Judicial Appointments Commission Regulations 2013

Lord Scott of Foscote Excerpts

Monday 22nd July 2013 Grand Committee

[Lord Scott of Foscote]

My Lords, perhaps I may express my agreement with the remarks made by my noble and learned friend Lord Hope of Craighead. I want to add a few words on the Supreme Court regulations relating to the manner in which believed incapacity is to be dealt with. As your Lordships will be aware, the regulations provide for the setting up of a selection commission, and various individuals are to be given the power to nominate other individuals for membership of that commission. One of the persons with the power to nominate such a person is the President of the Supreme Court. That is set out in Regulation 5:

“(1) The selection commission must consist of—(a) the Deputy President; (b) a senior UK judge nominated in accordance with regulation 7”.

Regulation 7 states that, unless paragraphs (2) or (3) of Regulation 5 apply, the President,

“must nominate a senior UK judge who is not disqualified under regulation 16”.

Paragraph (2) of Regulation 7 goes on to state that:

“Where—(a) the office of President is already vacant; or (b) it appears to the Lord Chancellor that the person holding the office of President is for the time being incapacitated, the Deputy President (unless the Deputy President is disqualified under regulation 16) must nominate a senior UK judge in accordance with paragraph (1) to sit on the selection commission”.

The believed incapacity puts out of the ring as a nominator the President and brings in the Deputy President. So far, so good, but the existence of the incapacity is simply dependent upon the opinion of the Lord Chancellor: it appears to the Lord Chancellor that the person holding the office of the President is, for the time being, incapacitated. One finds an echo of that in Regulation 14:

“(1) Unless paragraph (2) or (3) applies, the President— (a) must nominate a senior UK judge who is not disqualified under regulation 16”,

or,

“(2) Where—(a) the office of President is already vacant; or (b) it appears to the Lord Chancellor that the person holding the office of President is for the time being incapacitated, the Deputy President (unless the Deputy President is disqualified under regulation 16)”.

Under Regulation 16,

“A person is disqualified for the purposes of membership of a selection commission if it appears to the Lord Chancellor that that person is for the time being incapacitated from serving as a member of the selection commission”.

All these provisions depend on nothing other than the opinion of the Lord Chancellor “for the time being” that the individual is, using the language of the regulations, incapacitated. There appears to be no indication of whether the person concerned agrees with his or her believed incapacity, it is just the opinion of the Lord Chancellor that the incapacity exists and therefore someone else must be the nominator for the relevant purpose. I would suggest that that is profoundly unsatisfactory. There are provisions about incapacity in the Constitutional Reform Act 2005. Section 16 provides that the Lord Chief Justice is incapacitated only if at least three of the four heads of division declare in writing that he is incapacitated. Section 36,

“applies if the Lord Chancellor is satisfied by means of a medical certificate that a person holding office as a judge of the Supreme Court—(a) is disabled by permanent infirmity from the performance of the duties of his office, and (b) is for the time being incapacitated from resigning his office”.

What does “incapacitated” mean? It depends on the opinion of the Lord Chancellor. One of the functions of the 2005 Act was to put an end to the believed impropriety inconsistent with the separation of powers of the highest court in the land being a part of the legislature—the Law Lords, as they then were. The impropriety of that was accepted by a number of people, and the Supreme Court was brought into existence to put an end to that conflict. However, this produces another conflict. So far as the regulation is concerned, the Executive, in the form of the Lord Chancellor, does not have to base his opinion on any medical evidence at all. The Lord Chancellor has the right to pronounce his belief in the incapacity of the President, the Deputy President or some other senior UK judge to act for the purposes of the selection commission that these regulations will set up. That itself seems to be inconsistent with the separation of powers—not, as before, the separation between the legislature and the judiciary but between the Executive and the judiciary. It appears to be a much more serious infringement of the doctrine of separation of powers than that which formerly existed when the Law Lords, as Members of this House, acted as the highest court of the land.

I wonder why relying on the opinion of the Lord Chancellor on these matters of incapacity, which must require somebody with a little medical or perhaps psychiatric knowledge to have a view, and without any indication that the individual who is thought incapacitated is having his or her opinion canvassed, should be thought to be an appropriate way of dealing with this situation. I would seriously suggest to the Government that it is a most improper way of dealing with the situation. The Lord Chancellor’s opinion should not be sufficient to declare somebody incapacitated, unless backed by a medical certificate—which would suffice—or by the concurrence of the heads of division or, so long as it was not the Lord Chief Justice’s position being considered, of the Lord Chief Justice. However, just relying on the opinion of the Lord Chancellor on a matter that would require some medical or psychiatric expertise seems to me to be offensive, unnecessary and something that should be remedied before these regulations are brought into effect.

--- Later in debate ---

[Lord McNally]

That is most certainly true. When I saw the noble and noble and learned Lords gathering, I should have known that this was not going to be an easy task. One of the great benefits of the House of Lords—those who know that I am an avid reformer should take note of this—is there are not many places where one could get such profound legal advice so cheaply. For that, I am extremely grateful to noble and noble and learned Lords. I would again ask that they pass these regulations, but with the firm promise that the points that have been raised will be drawn to the attention of the Lord Chancellor.

[Lord Scott of Foscote]

I hope that the noble Lord can clarify a matter for me. My understanding is that this has to go before the House, which must pass the affirmative resolution. The matter cannot be dealt with finally just by this Committee.

[Lord McNally]

It will go before the House where, I am sure, having listened to my explanations today, I will have at least a dozen strong supporters in favour of adopting these regulations.