Yesterday the Judicial Appointments Commission (JAC) announced the arrangements for the appointment of a new Lord Chief Justice, to replace Lord Thomas, who reaches the statutory retirement age in a few months’ time.
The selection panel will be chaired by Lord Kakkar, the new Chairman of the JAC, and it will have as its four other members two other senior lay members of the JAC (Professor Noel Lloyd and Dame Valerie Strachan) and two very senior judges, Lord Neuberger (the President of the UK Supreme Court, who will be retiring himself later this year) and Lord Justice Fulford, the current Senior Presiding Judge, who will bring to the panel his vast experience of the operation and the needs of our criminal justice system.
There has been a good deal of discussion already in social media about the requirement that the new incumbent must be able to serve for at least four years in the post before he/she, too, reaches the statutory retirement age of 70. From my knowledge of the responsibilities of the higher judiciary, this requirement seems to be nothing more than common sense.
This is a huge job, with huge responsibilities, and in my view it – and some of the other very senior judicial offices – needs and deserves a greater degree of continuity in the identity of the office-holder than has been evident in recent years.
A glance at the job description makes this blindingly obvious. Ideally, a minimum term of eight years would be about right, if a suitable candidate in his/her late 50s or early 60s could be found.
Description of the job
“The Lord Chief Justice (LCJ) is Head of the Judiciary of England and Wales and President of the Court of Appeal, of the High Court and of all the other Courts of England and Wales…
The responsibilities and functions of the office can be summarised under four headings.
- The LCJ spends a substantial part of his or her time presiding in the leading and most significant cases which are heard by the Court of Appeal and drafting judgments.
- In more recent times, the LCJ has generally presided in the Criminal Division of the Court of Appeal (as the LCJ is also specifically President of the Criminal Division of the Court of Appeal) and in the Divisional Court of the Queen’s Bench Division, but the LCJ also presides in cases covering the whole spectrum of criminal, civil, public, administrative and family law.
- The LCJ may sit in the Supreme Court at the invitation of the President….
2. Governance of the Judiciary and the administration of justice
[The Constitutional Reform Act … and other recent changes] have formally vested in the LCJ very extensive powers and responsibilities for the governance of the judiciary and the administration of justice. These powers and responsibilities have continued to increase significantly over the past 10 years.
By convention, the LCJ exercises all the powers and responsibilities for the governance of the judiciary and for the administration of justice formally vested in the LCJ through the Judicial Executive Board (JEB) (which the LCJ chairs) and with the advice of the Judges Council (which the LCJ also chairs). ..
Included within the powers and responsibilities so exercised through the JEB are:
- The delivery of the courts and tribunals modernisation programme agreed with Her Majesty’s Government, updating it as necessary, particularly in the light of continuing developments in IT and artificial intelligence.
- The identification and delivery of other priorities for reform to achieve further improvements in the administration of justice.
- The development and implementation of policies to modernise and improve the structure of the courts, the provision of justice out of London, international judicial business, and the relationship between the Courts and Tribunals.
- The consideration of government proposals for reform and other matters relating to the administration of justice.
- The general responsibilities of the LCJ for Her Majesty’s Courts & Tribunals Service under the Framework Agreement, including the financing of the administration of justice.
- The development and implementation of policies to attract to the judiciary persons of the highest merit, to increase diversity, to develop careers within the judiciary and to provide for succession planning.
- The performance of the judiciary in the administration of justice.
- The efficient deployment and planning for the work of the judiciary, and the allocation of work within the courts.
- The welfare of the judiciary, including morale and representations on pay and pensions.
- The training of the judiciary through the Judicial College and the provision of guidance on various issues.
- The development and implementation of communication policies and relations with the media.
- The development of international relations with overseas judiciaries.
- The strategic plan and annual budget for the Judicial Office.
The LCJ reports on the governance of the judiciary and judiciary’s work in the administration of justice each year in the LCJ’s Annual Report [which is] laid before Parliament.
3. Additional leadership responsibilities
Protection of judicial independence and the cohesion of the judiciary
- The LCJ assists, supports and speaks as necessary to protect individual and institutional judicial independence, and the quality and reputation of the judiciary.
- The LCJ regularly meets the officers of the judicial associations and leadership judges to maintain a detailed and up to date understanding of the issues facing judges.
Relationship with Parliament, Her Majesty’s Government and Wales
- The LCJ, in discharge of the responsibilities of the office, … has regular dialogues with senior Ministers, including the Lord Chancellor, the Attorney General and Home Secretary, and their respective senior civil servants in relation to a wide range of matters relating to the administration of justice.
- The LCJ gives evidence to the Justice Committee of the House of Commons and the Constitution Committee of the House of Lords each year and maintains more general relations with Parliament…
- The LCJ has a dialogue with the Welsh Government through the First Minister and Permanent Secretary and with the Senedd.
Other representation of the judiciary
- The LCJ liaises regularly with the President of the Supreme Court and the Heads of the Judiciary of Scotland and Northern Ireland.
- The LCJ has regular meetings with the legal professions and the regulators in relation to a broad range of strategic issues, including the changing nature of the legal services market. The day to day work is delegated.
- The LCJ engages or delegates engagement with others interested in the administration of justice, including City markets and institutions, university institutes, the media and individuals and other bodies interested in the reform and improvement of the administration of justice.
- The LCJ maintains relations with the other judiciaries, in particular those in Europe and the Commonwealth.
- The LCJ promotes the work of the judiciary in outreach into the communities and schools.
- The LCJ gives lectures on matters relating to the administration of justice both in England and Wales and in other jurisdictions. The LCJ has a particular responsibility for promoting a greater public understanding of the judiciary and the administration of justice and the international standing of the courts and common law of England and Wales.
Appointments to and within the Judiciary
- In addition to the work in relation to the development and implementation of policies for judicial appointment, diversity and career development carried out through the JEB, the LCJ has a wide responsibility … in respect of individual appointments, including reviewing and approving the recommendation for the appointment of all courts judges below the level of the High Court. In large part the LCJ delegates these responsibilities, but undertakes some personally, including:
- Chairing the panel for appointments to the Court of Appeal and of Heads of Division.
- Appointing judges after consulting the Lord Chancellor, to very senior leadership posts, including the Vice-Presidents of the Court of Appeal, the Senior Presiding Judge and Presiding Judges; appointing the President of Welsh Tribunals.
- Appointing judges to undertake Inquiries, reviews or other tasks.
- Sitting on significant appointment panels, including the panel to appoint the Chairman of the JAC.
- Responding to consultations by the JAC on senior appointments.
- Responding to consultations by the Lord Chancellor on a wide range of other senior appointments.
Judicial conduct and disciplinary decisions
The 2005 Act vests jointly in the Lord Chancellor and LCJ powers in respect of judicial conduct and the discipline of judges which are administered on their behalf by the Judicial Conduct and Investigations Office. Although some decision making is delegated, many decisions are taken by the Lord Chancellor and LCJ personally…
The Judicial Office
The LCJ, the JEB and Judges’ Council are supported by the Judicial Office of England and Wales headed by a senior civil servant who reports directly to the LCJ. The LCJ works closely with the senior members of the Judicial Office and provides overall guidance for the Office.
- Under the 2005 Act, the LCJ is Head of Criminal Justice, but can appoint a Head of Division or judge of the Court of Appeal to this role in the LCJ’s place. The current LCJ has exercised most of the functions through other senior judges.
- The LCJ is President of The Sentencing Council, but it is chaired by a senior member of the Court of Appeal. The LCJ is also Chairman of the Criminal Procedure Rules Committee, but the chairmanship is undertaken by a senior member of the Court of Appeal.
4. Incidental responsibilities
The LCJ has a number of other responsibilities which in large part derive from the historic functions of the office, including:
- Swearing-in of the Lord Chancellor, the Attorney General and Solicitor General, Lord Mayor of London, Heads of Division, Lords Justices of Appeal, High Court Judges and some other judges.
- Attendance at national and civic ceremonies.
- Membership of various councils and committees which from time to time have specific state functions.
- Visitor of Darwin College, Cambridge.
- Powers of appointment to various governing bodies.”