As part of the Judicial Independence Project we have prepared a short briefing document and comment on some of the changes to judicial appointments envisaged in the new Crime and Courts Bill 2012. The document is available here. The main points are that:
- The stated philosophy behind Part 2 of the Bill – of leaving statements of principle on the face of the Bill and moving detailed technical provisions into statutory instrument – is welcome. However, as the Bill currently stands this intent is not realised and the distinction between matters that should remain in the Constitutional Reform Act and matters that should be left to statutory instrument is erratic.
- The provisions governing the Lord Chancellor’s role in the appointment of the President of the UK Supreme Court and of the Lord Chief Justice of England and Wales are ambiguous as key points of principle are left for regulations to be made by the Lord Chancellor.
- It appears that the Lord Chancellor may choose to sit on the selection bodies or may choose not to do so. Only in the former case will he lose his veto over an appointment but in either case it appears that he retains the right to compel the selecting body to reconsider its chosen candidate. In circumstances where the Lord Chancellor sits on the selecting body, his retention of a power to compel that body to reconsider its decision is inappropriate.
- The rule prohibiting the President and Deputy President of the UK Supreme Court from sitting on selection commissions to appoint their successors is welcome. However, as it is currently expressed it appears to leave open the possibility that other office holders (for example the Lord Chief Justice) may be involved in the selection of their successors. It would be better to enshrine in the Bill a general prohibition against an incumbent or retiring judge sitting on a panel to select his or her successor.
- The Bill as it stands has the potential to add further complexity to an already extremely confusing piece of legislation by adding new actors (the Lord Chief Justice and Senior President of Tribunals) and a new layer of rules (in the form of statutory instruments) to the appointments process. In a piece of legislation with constitutional significance this is unwelcome and measures should be taken to express the changes envisaged in a manner that leaves them reasonably accessible to the layperson.