Ministers to keep veto in appointment of top judges

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Ministers are to retain a veto in the selection of senior judges, a move that lawyers warned yesterday could weaken the independence of a new judicial appointments commission for England and Wales.

Ministers are to retain a veto in the selection of senior judges, a move that lawyers warned yesterday could weaken the independence of a new judicial appointments commission for England and Wales.

The right to reject judges recommended by the newly proposed body would let politicians blackball any "unsatisfactory" candidates.

In a consultation paper published yesterday the Government argued that the commission should be asked to submit a list of names for final approval by the Secretary of State for Constitutional Affairs. "If the minister found all the names unsatisfactory he would be able to tell the commission to reconsider its recommendations and submit other names," the paper said.

Proposals show that judges and senior lawyers are to have a two-thirds majority on the new body. But the Government has deliberately left open the question of whether the Lord Chief Justice, the senior judge in England and Wales, should be its standing chairman.

The new Lord Chancellor, Lord Falconer of Thoroton, said he wanted the commission to play a leading role in opening the judiciary to more female and ethnic-minority lawyers. The consultation paper even raised the possibility of reserving a certain number of low-level judicial posts for both these groups. But for all new appointments to the proposed Supreme Court the Government made clear yesterday that the commission would have a more limited role.

"The Government does not, however, favour allowing the Appointments Commission [or Board in Scotland] in each jurisdiction to nominate members for their own jurisdiction. The [Supreme] court will sit as a single UK court and its important that it is seen to be a collegiate body."

The current system, in which the Lord Chancellor combines his cabinet duties with the appointment of judges, is now accepted as being incompatible with the Human Rights Act and the constitutional doctrine of the separation of powers.

The Government's preferred model for reforming the system will deflect some of the criticism of the potential for political interference in the appointment of judges. But constitutional lawyers and civil rights groups said they would prefer a clean break.

The consultation paper made clear that ministers did not want an alternative system for the appointment of judges giving politicians no say in the final selection process.

Such a model, one of three options in the consultation paper, would allow the commission directly to recommend appointments to the Queen without recourse to ministers.

A more tricky question is who should select the members of the commission that appoints the judges. Lord Falconer yesterday acknowledged that it was difficult to know where to start the reform process, comparing it to unraveling a collection of Russian dolls.

But the Government does not believe that the selection of the commission should be solely left in the hands of the executive. A recommending body, whose membership would include a senior judge and an independent assessor, would pass names to the Prime Minister who would, presumably, have the final say.

Yesterday, the Government said that it was considering "enshrining" in statute the responsibility of the new Secretary of State for Constitutional Affairs to "protect the independence of the judiciary."

But Mathias Kelly QC, chairman of the Bar, warned: "Judges are not appointed to do the bidding of the Home Secretary nor anyone else in Government. We must ensure that politics is removed from the judicial processes for good, so the commission itself must be free from political placemen. It must be tough enough to withstand tabloid and parliamentary battering."

The Law Society said the Government must not have a role in selecting judges. Carolyn Kirby, its president, said: "For the public to have full confidence in the commission, it must be completely independent and demonstrate that political affiliations do not play any part in the selection of judges."

Roger Smith, director of the legal reform group Justice, said key issues would be "sufficient resources and sufficient independence", adding: "Ministers should make the final decision on appointment to the senior judiciary but constrained by a commission and by conventions which limit unworthy political considerations."

Judicial reforms: The main proposals

CHOOSING JUDGES A Judicial Appointments Commission will take over the responsibility of selecting and promoting judges and magistrates in England and Wales. Other responsibilities, including the right to sack judges, could pass to the Lord Chief Justice, working closely with the new commission.

SUPREME COURT The highest court in the UK would carry on the judicial functions of the law lords in a new building independent of parliament and the Royal Courts of Justice. Its jurisdiction would be extended to settle devolution issues that are currently heard by judicial committee of the Privy Council.

THE STATUS OF QCs The rank of Queen's Counsel could be abolished under the new proposals and the Government says it should only be retained in its current form if it serves a "helpful" purpose for users of legal services. Keeping the rank of QC in its current form can be justified only if benefits "clearly outweigh" problems.