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MR JUSTICE RODERICK EVANS
PROFESSOR IWAN DAVIES
|
THE IMPLICATIONS FOR THE COURT AND
TRIBUNAL SYSTEM OF AN INCREASE IN POWERS
|
|
Background
|
| There are three commonly accepted characteristics
of a jurisdiction: a defined territory; a distinct body
of Law; and a separate structure of courts and legal institutions.
Although one might expect a jurisdiction to possess some
law-making power, a legislature is not essential to constituting
a jurisdiction. No-one would have regarded Scotland as
other than a jurisdiction before the establishment of
its Parliament, under the Scotland Act 1998. The fact
that Scotland relied upon Westminster for statutory law
would not have been regarded as contradicting the self-evident
existence of a legal system in Scotland and the same point
can be made in respect of Northern Ireland 1. |
|
Following the Government of Wales Act
1998, there have been significant devolutionary developments
within the legal system of England and Wales which were
not required by the Act of 1998. It may be that the
same forces which led to devolution within the political
branches of Government have also impacted upon the judicial
branch. The influences behind devolution include an
emphasis on local autonomy and accountability, together
with a belief in constitutional reform as a mechanism
for economic development. The break up of the unitary
political system has to some extent already been accompanied
by a loosening of the unified legal system of England
and Wales. What is interesting about the present position
of Wales is the way in which its independent legal status
is coming to be recognised within the unified legal
system of England and Wales, that is "Legal Wales".
The Assembly does create distinctively Welsh law when
it exercises its devolved legislative powers. In addition,
there is an increasing body of primary legislation that
either makes separate provision for Wales or is applicable
only within the Principality. Although Wales may form
part of the unitary legal system of England and Wales,
this does not mean that the law of Wales is or ever
has been identical to that of England.
2
|
| It is not proposed to elaborate upon the
present powers of the Welsh Assembly. It is sufficient
for us to note that Rodney Brazier was perceptive in his
early acknowledgement that "as with the Scottish
Parliament, the Assembly will be a devolved legislature
within the unitary state".3
Developments within the political branches of Government,
notably the emergence of the Welsh Assembly Government
and its demarcation from the Assembly, have accentuated
the parliamentary characteristics of the Assembly. The
Welsh Assembly is presently a legislature because it is
empowered to make law applicable within Wales. The fact
that this power is more circumscribed at present than
that of the Scottish Parliament does not undermine this
assertion. |
|
It is beyond the scope of our submission
to visit the historical issue of the distinctive Welsh
courts.4 However,
we will point out that with their disappearance, Wales
was deprived of a national institution in the pursuit
of "the more effectual administration of justice".
Henceforth, Wales was in a much weaker position than
Scotland. From London, it may have appeared that Wales
was now fully incorporated into the English court structure.
The perspective in Wales remained rather different,
and the administration of justice has been contentious.
There has been a constant tension between the interest
of administrative efficiency, which is taken to involve
closer integration, and a Welsh national perspective,
which calls for greater recognition of localised interests.
|
| The issue of meeting Welsh needs in the
administration of justice has re-surfaced, notably with
respect to the language issue. The Welsh language issue
has two aspects. The first concerns the use of the Welsh
language in court.5
It did not receive equality of status with English until
the Welsh Language Act 1993 6 although there continues to remain
some unresolved matters, most notably the issue of whether
in a case in which the statutory right to use the Welsh
language is exercised, e.g. by a witness giving evidence
in Welsh in a case otherwise conducted in English a jury
should be selected so as to ensure that each member is
bilingual and, therefore, able to understand the evidence
in the language in which it is given whether that be English
or Welsh.7 The
second language issue concerns the need for bilingual
appointments to the judiciary. Given the equality of status
of the two languages and the emergence of bilingual legislation,
the need for some Welsh-speaking judges is self-evident. |
| It is relevant for the purposes of this
paper to note that the statutory right to use the Welsh
language in legal proceedings, although unconditional,
is limited geographically to Wales.8
Therefore, in the absence of a full structure of courts
and tribunals both first instance and appellate within
Wales the statutory right to use the Welsh language in
legal proceedings is limited if not negated. |
The Current Position
|
| There is now available within Wales a range
of civil courts which was added to in May 2000 when a
Mercantile Court was established in Cardiff. The Lord
Chief Justice of England and Wales, Lord Bingham, in opening
the court said: |
"I welcome the establishment
of this court as long overdue recognition of the need
for the Principality of Wales to have is own indigenous
institutions operating locally and meeting the needs
of the citizens here."
|
|
The offices and support staff of this
court are in Cardiff and the new judicial post of Mercantile
Judge on the Wales and Chester Circuit created by the
establishment of the court was filled by the appointment
of a specialist judge.
|
The Emergence of the Administrative Court
|
|
The Government of Wales Act 1998 has
little to say about the administration of justice. There
are arrangements for the resolution of "devolution
issues", that is, legal challenges to the validity
of Assembly action in the exercise of devolved powers,
which can involve direct reference to the Privy Council
in appropriate cases. The establishment of the Administrative
Court in Wales in 2000 is significant in this regard.
From the outset, the view appears to have been taken
that it would be inappropriate for a claim for judicial
review involving a devolution issue, in effect, a challenge
to an act of the National Assembly, to be heard in England.
The relevant practice direction under Part 54 of the
Civil Procedure Rules makes provision for such cases
to be heard in Wales. Thus, The Administrative Court
in Wales: Note for Guidance (October 2001) makes
clear that the jurisdiction extends to applications
and appeals under planning legislation under the National
Assembly and appeals by way of cases stated from magistrates
courts in Wales. Paragraph 3.1 states additionally that
a claim for judicial review may be brought in the Welsh
court if it raises, "an issue concerning the National
Assembly for Wales, or any Welsh public body (including
a Welsh local authority) whether or not it involves
a devolution issue". Thus, the jurisdiction of
the Administrative Court in Wales is not linked with
the scope of the powers devolved to the National Assembly.
It is territorial. This development is a clear example
of the impact of devolution within the judicial system
-the recognition that Wales should have its own (national)
institutions, functioning locally, in order to better
meet the needs of its citizens. No legislation was necessary
to achieve the establishment of the Administrative Court
in Wales - it is the result of an administrative decision.
|
| This court however has limitations. Firstly,
it is not able to deal with all public law matters arising
in Wales. For example, challenges to decisions of central
government have to be commenced and heard in London. Thus,
a claim for judicial review arising out of an immigration
matter originating in Wales has to be heard in London.
Secondly, although cases in the Administrative Court in
Wales can be commenced in Cardiff, the offices and support
staff of the court remain in London and the facility in
Cardiff is really little more than a letterbox. Papers
filed in Cardiff are sent to London for processing and
sittings of the court in Wales are decided upon and arranged
from London. |
The Court of Appeal
|
| The Court of Appeal and the offices which
support it are based in London. It has two Divisions,
Criminal and Civil which hear appeals from courts the
length and breadth of England and Wales. In recent years,
the Court of Appeal has sat not only in Wales but also
in the regions of England as part of a very welcome move
to bring the institutions of the law nearer the people.
The sitting of the Court of Appeal in Wales is of particular
significance if "Legal Wales" is to continue
to develop so that cases generated within Wales can be
heard in Wales. Since 31st July 1998 - the date upon which
Royal Assent was given to the Government of Wales Act
- the Court of Appeal Criminal Division has sat in Wales
on the following days: |
16th October 1998 at Cardiff
27th November 2001 at Mold |
| A total therefore of 2 days over the last
4 years. In addition on 26th and 28th November 2001, the
court also sat at Chester which of course is part of the
Wales and Chester Circuit. During the 1998 sitting, the
court dealt with three appeals against sentence and in
the 3 day sitting in 2001, it dealt with three appeals
against conviction and ten appeals against sentence. None
of those appeals came from a court within Wales or within
the Wales and Chester Circuit. |
| Before an appeal reaches the Court of Appeal
the appellant has to seek and obtain leave to appeal.
This is a filtering system to prevent unmeritorious appeals
taking up valuable court time. During the years 1998 to
2001 inclusive (figures for 2002 are not yet available),
the number of applications for leave to appeal and of
appeals actually heard from courts in Wales and the Wales
and Chester Circuit, are as follows: |
|
Court of Appeal Criminal Division
Application for Leave to Appeal
|
|
|
Number received where Crown Court in
Wales
|
Number received where Crown Court
in Wales and Chester Circuit
|
Year
|
Conviction
|
Sentence
|
Conviction
|
Sentence
|
| 1998 |
98
|
345
|
128
|
506
|
| 1999 |
103
|
333
|
137
|
470
|
| 2000 |
77
|
319
|
110
|
453
|
| 2001 |
98
|
310
|
124
|
413
|
| |
Number heard where Crown Court
in Wales
|
Number heard where Crown Court
in Wales and Chester Circuit
|
Year
|
Conviction
|
Sentence
|
Conviction |
Sentence
|
| 1998 |
48
|
103
|
59 |
156
|
| 1999 |
30
|
94
|
41 |
141
|
| 2000 |
28
|
105
|
39 |
148
|
| 2001 |
15
|
86
|
24 |
108
|
|
Some cases from Cheshire are heard
in courts in North Wales and some cases from North Wales
are heard in courts in Cheshire and with that in mind,
the total number of criminal appeals heard from Wales
in each of those years is at least:
|
|
1998 – 151
1999 – 124
2000 – 133
2001 - 101
|
The Civil Division of the Court of Appeal
has sat more frequently in Wales over the same period.
In 1999 it sat for
2 days, In 2000 it sat for 9 days, in 2001 for 4 days.
During these sittings fourteen cases were disposed of
which eleven came from courts within Wales and three from
courts outside the Wales and Chester Circuit. However,
these three cases may well have been "Welsh"
in the sense that they emanated from Wales but the actions
were commenced and heard in the High Court in London.
Again there is a filtering system by way of applications
for leave to appeal before an appeal reaches the court
and the figures of applications for leave and of appeals
heard for the same 4 years are as follows:
|
|
Court of Appeal Civil Division
|
|
During 1998 - 2001, the information
below shows the number of applications for leave to
appeal received in the Civil Division against decisions
made in the following Courts:
|
|
|
1998 |
1999 |
2000 |
2001 |
| Courts in Wales |
50 |
57 |
57 |
56 |
| Courts in the Wales and
Chester Circuit |
54 |
64 |
66 |
64 |
|
The table below shows the number of
appeals disposed of by the Civil Division in respect
of decisions made in the following Courts:
|
| |
1998 |
1999 |
2000 |
2001 |
| Courts in Wales |
28 |
35 |
32 |
21 |
| Courts in the Wales and
Chester Circuit |
31 |
35 |
34 |
24 |
|
To these figures can be added the unknown
number of "Welsh" cases commenced in London
which find their way to the Court of Appeal..
|
It is the policy, in principle, of the
Civil Division to sit in Wales once each legal term, but
in practice difficulty is experienced in finding the appropriate
number and type of case and consideration might have to
be given in the near future to reducing the Civil Division's
sittings in Wales to twice per year. There can be little
doubt that the logistics of deploying judicial manpower
and support staff to locations outside London presents
difficulties as mentioned by
Judge L J in Williams v Cowell
9 as must the need to identify appeals
from the area in which the Court of Appeal is going to
sit which are ready for hearing and suitable for the constitution
of the court which is due to sit. |
| When one aggregates the criminal and civil
cases from Wales which reach the Court of Appeal either
as applications or full appeals, there is a significant
volume of work. Northern Ireland has its own Court of
Appeal for a population much smaller than that of Wales.
In 1998,1999 and 2000, the number of appeals heard in
the Court of Appeal from Wales is significantly in excess
of the number of appeals in the Court of Appeal in Northern
Ireland. It is only in the year 2001, when for some reason
the number of appeals from Wales decreased and the number
of appeals in Northern Ireland increased, that the Northern
Ireland figures are greater than Wales |
|
Northern Ireland - Court of Appeal
Application for Leave to Appeal against conviction or
sentence - dealt with by a single Judge
|
| Year |
Granted
|
Refused
|
Total
|
| 1998 |
25
|
18
|
43
|
| 1999 |
9
|
24
|
33
|
| 2000 |
3
|
16
|
19
|
| 2001 |
17
|
32
|
49
|
|
Types of Criminal Appeal Lodged
|
| Year |
Sentence
|
Conviction
|
Conviction and
Sentence
|
Total
|
| 1998 |
30
|
6
|
21
|
57
|
| 1999 |
28
|
12
|
21
|
61
|
| 2000 |
36
|
5
|
23
|
64
|
| 2001 |
44
|
10
|
13
|
67
|
|
Civil Appeals - Lodged and Disposed in the
Court of Appeal
|
|
Year
|
Lodged
|
Disposed
|
| 1998 |
59
|
54
|
| 1999 |
67
|
69
|
| 2000 |
54
|
34
|
| 2001 |
70
|
74
|
High Court
|
| England and Wales is divided into six Circuits.
Wales is part of the Wales and Chester Circuit. Circuit
Judges are assigned to particular Circuits and sit virtually
permanently on their assigned Circuits and the itineraries
of Circuit Judges in Wales are organised from Cardiff.
High Court Judges on the other hand are based in London
and travel out on Circuit for periods normally of 5-6
weeks. The remainder of their sittings are in London.
They spend half their time in London and half on circuit.
They are not assigned to any Circuit. However each Circuit
has assigned to it - normally two - High Court Judges
as Presiding Judges of the Circuit. Their function is
to oversee the running of the Circuit. Their tour of duty
lasts 4 years after which they enter a period of
purdah and do not sit on the Circuit on which they presided
for a period of some years. |
|
From the above, it can be seen that
developments have taken place within the judicial system
in Wales which reflect the administrative and political
diversity and the process of legislation within Wales.
However, as Rawlings has pointed out: "...there
seems to be a missing piece in the jigsaw. Devolution
points to distinctive legal institutions at territorial
level. Why not a High Court of Wales?". 10
|
| Despite the fact that the administration
of justice was not a devolved function, the courts and
tribunals have reacted positively to the setting up of
the Assembly. The changes made to the operation of the
courts and tribunals are, however, at a largely superficial
level and have taken place piecemeal rather than as part
of an integrated and structured policy. Further devolution
to Wales of the administration of justice is possible
whether or not the present powers of the Assembly are
increased and there would be advantages to Wales if this
process of devolution continued and there were created
in Wales the structures necessary to enable legal proceedings
generated in Wales to be dealt with in Wales. The recent
Leggatt Report on Tribunals made proposals for change
in the structure of tribunals and emphasised the importance
of full consultation with the Cardiff government about
the impact (on Wales) of the changes they proposed. London
government's reaction to the Leggatt Report is still awaited.
It appears to us that amongst the advantages that further
devolution of the organs of the administration of justice
to Wales would bring to Wales includes the following: |
|
(a) The institutions would be brought closer
to the people they are intended to serve.
(b) The organisation within Wales of court and tribunal
sittings in Wales is likely to add to the efficiency
of those bodies and to the prompt disposal of work.
(c) The economic benefits which flow
from the existence of a legal system in a society would
become available within Wales; e.g. employment in support
industries, the generation of fee earning work in related
professions.
(d) The existence of legal institutions would create
work and career structures not presently available in
Wales.
(e) The development of specialities amongst legal practitioners
within Wales.
(f) The geographical limitation on the right to use
the Welsh language in legal proceedings would be recognised
and accommodated.
|
|
Moreover such a process of devolution
would be consistent with the aspirations of Legal Wales,
the views of the Court of Appeal in Cowell and Williams
and with the need identified by Lord Bingham for
Wales to have its own indigenous institutions operating
locally.
|
| While an increase in the powers of the
Assembly is not, in our view, a pre-condition to further
Devolution to Wales of the institutions of the administration
of justice, there can, we feel, be no doubt that the acquisition
by the Assembly of primary legislative powers would quicken
the pace of that devolutionary process. |
| There are three possible reactions by the
institutions of justice to increased powers of the Assembly. |
| 1. |
To maintain the status quo. |
| The first is to maintain the status quo
and to make no further changes to the institutions of
the administration of justice. Such a negative reaction
would deprive Wales of the advantages set out above of
the development of indigenous institutions and would be
contrary to the devolutionary process which has already
started. Anticipated change in the structures of tribunals
in the United Kingdom are in any event likely to reflect
the changed status of Wales. |
| 2. |
Welsh institutions within a unitary system. |
| The second possible reaction would be to
develop within the existing unitary structures of the
courts and tribunals in England and Wales institutions
within Wales which would secure as far as possible the
advantages referred to above. At present Cardiff is the
only UK capital city without a High Court or Court of
Appeal and the existence in Cardiff of a legislature with
primary law making powers would heighten the need for
the structure of these courts to be reconsidered. A Welsh
division of the High Court covering all the disciplines,
with a permanent presence in Cardiff, organised and supported
by staff within Wales and manned by judges assigned to
this division who could also sit when necessary in England
would be consistent with such a response. Similarly an
office of the Court of Appeal in Cardiff which could deal
with appeals from courts in Wales and in.liaison with
the Court of Appeal office in London allocate judicial
resources would reduce the difficulties inherent in the
present arrangements for the allocation of judicial resources
from London to places where the court does not usually
sit as identified by Lord Justice Judge in the case of
Williams v Cowell. Moreover a body of judges
assigned to Wales would be a valuable resource available
to the government in Cardiff and those charged with drafting
legislation,the development of policy and producing legislation. |
| 3. |
Independent structures. |
| The third possible reaction is to create
in Wales an independent structure of courts and tribunals.
Whereas the second possible response referred to above
might be achievable to a large extent by administrative
action it seems to us that achieving the third alternative
would require primary legislation at Westminster. The
decision on how far devolution of the organs of the administration
of justice should go is ultimately a political matter
but in order to achieve this third alternative it may
well be that a gradual process of devolution (encompassing
alternative 2 above ) is, in any event, required as it
would be difficult to establish independent structures
in a short period of time without there being in place
offices and personnel to man the new structures. |
The Northern Ireland Model
|
In considering the implications for the
Court and Tribunal system of an increase in powers in
Wales, the
Northern Irish System appears to be the most analogous
to the position pertaining to Wales. The statute law of
Northern Ireland is, in most respects, identical with
or very similar to that of England and Wales. The court
system in Northern Ireland is separate and distinct, although
very similar, particularly as regards the superior courts
to the court structure currently in England and Wales.
A description of the current position in the Northern
Ireland court service is set out below. |
The Supreme Court of Judicature of Northern
Ireland is established under the Judicature
(Northern Ireland) Act 1978. It comprises the High Court
of Justice in Northern Ireland, the Court of Appeal and
the Crown Court 11.
The High Court consists of the Lord Chief Justice of Northern
Ireland and seven puisne judges 12 and is divided into the Chancery
Division, Queen's Bench Division and Family Division.
The Court of Appeal consists of the Lord Chief Justice
and three Lords Justices of Appeal and, as well as its
civil jurisdiction, exercises the jurisdiction formerly
exercised by the Court of Criminal Appeal for Northern
Ireland 13. Every
judge of the High Court is a judge of the Court of Appeal
for the purposes of its jurisdiction in a criminal cause
or matter. |
The Crown Court has jurisdiction in all
proceedings on indictment and its jurisdiction is exercisable
by the
Lord Chief Justice, any judge of the High Court or the
Court of Appeal or any county court judge. An appeal lies
to the House of Lords in both civil and criminal matters.
The law regarding qualifications of judges of the High
Court and Court of Appeal, their appointment and tenure
and vacation of office is similar to that of England and
Wales. The Act contains specific provisions relating to
the supervisory and declaratory jurisdiction of the High
Court which are the statutory basis of judicial review. |
The Northern Ireland Court Service is a
unified and distinct civil service of the Crown with the
functions, inter alia, of facilitating
the conduct of the business of the Supreme Court, county
courts, magistrates' courts and coroners' courts and provides
the staff for those courts as well as for its own office.
At present, the officers and staff of the
Court Service are appointed -by the Lord Chancellor. The
Lord Chancellor also at present makes appointments of
statutory officers, that is to say, the officers in charge
of the different offices of the Supreme Court, the Official
Solicitor and District Judges. The judges of the High
Court and the Court of Appeal must select two of their
number on or before 1 October in each year for the trial
of parliamentary election petitions. |
| The County Court system which had existed
in Ireland continued in Northern Ireland after partition
in accordance with the County Officers and Courts (Ireland)
Act 1877 under which full time county court judges were
introduced. These judges both exercised civil jurisdiction
and acted as chairmen of quarter sessions to try offences
on indictment and to hear appeals from the magistrates'
courts. There are now 13 county court judges in Northern
Ireland (of whom two are styled the Recorder of Belfast
and the Recorder of Londonderry) exercising this civil
and criminal jurisdiction under the County Courts (Northern
Ireland) Order 1980. |
|
Justices of the Peace were appointed
in Ireland from medieval times and their subsequent
history was similar to that in England until the Summary
Jurisdiction and Criminal Justice Act (Northern Ireland)
1935 deprived lay justices of most of their jurisdiction
in petty sessions, which is now exercised by a resident
magistrate, who must be a barrister or solicitor who
has practised for not less than seven years. The statutory
basis of the jurisdiction of Magistrates courts is now
the Magistrates' (Northern Ireland) Order 1981.14
|
There are also in Northern Ireland a social
security legal system presided over by Social Security
Commissioners15,
a system of industrial tribunals16,
the Lands Tribunal 17
the Value Added Tax and Duties Tribunal 18
and
Coroners' Courts 19,
with jurisdictions similar to those exercised in England
and Wales. There is a Boundary Commission for the United
Kingdom.20 |
The Legal Profession in Northern Ireland
|
The Incorporated Law Society of Northern
Ireland was established by Royal Charter granted on 10
July 1922. The solicitors' profession is governed by the
Council of the Society and is also subject to the jurisdiction
of the
Lord Chief Justice by virtue of a transfer to him of functions
formerly exercised by the Lord Chancellor of Ireland.
The statutory functions of the Society are provided for
by the Solicitors (Northern Ireland) Order 1976. |
Call to the Bar of Northern Ireland is
made by the Lord Chief Justice on the authority of the
Executive Council of the Inn of Court of Northern Ireland,
which is exercised on behalf of Her Majesty's Judges and
with their consent, and call within the Bar is made by
the Lord Chief Justice on his own authority, the warrant
having been signed by the
Secretary of State for Northern Ireland, as successor
to the Governor of Northern Ireland. The Executive Council
of the Inn of Court of Northern Ireland has since 1983
been the ruling authority of the Bar of Northern Ireland
and particular functions are discharged by the Benchers
of the Inn and by the General Council of the Bar of Northern
Ireland, which deals with the maintenance of the standards,
honour and independence of the Bar and investigates complaints
against members of the Bar in their professional capacity.
|
|
We would submit that alternatives 2
and 3 in respect of the institutions of justice identified
above 21 do
not require necessarily an increase in powers for the
Welsh Assembly Government. However, in respect of tribunals,
some consideration is necessary if primary powers are
devolved in Wales. Here the Northern Ireland experience
is instructive. Some currently UK tribunals operate
in Northern Ireland (for example, the General and Special
Commissioners of Income Tax), some Northern Ireland
tribunals are similar to those which operate elsewhere
in
Great Britain (such as the Industrial Tribunal) and
some which are peculiar to Northern Ireland (such as
the
Fair Employment Tribunal). The Lord Chancellor has responsibility
for some appointments but most are made by Northern
Ireland Departments. Rules are generally for the Northern
Ireland Departments. Tribunals are not specifically
mentioned in the Northern Ireland Act 1998 which implies
that they are "transferred". In any transfer
of primary power in Wales, extensive consultation with
the new Welsh Government would be necessary by the Court
Service in Wales to ensure that the framework on tribunals
fully reflects the powers transferred.
|
The Appointment of the Judiciary
|
| The issue of the appointment of the judiciary
in Wales could remain as is currently the case by the
Lord Chancellor. The experience of Scotland is instructive
where appointments are made by the Crown on the recommendation
of the Prime Minister of the United Kingdom, following
consultation with the Lord Chancellor, the Secretary of
State for Scotland, the Lord Advocate and the current
holders of the appointments. However, in Wales there may
be some merit in the establishment of a Judicial Appointments
Commission as is anticipated in Northern Ireland under
the Justice (Northern Ireland) Act 2002, although this
is not yet in force. The purpose of such a Commission
would be to secure a transparent process for the appointment
and removal of judiciary following devolution of primary
power. The provisions of the Justice (Northern Ireland)
Act 2002 are included in Appendix 1 to this paper which
also set out the role of the Office of the Director of
Public Prosecution, the Attorney General and the Advocate
General. |
Justice (Northern Ireland) Act 2002
|
| The Justice (Northern Ireland) Act 2002
(`the Act') provides inter alia for the
creation of a Judicial Appointments Commission to select
people to be appointed, or recommended for appointment
to specified judicial offices, and for people to be removed
from those offices only following a recommendation by
a tribunal. Part 1 of the Act also contains provision
to establish the Lord Chief Justice as head of the judiciary
in Northern Ireland. However, these provisions will not
be brought into force until after devolution. |
| Part 2 of the Act provides for the
appointment by the First Minister and deputy First Minister
of the Attorney General for Northern Ireland and the creation
of a Westminster-based Advocate General for Northern Ireland.
This change will be brought into effect on or after the
devolution of justice functions to the Northern Ireland
Assembly. |
| Section 3 of the Justice (Northern
Ireland) Act 2002 provides for the creation of a Judicial
Appointments Commission. The Commission would be responsible
for making recommendations to the First Minister and deputy
First Minister on judicial appointments from the level
of High Court judge downwards. |
The Commission will have 13 members, including
the Lord Chief Justice as chairman (s.3) (the senior Lord
Justice of Appeal is to act as chairman in the Lord Chief
Justice's absence). As well as the chairman, there will
be five judicial members (subsection (5)(a)). These will
be drawn from the judicial tiers listed in subsection
(6). In addition, there will be a barrister,
a solicitor and five lay members appointed by the First
Minister and deputy First Minister (subsection (5)(b)
and (c)). Subsection (7) requires lay members of the Judicial
appointments Commission to declare in writing their commitment
to non-violence and exclusively peaceful and democratic
means before being appointed.
Subsection (8)) requires the First Minister and deputy
First Minister to ensure, so far as possible, that the
lay membership is representative of the community in Northern
Ireland in overall terms. |
Section 4 of the Act deals with Appointment
to most senior judicial offices
This section replaces section 12* of the Judicature (Northern
Ireland) Act 1978 [*s.12 Judicature (Northern Ireland)
Act 1978 states that (1) Whenever the office of a judge
of the High Court or of a Lord Justice of Appeal is vacant,
a person may be appointed thereto by Her Majesty by letters
patent under the Great Seal of Northern Ireland; (2) Whenever
the office of Lord Chief Justice becomes vacant, a successor
may be appointed by Her Majesty by letters patent under
the Great Seal of Northern Ireland]. Section 4 of the
2002 Act requires a new s.12 to be substituted in place
of the existing s.12 of the Judicature (Northern Ireland)
Act 1978. The new s.12 requires the Prime Minister to
consult the First Minister and deputy First Minister and
the Lord Chief Justice (or the senior Lord Justice of
Appeal in his absence) before making recommendations to
Her Majesty The Queen as to who should fill the posts
of
Lord Chief Justice and Lords Justices of Appeal. As recommended
by the Review), new section 12(4) provides for the Commission
to advise the First Minister and deputy First Minister
over the procedure they should adopt for formulating their
response to the Prime Minister. This procedure will be
submitted to the Prime Minister for approval (new section
12(5)). |
Section 4 also amends the Judicature (Northern
Ireland) Act 1978 to provide that the First Minister and
deputy
First Minister must advise Her Majesty The Queen on appointments
to the post of High Court judge based on the Commission's
recommendation (new section 12A and section 5(2)). |
Section 5: Appointment to listed judicial
offices
Subsection (1) gives effect to Schedule 3 which transfers
to the First Minister and deputy First Minister the power
to make appointments, or recommendations for appointment,
to offices listed in Schedule 1 (see attached).
Subsection (2) provides that only a person selected by
the Commission can be appointed, or recommended for appointment,
to an office listed in Schedule 1. The section also sets
out the procedure to be adopted by the Commission and
the First Minister and deputy First Minister for filling
those offices. |
| Once the Commission is informed by the
First Minister and deputy First Minister of a vacancy
it must select a person to be appointed or recommended
for appointment, solely on the basis of merit (subsection
(9)). The Commission is required (subsection (4)) to inform
the First Minister and deputy First Minister of the person
selected and provide them with a report explaining why
that candidate was selected. If the First Minister and
deputy First Minister do not (within a reasonable time
after receiving the report) appoint, or recommend for
appointment, the person selected by the Commission they
must require the Commission to reconsider its decision
once (subsection (5)), giving their reasons for doing
so. The Commission can either reaffirm its selection or
select a different person, reporting the reason for its
decision to the First Minister and deputy First Minister
(subsection (6)). The First Minister and deputy First
Minister must appoint, or recommend for appointment, the
person selected by the Commission after its reconsideration
(subsection (7)), The Commission must, so far as it is
practicable to do so, secure a range of persons reflective
of the community in Northern Ireland is available for
consideration by the Commission whenever it is required
to select a person to be appointed, or recommended for
appointment, to a listed judicial office (subsection (8)). |
Section 6: Removal from most senior
judicial offices
This section amends the Judicature (Northern Ireland)
Act 1978 to provide for the removal of the Lord Chief
Justice or a Lord Justice of Appeal or of a judge of the
High Court appointed before section 7 of the
Justice (Northern Ireland) Act 2002 comes into force.
It requires the Prime Minister and the Lord Chancellor
to consult the First Minister and deputy First Minister
before making a motion for an address to Her Majesty The
Queen by both Houses of Parliament recommending removal
of a person from office, and no such motion may be presented
in respect of any person unless a tribunal convened by
the First Minister and deputy First Minister under section
8 has recommended that the person be removed from the
office and reported this recommendation to the First Minister
and
deputy First Minister. |
| The First Minister and deputy First Minister
must send a copy of this report, together with any response
of their own, to the Lord Chancellor and Prime Minister
to be laid before both Houses of Parliament before the
Lord Chancellor and Prime Minister make a motion for removal.
New section 12B(8), inserted into the Judicature (Northern
Ireland) Act 1978 by s.6 of the Justice (Northern Ireland)
Act 2002, provides for the suspension of the Lord Chief
Justice, Lord Justice of Appeal or judge of the High Court
while the Lord Chancellor and Prime Minister consider
making any such motion. |
New section 121B(10) provides that removal
and suspension of judges of the High Court appointed after
the coming into force of section 7 are dealt with under
section 7 of the Act instead of under the Judicature (Northern
Ireland)
Act 1978. |
Section 7: Removal from listed judicial
offices
This section gives the First Minister and deputy First
Minister the power to remove a person holding a judicial
office listed in Schedule 1 for misbehaviour or inability
to perform the functions of the office, but only on the
basis of the recommendation of a tribunal convened under
section 8 and only with the agreement of the Lord Chief
Justice. |
| This section also provides for the First
Minister and deputy First Minister to suspend persons
from judicial offices pending a decision on their removal,
if a tribunal recommends this and the Lord Chief Justice
agrees. |
Section 8: Tribunals for considering
removal
This section provides for the creation of tribunals for
the purpose of considering the removal of the Lord Chief
Justice, a Lord Justice of Appeal or a holder of any of
the offices listed in Schedule 1. A tribunal to consider
the removal of the Lord Chief Justice may only be convened
by the First Minister and deputy First Minister (acting
jointly) after consulting the Prime Minister (subsections
(1) and (3)). A tribunal to consider the removal of a
Lord Justice of Appeal may be convened by the First Minister
and deputy First Minister after consulting the Lord Chief
Justice and the
Prime Minister or by the Lord Chief Justice after consulting
the First Minister and deputy First Minister and the
Prime Minister (subsections (2) and (3)). Tribunals to
consider the removal of any other listed judicial office-holder
may be convened by the First Minister and deputy First
Minister (after consulting the Lord Chief Justice) or
by the Lord Chief Justice (after consulting the First
Minister and deputy First Minister) (subsection (2)). |
Three members are to be appointed to the
tribunal (subsections (4) and (5)). These are a chairman,
a judicial member and a lay person. The chairman and judicial
member are to be selected by the Lord Chancellor or the
Lord Chief Justice (subsections (7) and (8)) and the lay
person is to be selected by the First Minister and
deputy First Minister (subsection (9)). |
Subsection (10) provides for the Lord Chief
Justice or, in the Lord Chief Justice's absence or when
the
Lord Chief Justice is under consideration for removal
by a tribunal, the tribunal chairman to determine the
procedure of the tribunal. |
| Sections 9 -11 inclusive,
relate to lay magistrates, justices of the peace and lay
panellists. |
Section 12: Role of the Lord Chief Justice
The Report of the Review of the Criminal Justice System
which reported in March 2000 (hereinafter referred to
as the Review) recommended that the Lord Chief Justice
should have a clearly defined position as head of the
judiciary in Northern Ireland. Section 12 of the Justice
(Northern Ireland) Act 2002 states that the Lord Chief
Justice is president of the Court of Appeal, the High
Court, the Crown Court, the county courts and the magistrates'
courts and head of the judges and magistrates who sit
in them. Subsection (2) gives effect to Schedule 5 which
transfers certain functions in relation to the operation
of the courts from the Lord Chancellor to the Lord Chief
Justice. Subsection (3) provides for the Lord Chancellor
to amend any enactment or instrument for effecting further
transfers of functions. |
Sections 13-15: Presiding judges
The Review also recommended that each tier of the judiciary
should have a representative or President in order to
facilitate the co-ordination and management of court business
and provide a figurehead. These sections provide for the
Lord Chief Justice to appoint a Presiding county court
judge, Presiding resident magistrate and Presiding lay
magistrate to represent each tier of the courts. These
appointees will hold their office in accordance with their
terms of appointment. |
Section 16: Complaints about holders
of judicial office
This section requires the Lord Chief Justice to prepare
and publish a code of practice relating to the handling
of complaints against any person who holds the office
of Lord Chief Justice or Lord Justice of Appeal or any
of the offices listed in Schedule 1. |
Section 17: Secretaries to Lord Chief
Justice
This section removes the offices of Principal Secretary
and Legal Secretary from Schedule 3 to the Judicature
(Northern Ireland) Act 1978 (i.e. the list of statutory
offices). As a consequence, appointment to these offices
will not fall within the Commission's remit and the post-holders
will not be required to take the judicial oath. It also
provides for the Principal Secretary to the Lord Chief
Justice and a person designated by the Lord Chancellor
to be joint secretaries to certain court Rules Committees. |
Section 18: Qualification for appointment
This section provides for changes to the appointment criteria
for Lords of Appeal in Ordinary, the Lord Chief Justice,
Lords Justices of Appeal, High Court Judges, county court
judges (and deputy county court judges), resident magistrates
and coroners and statutory officers listed in Schedule
3 of the Judicature (Northern Ireland) Act 1978 (including
district judges). Currently many of these posts are only
open to barristers or to solicitors and appointment depends
on 'practice' (the period spent actively working as a
barrister or solicitor) or 'standing' (the period since
being called to the Bar or admitted as a solicitor). The
section makes these posts (apart from that of Official
Solicitor (subsection (8)) available to both barristers
and solicitors and makes the qualifying criterion 'standing'
alone. Subsection (10) makes it clear that a person is
qualified to be appointed as the Crown Solicitor if he
is a solicitor or a barrister. |
Section 19: Judicial oath or affirmation
This section extends the number of posts required to take
a judicial oath and provides for a new form of oath or
affirmation and declaration. This oath is to be taken
by appointees to the judicial offices listed in Schedule
6, which can be amended by the Lord Chancellor (subsection
(4)). It replaces the current Oath of Allegiance and the
Judicial Oath set out in the Promissory Oaths Act 1868.
These oaths are set out in full in paragraph 6.24 of the
Review. |
Section 20: Crown Solicitor
This section amends the Northern Ireland Constitution
Act 1973 to redefine the functions of the Crown Solicitor.
This reflects the changed role of the Crown Solicitor
in relation to the devolved administration as well as
to the
United Kingdom government. |
Part 2 of the Act: Law Officers and
Public Prosecution Service
The Office of the Director of Public Prosecutions was
created by the Prosecution of Offences (Northern Ireland)
Order 1972. That Order gives the Director of Public Prosecutions
an overview of all prosecutions in Northern Ireland. The
Director has a role in ensuring that all prosecutions
are carried out properly and he can take over prosecutions
being conducted by any other individual or agency. Article
5(1)(c) of that Order provides that the Director shall,
where he thinks proper, initiate and undertake on behalf
of the Crown proceedings for indictable offences (tried
in the Crown Court) and for any summary offence or class
of summary offence that he considers should be dealt with
by him. The remainder of summary offences are prosecuted
by police officers, usually in the magistrates' courts. |
| Under Article 3(2) of the Prosecution of
Offences (Northern Ireland) Order 1972 the Director operates
under the superintendence and direction of the Attorney
General in all matters and he is responsible to the Attorney
for the performance of his functions. The Northern Ireland
Constitution Act 1973 provides that the Attorney General
for England and Wales is also Attorney General for Northern
Ireland and the Director's line of accountability has
therefore been to the Attorney General at Westminster. |
| This Part of the Act implements the recommendations
in Chapter 4 of the Review, establishing a Public Prosecution
Service for Northern Ireland and providing for the appointment
of the Attorney General for Northern Ireland after the
devolution of justice functions. After devolution, the
Attorney General for England and Wales will hold the new
post of Advocate General for Northern Ireland. This Westminster
figure will be responsible for matters relating to prosecutions
that are not within the competence of the devolved administration,
for example matters relating to national security and
international relations. |
Section 22: Attorney General
It is planned to commence the provisions in sections 22
to 28 and sections 41 to 43 on the devolution of justice
functions to the Northern Ireland Assembly. Subsection
(1) of section 22 will remove the linkage, established
by section 10 of the Northern Ireland Constitution Act
1973, between the Attorney General for England and Wales
and the Attorney General for Northern Ireland. |
Subsection (2) of this section gives the
First Minister and deputy First Minister the duty to appoint
a person to be Attorney General for Northern Ireland,
after consulting the Advocate General for Northern Ireland
(see paragraph 13 of Schedule 7). Subsections (3) and
(4) make it clear how the new, local Attorney General
for Northern Ireland is to be funded and that he may appoint
new staff. Subsection (5) requires the Attorney General
to exercise his functions independently. Subsection (6)
sets out the legal qualifications for the post. These
are equivalent to those of a judge of the High Court in
Northern Ireland (see section 18). Under subsection (7)
the First Minister and deputy First Minister may make
arrangements to fill the post of Attorney General temporarily
during a vacancy. Before doing so they must consult the
Advocate General for Northern Ireland (see paragraph 12
of Schedule 7). |
Section 23: Terms of appointment of
Attorney General
Subsection (2) of this section provides that the local
Attorney General cannot be appointed for a period of longer
than five years at a time. It would be possible for the
First Minister and deputy First Minister to reappoint
an individual to the post of Attorney General for Northern
Ireland after such a period of five years has come to
an end. |
The effect of subsections (6) to (8) is
to disqualify the holder of the post of Attorney General
for Northern Ireland from being a member of the House
of Commons, the Northern Ireland Assembly or a local authority
in
Northern Ireland. |
| Subsection (9) makes the local Attorney
General subject to the provisions of the Freedom of Information
Act 2000. This is equivalent to the position of the Attorney
General in England and Wales. |
Section 24: Removal of Attorney
General
Subsection (1) provides that the First Minister and deputy
First Minister can only remove or suspend the
Attorney General for Northern Ireland from office on the
recommendation of a tribunal. The members of the tribunal
will be judges in England, Wales or Scotland (subsection
(4)). The tribunal will be convened by the First Minister
and deputy First Minister and its members will be appointed
by the Lord Chancellor. |
Section 25: Participation by
Attorney General in Assembly proceedings
The effect of this section is to make the Attorney General
accountable before the Northern Ireland Assembly for the
operation of the Prosecution Service. He will be allowed
to answer questions and make statements pursuant to standing
orders, but without the right to vote. Subsection (3)
will give him the right to refuse to answer questions
or produce documents on public interest grounds or where
that might prejudice criminal proceedings. Subsection
(4) makes the Attorney subject to the provisions of section
43 of the Northern Ireland Act 1998 (members' interests),
under which he will be required to declare any interests
in the register maintained by the Assembly before taking
part in any relevant proceedings of the Assembly. |
Section 26: Annual report by
Attorney General
This section sets out arrangements whereby the Attorney
General for Northern Ireland is required to write an annual
report for each financial year on how he has exercised
his functions. This report will be laid before the
Northern Ireland Assembly by the First Minister and deputy
First Minister, who will also arrange for it to be published. |
Section 27: Advocate General
There are certain functions of the present Attorney General
for Northern Ireland that cannot be given to the
Attorney General for Northern Ireland appointed by the
First Minister and deputy First Minister. These relate
to matters over which the Northern Ireland Assembly has
no jurisdiction. These 'excepted matters' are set out
in Schedule 2 to the Northern Ireland Act 1998 and include,
for example, international relations (including treaties
and the European Union), the defence of the realm, taxation
and national security. Accordingly, this section establishes
a new post of Advocate General for Northern Ireland to
take responsibility far Northern Ireland interests in
these issues. Subsection (1) of this section makes the
Attorney General for England and Wales the holder of this
post. The amendments set out in subsection (2) allow the
Solicitor General (as the Attorney General for England
and Wales's deputy) to also carry out the functions of
the Advocate General for Northern Ireland. This is done
by amending the provisions of the Law Officers Act 1997.
The office and functions of the Advocate General are made
an excepted matter by means of subsection (4), which adds
them to the list of excepted matters in Schedule 2 to
the
Northern Ireland Act 1998. |
Section 28: Functions of Advocate General
This section introduces Schedule 7 to the Act which sets
out the functions of the new post of Advocate General
for Northern Ireland (see attached). The Secretary of
State can by order transfer to the Advocate General other
functions of giving consent to the institution or conduct
of criminal proceedings (subsection (2)). |
| The changes in Schedule 7 to the Act are
not intended to take effect until after the devolution
of justice functions and the appointment of a local Attorney
General for Northern Ireland. |
Paragraph 1 of the Schedule amends the
Northern Ireland Act 1998 to allow the Advocate General
for
Northern Ireland to refer Bills of the Northern Ireland
Assembly to the Judicial Committee of the Privy Council
if he is unsure if they are within the legislative competence
of the Assembly. The Attorney General for Northern Ireland
will continue to have the same power. |
| Paragraph 2 makes amendments to the Northern
Ireland Act 1998, in order to involve both the Advocate
General for Northern Ireland and the Attorney General
for Northern Ireland in the institution and defence of
proceedings in relation to devolution issues. Paragraphs
3 and 4 amend corresponding provisions in the Scotland
Act 1998 and the Government of Wales Act 1998 to substitute
references to the Attorney General for Northern Ireland. |
Paragraph 11 makes arrangements for the
carrying out of the functions of the Attorney General
in the event that the operation of the Northern Ireland
Assembly is suspended under the Northern Ireland Act 2000
after the devolution of justice functions. If that were
to happen, the Attorney's functions would be exercised
by the Advocate General for Northern Ireland for the duration
of the period of suspension. If, at any stage after devolution
the post of
Attorney General for Northern Ireland is vacant, paragraph
12 requires the First Minister and deputy First Minister
to consult the Advocate General before filling the post
temporarily. |
Under paragraph 14, it is for the Advocate
General for Northern Ireland to appoint the Crown Solicitor
for
Northern Ireland. The holder of this post represents the
Crown in civil matters in Northern Ireland. As many of
these fall within the "excepted" field the power
to appoint an individual to hold this post should be for
the Advocate General for Northern Ireland to exercise. |
Under paragraphs 18 to 20 it will become
the responsibility of the Advocate General for Northern
Ireland to appoint special advocates to represent prisoners
in front of the Sentence Review Commissioners on those
occasions where the prisoners themselves are not allowed
to appear. Special advocates are also used in tribunals
convened under
section 91(7) of the Northern Ireland Act 1998. |
| Paragraphs 21 to 23 make changes to the
Terrorism Act 2000 so that it will be the responsibility
of the Advocate General for Northern Ireland to determine
the mode of trial for proceedings for a scheduled offence.
These are tried in Northern Ireland by means of the Diplock
court system. It would be for the Advocate General for
Northern Ireland to determine in each case whether the
context of the offence indicates that it should be tried
by a judge sitting alone or by a judge with a jury. If
he determines that it should go through the more standard
procedure, the Advocate General for Northern Ireland would
then issue a certificate to remove that case from the
Diplock system. The prosecution would then proceed as
with other, non-scheduled offences and be purely the responsibility
of the prosecution service from that point onwards. |
| Paragraphs 24 to 36 make changes to those
offences which currently require the consent of the Attorney
General before a prosecution can be undertaken. It would
not be consistent with the independence of the new prosecution
service for the local Attorney to make decisions as to
whether prosecutions should go ahead, particularly when
the Criminal Justice Review Group recommended that the
local Attorney should have no power to direct the prosecutor
on individual cases. Accordingly, the power of the Attorney
to consent to prosecutions will be transferred to the
Director of Public Prosecutions, except in those cases
when the offences are related to "excepted"
matters (as set out in Schedule 2 to the Northern Ireland
Act 1998). The provisions in these paragraphs transfer
the power to give consent in cases related to "excepted"
matters to the Advocate General for Northern Ireland. |
1. The
background to this paper draws upon Jones T.H. "The
Emerging Welsh Jurisdiction"unpublished)
2. Compare
the doctrine of Parliamentary Sovereignty would dictate
that there are no limits to what legislation can
achieve and this is why Dicey
appears to have believed that Wales was actually a part
of England where he
identifies as undesirable "severing
Wales from the rest of England". See Dicey
A Leap in the Dark: A Criticism
of the Principles of Home Rules
as Illustrated by the Bill of 1893 (Second
Edition, 1911) p 3, as cited by
Jones ibid.
3. The
Constitution of the United Kingdom" (1999) 58
Cambridge Law Journal 96 at p111.
4.
For an excellent discussion here see Thomas J, "Legal
Wales: Its Modern Origins and its Role after Devolution:
National Identity,
The Welsh Language and Parochialism", Lord Morris
of Borth-y-Gest Lecture 2000.
5.
This was forbidden until 1942 when Welsh was given the
status of other "foreign" languages within the
court
system of Wales.
See R v Merthyr Tydfil JJ ex p Jenkins
[1967] 1 All ER 636. It was said that the effect of
the 1942 Act was
to put a Welsh speaking defendant, in a court in Wales,
in the same position as a Polish
defendant at the
Central Criminal Court.
6.
See Davies I. R., "Seminar Report: The Welsh Language
and the Legal Process in Wales" 2001) 1
Wales Law Journal 9.
7.
See Evans R, "Legal Wales - Some Thoughts for
the Future" Lord Morris of Borth-y-Gest
Lecture 2002;
Parry R.G., "Random Selection, Linguistic Rights
and the Jury Trial in Wales" [2002]
Criminal
Law Review 805.
8.
See Williams v Cowell .2000] 1 WLR 187
9.
[2000] 1WLR 187
10.
See Rawlings, "The New Model Wales", Devolution
in Wales: Public Law and the National Assembly
Ed Myers
(1999).
11.
Section 1 Judicature (Northern Ireland) Act 1978.
12.
Judicature (Northern Ireland) Act 1978 s 2(1) (amended
by the Maximum Number of Judges (Northern Ireland)
Order 1993,
SI 1993/606). The number may be varied by Order in Council:
Judicature (Northern Ireland)
Act 1978 s.2(3).
13.
Criminal Appeal (Northern Ireland) Act 1980 governs the
making of appeals from the Crown Court in
Northern Ireland
to the Court of Appeal in Northern Ireland, and from the
Court of Appeal in Northern Ireland
to the House
of Lords).
14. That
is the County Courts (Northern Ireland) Order 1980, SI
1980/397 (NI 3). This Order consolidated with
amendments
the County Courts Act (Northern Ireland) 1959 and the
County Court Appeals Act
(Northern Ireland)
1964. Since appeals from the magistrates' courts still
go to the county court, it has not been
necessary,
as in England and Wales, to make the Crown Court an inferior
court for the purpose of such appeals
15.
Social Security Administration (Northern Ireland) Act
1992 s 50, Sch 2
16.
Industrial Training (Northern Ireland) Order 1984, SI
1984/1159 (NI 9) (as amended)
17.
Lands Tribunal and Compensation Act (Northern Ireland)
1964 ss 1-4
18.
Value Added Tax Act 1994 s 82, Sch 12 (as amended)
19.
Coroners Act (Northern Ireland) 1959
20.
Parliamentary Constituencies Act 1986 s 2, Sch 1
21.
see page 8 above |
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