Category Archives: Judiciary

Ian Cram: Penalising the googling juror? – Reflections on the futility of Part 3 of the Criminal Justice and Courts Bill (2013-14)

cram2-ianThe hotchpotch of measures that comprises the Criminal Justice and Courts Bill is about to reach Report Stage in the House of Lords. The Bill sets out a panoply of new and controversial measures to deal with dangerous offenders, young offenders, drugs-testing in prisons, wilful neglect or ill-treatment by care workers, reforms to criminal proceedings (including the use of cautions), the possession of extreme pornographic images, civil proceedings involving judicial review (B. Jaffey & T. Hickman), personal injury cases and challenges to planning decisions. The adequacy of this miscellaneous approach to law reform will doubtless come under the fuller scrutiny that it deserves elsewhere. This blog takes as its focus provisions in Part 3 of the Bill which seeks to put on a statutory footing offences connected with private research by jurors. I suggest that resort to the criminal law constitutes a clumsy, impractical and unnecessarily punitive attempt to regulate the extra-curial activities of the modern, online juror. It is incumbent on our lawmakers to explore more imaginative responses to the undoubted problem of jurors’ access to untested, internet materials – responses that might be more obviously premised upon an appreciation of jurors’ dutiful efforts to arrive at just verdicts.

Whilst illicit, private research by jurors long pre-dates the Internet (recall Sidney Lumet’s classic 1957 film Twelve Angry Men), the ability of jurors to seek out materials concerning events and personnel at the centre of criminal proceedings is considerably enhanced in the electronic era. A survey by Thomas for the Ministry of Justice in 2010 which at the time was reckoned to have underestimated the extent of online research, it was revealed that 12% of jurors in ‘high profile’ and 5% of jurors in standard (non-high profile) cases confessed to doing private research into the cases they were trying. (C Thomas, ‘Avoiding the Perfect Storm of Juror Contempt’ [2013] Crim L Rev 483) Despite some well- publicised convictions of jurors in 2011 and 2012 for online research during deliberations (Fraill [2011] EWHC 1629 and Dallas [2012] EWHC 156) resulting in custodial sentences, it would be surprising in 2014 if actual instances of jurors’ private research had not increased beyond the levels reported in 2010.

The legal basis of convictions such as those in Fraill and Dallas remains unclear. Is the offence committed merely when the juror intentionally disobeys a judicial instruction or does it also need to be shown that he/she has acted in a way calculated to create a real risk of prejudice to the administration of justice? Dallas is currently awaiting the outcome of her application to Strasbourg, arguing that the trial judge’s warning to jurors not to conduct private research lacked the requisite degree of clarity needed to make clear both what was prohibited and what the legal consequences of any breach might be.

It is against this somewhat uncertain background that the Law Commission recommended in 2013 the creation of statutory offences of new offences concerning private research by jurors (and its dissemination) as well as giving trial judges the power to order jury members to surrender electronic communications devices for a limited period. To be fair to the Commission, it is intended that these new offences operate alongside non-penal measures such as declarations of good behaviour and an amended oath that will reinforce the importance of trying the case solely upon the evidence presented by the parties.

Research in the US where the ‘google mistrial’ in both criminal and civil jury trials is a recognised phenomenon indicates two main reasons why jurors engage in prohibited online searches. (G Lacy, ‘Untangling the Web: How Courts should respond to Juries using the Internet for Research’ (2012) 1 Reynolds Court and Media Law Journal 169; D Aaronson & S Patterson, ‘Modernizing Jury Instructions in the Age of Social Media’ (2013) 27 Crim Just 4) The first is that some jurors do not understand what forms of conduct are prohibited. They fail thus to see that private inquiry into the meaning of legal/medical terms (such as negligence’ or ‘Van der Woude syndrome’) constitutes ‘research’. In other cases, a warning not to do private research is couched in general, technologically non- specific terms that is misconstrued. These sorts of misunderstanding are or ought to be fairly easily remedied through clearer instructions from the bench. The second reason behind juror online searches is altogether more troublesome however. Even in the face of unambiguous instructions which helpfully make explicit the rationale for restrictions, some jurors refuse to comply, believing that the lawyers are trying to conceal something that is relevant to the proceedings. (T Hoffmeister, ‘Google, Gadgets and Guilt: Juror Misconduct in the Digital Age’ (2012) 83 U Colo L Rev 409) Other empirical research from the Australian state of Victoria refers to a phenomenon of ‘juror reactance’ in which, notwithstanding a judicial direction to the contrary, jurors are unable to discard ‘information’ that is considered relevant to the case before them. (J Johnston et al, Juries & Social Media – A Report prepared for the Victorian Department of Justice (2013) available at http://epublications.bond.edu.au/law_pubs/600/) On this basis, it may be predicted the proposed new criminal restrictions in England and Wales will make jurors more likely to conceal the fact of their illicit research from fellow jurors. It is unlikely to stop the research in the first place. What if, in any given criminal trial, there are four or five jurors who have separately conducted private research and conceal this fact from their co-jurors?

Conclusion

‘Indeed, the internet has made the commission of many criminal offences much easier. It would be absurd to suggest that such conduct should no longer be criminalised on account of the ease with which such offences can now be committed.’– Rt Hon Attorney General Dominic Grieve QC MP (February 2013)

The insistence of the previous Attorney General on using the full force of the criminal law against googling jurors is understandable even laudable (costs of retrials, ordeals for witnesses and delayed justice are not insignificant reasons for taking a serious view of this conduct) but, for reasons advanced above, likely to fail in its primary objective of halting the practice. The empirically documented phenomena of ‘juror ‘reactance’, linked concerns that the adversarial process is keeping relevant material from jurors and an overriding desire to do justice to all parties will continue to prompt a certain (possibly rising) proportion of jurors to engage in online research. The supporters of the new measures have yet to explain satisfactorily how illicit internet use will be policed and detected. If, as seems likely, few cases of online research will be detected, it would be interesting to hear from the Bill’s supporters precisely how the law will (i) bolster the fairness of criminal proceedings and (ii) will not fall into general disrepute. (Interestingly, in the US there are few instances of criminal proceedings against jurors who engage in private research, D Bell, ‘Juror Misconduct and the Internet’ (2010) 38 Am J. Crim. L. 81)

It may be that part of the problem will take of itself in the aftermath of the European Court of Justice’s ruling this May in Google Spain v Gonzalez (and another). Well-counselled defendants may now instruct Google to remove links to webpages that mention them. In this way, ‘googling’ will yield up little of any prejudicial effect. But this incidental form of protection for adversarial justice can hardly be said to offer a coherent way forward. At bottom, the way in which our legal system signals its appreciation of jurors’ sincere efforts to arrive at justice may not be best served by a punitive response to ‘fact-gathering’. A more imaginative response to realities of jurors’ online research may be to explore within certain defined limits ways of accommodating jurors’ desire to be more informed about the case before them. At present, the practice of allowing jurors’ questions varies from Crown Court to Crown Court.

Whisper it quietly for fear of upsetting the legal profession’s control over adversarial proceedings – a better response to the problem of the googling juror may necessitate affording ordinary citizens a more active role in establishing the truth of the kind their 18th century predecessors enjoyed.

Ian Cram is Professor of Comparative Constitutional Law at the University of Leeds.

 

Suggested citation: I. Cram, ‘Penalising the googling juror? – Reflections on the futility of Part 3 of the Criminal Justice and Courts Bill (2013-14)’ U.K. Const. L. Blog (2nd October 2014) (available at http://ukconstitutionallaw.org).

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Graham Gee: Do Lord Chancellors defend judicial independence?

graham-gee-webAs part of its inquiry into the office of Lord Chancellor, the Constitution Committee asks whether “new” (i.e. post-2003) Lord Chancellors have actually defended judicial independence in line with their customary and now statutory duty to do so. I was asked for examples earlier this summer when appearing before the Committee (with Andrew Le Sueur and Patrick O’Brien). I tried to identify some, but rather garbled my answer. Earlier in the year I also sketched some thoughts about Lord Chancellors in Public Law, but struggled to find clear-cut examples. One reason is that collective cabinet responsibility and the confidentiality of exchanges between Lord Chancellors and judges mean that outsiders will seldom have a full picture of what has occurred behind closed doors. This is unfortunate since my impression is that many lawyers assume—mistakenly, I think—that new Lord Chancellors are neither willing nor able to defend judicial independence. This post is hopefully third time lucky in correcting this assumption. By drawing on press reports, public statements and interviews that Robert Hazell, Kate Malleson, Patrick O’Brien and I conducted between 2011-2013, I want to piece together evidence that suggests that new Lord Chancellors can and do defend judicial independence.

Ministerial Criticism

An important part of the Lord Chancellor’s role is to encourage colleagues to respect the convention that ministers should not criticize judicial decisions or the judges who deliver them. One way Straw sought to “repair fences with the judiciary” (p498) after the tensions of the Blair era was by clamping down on breaches of the convention, as obliquely acknowledged in 2010 by the LCJ (Q13). Few ministers, if any, broke the convention during Straw’s tenure as Lord Chancellor. According to a senior official we interviewed, officials in Straw’s private office would contact counterparts in other departments in advance of judgments in politically contentious cases to remind them that ministers must not criticize judicial decisions in public. The contact was between officials, but reflected the tone set by Straw.

Not all Lord Chancellors will be as successful as Straw in promoting respect for the convention: from time to time ministers will vent their frustration. The question that then arises is whether the Lord Chancellor will fulfill his or her duty by, for example, speaking with the ministers, rebuking them and eliciting an undertaking that their outbursts will not be repeated. In 2006, the Home Secretary, John Reid, criticized the sentence handed down to Craig Sweeney, a sex offender. Further criticism followed from the PM’s spokesman in a press briefing and Vera Baird, a junior minister at the Department of Constitutional Affairs. This episode is commonly cited as one where Lord Falconer, “did not fulfill [the Lord Chancellor’s duty] in a satisfactory manner”.  But, as I see it, this should be read as an example of a Lord Chancellor energetically —and, if a long view is taken, rather successfully—enforcing his duty.

No doubt this whole episode was unedifying. But it is difficult to imagine what more Falconer could have done. According to our interviews, the Lord Chancellor spoke with the Home Secretary on the day of his comments. During a tense conversation, Reid indicated that he would not repeat the criticism. When on the next day the PM’s spokesman endorsed Reid’s criticism, Lord Falconer spoke with Blair to explain why Reid’s comments were inappropriate. Like Reid, the PM indicated that the criticism would not be repeated. At the end of the week Vera Baird said on the radio that the judge had got the sentence wrong. Falconer spoke with her and procured a written apology, which was published on the department’s website. Falconer also appeared that week on the BBC’s Question Time programme, stressing that judges should not be treated “as whipping boys”. Deciding how to respond to a ministerial outburst is always a question of judgment. It seems reasonable for Falconer to have concluded that discreet action behind closed doors would be more effective than more public steps. And arguably he was proven correct: so far as I can recall, Reid did not breach the convention during the rest of his time as Home Secretary, at least not as brazenly, with Blair also muted in his public comments on the courts during his final year as PM. Viewed in this light, Falconer could be said to have fulfilled his duty effectively.

Much ultimately depends on the lead set by the PM. This in turn raises the question of whether new Lord Chancellors can effectively rebuke the PM, on whose patronage they will depend to a greater extent than their predecessors who were usually at the end of an eminent legal career and not ambitious for promotion. A recent example suggests that new Lord Chancellors will take senior colleagues, and even the PM, to task. In 2011, the PM and Home Secretary criticized the Supreme Court’s decision in Re (F) on the notification requirements for sexual offenders. Ken Clarke wrote to the Home Secretary, with the letter copied to No. 10 in an indirect rebuke to the PM. As reported on The Spectator’s blog, Clarke reminded Theresa May, and by extension David Cameron, that they were “constitutionally obliged to accept the independence of the judiciary”. I suspect that this incident was one that Lord Phillips had in mind when he referred to “one or two occasions” where Lord Chancellors have “made it plain” to ministers and even the PM that public criticism was not acceptable. (As an aside: Clarke himself received a letter from Phillips objecting to the comments and encouraging him to take action. But as one judge remarked, Clarke would likely have done so with or without judicial encouragement).

Responding to Legitimate Judicial Concerns

A second way that Lord Chancellors can defend judicial independence is by listening to legitimate judicial concerns and articulating them inside government. An example is Lord Falconer’s battle over proposed changes to judicial pensions. In late 2004, The Daily Telegraph reported that a row erupted in cabinet over Falconer’s proposal to exempt judges from rules in that year’s budget that would cap tax relief on pension contributions at £1.5m. The Lord Chancellor had promised an exemption to judges before clearing this with his colleagues. In his memoirs Jonathan Powell relates how the matter, quite unusually, came to the cabinet, where Gordon Brown “and others raised strong objections” (63). No decision was taken for several months, but the Lord Chancellor continued arguing for a judicial exemption. Despite opposition from Labour backbenchers, Falconer announced in late 2005 that judicial pensions would be de-registered from the Finance Act 2004, and hence not subject to the cap. In other words, the judges won their exemption with the Lord Chancellor’s help.

Arguably, this episode was less about judicial independence and more about judicial self-interest. But the judges themselves presented the issue as one impinging on their independence—and for present purposes I’ll assume that they were correct. Threats of judicial resignations and judicial review were important alongside Lord Falconer’s efforts. And it is true that in a different financial climate in 2013 the Treasury clawed back the exemption. On its own terms, however, this furore saw the Lord Chancellor resist pressure from powerful colleagues and backbench opposition to successfully represent judicial interests.

Evaluating Lord Chancellors

My point is that there is evidence that Lord Chancellors can and do defend judicial independence. I’m not suggesting that everything in the garden is rosy. Relations between the government and the judges are at times strained, and Lord Chancellors and judges will disagree about how best to manage, organize and fund the courts, and may have serious disagreements about important issues relating to legal aid and judicial review. There will also be times when Lord Chancellors are slow to defend judicial independence, if they do anything at all. All of this is true and yet much, and possibly most of the time, Lord Chancellors still take seriously their duty to defend judicial independence. Over and above this basic insight, four further points must be kept in mind.

First, it is unrealistic to expect new Lord Chancellors to be preeminent guardians of judicial independence in the same way as was said to be true of pre-03 officeholders. One consequence of twinning the office with the role of Secretary of State for Justice is that Lord Chancellors spend much less time on judiciary-related issues. This likely makes it more difficult to respond as swiftly to judicial concerns. But even if the post-2003 Lord Chancellors are less reliable and less proactive guardians, and even if they not a systematic defender of judicial independence, this does not mean that their role is without value.

Second, the fact that Lord Chancellors might not be the preeminent guardian is off-set by the many other actors who contribute to judicial independence. Some have a clear responsibility to do so (e.g. the LCJ; the JAC; the JCIO, the Constitution Committee); others do so indirectly via their day-to-day work (e.g. the clerks in the Table Office). Other actors within government help foster judicial independence (e.g. the Attorney General; the Treasury Solicitor; other government lawyers). The Lord Chancellor is only one part—albeit, as the examples above demonstrate, a very important part—of the way judicial independence is secured.

Third, politicians without the legal pedigree of old-style Lord Chancellors, or who are not even lawyers at all, can grasp the importance of judicial independence. Several of our judicial interviewees commended recent Lord Chancellors, albeit acknowledging that they had not always seen eye-to-eye with them. One senior judge, for example, said that Straw and Clarke clearly understood judicial independence, and another judge said that he had been “quite impressed” by Grayling despite his lack of legal training, a view echoed by a third judge. New-style Lord Chancellors will not sound like their predecessors, and often this grates on lawyers’ ears (e.g. when Ken Clarke could not recall how many women were on the Supreme Court). But lawyers should be less precious about this, and recognize instead that the new Lord Chancellors can potentially bring something of value to policy discussions (e.g. by adding political impetus to the judicial diversity debate or encouraging judges in leadership roles to “succession plan”).

Finally, Le Sueur and O’Brien have each argued that the office should be abolished, with its functions easily subsumed within the twinned role of Secretary of State for Justice. (See Patrick O’Brien’s posts here and here). I disagree. There is still value in ascribing certain important constitutional functions to the office of Lord Chancellor as distinct from, even if occupied by the same person as, the Secretary of State. This can assist officials who brief new ministers about the office’s special responsibility to defend judicial independence, especially important if the new minister is not legally qualified. It presumably also helps a Lord Chancellor when reprimanding colleagues if he or she can point to their customary duty as Lord Chancellor. And as Lord Hope has suggested, “we would lose something intangible” if the office was scrapped. In a constitution such as ours, symbols such as the office of Lord Chancellor matter. But, above all, now is not the time to inject more uncertainty into the judicial system by scrapping the role. Judicial-executive relations have changed considerably since 2003, and will do so for some time yet as the full implications of recent reforms become clear. What is required now is a period of relative stability to allow new practices to solidify, leadership roles to become clearly defined and relationships to mature.

 

Graham Gee is a lecturer at the University of Birmingham. Between 2011-13, he worked with Robert Hazell, Kate Malleson and Patrick O’Brien on an AHRC project exploring, amongst other things, the office of Lord Chancellor. Their book on The Politics of Judicial Independence in the UK’s Changing Constitution is published by CUP in 2015.

Suggested citation: G. Gee,Do Lord Chancellors defend judicial independence?’ U.K. Const. L. Blog (18th August 2014) (available at http://ukconstitutionallaw.org).

 

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Andrew Lynch: Judicial Appointments in Australia – Reform in Retreat

AndrewThe creation of formal processes governing the appointment of judges has been a notable element in the broader project of constitutional reform in the United Kingdom over the last 16 years. As is frequently acknowledged, the changes introduced by the Constitutional Reform Act 2005 were that rare thing – an instance of the executive relinquishing power. But the legislation also appeared to stimulate much more debate about the selection and composition of the judiciary than it resolved. Enactment is more typically seen as the culmination of public discussion about the desirability and design of a reform. What has been fascinating – at least from the perspective of external observers – is the way the significant measures implemented in 2005 have remained under the microscope, being the subject of sustained academic commentary, government and parliamentary review and then fine-tuning through passage of the Crime and Courts Act 2013. The announcement in April that, even after all this, the Labour opposition was open to the use of quotas to hasten the diversification of the United Kingdom judiciary signaled that the whole matter of appointments remains extremely contentious.

Participating in unremitting constitutional debates can undoubtedly prove rather fatiguing, but spare a thought for those of us in jurisdictions where reform is not just both slower and more modest, but is then later reversed. Australia’s recent experience in judicial appointments reform has followed this disappointing trajectory. This is despite political rhetoric in this country consistently echoing the United Kingdom’s fidelity to ‘merit alone’ as the basis for selection albeit accompanied by recognition of the need to enhance judicial diversity. In this post I describe these developments before identifying some features of the short-lived reforms which offer an interesting contrast with the United Kingdom approach. Specifically, the provision of a shortlist of suitable candidates to the Commonwealth Attorney-General was seen as entirely uncontroversial. It arguably affirmed a more inclusive understanding of ‘merit’ in this jurisdiction, under which the preservation of ultimate executive discretion was appreciated as a legitimate means for the achievement of greater diversity.

The traditional approach of the Commonwealth of Australia to judicial appointment was one purely of executive discretion lacking any stipulated criteria and any formal or open process. Beyond an eligibility threshold of judicial service or enrolment as a legal practitioner for not less than 5 years (and in the case of appointment to the Family Court of Australia, a requirement that a person shall not be appointed unless ‘by reason of training, experience and personality, the person is a suitable person to deal with matters of family law’), there is no statutory guidance offered as to the necessary attributes of a candidate. The only procedural requirement applies exclusively to vacancies on nation’s final court – the High Court of Australia. This is merely an obligation that the Commonwealth Attorney-General will ‘consult’ with his or her State counterparts before filling a vacancy on that Court.

Shortly after coming to office in late 2007, the Attorney-General in the Labor government, Robert McClelland, announced that he would be introducing more formal processes for appointing individuals to the ranks of the federal judiciary. The catalyst for his doing so undoubtedly included, but was not limited to, developments in the United Kingdom. But additionally, there had been reform in some of the states in the Australian federation, as well as attention to the issue in both New Zealand and Canada.

McClelland’s objectives in unveiling the reforms were later repeated in the government’s 2010 publication Judicial Appointments – Ensuring a strong, independent and diverse judiciary through a transparent process. Their purpose was to ensure:

  • greater transparency, so that the public can have confidence that the Government is making the best possible judicial appointments
  • that all appointments are based on merit, and
  • that everyone who has the qualities for appointment as a judge or magistrate is fairly and properly considered

That document also stated:

The Government is pursuing the evolution of the federal judiciary into one that better reflects the rich diversity of the Australian community. To this end, the Government seeks to increase the diversity of the federal judiciary in relation to:

• gender

• residential location

• professional background and experience, and

• cultural background.

The three pillars of McClelland’s reforms may be succinctly identified as: (1) the articulation of publically available criteria; (2) the advertisement of vacancies and call for nominations; and (3) the use of an Advisory Panel (comprising the head of the relevant court or their nominee, a retired judge or senior member of the Federal or State judiciary, and a senior member of the Attorney-General’s Department) to assess potential candidates, possibly through interviewing them, before making a report to the Attorney-General listing those found to be ‘highly suitable for appointment’.

While the stated criteria had much in common with those used in the United Kingdom, the similarities between the two jurisdictional approaches do not extend much further. First, and most fundamentally, the changes were not legislated. Second, no Judicial Appointments Commission was created. Although McClelland initially professed an open mind on the need for such a body, at the same time he expressed concern that the United Kingdom’s JAC was ‘overly bureaucratic and the whole appointments process is unreasonably intrusive as well as taking too long’. This led to suspicions that ‘the best candidates have not put themselves forward’. McClelland’s negative assessment of the JAC was probably unfair given the size of the task that lay before the organisation upon its establishment and how little time had yet passed. More recent assessments from United Kingdom commentators portray the factors raised by the Commonwealth Attorney-General as teething problems since resolved.

Third, the Advisory Panel was, at just three members, small and contained no lay representatives. Fourth, the Panel was able to recommend a number of names to the Attorney-General for consideration, leaving him or her to make the final selection. This stands in stark contrast to the requirement in the United Kingdom that the JAC or, in the case of appointments to the Supreme Court, a specially-convened commission, furnish only one name recommended for appointment. Fifth, whereas the United Kingdom acknowledged the special status of its final court through adoption of a distinct process, the High Court of Australia (along with the appointment of heads of the other three federal courts) was simply exempt from the McClelland reforms on the basis of its ‘different status’. Nominations were not called for and nor was an Advisory Panel of any sort convened, although the Attorney-General undertook to consult with a number of stakeholders beyond the mandated State Attorneys. It was unclear what weight, if any, was accorded to the explicit criteria in respect of such appointments.

The basic features of the new system received the bipartisan endorsement of the Senate Legal and Constitutional Affairs Committee in its 2009 inquiry into the Australian Judiciary. McClelland’s two Labor successors as Attorney-General made judicial appointments in accordance with the reforms. However, the Attorney-General in the new Coalition government, Senator George Brandis QC, appears to have entirely discontinued those measures and reverted to the traditional approach of unfettered executive discretion. With neither fanfare nor warning, all trace of the processes initiated by McClelland slipped from the departmental website. On the topic of court appointments, the Attorney-General’s Department now simply advises that, ‘As the nation’s first law officer, the Attorney-General is responsible for recommending judicial appointments to the Australian Government.’ On 14 April 2014, the Attorney-General issued a media release announcing his first appointment to the federal judiciary. The vacancy on the bench of the Federal Court of Australia had not been advertised on the website, nor was there anything in the media release suggesting that the appointment was the outcome of any particular process.

The revival of smog-like opacity around federal judicial appointment processes has not gone unremarked, with concerns voiced about the consequences for efforts to improve judicial diversity. Justice Ruth McColl of the New South Wales Court of Appeal has said of the reversion that ‘any move that strips away progress towards greater equality of judicial appointment is, at the very least, highly problematic’.

The McClelland reforms were obviously relatively modest when compared to those of the United Kingdom. But they were certainly an advance on the customary practice. Brandis’ rejection of them is curious not only because the new process hardly constrained his power of selection to an intolerable degree, but also because he had participated in the 2009 Senate inquiry which gave its approval to the reforms. Indeed, that committee urged greater transparency upon the Attorney-General at the time – including ‘making public the number of nominations and applications received for each vacancy and, if a short-list of candidates is part of the process, to make public the number of people on the short-list’ (Recommendation 3).

While readers in the United Kingdom might sympathise with the view that this retreat from transparency and process is to be lamented, some may, nevertheless, be doubtful about the capacity of the measures introduced by McClelland to promote judicial diversity. After all, in 2012, the House of Lords Select Committee on the Constitution was emphatic in rejecting the view of a number of witnesses who appeared before it to submit that shortlists would facilitate a swifter diversification of the judiciary. The Committee did so because, as it said, ‘unless a Lord Chancellor is committed to the promotion of diversity, the use of shortlists could have the reverse effect of reducing the diversity of the judiciary.’ That outcome is obviously possible but perhaps questionable, given broad political acknowledgment of the need for the judiciary to be more representative. Certainly it seems just as likely that diversity might be thwarted by giving serving judges too much influence over appointments, risking the self-perpetuation of the judicial class in its own image, as highlighted by Professor Alan Paterson and Chris Paterson in their report Guarding the guardians?.

Professor Kate Malleson wrote on this blog in 2012, the use of a shortlist ‘would allow for an appropriate degree of political input in the process and would open space for the Lord Chancellor to promote greater diversity though his choice of candidates while maintaining selection on merit’. That appears to have been exactly how the use of shortlists worked in Australia for appointments to the federal courts other than the High Court. The government described the Attorney-General’s role in the process as ‘identifying a preferred candidate’ from the names forwarded to him or her by the Advisory Panel. While the Senate Committee agreed that the final decision was appropriately left with the executive, it was searching in respect of how that determination was made:

If the Attorney-General identifies the most suitable person based on their assessment against the selection criteria then it is desirable for this to be articulated. On the other hand, if the Attorney-General is not willing to state that selection is directly based on the selection criteria then this should also be articulated.

While the government was apparently not prepared to risk the political danger of divorcing itself from the rhetoric of making appointments ‘solely on merit’, if everyone on the shortlist has been judged sufficiently meritorious by the Advisory Panel then clearly some other factor is the ultimate determinant. In light of the government’s stated commitment to enhancing the diversity of the federal judiciary it is not hard to imagine that the candidates’ other attributes entered the equation. Some explicit support for this conclusion is discernible from an examination of some of the announcements of new appointments made under the reformed system – with the individual’s contribution to the diversification of the bench being occasionally acknowledged by the Attorney-General.

While judicial appointments reform in Australia has gone backwards, perhaps some aspects of it offer a useful perspective on live questions in the United Kingdom debate. In particular, the way in which ‘merit’ is generally conceived is startlingly different. The House of Lords declared that shortlists were basically antithetical to the principle of appointment on merit – a view not taken by members of the Australian upper house nor voiced in a single submission from the judiciary, legal professional associations or academics to that chamber’s inquiry.

The recent amendment to the Constitutional Reform Act providing that diversity considerations may be used to determine which name goes forward ‘where two persons are of equal merit’ has been welcomed but there are concerns as to the difference it will make in practice. To Australian eyes that scepticism appears well-founded since the ‘equal merit’ provision still reflects an insistence not only that the quality of potential candidates may be objectively measured, but that this enables persons to be ranked with some exactitude. Accordingly, a dead-heat must be anticipated as unlikely – and the statute simply does not countenance merit as something that might relevantly be possessed more widely than just two individuals.

Contrast this with the candid remarks in 2008 of Stephen Gageler SC, then Solicitor-General of the Commonwealth and since appointed to the High Court of Australia:

… [A]t any time there would be fifty people in Australia quite capable of performing the role of a High Court justice. My perception is that the pool gets proportionately wider the further down the judicial hierarchy you go… The notion that appointment can only validly be based on ‘merit’ is naïve.

McClelland’s reform of judicial appointments in Australia did not reject the rhetoric of ‘merit’ as the ultimate justification for selection of individuals to serve in the federal courts. But the design of those processes effectively signalled that while merit was essential, it was not the exclusive consideration. Although those reforms have now been undone, it is to be hoped that as a result of their five years’ operation, the government cannot completely retreat behind ‘naïve’ explanations as to why one individual is chosen for judicial appointment from amongst others possessing equivalent qualifications, expertise, and professional skills.

 

Andrew Lynch is a professor and Director of the Judiciary Project at the Gilbert + Tobin Centre of Public Law at the University of New South Wales, Australia.

(Suggested citation: A. Lynch, ‘Judicial Appointments in Australia – Reform in Retreat’ U.K. Const. L. Blog (26th May 2014) (available at http://ukconstitutionallaw.org/).

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Andrew Le Sueur: Imagining judges in a written UK Constitution

Andrew Le SueurThe tide of interest (among those who care about these things) in the idea of a written, codified constitution for the United Kingdom rises and falls. At the moment the tide is quite high, but certainly not high enough to flow into the estuaries of government policy making.

In 2010, Richard Gordon QC —a public law scholar-practitioner at Brick Court Chambers, London —wrote a book length blue print for a codified constitution (though expressing himself tentatively in terms of aiming to stimulate a debate). In Repairing British Politics, he rejects parliamentary supremacy as a defining principle and envisages judges having broad and deep powers to enforce the constitution. As my Essex colleague Anthony King put it in a review of the book: “By implication — and notwithstanding a passing reference to ‘the available resources of the State’— unelected judges would even have the power to order other authorities to provide citizens with the aforementioned food, water, clothing, housing and free health and social care services”.

Meanwhile, across the road at the LSE, Conor Gearty is leading a “trailblazing project that invites members of the public to participate in, offer advice on and eventually to draft a new UK constitution through crowdsourcing”. On Thursday 26 June 2014, the project will be hosting a “Constitutional Carnival”when “All those involved in the project, and many others joining for the first time, will be invited to come together to have their say on what should be included in a UK constitution”. One session will be on “Where should judges fit in a written constitution?”. It will be interesting to see what emerges.

The latest contribution to the debate comes today from the House of Commons Political and Constitutional Reform Committee, which publishes its report on Constitutional role of the judiciary if there were a codified constitution (14th report of Session 2013-14, HC 802). Chaired by veteran Labour MP Graham Allen, this cross-party select committee has been toiling away since it was set up in June 2010 “to consider political and constitutional reform, scrutinising the work of the Deputy Prime Minister in this area”. Two major planks of Nick Clegg’s agenda have fallen off the lorry since then: House of Lords reform and an alternative vote electoral system for the House of Commons. With time on its hands to mull over the bigger picture, the PCRC launched a wide ranging inquiry in September 2010 on “Mapping the path to codifying — or not codifying — the UK’s Constitution”, supported by researchers at the Centre for Political and Constitutional Studies at King’s College London. Today’s report on the role of the judiciary is one aspect of that inquiry.

The PCRC’s report starts by acknowledging that the British judiciary already have a role in relation to constitutional matters, quoting examples I gave in my written evidence:

determining legal disagreements about the respective powers of different institutions within the constitution, for example between the UK Parliament and the UK Government, or between the central and local government;

dealing with legal questions about the division of powers between the UK and the European Union, under the guidance of preliminary rulings by the European Court of Justice;

adjudicating on legal questions about the exercise of powers by executive and legislative institutions in Scotland, Wales and Northern Ireland in accordance with the devolution settlements created by the UK Parliament;

protecting fundamental rights of individuals, including those in the Human Rights Act 1998, taking into account the case law of the European Court of Human Rights. [...]

judicial review of executive action and delegated legislation, ensuring that public bodies remain within the powers conferred on them by Acts of Parliament and operate in accordance with judge-made legal principles of (for example) fairness and rationality.

The report goes on to “welcome the fact that the Constitutional Reform Act 2005 enshrined judicial independence in law”.

From there, however, the committee feels unable to say much more about what would change, in relation to the judiciary, if there were to be a written constitution:

The role of the judiciary would undoubtedly change should the UK adopt a codified constitution, but the precise nature of that change will be difficult to assess until there is an agreed definition of the current constitutional role of the judiciary. In our terms of reference we set out to explore the current constitutional role of the judiciary but this needs further work.

That’s quite right. There are a number of different ways in which the British constitution could be “written”and each model —including a non-legal constitutional code, a consolidation Act bringing together current statute law on the constitution into a single enactment, and a full blown constitution —would have different implications for the role of judges.

Having rehearsed some well trodden pros and cons of parliamentary supremacy (and whether it should or indeed could be retained in a written constitution), the PCRC expresses interest in the idea (which I share) of a “declaration of constitutionality” modelled on similar lines to section 4 of the Human Rights Act 1998, which would give courts power to declare that an Act of Parliament is inconsistent with a norm of the constitution without striking down the offending provision. It would then be left to government and Parliament to decide how to respond.

In a statement that will I’m sure provide inspiration to setters of undergraduate essay questions in years to come, the committee states “Before the UK could move towards a codified constitution there would need to be a precise definition of the ‘rule of law”’. I am not sure that is right: arguably, the committee gets this back to front. A better way of understanding the umbrella concept of the rule of law is to say that it includes what is written down in a constitution.

Sharing a view previously expressed by the House of Lords Constitution Committee, the PCRC shows little appetite courts having power to undertake  pre-enactment review of legislation. Nor is there much support for setting up a specialist constitutional court: based on the evidence received (including mine), the report concludes that “the Supreme Court could adjudicate on constitutional matters”.

All in all, it is difficult to resist the view that the PCRC’s report is a damp squib on the big issues. It offers little new on the key question of whether parliamentary supremacy could or should be retained under a new constitutional document. To be fair, it is unrealistic to expect a cross-party select committee, midway through a larger inquiry, to say much more on this contentious issue. In the press release accompanying today’s report, the committee’s chair Graham Allan is quoted as saying “The Committee expects to publish the results of its wider inquiry into codifying, or not codifying, the UK’s constitution in the summer.” Let’s see.

In my written evidence to the committee I argued for political realism in the debate about the role of the judiciary. I said that, thinking about the topic of judges in the constitution generally, it is possible to envisage a range of possible roles.

At the maximalist end of the spectrum would be a design that (for example) empowers the judges to adjudicate on the constitutionality of Acts of the UK Parliament with a remedial power to quash Acts that are incompatible with the UK Constitution; the UK Constitution might also include legally enforceable socio-economic rights (to health, housing, education and so on); there might also be ‘abstract’ judicial review of bills before they receive Royal Assent. A design of this sort would involve a shift in the balance of power to decide matters of national interest away from the UK Parliament and Government towards the courts.

A minimalist design of the judicial role in the UK Constitution would not give the courts power to quash Acts of Parliament (so preserving the existing principle of parliamentary supremacy), would avoid creating justiciable socio-economic rights (confining rights to the civil and political ones familiar from the European Convention on Human Rights currently incorporated into national law by the Human Rights Act 1998), and would not have a system for abstract judicial review of bills.

Where on the maximalist-minimalist spectrum a UK Constitution should sit has to depend on (a) efficacy and (b) political acceptability. Efficacy is concerned with what is needed, from a ‘technical’ legal perspective, for the UK Constitution to make a real improvement compared to current constitutional arrangements. Political acceptability is about being realistic as to what political elites and the general public would find attractive or tolerable.

In the current political climate it is difficult to imagine that mainstream political opinion would accept an enlargement of the role of judges in adjudicating on legal questions that relate to controversial matters of public policy. The existing powers of courts under the Human Rights Act 1998 and in judicial review claims are regularly called into question by members of the Government and have few champions within Parliament. There is little public understanding of the role of courts in these areas and the constitutional function of the judges is routinely disparaged and misrepresented in the press. This political background against which the continuing debates about a UK Constitution take place is unlikely to change in the foreseeable future. Politically realistic constitutional reformers should therefore favour a minimalist role for judges in a codified constitution and provide reassurance to sceptics and opponents of judicial power that adoption of a UK Constitution need not involve the judges in novel legal tasks.

I stick to that view. At a time when the government, including the Lord Chancellor, find judicial review of administrative action unpalatable, it is not practical politics to argue for greater powers for the UK courts to strike down “unconstitutional”Acts of Parliament. Anti-judicial review sentiments were not invented by the present coalition government. Under previous administrations, ministers did not see the point of it. In 2003, David Blunkett MP, when a minister in Tony Blair’s Labour government, captured what I sense to be the dominant view of all recent governments: “Frankly, I’m personally fed up with having to deal with a situation where Parliament debates issues and the judges then overturn them”.

Andrew Le Sueur is Professor of Constitutional Justice at the University of Essex and president of the UK Constitutional Law Association.

(Suggested citation: A. Le Sueur, ‘Imagining judges in a written UK Constitution’ U.K. Const. L. Blog (14th May 2014) (available at: http://ukconstitutionallaw.org/).

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Graham Gee and Kate Malleson: Judicial Appointments, Diversity and the Equal Merit Provision

graham-gee-webmalleson-photo-2010One of the changes introduced by the Crime and Courts Act 2013 was to amend section 63 of the Constitutional Reform Act 2005, which provides that the Judicial Appointments Commission (JAC) must select candidates for judicial office ‘solely on merit’. Schedule 13 of the 2013 Act clarified that making selections solely on merit does not prevent the JAC from recommending a candidate on the basis of improving diversity on the bench where there are two candidates of equal merit. This is variously known as the ‘equal merit’, ‘tie-break’ or ‘tipping point’ provision and derives from s 159 of the Equality Act 2010. After a consultation exercise last summer, the JAC last month published its policy on how it will implement the equal merit provision. In this post, we draw on research conducted as part of an AHRC-funded project on The Politics of Judicial Independence to explain why the JAC’s policy is disappointingly cautious, limits the prospect of further progress on diversity and offers further evidence of what we believe is the excessive judicial influence on judicial appointments.

Context 

We begin with some words of praise for the JAC. Since its creation in 2006, the JAC has inter alia devised: robust processes that have for the most part identified suitably qualified candidates of good character; addressed problems that were an early feature of those processes (e.g. delays); and over time has fostered the confidence of the key stakeholders (i.e. ministers, judges and practitioners). It has done this all of this whilst becoming a leaner and more efficient operation in an age of increasingly scarce public resources. Between 2009-10 and 2014-15, its budget is projected to have fallen from £7.6m to £4.85m, its staff from 105 to 67, and yet the number of recommendations for judicial office that the JAC has made has risen from approximately 450 to 750 a year. These are important accomplishments that have helped to secure the JAC’s position on the institutional landscape, something that was much less certain around 2008-09 when the then Lord Chancellor, Jack Straw, considered abolishing the JAC and either bringing appointments back in-house or delegating more responsibility to the senior judges. Much credit is due to the leadership team of Christopher Stephens as Chair and Nigel Reeder as Chief Executive, who since 2011 succeeded in fostering much more constructive and cooperative relationships with the JAC, the senior judiciary and the Ministry of Justice.

All that said, we remain concerned, like many others, by the relatively slow progress in increasing judicial diversity. It is true that women constitute around 40% of the nearly 3,500 recommendations made by the JAC between 2006 and 2013, with BME candidates around 10%. It is also true that some recent selection exercises have seen women appointed to senior roles: for example, in 2013, five out of the 14 recommended for the High Court were women, while three women filled 10 spots on the Court of Appeal. Given the exceptionally small number of women in the senior judiciary, this might be deemed slow but steady progress; or as a senior judge put it to us, it might be thought that ‘the dam has broken’. But change has been slower than expected, and improvements have largely been concentrated in the lower ranks, and particularly in non-legal tribunal appointments, with the upper ranks of the judiciary remaining substantially untouched. The JAC chair himself acknowledged in March in evidence to the Justice Committee that he was ‘absolutely certain’ that there would not be an equal representation of women on the bench within five years. It is against this backdrop that the JAC’s policy on equal merit is so disappointing.

Equal Merit Policy

The JAC manages a highly formal selection process involving advertising, short-listing by tests or paper sifts, interviews and, for some vacancies, presentations or role-playing. For each vacancy, the JAC must recommend a single candidate to the Lord Chancellor, Lord Chief Justice or Senior President of Tribunals, depending on the vacancy. Under its new policy, where two or more candidates are assessed as having the skills, experience and expertise that result in them being considered equal when assessed against the selection criteria, the JAC may apply the provision ‘to give priority to the candidate with declared protected characteristics which are the least well represented in the office to which they are being recommended for appointment’. In devising this policy, the JAC faced two critical questions. First, should the provision apply to all stages of the selection process, including short-listing, or just once at the final stage where the JAC makes its recommendation? Second, to which groups of people should the equal merit provision apply? The JAC answered both questions very narrowly, adopting what its chair has conceded is ‘a fairly minimalist’ approach.

The JAC will apply the provision only at the final selection stage. This blunts the provision’s potential to increase diversity. As we see it, the premise that there may be candidates exhibiting different strengths and weaknesses who are considered of equal merit is relevant to short-listing and final selection. Applying the provision at short-listing could help remove barriers that might prevent non-conventional candidates being called for interview. The JAC has further limited the provision’s potential by applying it only to race and gender. It has done so on the grounds that the provision should only be used where under-representation can be demonstrated by reference to published data. We recognize there are practical difficulties related to the availability of reliable data for some of the ‘protected characteristics’ under the Equality Act 2010. However, the JAC needs to be more proactive in widening the number of protected groups to whom the equal merit provision can apply. This means collecting reliable data for groups other than race and gender. We further recognize that collecting personal data can be problematic; for example, many applicants in the judicial appointments process seem reluctant to disclose personal data. But this is a problem with which many organizations are grappling as they implement important equality and diversity legislation. The JAC needs to devote more time and resources to being a pioneer on such matters rather than reacting to developments elsewhere. A more pioneering and proactive approach would be consistent with the JAC’s duty to ‘have regard to the need to encourage diversity in the range of persons available for selection’.

Several commentators question whether the provision will make much difference to the composition of the judiciary. In particular, some doubt whether there really will be many occasions where two or more candidates are deemed equal, all things considered. After all, the JAC’s Chair suggested in late 2011 that there had been no two broadly indistinguishable candidates out of the 500 recommendations made by the JAC since he assumed office earlier that year. If it is indeed the case that the JAC is always able to distinguish between candidates, then it would be unsurprising if many were to agree with Alan Paterson and Chris Paterson that the equal merit provision ‘runs the risk of marking merely another positive headline backed by very little positive impact in terms of addressing the glaring diversity deficit’. However, we prefer the position of the former JAC Vice-Chair, Lady Justice Hallett, who has suggested that it is not ‘as rare as people think that you have candidates who are equally qualified’. To grasp the potential of the equal merit provision requires a certain attitude—and perhaps a change of attitude amongst some currently serving on the JAC—about the type of assessments made by selection panels when faced with candidates with different but commensurable judicial qualities.

In short, the provision has the potential to be a useful tool to address the diversity deficit. However, as narrowly interpreted by the JAC, the equal provision is likely to have very little impact. If the JAC was strongly committed to using it in its full extent, was willing to apply it at more than one stage of the selection process, and to apply it to a wider range of protected characteristics, the provision could make a difference. The decision to use it in this very limited way is ultimately a political decision about the weight given to diversity. The question that arises is this: why is the JAC seeming to place so little weight on the issue of diversity?

Judicial Influence on Judicial Appointments

On our reading, the JAC’s extremely narrow policy on the equal merit provision is potential evidence of the excessive judicial influence on judicial appointments. We have pointed to the high—and, in our view, too high—levels of judicial influence on JAC-run selection processes in previous posts on this blog; see here and here. In a forthcoming book (with Robert Hazell and Patrick O’Brien), we argue that although senior judges acknowledge the lack of diversity, and seem genuinely keen to see change, they have for the most part resisted initiatives that are designed to bring about a much faster transformation. We also argue that over time, and over several different issues, the JAC has become less willing to challenge senior judges over this. As one of our interviewees put it, the senior judges are ‘very effective’ in achieving their ‘desired outcomes’ when interacting with the JAC.

We suspect that the policy on the equal merit provision is a further product of the high levels of judicial influence on the judicial appointments processes. Over half of the responses to the JAC’s consultation exercise on the equal merit policy were from judges and their representative bodies. There were also lengthy discussions in private between the JAC, the senior judges and the Ministry of Justice. Possible evidence of the influence of judicial concern about equal merit can be seen in the comments of the JAC Chair in his evidence before the Justice Committee: ‘[t]here is serious caution among many…the stakeholders…are cautious about [the equal merit provision]’. If we are correct in suspecting that judicial caution is largely responsible for the JAC adopting such a narrow policy on equal merit, then this merely underscores that the challenge confronting the appointments system in the years ahead is less the threat posed by inappropriate ministerial interference, but the cumulative consequences of excessive judicial influence.

Conclusion

The JAC will report the number of occasions the equal merit provision is applied in its twice-yearly Official Statistics Bulletin. It has also committed to keeping the provision under review. We welcome this. And plainly, the proof of the pudding will be in the eating, and even the JAC’s narrow policy may have more of an impact than we predict. On the basis of the narrowness of its policy, however, there is reason to suspect that this may prove to be another missed opportunity for the JAC to send a strong signal of the importance it attaches to diversity.

Graham Gee is a lecturer at the University of Birmingham and Kate Malleson is a professor at Queen Mary. Together with Robert Hazell and Patrick O’Brien from the Constitution Unit at University College London, they recently completed an AHRC-funded project on “The Politics of Judicial Independence”.

 

(Suggested citation: G. Gee and K. Malleson, ‘Judicial Appointments, Diversity and the Equal Merit Provision’ U.K. Const. L. Blog (6th May 2014) (available at: http://ukconstitutionallaw.org)).

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Tarunabh Khaitan: NALSA v Union of India: What Courts Say, What Courts Do

khaitan_tarunabhThe Indian Supreme Court has recently delivered an important judgment in the case of National Legal Services Authority v Union of India (NALSA). A two-judge bench comprising Justices Radhakrishnan and Sikri declared, among other things, that hijras (a traditional Indian male-to-female trans group) must be treated as a ‘third gender’ for all legal purposes, and that transpersons in general have the right to decide whether they want to be identified as male, female or belonging to the third gender. [129] (Given the specific declaration that hijras belong to the third gender, it is not clear whether the general right to choose one’s gender is available to hijras too, or only other transpersons.) The Court also issued a number of other directions to the state—remarkable in their breadth and, perhaps for that reason, vulnerable to remaining unimplemented.

In some respects, this judgement is in sharp contrast to the one delivered by another bench of the same Court in December 2013. In Koushal v Union of India, two other judges had overturned a Delhi High Court judgment declaring the criminalisation of sodomy to be unconstitutional. In effect, Koushal recriminalized India’s LGBT minority after a brief and hard-won respite from the Delhi High Court (the Koushal ruling still stands and is not affected by NALSA, although the Supreme Court has agreed to hear a ‘curative petition’ seeking its review by a larger bench).

Unlike Koushal’s complete failure to appreciate the counter-majoritian judicial function in a constitutional democracy, the NALSA judges are acutely aware of their special duty to protect a ‘marginalised section of the society’ which is ‘very small in number’ [118, 82]. Contrary to Koushal’s rejection of comparative law, NALSA is replete with lengthy references to international and foreign judgments and legislation, surprisingly including material not only from the usual Western liberal democracies but also India’s less liberal and less democratic neighbours such as Pakistan and Nepal [21-42, 70-73].

Unlike Koushal’s miserliness in understanding the scope of fundamental rights, NALSA adopts expansive interpretations of fundamental rights. The right to equality in Article 14 is read to include positive obligations (such as the duty to take affirmative action and make reasonable accommodation) [54, 88]. The right against discrimination in Articles 15 and 16 is read to prohibit not only direct but also indirect discrimination [59]. Prohibition of discrimination on the ground of ‘sex’ specified in these Articles is read to include a prohibition on discrimination based on gender identity [59]. The court compares gender identity to the paradigm ground in Indian discrimination law—caste—by acknowledging that transpersons are treated like ‘untouchables’ [1]. It also sees the parallels between the protection of disability and that of gender identity [112]. Noticing such continuity between different forms of discrimination is rare for Indian courts.

The Court especially notes Articles 15(4) and 16(4), which allow the state to make special provisions for the advancement of socially and educationally backward classes. The judgment doesn’t fully explain how this constitutional permission can lead to the conclusion that the state ‘is bound to take some affirmative action for their advancement so that the injustice done to them for centuries could be remedied’ [60, emphasis supplied]. One possibility is that the Court is relying on its earlier premise that the right to equality under Article 14 imposes positive as well as negative obligations. Alternatively, the Court may be implying that once the state relies on the constitutional permission to take affirmative action for some backward classes, it must do so for all of them. It would have been better if the Court had clarified the precise reasoning behind the directions to the state to extend affirmative action benefits to transpersons—effectively a recognition of a right to affirmative action [60, 129].

The right to freedom of expression in Article 19 is read expansively to include the freedom to express oneself through dress, words, action, behaviour etc [61]. Thus, gender-non-conforming dress and behaviour are constitutionally protected. The right to life and personal liberty under article 21 is declared to rest upon notions of positive freedom, personal autonomy, self-determination and human dignity and not simply freedom from unjustified state interference [67, 69, 99, 101, 102]. Thus, the state has a duty to enable transpersons to be free in the positive as well as the negative sense.

The remedies that the court grants are also very interesting. Three directives have already been mentioned: that hijras are now recognised as the third sex, that transpersons have the right to choose between being male, female or belonging to the third gender, and that transpersons are to be given affirmative action benefits, since they are a ‘backward class’. The Court goes on to give a slew of other directions, including some very specific orders (direction to provide specific toilets and HIV care centres for transpersons), some rather broad ones (direction to provide them with medical care in all hospitals, to frame various social welfare schemes for their betterment, and to take steps to create public awareness to ensure their social inclusion) and some wonderfully imprecise ones (direction to seriously address problems being faced by them and to take measures to ensure a respectful place for them in social and cultural life). To top it all, the Court notes that the government has already constituted an ‘Expert Committee’ to study the problems faced by the transpersons. Without specifically mentioning what its findings or recommendations actually are (the Committee submitted its report in January 2014), the Court orders the Executive to implement its recommendations within six months.

It is only when we examine the remedies the Court grants in NALSA that we can see a common understanding of the judicial function with the Koushal bench. I had argued in a previous post that the Koushal Court wasn’t being deferential to Parliament in refusing to hold the colonial anti-sodomy provision unconstitutional. On the contrary, the judgment showed a characteristic lack of respect for separation of powers. The NALSA judges are much more benign and progressive, with a much better understanding of the counter-majoritarian judicial role than the Koushal judges. But when it comes to its attitude to the legislature, they match Koushal’s contempt for Parliament with indifference.

Its champions as well as its critics agree that the Indian Supreme Court does not generally waste much time worrying about separation of powers. It makes drastic and frequent forays into the legislative domain with little hesitation. This is broadly true, but the manner in which these incursions are made is interesting and NALSA offers a good illustration. In its social rights jurisprudence, one can see two very different types of remedies provided by the Court. On the one hand, one sees judicial legislation, usually in the form of an endorsement of a policy or a set of recommendations framed by the Executive, like the recommendations of the Expert Committee in this case. These recommendations are often precise and detailed, and therefore legislative in character. Frequently the government lawyer would have informed the Court of the Executive’s support for these recommendations. What the Court effectively does is collude with the Executive to stamp consultation documents and ad hoc committee reports with constitutional authority, entirely bypassing Parliament. In fact, faced with an un-obliging Parliament paralysed by obstructionist politics, governments often find it easier to legislate through the courts than through Parliament. Even in Koushal, the government had—rather unusually—admitted before the Court that the criminalisation of sodomy was unconstitutional. It would have very much liked the Court to affirm the Delhi High Court order, one that it had chosen not to appeal. Ministers publicly endorsed gay rights only after the court refused to play ball, but the Executive response was to seek judicial review rather than go to Parliament. The Indian courts are no doubt legislating. But on the whole, the initiative remains with the Executive. Courts have simply become a parallel, albeit less predictable, forum for endorsing legislative proposals that still originate from the Executive.

On the other hand, there are orders that are so expansive and vague that it is impossible to hold anyone to account for failing to implement them. The Court must know that its overbroad directive to take measures to help transpersons is capable of neither implementation nor breach. However, the Court is not simply interestes in whether its vague orders are implemented—it also cares about participating actively in and shaping the political discourse on various issue. The Indian SC is an explicitly political institution which does not pretend to be otherwise. Even in NALSA, the judges are very clear that law must transform social realities [119]. The Koushal judges were very keen to ensure that the law did not disturb the social status quo. Both positions, although diametrically opposed, are self-consciously political. Of course, all courts are political. The difference in India is that judges are not coy about acknowledging this reality. Whether this honestly is a virtue—or whether at least the judicial pretence of functioning outside politics nonetheless imposes useful restraints on courts—is a matter for another day.

The reason that Indian courts spend time penning these unimplementable orders is that they know it is not just what they do that matters, but also what they say. As prominent political players whose words carry a lot of weight in the public discourse, these expansive and vague directions are not simply pious platitudes. They will be relied upon by activists, reported by the media, debated by politicians and as soft-law instruments lay the foundations for future judicial and legislative development. Like its legislative role, the Indian Supreme Court has adopted a very expansive understanding of its expressive function. Debates on separation of powers need to consider the proper limits not only of what courts do, but also what they say.

 

Tarun Khaitan is the Hackney Fellow in Law at Wadham College and Associate Professor at the Faculty of Law, University of Oxford.

(Suggested citation: T. Khaitan, ‘NALSA v Union of India: What Courts Say, What Courts Do’ U.K. Const. L. Blog (24th April 2014) (available at: http://ukconstitutionallaw.org)).

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Robert Leckey: Constitutionalizing Canada’s Supreme Court

Professor Robert Leckey CROSS-POSTED FROM THE I.CONNect BLOG.

A dispute over the legality of a politically questionable judicial appointment has resulted in what pundits call a stinging defeat for Canada’s prime minister and a bold assertion by the Supreme Court of Canada of its independence and constitutional status.

Recently, in Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21, the Court advised that Conservative Prime Minister Stephen Harper’s appointment of the Honourable Mr. Justice Marc Nadon to the Supreme Court of Canada was void. He had been sworn in five months earlier. On a six-judge majority’s reading of the Supreme Court Act, Justice Nadon was unqualified to fill one of three spots reserved for jurists trained in the law of Quebec. Quebec is the federation’s sole civil-law jurisdiction and the only province with a French-speaking majority.

In addition, the Court opined that the Parliament of Canada’s ex post amendments to the Supreme Court Act purporting to clarify that Justice Nadon was eligible were unconstitutional. They amounted to a constitutional amendment requiring the unanimous consent of Parliament and all provinces.

While many had criticized the political wisdom of the prime minister’s selection of a semi-retired judge on nobody’s shortlist, the constitutional issues turn on the interpretation of the Supreme Court Act and of the country’s constitutional amending formula.

General qualifications for appointment appear in section 5 of the Supreme Court Act. It refers to current and former judges and to a person who “is or has been” a lawyer of at least ten years standing at the bar of a province. The controversy bore on section 6’s specification that three justices be drawn “from among the judges of the Court of Appeal or of the Superior Court of the Province of Quebec or from among the advocates of that Province.” Justice Nadon came instead from the Federal Court of Appeal. Although formerly a member of the Quebec Bar for more than ten years, he was no longer a member. Using a process set out in the Supreme Court Act, the federal executive referred questions to the Court for its opinion.

The validity of the initial selection of Justice Nadon turned on the relationship between the Act’s general and specific provisions and the significance, if any, of the different wording in sections 5 and 6 (“is or has been,” “among”). The majority of the Court concluded that Quebec appointments needed to be current judges of the named Quebec courts or current members of the Quebec Bar. Those judges stated the primary basis for their decision to be the Act’s plain meaning and the differences in wording. A single judge dissented.

It is striking for an apex court—even when the government asks it to weigh in—to reject an appointment to its ranks on the basis that the government had misinterpreted the relevant statute. But the Court went further. It grounded a formalistic exercise of statutory interpretation turning on the niceties of “is or has been” versus “among” in the historic compromise guaranteeing one-third of the Court’s judges to Quebec. For the majority justices, their interpretation of section 6 advanced the “dual purpose of ensuring that the Court has civil law expertise and that Quebec’s legal traditions and social values are represented on the Court,” maintaining that province’s “confidence” in the Court (para. 18).

Exaggerating the opinion’s political salience would be difficult. At a moment when Quebec is governed by a separatist party, and less than three weeks before Quebecers vote in a provincial general election, the Supreme Court of Canada explicitly declared itself to be an institution that guarantees a voice for Quebec’s “social values” in federal institutions. Commentators read the entire judgment as a declaration of the Court’s independence from a prime minister and executive perceived as disdainful towards democratic institutions and tone-deaf regarding Quebec. By implication, the majority’s reasoning made the choice of Justice Nadon not only formally invalid, but also substantively disrespectful of Quebec. One can speculate on the depth of the majority’s commitment to this substantive point by asking whether it would have upheld the appointment had the federal government named Justice Nadon to an eligible Quebec court the day before appointing him to the Supreme Court.

The opinion’s most enduring contribution, though, arises from its answer to the question concerning Parliament’s attempt to amend the Supreme Court Act. Parliament had created the Court by statute in 1875. The Court did not replace the Judicial Committee of the Privy Council as the federation’s tribunal of last resort for nearly three-quarters of a century. In its final legislative exercise for Canada, the Parliament of the United Kingdom brought into life the Constitution Act, 1982. The latter lists instruments that the Constitution of Canada includes, but does not mention the Supreme Court Act. Nevertheless, the new constitutional amending formula refers twice to the Supreme Court. The Court appears among the “matters” amendable by Parliament with the consent of a majority of provinces. Its “composition” figures among the “matters” amendable only on unanimous consent of Parliament and the provinces.

In opining that Parliament’s attempt to modify the Supreme Court Act to clear the way for Justice Nadon was unconstitutional, the majority stated that reference to the Court’s “composition” in the amending formula constitutionalized sections 5 and 6 of the Act. By implication, it also constitutionalized the Court’s continuing existence, “since abolition would altogether remove the Court’s composition” (para. 91). The majority added that the more general reference to the Court constitutionalized its “essential features … understood in light of the role that it had come to play in the Canadian constitutional structure by the time of patriation” (para. 94). In effect, the amending formula drastically reduced the scope for change to the Supreme Court by ordinary federal statute.

Moreover, the Court confirmed that the sources of the Constitution of Canada now include not only the previously known hodge-podge of royal proclamations, imperial statutes and orders in council, federal statutes, and unwritten principles. Those sources also include parts of another federal statute, the Supreme Court Act—some provisions identified by number as well as whatever might in future be determined to embody the Court’s “essential features.” Indeed, by referring to the “role” that the Court has come to play, the majority judges hint that the Court’s constitutionalized features may not track directly to specifiable legislative provisions, instead arising from practice. Presumably the same applies to other institutions that the amending formula constitutionalized, such as the Senate of Canada, on which the Court will pronounce in due course.

Whatever the political fallout for the prime minister, the Court’s advisory opinion merits careful attention by those who study sources of constitutional law, amending formulae, and how institutions’ constitutional status may change over time.

Robert Leckey is an Associate Professor of Law and William Dawson Scholar at the Faculty of Law, McGill University. He is scheduled to speak in the United Kingdom and South Africa about his forthcoming book Bills of Rights in the Common Law on the following dates in 2014: King’s College London – 12 May; Oxford University – 13 May; Unisa, Pretoria – 15 May; Cape Town – 19 May; University College London – 17 June; London School of Economics – 29 October. Further details for these talks may be obtained from the venues hosting the talks.

(Suggested Citation: Robert Leckey, Constitutionalizing Canada’s Supreme Court, Int’l J. Const. L. Blog, Mar. 25, 2014, available at: http://www.iconnectblog.com/2014/03/constitutionalizing-canadas-supreme-court  or R. Leckey, ‘Constitutionalizing Canada’s Supreme Court’ U.K. Const. L. Blog (1 April 2014) (available at http://ukconstitutionallaw.org/)).

 

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