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

Appointments and Diversity A Judiciary for the 21st Century’
Response to public consultation
(including the need for judicial, professional and lay members, a lay chair and a
non-judicial majority) should be retained on the face of the Act.
146. In relation to the remit of the JAC, we will amend legislation to allow for a power to
remove certain offices from the remit of a JAC selection exercise. However, we
are aware of the concerns raised in consultation regarding removing these processes
from the JAC and this will therefore be subject to stringent safeguards. It is not
proposed to make use of this power until agreement has been reached between the
Lord Chancellor and the Senior President of Tribunals or Lord Chief Justice of
England and Wales that the replacement system meets the existing JAC selection
standards.
Delivering the changes
147. We intend to deliver many of these changes by removing detail of the selection and
appointment process from primary legislation and creating powers to set out the
process in secondary legislation. The reason for this is that whilst there is a broad
consensus around the framework set out by the Constitutional Reform Act 2005 there
is also a widely held view that the Act is too prescriptive, which reduces flexibility.
This point is illustrated by Baroness Prashar who said in evidence to the House of
Lords Constitution Committee that the Constitutional Reform Act is “an interesting
mixture of high principle and low level bureaucracy”.
148. It is therefore proposed that the majority of the procedural elements of the
selection and appointments process be moved from the face of the
Constitutional Reform Act 2005, and replicated within secondary legislation that
would be subject to agreement with the Lord Chief Justice or the President of the UK
Supreme Court (depending upon nature of judicial office) and Parliament’s affirmative
resolution procedure.
149. The purpose of this is to allow matters of business process to be amended without
the need for primary legislation. It is intended that important matters of principle
relating to the appointment process should, rightly, remain on the face of the Act and
require primary legislation to make changes. 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, therefore, remain on the face of the Act. The principle areas covered by
regulations will be the number and composition of the JAC, the composition of
selection panels and commissions for the senior judiciary and other detailed elements
of the selection process.
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