Chapter 2: The constitutional framework|
14. The principle of judicial independence, without
which the rule of law is impossible, is recognised as an essential
feature of constitutional democracies around the world. Many of
our witnesses stressed the primary importance of judicial independence,
and none dissented. There was widespread agreement that the appointments
process must be designed in such a way as to reinforce judicial
in the United Kingdom should not be appointed through political
15. It is important not only that the judiciary
act independently, but that they are seen to do so. This principle
also extends to the appointments process. Lord Justice Toulson,
Vice-Chairman of the JAC, noted that prior to the enactment of
the CRA "there was widespread public concern that judges
were being appointed through cronyism and secret soundings. Nothing,
really, could disabuse the public of that."
The establishment of the JAC was intended to put an end to such
concerns. By operating in an open and transparent mannerfor
example, by advertising vacancies, specifying the criteria for
appointment and publishing diversity statisticsthe existence
of an independent appointments commission is aimed at helping
to ensure that no suspicion of political patronage remains.
16. As well as upholding independence and being
open and transparent, the judicial appointments process must be
effective. Assessment of professional competence must be central
to the selection of judges in order to ensure the efficient delivery
of justice. The CRA uses the term "merit" to refer to
these criteria, which have been set out in some detail by the
JAC. We received
different views as to how merit ought to be understood and applied
in judicial selection. Given the importance of the merit principle,
it is important that there is clarity over its basic meaning.
We return to this in Chapter 3.
17. Another principle relevant to judicial appointments
is diversity. At one level this means that the process must be
fair and non-discriminatory: by that we mean that it must continue
to result in the appointment of high quality judges, but without
the imposition of barriers against talented legal practitioners
from any section of society. However, the issue of diversity goes
further than this: we received evidence, with which we concur,
arguing that diverse courts are better equipped to carry out the
role of adjudicating than courts that are not diverse and that
the public will have greater trust and confidence in a more diverse
judiciary. As we argue in Chapter 3, the primacy of the merit
principle is not inconsistent with the appointment of a diverse
judiciary which is more reflective of the society which it serves.
18. The principle of accountability is also important.
Judicial independence does not require that no-one be held accountable
for the operation of the appointments process or perhaps even,
in exceptional cases, for individual appointments. Later in this
Chapter we consider the practical mechanisms by which the JAC
and the Lord Chancellor are held to account. Through annual reports,
a detailed website and appearances before parliamentary committees,
the JAC provides regular accounts of its work to Parliament, ministers
and the public. The Lord Chancellor's role in the appointments
process is justified as necessary to secure accountability to
Parliament through the usual convention of individual ministerial
responsibility. Some of the evidence we received questioned the
effectiveness of the current accountability mechanisms, leading
to calls for Parliament to have a greater role in the appointments
19. None of our witnesses called for the complete
replacement of the basic model for judicial appointments which
was established by the CRA. We would not like to see that model
replaced. But many of our witnesses disagreed about the precise
role of the JAC and the Supreme Court selection commissions and
about the extent to which Parliament, the executive and the judiciary
should also have a role to play. All three branches of the state
have a legitimate interest in the quality of justice
and in the quality of those appointed to act as judges. In the
rest of this Chapter, we examine the respective roles of the Lord
Chancellor, Parliament, the JAC and the judiciary to determine
whether the current balance is right.
20. The principles which we believe should
continue to underpin the judicial appointments process are judicial
independence, appointment on merit, accountability and the promotion
of diversity. The achievement of the correct balance between these
principles is vital in maintaining public confidence in the judiciary
and the legal system as a whole.
The Lord Chancellor
21. Under s 3(6)(a) of the CRA, the Lord Chancellor
has a specific statutory duty to defend the independence of the
judiciary. This duty underpins his role in the appointments process
which is set out in Box 1 below. We examine here the principles
governing the Lord Chancellor's involvement in the judicial appointments
The Lord Chancellor's power to reject
or request reconsideration of nominations
When making nominations for filling judicial vacancies
for the courts of England and Wales, the JAC recommends a single
candidate to the Lord Chancellor. The Lord Chancellor then has
three options: he may accept the recommendation, in which case
the candidate's name is put to Her Majesty for appointment; he
may reject the nomination if he considers that the candidate is
unsuitable for appointment; or he may ask the JAC to reconsider
the nomination if he considers that there is either insufficient
evidence that the candidate is suitable or evidence that the person
is not the best candidate on merit. If the Lord Chancellor rejects
a candidate or asks the JAC to reconsider he must provide the
JAC with written reasons for the request.
If the Lord Chancellor either rejects or asks the
JAC to reconsider its first nomination, the JAC will then propose
a second name to the Lord Chancellor. If the first candidate is
rejected, that candidate may not be proposed again. If the JAC
is asked to reconsider, it may either re-recommend the first candidate,
or nominate a new candidate. The Lord Chancellor again has three
options: accept the candidate; reject, but only if the candidate
was nominated following a reconsideration; or ask for reconsideration,
but only if the nomination was made following a rejection.
If the Lord Chancellor rejects or asks for reconsideration
during the second round, the JAC must make a third nomination:
again, a candidate previously rejected by the Lord Chancellor
for this vacancy may not be re-nominated.
On receipt of the third nomination, the Lord Chancellor
must either accept the third nomination or accept an earlier nomination
which he had asked to be reconsidered and where the candidate
had not subsequently been re-nominated. Effectively, at this stage
the Lord Chancellor may select any candidate proposed by the JAC
during the process, as long as he or she has not rejected that
candidate at any stage.
The process for appointments to the Supreme Court
is similar to that outlined above; though in the case of such
vacancies the Lord Chancellor is also obliged to consult with
certain senior judges, as well as the First Ministers of Scotland
and Wales and the Northern Ireland Judicial Appointments Commission.
THE PROPER EXTENT OF THE LORD CHANCELLOR'S
22. As well as creating a new appointments process,
the CRA removed the role of the Lord Chancellor as head of the
judiciary and as Speaker of the House of Lords.
The position of Lord Chancellor, which is legally and constitutionally
distinct from that of Secretary of State for Justice, is now a
more political role than it once was. Although, to date, Lord
Chancellors have all been lawyers, there is no longer any requirement
for this to be the case. As the current Lord Chancellor, Kenneth
Clarke MP, told us:
"I think that we will have a Lord Chancellor
who is not a lawyer. The lawyers that we have, including me, will
not be as senior and distinguished as they used to be ... A better
understanding of my role would be to describe me as Secretary
of State for Justice ..."
23. Lord Woolf, who was Lord Chief Justice at
the time leading up to the passing of the CRA, told us that this
changing role of the Lord Chancellor was one of the reasons why
the Lord Chancellor's role was restricted by the CRA: it would
have been inappropriate for a politician to continue to act as
Lord Chancellors had done previously.
Although, in recent history, there has been no political misuse
of the role, the risk of this occurring in the future if the Lord
Chancellor were to be given increased powers cannot be ignored.
24. Despite this, some of our witnesses argued
that the Lord Chancellor should have an increased role, particularly
in relation to the appointments process as a whole.
Others considered that the Lord Chancellor should be removed from
the process altogether, except in a purely formal capacity.
The majority of evidence we received urged caution in dramatically
reducing or increasing the Lord Chancellor's role. The JAC's written
submission stated that:
"The Lord Chancellor's role is potentially quite
extensive, but ... a convention has emerged that the Lord Chancellor's
involvement is minimal and the vast majority of the JAC's recommendations
are accepted without request for reconsideration or rejection."
25. On this basis, Lord Mance, Justice of the
Supreme Court, argued that the Lord Chancellor acted as "a
remote long-stop [which] can have some impact, if only indirectly."
The Lord Chancellor is accountable to Parliament for the appointments
process: it is important to maintain the connection between Parliament,
the executive and the JAC partly so that "the government
cannot entirely wash their hands of what is happening"
and partly to enable the Lord Chancellor better to defend the
judges from attack by taking responsibility for the system which
26. We agree that the Lord Chancellor should
continue to have a limited role in the appointment of individual
members of the judiciary: an increased role would risk politicising
the process. However, we consider that the Lord Chancellor must
retain responsibility and be accountable to Parliament for the
overall appointments process.
THE POWER TO REQUEST RECONSIDERATION
OR REJECT NOMINATIONS
27. As detailed in Box 1, the Lord Chancellor
may accept, reject or request the reconsideration of a nominee
put forward by the JAC or a Supreme Court selection commission.
The Lord Chancellor is responsible for making the vast majority
of judicial appointments.
The Government's consultation paper states that:
"Last year the Lord Chancellor approved 686
judicial appointments; 400 for the Tribunal Service; 284 for the
Courts Service; and 2 for the UK Supreme Court. The Lord Chancellor
accepted every recommendation put forward by the Supreme Court
and the JAC except for one."
28. Partly in the light of the establishment
of a single head of the courts and tribunals judiciary (the Lord
Chief Justice), the Government propose that the Lord Chancellor's
role in relation to individual appointments should be removed
from all posts below either the High Court or the Court of Appeal.
Responsibility for making all lower level appointments would rest
with the Lord Chief Justice. The Government are of the view that
the Lord Chancellor should retain his role in relation to more
senior appointments since the complete removal of his role "would
result in an accountability gap" which "increases with
the seniority of the appointment being made, given the Lord Chancellor's
statutory duty to Parliament for the operation of the justice
system and the key role the senior judiciary play in that regard."
29. In oral evidence, the Lord Chancellor told
us that his role:
"for appointments below the High Court has become
largely ceremonial and ritualistic ... I do not know the people.
I have no direct contact with the posts concerned and I do not
think that anyone in my department is in any better a position
than me to second-guess what the Judicial Appointments Commission
does. Therefore, I think that we should present a little more
of the reality to the outside world ..."
30. This argument was supported by the previous
Lord Chancellor, Jack Straw MP, who described his role in relation
to the lower tiers of the judiciary as "ridiculous".
The Lord Chief Justice, Lord Judge, also stressed that the Lord
Chancellor "has no input at all to make other than to be
there to look as if he is making an input ... It simply suggests
there is political involvement when we have tried to get rid of
former Lord Chancellor, Lord Mackay, disagreed. He argued that
"the elected government and the peoplethe democracyhave
an interest in seeing that the judicial process will be properly
run and that the people in it are proper for that job."
31. Some witnesses were also concerned that to
remove the Lord Chancellor's role for all those except the senior
judiciary would "send a signal that lower-tier appointments
are not as important."
However, both Lord Justice Carnwath,
the then Senior President of Tribunals,
and the Association of HM District Judges
agreed with the Government's position that the Lord Chancellor's
role should be limited to the most senior appointments. We do
not consider that the proposed change would diminish the importance
of individual appointments to the lower level courts.
32. The appointments process needs to be robust
and, so far as possible, efficient. The Lord Chief Justice has
day to day responsibility for the judiciary of England and Wales:
he knows what is required of judicial office at all levels. He
is therefore better placed than the Lord Chancellor to make an
informed assessment of whether a nominee put forward by the JAC
should be appointed. Transferring the Lord Chancellor's power
to request reconsideration or reject nominations to the Lord Chief
Justice would strengthen the appointments system.
33. The senior judiciary are responsible for
decisions which have a significant impact on the whole of society:
this particularly applies to the appellate courts whose decisions
may not, or cannot, be further appealed. The need for proper accountability
for appointments is therefore greatest in relation to the appellate
courts. However, the significance of this change means that it
would be better to restrict this change to appointments below
the High Court for the time being.
34. In order to maintain public confidence
in the system, there is a need for the legal framework for appointments
to reflect both the extent to which the executive should be involved
in individual appointments and the reality of that involvement.
We agree that the power to request reconsideration or reject nominations
should be transferred from the Lord Chancellor to the Lord Chief
Justice in relation to appointments below the High Court. This
will promote the independence of the judiciary and increase public
confidence in the system. Whether the Lord Chancellor's powers
in respect of High Court appointments should be transferred to
the Lord Chief Justice should be reviewed in three to five years'
35. We recognise that this change may have resource
implications for the Office of the Lord Chief Justice. The
Government should consider whether the Lord Chief Justice will
need additional support in order to take on this role.
36. Some of our witnesses argued that the Lord
Chancellor should be able to select from a shortlist of candidates
proposed by the JAC, at least in respect of the most senior appointments.
Professor Cheryl Thomas pointed out that the system created by
the CRA "is unique in relation to appointments commissions
in most other jurisdictions" where the executive normally
has the power to select from a shortlist.
The two main arguments given in favour of shortlists were democratic
diversity. In relation
to the former argument, we have already stated that the Lord Chancellor
should primarily be accountable for the overall process.
His power to reject individual (senior) appointments enhances
this accountability without undermining the independence of the
process. As we note above,
his lack of involvement in the appointment of judges to the lower
courts and tribunals, means that any democratic accountability
in relation to those appointments is illusory. In relation to
the diversity argument, we note evidence that unless a Lord Chancellor
is committed to the promotion of diversity, the use of shortlists
could have the reverse effect of reducing the diversity of the
37. The use of shortlists would undermine
judicial independence and be contrary to the principle of appointment
on merit. The Lord Chancellor should not be offered a shortlist
of candidates from which to choose.
38. It is the responsibility of Parliament to
establish the statutory framework for the judicial appointments
process. Parliament also has an accountability role to play in
overseeing the process and reviewing the success or failure of
its operation. To what extent should Parliament or parliamentarians
be involved in individual appointments? And how best can Parliament
hold the Lord Chancellor and the JAC to account for the operation
of the process?
PRE- OR POST-APPOINTMENT HEARINGS
39. We received evidence arguing that candidates
for some senior judicial posts
should be subject to a pre-appointment hearing before a parliamentary
Robert Hazell, Director of the Constitution Unit, University College
London, and Professor Kate Malleson, Professor of Law, Queen Mary,
University of London, set out the arguments in favour of such
hearings as follows: 
· hearings act as a check on political patronage,
help to ensure that independent and robust candidates are appointed
and add to the appointee's legitimacy;
· Parliament has the power to scrutinise
all acts of the executiveappointments of senior judges
are an important exercise of ministerial discretion and should
be subject to parliamentary scrutiny which is a useful check against
· Parliament nowadays has little contact
with the judges: the senior judges are largely unknown to MPs;
Supreme Court Justices will be unknown to the Lords now that the
law lords have departedthrough dialogue, political and
judicial actors can better understand the constraints under which
the other operates;
· the judges should meet the body vested
with the constitutional power to dismiss them.
40. A number of witnesses focused the case for
some form of pre-appointment hearing on the increasingly complex
role of the senior judiciary and the legitimate role for Parliament
to consider candidates' competing judicial philosophies. Individual
decisions made by judges impact on policy and determine the interpretation
of legislation enacted by Parliament. Some witnesses argued that
in respect of legislation such as the Human Rights Act 1998, and
in the development of judicial review, the judiciary has a wide
margin in which to develop the law and that Parliament has a legitimate
interest in the manner in which this is done. Professor Alan Paterson,
Professor of Law at the University of Strathclyde, argued that:
"We already have committees to ask Supreme Court
nominees what they think the role of a Supreme Court justice is
in a democracy. I see no reason why the appointments panel could
not ask that and I see no reason why a parliamentarian could not
... ask it. Indeed, it could ask about the judge's views on parliamentary
sovereignty. We know that there is a split among some judges in
their views on this. I do not see why one could not elicit views
in general terms on that sort of thing."
41. Jack Straw MP, a former Lord Chancellor,
stressed the need to address the "lack of mutual confidence
between the senior judiciary and this place [Parliament] in respect
of the role of the senior judiciary and its broadening authority
into areas that are inevitably political".
Sir Thomas Legg, former Permanent Secretary in the Lord Chancellor's
Department, considered it to be "more and more desirable
that our most senior judges should be able to ground their mandate
on the authority, not only of the executive, still less of the
judges themselves and a few laymen alone, but of Parliament itself."
42. A number of witnesses on both sides of the
argument referred to the system of confirmation hearings in the
United States. However,
Professor Cheryl Thomas, Professor of Judicial Studies, University
College London, noting the more extensive powers of US judges
and their appointment by the President, argued that there were
"extremely good reasons for there to be a legislative hearing
process for those judges that do not apply to judges in this country."
43. The weight of our evidence was against pre-appointment
hearings for UK judges. Professor Brice Dickson, Professor of
International and Comparative Law at Queen's University, Belfast,
stressed the ability of Parliament to overturn individual judicial
Lord Kerr, Justice of the Supreme Court, described such hearings
as "the complete antithesis of the preservation of judicial
The benefits of pre-appointment hearings in respect of senior
public appointments are many,
but the relationship between Parliament and the judiciary is a
unique one. Parliament is best placed to protect the independence
of, for example, ombudsmen from the executive. Judges must be
independent of both the executive and Parliament: it is imperative
that they remain one step removed from the political process.
44. Our witnesses also raised more immediate
concerns about pre-appointment hearings. It would be difficult
to limit the questioning of candidates to matters of general judicial
philosophy and approach.
There is a real danger that questions might touch on specific
issues that could come before the courts or on candidates' individual
political positions. Even if parliamentarians did limit themselves,
the answers would either be at a level of such generality as to
be effectively meaningless
or be sufficiently detailed as to risk politicising the process.
Some witnesses were concerned that hearings would act as a disincentive
to many potential candidates.
There is a further question of what impact criticism of a candidate,
explicit or implicit, might have on his or her future public standing.
45. Pre-appointment hearings "would also
risk undermining the public's confidence that the senior judiciary
is appointed strictly on merit and having regard to integrity
Roger Smith, Director of JUSTICE, thus described the proposal
as "a quagmire into which no one would want to go."
46. We are against any proposal to introduce
pre-appointment hearings for senior members of the judiciary.
However limited the questioning, such hearings could not have
any meaningful impact without undermining the independence of
those subsequently appointed or appearing to pre-judge their future
decisions. In the United Kingdom, judges' legitimacy depends on
their independent status and appointment on merit, not on any
47. One alternative to pre-appointment hearings
which we examined was the idea that senior members of the judiciary
should appear before a parliamentary committee following their
appointment. This would enable a dialogue to take place between
those judges and parliamentarians with less risk of politicising
the appointment. Our witnesses demonstrated little support for
this idea. Baroness Hale, Justice of the Supreme Court, stressed
that post-appointment hearings would not improve the accountability
of the system. Lord
Judge CJ, noting that most senior judges are not responsible for
administrative issues, argued that there was no purpose in parliamentarians
simply meeting a Justice of the Supreme Court for the sake of
it: "I think the idea of beauty parades is not a good one."
48. We agree that post-appointment hearings
of senior judges would serve no useful purpose. There may be an
exception in the case of the Lord Chief Justice and the President
of the Supreme Court who undertake leadership roles for which
they can properly be held to account.
PARLIAMENTARY PARTICIPATION IN SELECTION
49. A number of witnesses, including some of
those who disagreed with the concept of pre-appointment hearings,
proposed that parliamentarians should in future sit as members
of selection panels, in particular for the Supreme Court. Lord
Justice Etherton and Baroness Hale both argued strongly in favour
of this proposal on the grounds that "politicians have the
legitimacy of being elected"
and that it would be "a small step towards increasing the
democratic accountability of the process".
Baroness Hale further argued that it would "reduce the potential
an argument reflected in the evidence of Lord Mance who considered
that this could be one way of ensuring that candidates were assessed
"from different angles".
50. Lord Phillips, President of the Supreme Court,
disagreed with this analysis. He argued:
"Once you start introducing some kind of parliamentary
choice of who is appointed, one asks what the criteria are that
Parliament is going to be adopting in making the choice. If it
is simply to appoint the best person, well, I do not think Parliament
is best placed to do that. If it is, alternatively, to have regard
to political considerations, I do not myself think that is desirable."
This concern was shared by a number of other witnesses,
including Lady Justice Hallett
and Lord Neuberger MR.
51. We accept the concern raised by Baroness
Hale and others that selection panels must not simply contain
judges who might seek, subconsciously or otherwise, to appoint
others in their own image. But we disagree that the involvement
of parliamentarians is the means to prevent this. The first question,
to which none of our witnesses suggested a convincing answer,
is how would these parliamentarians be chosen, and on what basis?
Whilst there is no objection to lay persons who happen also to
be parliamentarians sitting on panelsindeed, the first
Chair of the JAC, Baroness Prashar, is a cross-bench member of
this Houseand emphasising that there is a strong case for
more lay representation on selection panels to increase diversity,
we do not see what additional questions a parliamentarian might
sensibly ask which could not be asked by a lay person.
52. Parliamentarians, acting in that capacity,
should not sit on selection panels for judicial appointments.
There is no useful role that parliamentarians could play that
could not be played by lay members on selection panels. It would
not be possible to choose one or two parliamentarians without
recourse to political considerations and in so doing it would
be difficult to maintain the appearance of an independent judicial
PARLIAMENTARY OVERSIGHT OF THE JUDICIAL
53. The proper role of Parliament is to have
oversight of the judicial appointments process rather than to
be involved in specific appointments. The Lord Chancellor has
ministerial responsibility for the appointments process and is
accountable to Parliament for his actions. There is an additional
question of the extent to which Parliament should be able to question
judges directly on the appointments process and other matters.
54. The Lord Chief Justice, as head of the judiciary
of England and Wales, appears annually before this Committee to
give evidence on issues of constitutional importance to both Parliament
and the judiciary.
He similarly appears on a regular basis before the Justice Committee
in the House of Commons.
Lord Judge CJ told us that he was "perfectly happy to come
and speak" to us on a regular basis "provided that it
does not happen too often and provided that the discussion is,
as this one is, structured."
Lord Woolf, a former Lord Chief Justice, also agreed that such
discussions were appropriate.
55. Lord Phillips, the current President of the
Supreme Court, also
confirmed that he would be content with an annual appearance before
this Committee. We
welcome the fact that a number of judges have provided evidence
to this inquiry and other parliamentary inquiries in the past.
We recognise that judges, with the particular exception of the
Lord Chief Justice,
do not speak for the judiciary as a whole. Lord Justice Toulson
has recently raised this as a cause for concern in a note to Lord
McNally, Minister of State for Justice:
"Judges who are called before such committees
may have views of their own which do not necessarily represent
the views of the judiciary. They may not be particularly well
informed and it can be an easy temptation for them to become drawn
into political areas."
56. We welcome the willingness of judges,
once appointed, to give evidence to parliamentary committees on
the judicial appointments process and other matters relating to
the administration of justice. We recognise that the majority
of judges speak on an individual basis and not on behalf of their
fellow judges: indeed, Parliament benefits from the diverse range
of views thus offered. We believe that this dialogue is of mutual
benefit to both the judiciary and Parliament as it enables both
to explore areas of common interest and concern. We encourage
its continuation in the future.
The Judicial Appointments Commission
THE JAC'S RELATIONSHIP WITH THE
57. Under the CRA the JAC is established as an
independent body: it is not a servant or agent of the Crown and
it is not part of the executive. Section 65 of the CRA provides
that, with the concurrence of the Lord Chief Justice and subject
to an affirmative resolution of both Houses of Parliament, the
Lord Chancellor may issue formal guidance to the JAC. The Lord
Chancellor's power to issue mandatory directions relates solely
to the spending of money. Lord Justice Toulson concluded that,
whilst operationally speaking there was a good deal of discussion
between the Lord Chancellor and his officials and the JAC, "A
very high level of constitutional independence is created for
the Commission, which I think is valuable."
58. Both Baroness Hale and Cordella Bart-Stuart,
Vice-Chair of the Black Solicitors Network and a serving Immigration
Judge, argued that the Lord Chancellor should have the power to
issue directions as well as guidance, primarily in pursuance of
the aim of increasing diversity.
Baroness Hale based her argument on the ministerial responsibility
of the Lord Chancellor for the JAC:
"The Lord Chancellor is in a leadership position
and he is accountable to Parliament. If he says, 'These are the
policies that I would like the JAC to pursue,' he can then be
questioned in Parliament about whether they are justifiable and
can justify them. That seems to be democratically entirely appropriate."
59. Noting that the Lord Chancellor has not so
far used his power to issue statutory guidance,
we do not consider that there is a need for an enhanced power
to issue directions to the JAC. Such a power could lead to political
interference and undermine the independence of the appointments
THE JAC'S RELATIONSHIP WITH PARLIAMENT
60. The Chair of the JAC is subject to a pre-appointment
hearing by the House of Commons Justice Committee
which has also taken evidence from the outgoing Chair and other
part of this inquiry we received detailed written evidence from
the JAC and heard from three commissioners, including the Chair.
This level of engagement enables the relevant committees of both
Houses to question the JAC on its overall approach to the appointments
process. It also
enables the JAC to bring its concerns to the attention of Parliament.
This could be crucial if, for example, the Lord Chancellor were
to propose making serious changes to the structure or funding
of the JAC. Such engagement tends to enhance, rather than diminish,
the independence of the JAC.
61. In 2008, the JAC in its response
to the Ministry of Justice consultation paper, The Governance
of Britain: Judicial Appointments,
raised the option of making the JAC a parliamentary body similar
to the Electoral Commission. The Electoral Commission is established
by statute and appointed by the Queen on an Address by the House
of Commons. To
ensure independence from government, the Commission's Estimate
is presented to Parliament by a Speaker's Committee which also
approves the Commission's five-year plan.
Treating the JAC in a similar manner would remove the Lord Chancellor's
current role in setting the JAC's funding
and "increase the independence, and the public perception
of the independence, of the JAC."
62. Despite the understandable concern about
the potential for executive interference in the JAC, the recently
appointed Chair of the JAC, Christopher Stephens, did not seek
to pursue the option of becoming a parliamentary body: "We
are, I think, rather comfortable with our relationship with Parliament."
63. We agree that the current relationship
between the JAC and Parliament is appropriate. We welcome continued
dialogue between the JAC and this Committee, as well as with the
relevant committee(s) in the House of Commons. As the JAC was
only established in 2006, it is too early to consider whether
making it a parliamentary body would better support its independence.
Were a Lord Chancellor to seek in the future to undermine that
independence in any way, this option should be revisited.
Judicial and lay representation
on selection panels
64. It is axiomatic that the judiciary must have
a role in the appointments process. Currently, a small number
sit as members of the JAC, on special selection panels for the
most senior judiciary in England and Wales and on the Supreme
Court selection commissions. Significant numbers of the judiciary
are also involved as consultees or referees.
65. Serving judges best understand the qualities
required to fulfil a particular position and are able to provide
an informed assessment of an individual's skills and abilities.
These factors need to be built into the appointments process,
whether through membership of selection panels or through consultation
and the provision of references. But the input of the judiciary
is one significant factor which risks a candidate being preferred
because his or her background, characteristics and manner resemble
that of other judges. This could work against attempts to increase
66. Many of our witnesses argued that having
greater lay involvement in the selection process was the most
appropriate way of avoiding the problem of self-replication within
Whilst some queried whether lay members could properly assess
candidates for a judicial role,
others stressed that the lay members of the JAC "are very
powerful people with strong backgrounds in business, politics
or what have you"
who are "of extremely high calibre and [who bring] different
qualities ... and a broader perspective".
We agree with the assessment of Baroness Prashar that:
"You do not just have a lay member on the panel
to increase transparency and to satisfy public perception: they
all bring something ... Once you were on the Commission, there
was very little distinction between the judicial and the lay members.
I know there is a perception out there lay members would be full
of deference to judicial members: not at all. The Commission was
a very robust body, and it worked extremely well. Lay members
add real value, and what I valued most was their independence
67. For the judiciary to be solely responsible
for the appointments process would risk undermining the promotion
of diversity and, ultimately, public confidence in the judiciary.
Furthermore, the appointments process is enhanced by the involvement
of lay persons who can bring a different perspective to the assessment
of candidates' abilities. It is therefore important that selection
panels include a mixture of judicial and lay representation.
20 See in particular Q 40 (Lord Kerr), Q 41 (Lord Justice
Etherton), Q 79 (Lord Justice Goldring), Q 376 (Lord Chancellor),
written evidence by Jack Straw MP and by Baroness Prashar. Back
See for example, Q 2 (Professor Alan Paterson), Q 40 (Lord Kerr),
written evidence by Association of HM District Judges. Back
Q 340. Back
See Box 2, Chapter Three. Back
Written evidence by Jack Straw MP. Back
Constitutional Reform Act 2005, section 7, section 18 and Schedule
6. The Lord Chief Justice is now head of the judiciary, as well
as being President of the Senior Courts of England and Wales.
The Speakership of the House of Lords is now exercised by the
Lord Speaker: see Companion to the Standing Orders and Guide
to the Proceedings of the House of Lords, 2010, paras 1.39-1.44. Back
Q 382. Back
Q 281. Back
Q 92 (Lord Justice Goldring), Q 92 (Mrs Justice Macur), Q 172
(Lord Judge CJ) and Q 255 (Lady Justice Hallett). Back
Q 94 (Lord Justice Goldring), Q 121 (Jack Straw MP), Q 229 (Baroness
Q 10 (Professor Brice Dickson), written evidence by Equality and
Diversity Committee of the Bar Council of England and Wales. Back
Para 92. Back
Written evidence, para 24. Back
Q 285 (Lord Woolf). Back
Q 122 (Lord Falconer). Back
Appointments and Diversity: A Judiciary for the 21st Century,
Ministry of Justice, Consultation Paper CP19/2011, November 2011,
para 36. Back
Ibid, para 36. Back
Ibid, paras 37-41. Back
Ibid, para 38. Back
Q 373. Back
Q 131. Back
Q 171. Back
Q 129. Back
Q 308 (Baroness Prashar); see also written evidence by Baroness
Prashar and Q 93 (Mrs Justice Macur). Back
Written evidence, para 23(a). Back
It was announced on 20 December 2011 that Lord Justice Carnwath
had been appointed as a new Justice of the Supreme Court. He will
be sworn in following the retirement of Lord Brown, probably in
the first week of the Easter Term. Back
Written evidence. Back
Q 229 (Baroness Hale), written evidence by Sir Thomas Legg, paras
10 and 20, by Professor Alan Paterson, para 15, by the Equal Justices
Initiative, para 42, and by Professor Robert Hazell and Professor
Kate Malleson. Back
Q 20. Back
Q 229 (Baroness Hale). Back
Written evnidence by Equal Justices Initiative, para 42. Back
See above, para 26. Back
Paras 29-30. Back
Q 22 (Professor Cheryl Thomas). Back
In general it was argued that this would include Supreme Court
Justices, the Lord Chief Justice, the Master of the Rolls, Heads
of Division of the High Court and, possibly, Court of Appeal judges. Back
Q 8 and written evidence, para 15 (Professor Alan Paterson), Q
133 (Jack Straw MP), written evidence by Professor Mary Clark,
by Sir Thomas Legg, paras 12-14, and by Professor Robert Hazell
and Professor Kate Malleson. Back
This is a summarised version of the written evidence received. Back
See also written evidence by Professor Mary Clark, paras 7 and
See also written evidence by Sir Thomas Legg, para 12. Back
See also written evidence by Professor Mary Clark, para 3. Back
See also written evidence by Professor Alan Paterson, para 15,
and by Professor Mary Clark, paras 7 and 8. Back
See also written evidence by Professor Mary Clark, para 4. Back
Q 11 (Professor Alan Paterson); see also QQ 8 and 12 and QQ 47-48
(Lord Justice Etherton). Back
Q133 (Jack Straw MP). Back
Written evidence, para 12. Back
See, in particular, written evidence by Professor Mary Clark and
by Graham Gee for detailed consideration of the possible lessons
to be learnt from study of the US system of confirmation hearings.
Q 15. Back
Q 9. Back
Q 50. Back
Liaison Committee: 1st report (2010-2012): Select Committees
and Public Appointments (HC Paper 830). Back
Q 58 (Lord Justice Etherton), Q 294 (Lord Carswell). Back
Q 58 (Lord Kerr), Q 164 (Lord Judge CJ), written evidence by Lord
Q 85 (Lord Justice Goldring), Q 196 (Peter Lodder QC, Chairman
of the Bar Council), Q 384 (Lord Chancellor), written evidence
by Professor Aileen McColgan, Karon Monaghan QC and Rabinder Singh
QC, para 16. For an alternative view of the politicisation of
US confirmation hearings see written evidence by Graham Gee. Back
Q 50 (Lord Kerr), written evidence by Professor Aileen McColgan,
Karon Monaghan QC and Rabinder Singh QC, para 15. Back
Written evidence by Professor Aileen McColgan, Karon Monaghan
QC and Rabinder Singh QC, para 15. Back
Q 197. Back
Written evidence, para 7. Back
Q 180. Back
Q 53. See also Q 15 (Professor Cheryl Thomas). Back
Q 229; see also written evidence by Richard Cornes and Charles
Banner QC, paras 14-15. Back
Written evidence, para 9; see also written evidence by Equal Justices
Initiative, para 42. Back
Written evidence, paras 18-19; see also Q 229 (Baroness Neuberger).
Q 172. Back
Q 255. Back
Q 256. Back
For the last such session, see Constitution Committee, 9th Report
(2010-2012): Meetings with the Lord Chief Justice and the Lord
Chancellor (HL Paper 89). Back
See, for example, Justice Committee, The Work of the Lord Chief
Justice, uncorrected evidence taken on 26 October 2010: http://www.publications.parliament.uk/pa/cm201011/cmselect/cmjust/uc521/uc521.htm. Back
QQ 180 and 182. Back
Q 295. Back
Lord Phillips has announced that he will retire in the autumn
of 2012: Supreme Court press notice 11 October 2011. Back
Q 182. Back
See, for example, Constitution Committee, 6th Report (2006-07):
Relations between the executive, the judiciary and Parliament
(HL Paper 151). Back
The Lord Chief Justice, as Head of the Judiciary for the courts
of England and Wales, may speak on their behalf. Back
Published as written evidence. Back
Q 343. Back
Q 230 and Q 276 respectively. Back
Q 230. Back
Q 343 (Lord Justice Toulson), written evidence by JAC, para 30.
Justice Committee, 2nd Report (2010-11): Appointment of the
Chair of the Judicial Appointments Commission (HC Paper 770);
see also Liaison Committee, 1st report (2010-2012): Select
Committees and Public Appointments (HC Paper 830), para 59,
which recommended that the post of Chair of the JAC become a joint
appointment between the executive and Parliament. Back
Justice Committee, The Work of the Judicial Appointments Commission,
oral evidence taken on 7 September 2010. Back
Q 59 (Lord Kerr, Judge Isobel Plumstead and District Judge Tim
Jenkins), Q 94 (Lord Justice Goldring). Back
For the converse argument, see Q 196 (Law Society). Back
Op. Cit. Back
Political Parties, Elections and Referendums Act 2000, sections
1 and 3. Back
Erskine May: Parliamentary Practice, 24th edn, 2011, pp
We note that the JAC informed us that they have "so far been
able to operate effectively within [the] funding allocations."
Written evidence, para 30. Back
Ibid., para 87. Back
Q 342. Back
Q 166 (Lord Phillips), Q 300 (Lord Carswell), and written evidence
by Baroness Hale, para 6; but see Q 53 (Lord Justice Etherton). Back
Q 18 (Professor Cheryl Thomas), Q 376 (Lord Chancellor), written
evidence by Lord Mance, paras 18-19, and by Equality and Diversity
Committee of the Bar Council, para 49. Back
Q 302 (Lord Carswell), written evidence by District Judge Anne
Arnold, para 18, and by Chancery Bar Association, para 5. Back
Q 54 (Judge Isobel Plumstead). Back
Q 329 (Baroness Prashar). Back
Q 329; see also Q 369 (Christopher Stephens). Back