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Thursday, April 07, 2011

How come this backbench MP also sits on the bench as a judge?

How come this backbench MP also sits on the bench as a judge?

Stephen Phillips, QC, MP, is the Member of Parliament for the Sleaford and North Hykeham Constituency.

He is also known as Recorder Stephen Phillips, QC.

Courts Act 1971

21 Appointment of Recorders.

(1)Her Majesty may from time to time appoint qualified persons, to be known as Recorders, to act as part-time judges of the Crown Court and to carry out such other judicial functions as may be conferred on them under this or any other enactment.

(2)Every appointment of a person to be a Recorder shall be of a person recommended to Her Majesty by the Lord Chancellor, and no person shall be qualified to be appointed a Recorder unless [F34he has a 10 year Crown Court or 10 year county court qualification, within the meaning of section 71 of the Courts and Legal Services Act 1990].

(3)The appointment of a person as a Recorder shall specify the term for which he is appointed and the frequency and duration of the occasions during that term on which he will be required to be available to undertake the duties of a Recorder.

(4)Subject to subsection (5) below the Lord Chancellor may, with the agreement of the Recorder concerned, from time to time extend for such period as he thinks appropriate the term for which a Recorder is appointed.

(5)Neither the initial term for which a Recorder is appointed nor any extension of that term under subsection (4) above shall be such as to continue his appointment as a Recorder after [F35the day on which he attains the age of seventy, but this subsection is subject to section 26(4) to (6) of the Judicial Pensions and Retirement Act 1993 (Lord Chancellor’s power to authorise continuance in office up to the age of 75).].

(6)The Lord Chancellor may if he thinks fit terminate the appointment of a Recorder on the ground of incapacity or misbehaviour or of a failure to comply with any requirement specified under subsection (3) above in the terms of his appointment.

(7)There shall be paid to Recorders out of money provided by Parliament such remuneration and allowances as the Lord Chancellor may, with the approval of the Minister for the Civil Service, determine.

According to Wikipedia...

"Since 1971, a system of part-time appointments has been in place in England and Wales, designed to give experience of judicial office to those not yet ready to take a full time appointment. It is now the practice to require all full time appointees to have had some part time judicial experience. The part-time appointees were initially designated as "Assistant Recorders", with a view to promotion to full "Recorders". The position of Assistant Recorder no longer exists, and all appointments are made as "Recorders".

Appointments are made by the Crown by Royal Warrant, on the recommendation of the Lord Chancellor. Since 2006, however, the Lord Chancellor's recommendations are based upon an independent appointments process supervised by the Judicial Appointments Commission.

In the Courts of England and Wales, a Recorder is a barrister or solicitor. Recorders were originally required to be of at least 10 years' standing, though that requirement has been reduced in recent years to 7 years' standing. Recorders are appointed by the Queen on the advice of the Lord Chancellor to hold part-time judicial office. A Recorder acting as such has all the powers of a Circuit judge and may sit in the Crown Court or in the County Court. If appointed to do so under section 9(1) of the Supreme Court Act 1981, a Recorder may sit as a part time High Court Judge".

House of Commons Disqualification Act 1975


Offices disqualifying for membership

Part I

Judicial offices

[F10Judge of the Supreme Court.]

Judge of the High Court of Justice or Court of Appeal.

[F11Judge of the Court of Session, or Temporary Judge appointed under the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990.]

Judge of the High Court of Justice or Court of Appeal in Northern Ireland.

[F12Judge of the Court Martial Appeal Court.]

Chairman of the Scottish Land Court.

Circuit Judge.

Sheriff Principal or Sheriff (other than Honorary Sheriff) appointed under the M6Sheriff Courts (Scotland) Act 1907, or Temporary Sheriff Principal or [F13part-time sheriff] appointed under the M7Sheriff Courts (Scotland) Act 1971.

County Court Judge or deputy County Court Judge in Northern Ireland.

[F14District Judge (Magistrates’ Courts) (but not Deputy District Judge (Magistrates’ Courts)).]

[F15District judge (magistrates' courts), or deputy district judge (magistrates' courts), in Northern Ireland.]

Stipendiary Magistrate in Scotland.

F16. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F17. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F18Chief or other Child Support Commissioner for Northern Ireland [F19or deputy Child Support Commissioner for Northern Ireland].]

Chief or other Social Security Commissioner [F20(not including a deputy Commissioner)].

[F21Chief or other Social Security Commissioner for Northern Ireland [F22or deputy Social Security Commissioner for Northern Ireland].]

F23. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F24. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F25Adjudicator to Her Majesty’s Land Registry.]

It would appear from the House of Commons Disqualification Act 1975 that Recorder Stephen Phillips, QC, is not disqualified from also sitting as an MP. I have no idea why a Recorder, who is a member of the Judiciary, is not disqualified. Recorders exercise the same powers as Circuit Judges and they are disqualified. Recorders can sit as a High Court Judge if requested to do so by or on behalf of the Lord Chancellor, and yet High Court Judges are also disqualified from sitting as MPs.


1. Keep judges out of politics, MPs told

“Either you are on the Bench, or you are in active politics, but you cannot do both.”

2. Should the judges or MPs make the laws?

Gary Slapper on why judges and politicians are at odds over who makes the law

3. The Judiciary - Constitutional position

Judges (except for district judges and Recorders) may not sit as MPs.

4. It would appear that Humfrey Malins was also a Recorder and MP at the same time.

5. Ministry of Justice


Policy, Procedure & Terms and Conditions of Service

Conflict of Interest

Fee-paid judicial office holders are expected to refrain from any activity, political or otherwise, which would conflict with their judicial office or be seen to compromise their impartiality, having regard for example to the comments of the Court of Appeal in the case of Locabail. A Recorder who is an MP, Parliamentary candidate or local Councillor should not sit as a Recorder within their own constituency or the area covered by the Council. They should also be aware of the risk of a perceived lack of impartiality arising from published articles or public pronouncements, etc. (Timmins v Gormley [(2000) 2 WLR 870]). Fee-paid judicial office holders should exercise caution in any reference to their appointment on, for example, letterheads or in chambers advertising literature. Fee-paid office holders hold office only when they are serving judicially and should not use their appointment as a means of pursuing personal, professional or commercial advantage.

6. (see p.11)Membership of the House of Commons has also been an issue of controversy, whilst a serving full-time judge is barred from sitting in the House of Commons (s 1 when read in conjunction with sch 1 House of Commons Disqualification Act 1975) no such bar exists for part-time members of the judiciary.


Harry Barnes said...

Well spotted and well argued. It is generally believed that holding an office of profit under the Crown disqualifies someone from being an MP, but now you have shown that this depends on the small print.

jailhouselawyer said...

Harry in my view his supporting the motion to deny prisoners the vote is precisely why someone in his postion should not be wearing 2 hats.