Appointments and Diversity 'A Judiciary for the ... - Ministry of Justice

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Appointments and Diversity A Judiciary for the 21st Century’ Response to public consultation Delivering the Changes Question 19 Do you agree with the proposed approach to delivering these changes 112. Overall there were 34 responses received to this question. Of those, 22 were in favour of the proposal, while 12 were against. 113. Many of those who were against the proposal, and some who were in favour, raised the issue of ‘Henry VIII’ clauses and the potential for the Executive amending the processes arbitrarily. 114. Those in favour suggested that there would be benefit in the increased flexibility to make changes to the selection processes by way of secondary legislation. The House of Lords Constitution Committee considered this proposal in great detail and heard from a number of witnesses regarding their particular concerns over this proposed approach. The Committee were in favour of the approach, subject to the appropriate safeguards being in place: ‘..We agree that the detailed provisions of the CRA should be included in secondary legislation. We emphasise that: (a) Henry VIII clauses should not be sought; (b) Provisions of particular constitutional importance should continue to remain in primary legislation where they will continue to be subject to full parliamentary scrutiny. Upon introduction of a bill, the Government should publish draft secondary legislation; and (c) The Lord Chief Justice and, where relevant, the President of the Supreme Court should be consulted before secondary legislation is laid before Parliament. Paragraph 12, 25th Report of Session 2010–12, Judicial Appointments 115. We therefore intend that the majority of the procedural elements of the selection/appointments process will be moved from the face of the Constitutional Reform Act 2005, and replicated within secondary legislation that would be subject to agreement of the Lord Chancellor and Lord Chief Justice/President of the UK Supreme Court (depending upon nature of judicial office) before being subject to the Parliamentary affirmative resolution procedure. We do not intend to take Henry VIII powers and will ensure that important elements of principle are retained in the Act. 116. In addition to the number and composition of the JAC as described in response to questions 16 and 17, the other major areas that will be dealt with by regulations are the composition of selection panels and commissions for the senior judiciary and other detailed elements of the selection process currently specified in the CRA. Key principles of the selection process such as having an independent JAC that can determine its own selection procedures, appointment being solely on merit and only having one name put forward for each vacancy, will, however, remain on the face of the Act. 24
Appointments and Diversity A Judiciary for the 21st Century’ Response to public consultation Other Issues Question 20: Are there any other issues/proposals relating to the process for appointing the judiciary or for improving the diversity of the judiciary that you believe the MoJ should pursue Question 21: We welcome your views on the EIA in terms of likely equality impacts. Are there other ways in which these proposals are likely to impact on race, sex, disability, sexual orientation, religion and belief, age, marriage and civil partnership, gender reassignment, pregnancy and maternity Question 22: We are particularly interested in understanding more about the barriers faced by people with protected characteristics. Are there any further sources of evidence of equality impact that you are aware of that would help better understand the impacts of the proposals 117. A range of other comments and ideas were raised including how to positively encourage applicants, how to tap into academics as a pool for judicial office, the nonstatutory eligibility criteria for judicial office holders and the issue of retired judges sitting as fee-paid judges (see question 15). 118. The comments relating to the Equality Impact Assessment (EIA) have been fed into the development of the EIA, which has been published in support of this response. Other comments received will be analysed and fed into wider policy development. In particular we will need to consider wider issues of judicial terms and conditions. 25
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Appointments and Diversity 'A Judiciary for the ... - Ministry of Justice

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