Leolin Price CBE QC
Robin Purchas QC (Response of Chambers)
J J Rowe QC and David Hoffman
Charles Scanlan
Balbir Singh
Peter C Taylor
Stephen Wildblood QC
Wragge & Co
The Association of Law Costs Draftsmen
The Association of Personal Injury Lawyers
The Association of Women Barristers
The Association of Women Solicitors
Birmingham Law Society
The Black Solicitors Network
The Chancery Bar Association
City of London Law Society
The Constitutional and Administrative Law Bar Association
Derby and District Law Society
Commercial Bar Association
Ecclesiastical Law Society
The Employed Bar Association (BAFCI)
The General Council of the Bar
Hertfordshire Local Group of the Sole Practitioners Group of the Law Society
Institute of Legal Executives (ILEX)
Intellectual Property Bar Association
Kent Law Society
The Law Society
The Law Society of Northern Ireland
The Lawyers' Christian Fellowship
Leicestershire Law Society
London Solicitors Litigation Association
London Common Law and Commercial Bar Association
Motor Accident Solicitors Society
Newcastle Upon Tyne Law Society
The Northern Circuit Commercial Bar Association
Personal Injury Bar Association
The Society for Black Lawyers
The Society of Conservative Lawyers
The Society of Labour Lawyers
Tunbridge Wells, Tonbridge and District Law Society
Public Bodies
Commission for Judicial Appointments
Commission for Racial Equality
Commissioner for Public Appointments (Dame Rennie Fritchie)
Committee on Standards in Public Life
Council on Tribunals
Equal Opportunities Commission
Judicial Studies Board
Judicial Studies Board for Northern Ireland
Parole Board
Public Interest Organisations and Charities
The Campaign for a National Legal Service
Charter 88
Dabari Trust UK
Discrimination Law Association
JUSTICE
Legal Action Group
Legal Wales
Liberty
Odysseus Trust
Policy Exchange Rights of Women
Training for Women Network Limited
Legal Academics and Associated Bodies
Professor John Abecasis-Phillips
Professor Sir John Baker QC LLD FBA
Professor Andrew Burrows QC
University of Cambridge Centre for Public Law
Dr Noel Cox
Martin Hunt
Professor J A Jolowicz
Dr Kate Malleson
Professor Judith Resnik
Dr Paul Robertshaw
The Society of Legal Scholars
Others
S P Bowers
Gavin Coles
Andrew Dakoutros
Roy Fox
John Gasson CB
Marion Green
Ranil M Jayawardena
John Pollock
Chris Purnell
David Robins
Joshua Rozenburg
Russell Sandberg
Toby Simon
K E Tyson
Nigel Vessey
W J Whitehead
P Windle
Alliance & Leicester plc Group Legal Services
AMO
International Underwriting Association
Northumberland County Council (Legal Services Division)
PCS
Verderers of the New Forest