Tag Archives: judicial appointments

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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Alexander Horne: Is there a case for greater legislative involvement in the judicial appointments process?

Alexander HorneThe dramatic increase in public law and human rights cases coming before the UK Supreme Court (and the Appellate Committee before it) means that the UK’s top court is more frequently determining essentially socio-political questions. In addition, in recent years, the judiciary has pressed for a rather more expansive definition of judicial independence, with a greater emphasis on the institutional independence of the judiciary. This has tended to lead to more powerful leadership roles, for senior judges in particular.

These changes, coupled with a greater focus – by both the judiciary and the executive – on the doctrine of the separation of powers, has resultedin judges taking responsibility for matters which, prior to theConstitutional Reform Act 2005, would most likely have been left to the Lord Chancellor (and his former Department). In the light of this expanding judicial role, now seems an appropriate time to question whether any new mechanisms for increasing political accountability, such as a parliamentary confirmation procedure, are needed for appointment to the most senior judicial offices (including, but perhaps not limited to, the UK Supreme Court, given the growing managerial roles played by the Lord Chief Justice and Heads of Division).

Confirmation processes are often dismissed out of hand – frequently with negative references to the partisan approach seen in the United States of America. Lord Neuberger (then Master of the Rolls) captured the common view of hearings before the USSenate Judiciary Committee, when he observed:

“Once you start muddying the water and involving the legislature in the appointment of judges, you risk going down a slippery slope, not quite knowing where it will end. The last thing that we want is the sort of thing you see in the United States. I do not pretend that it happens with every appointment to the Supreme Court but we all remember interviews and proposed appointments that led to something of a jamboree or a circus. I do not think that we want that.” (Evidence to the House of Lords Constitution Committee, November 2011)

 Of courseviews on the US experience do not go entirely one way. Graham Gee has previously considered whether the lessons drawn by UK commentators are necessarily justified; suggesting that most hearings do not generate political conflict and that in any event, “hearings are not the primary source of the politicization of the process” given the important role that partisan considerations play in the President ‘s nominations for the federal bench. Nonetheless, it must be acknowledged that a knee jerk reaction against the US procedure remains commonplace.

Critics of hearings frequently point to the potential impact on judicial independence. In its report on Judicial Appointments, published in March 2012, the House of Lords Constitution Committee summarised many of the oft-heard objections when it concluded that:

“Parliamentarians should not hold pre- or post-appointment hearings of judicial candidates, nor should they sit on selection panels. Political considerations would undoubtedly inform both the selection of parliamentarians to sit on the relevant committees or panels and the choice of questions to be asked.”

In spite of this, issues around judicial independence and accountability are now receiving more interest from academics and some parliamentarians. The question of whether to introduce parliamentary hearings received some attention during the consideration of theconstitutional reformswhich eventually led to the passage of the Constitutional Reform Act 2005. Scholars such as Keith Ewing and Robert Hazell and the former Permanent Secretary of the then Lord Chancellor’s Department, Sir Thomas Legg QC,argued that nominees for the new Supreme Court could be interviewed or confirmed by Parliament. The Study of Parliament Group published The Changing Constitution: A Case for Judicial Confirmation Hearings?, a short report by this author, in 2010.  Areport by Policy Exchange in 2011 suggested that:

“[A] more radical approach to judicial selection should at least be considered – namely legislative oversight of appointments to the Supreme Court. This would have the advantage of ensuring that judges retained their independence, but would be subject to Parliamentary scrutiny prior to their appointment.” (Policy Exchange, Bringing Rights Back Home)

And in 2012, the think-tank CentreForum published a report by Professor Alan Paterson and Chris Paterson, entitled Guarding the Guardians (the title may give some clue as to their conclusions)

The recently concluded project on the Politics of Judicial Independence, involving the Constitution Unit, Queen Mary and the University of Birmingham, is another good example – posing challenging questions about the balance between judicial independence and accountability – asking“who is now accountable for the judiciary, and to whom?” and “what are the proper limits of judicial independence?”.  Views on the subject of confirmation hearings were splitin a seminar on the subject of Judicial Independence, Judicial Accountability and the Separation of Powers, but a number of potential advantages were identified, including the fact that hearings could enhance the legitimacy of judges. Moreover, recent experience of the introduction of hearings in Canada, addressed in a series of articles (e.g. Peter Hogg, Appointment of Justice Marshall Rothstein to the Supreme Court of Canada, (2006) 44 Osgoode Hall Law Journal 527), suggest that one does not have to emulate the contentious US model.

Following in the footsteps of these earlier studies, the Study of Parliament Group has just published a new research paper, by the author of this post, entitled Is there a case for greater legislative involvement in the judicial appointments process?  It seeks to address some of the conceptual arguments for greater political accountability in the appointment process and also considers the expanding ambit of judicial independence. Focusing on whether parliamentarians should have a role in the judicial appointments process, it asks what is meant by political accountability in the context of judicial appointments and considers what evidence there is that greater accountability is necessary.

The paper examines whether new methods of accountability could be introduced in the UK without impacting on judicial independence, and seeks to shed light on these questions by assessing the recent move by the UK Parliament to introduce pre-appointment hearings for other public appointments. Finally, it evaluates whether such processes are readily transferable and, if so, whether UK parliamentary committees are well placed to undertake this task.

The paper concludes that the introduction of pre-appointment hearings for the most senior judicial appointments would have a number of benefits and could help ensure that independent and robust candidates are appointed.  As to the question of politicisation, it considers that as long as there is a continued role for an independent judicial appointments commission to recruit and screen candidates at first instance, any significant politicisation of the process could be avoided.

Whether recent examples of workable models from the UK, or from other jurisdictions, can convince the senior judiciary of the merits of such a change is clearly open to some doubt. But the author hopes that this new work might nonetheless inform any future debate on these issues.

This blog post is published to coincide with the launch of a new Study of Parliament Group Research Paper on Judicial Appointments.

 Alexander Horne is a Barrister (Lincoln’s Inn) and is currently the Legal and Senior Policy Adviser at the House of Commons Scrutiny Unit. The SPG Paper ‘Is there a case for greater legislative involvement in the judicial appointments process?’ is based on an MPhil thesis undertaken part-time at Queen Mary, University of London between 2010-13.  The views expressed are those of the author and should not be taken to reflect the views of any other person or organisation.

(Suggested Citation: A. Horne, ‘Is there a case for greater legislative involvement in the judicial appointments process?’ U.K. Const. L. Blog (27th March 2014) (available at  http://ukconstitutionallaw.org/).

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Kate Malleson: Is the UK the only OECD country that does not have excellent women lawyers fit for our highest courts?

malleson photo 2010Readers will be forgiven for not noticing, but on 8 April 2013 Lord Justice Hughes and Lord Justice Toulson were sworn in as Justices of the UK Supreme Court.

Their appointment, together with that of Lord Hodge (who will succeed Lord Hope when he retires in October 2013), leaves the Court rock bottom of the list Supreme Courts of the 34 OECD (Organisation for Economic Co-operation and Development) countries when it comes to the gender composition of bench. Fifteen new judges been appointed to the court since 2009 when the court opened its doors. All have been male.  Lady Hale remains the only woman ever appointed to the highest court in the land.

It is now well established that there are many barriers to women reaching the higher ranks of the judiciary: from the unreconstructed working arrangements of the legal profession and the bench to the wider social context of the gendered division of labour around caring responsibilities. But all of these barriers are equally present in other countries which have done so much better than us in appointing women to their judiciaries.

Numerous detailed proposals for reform have been put forward in the UK over the last 20 years for encouraging greater diversity on the bench. All of them are necessary but they are not sufficient.  What Adam Wagner has described as an ‘attack of the clones’ continues. In fact, in the last two appointment rounds – though which five Supreme Court Justices were appointed – just one woman sat on the appointing committee.

Ultimately, to change the composition of an institution of power such as the judiciary and to allow in those who are not drawn from the same background as the traditional recruits requires political will. Not just from politicians, but from all the key stakeholders, in this case the judges and the legal profession.

In Northern Ireland after the Good Friday agreement was signed there was political will to change the composition of the bench, in that case to include those from the catholic community. It would no longer have been acceptable for the majority catholic community to be tried by an almost exclusively protestant bench. Quietly and effectively the change was made within a few years. The same political will is evident in countries such as Canada which have transformed their Supreme Court composition in terms of gender. The latest round of appointments to the UK Supreme Court shows that the same political will is lacking here.

The claim – evidenced by these appointments – that after 30 years of women entering the legal profession in large numbers and almost a decade after the first woman was appointed to the House of Lords – we still don’t have enough highly talented women to appoint to the bench is simply incredible. Do we really believe that we are the only country in the OECD that does not have excellent women lawyers fit for our highest courts? They may not look identical to the men who have traditionally been appointed, but they are there. It is time for the discussions, the official reviews and the hand-wringing to stop. It is time for some of these excellent women to be put on the bench where they belong.

Kate Malleson is Professor of Law at Queen Mary, University of London. Equal Justices Initiative is a forum for bringing together academics, practitioners, judges and policy-makers to work towards gender parity on the bench.

Suggested citation: Kate Malleson, ‘ Is the UK the only OECD country that does not have excellent women lawyers fit for our highest courts? ’ ,  UK Const. L. Blog (11 April 2013) (available at http://ukconstitutionallaw.org).

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Kate Malleson and Graham Gee: Who should have the final say in lower level judicial appointments?

malleson-photo-2010graham-gee-webThe Crime and Courts Bill is making its way through Parliament. As noted in an earlier post, the Bill proposes to pass responsibility for appointing Circuit Judges and District Judges from the Lord Chancellor to the Lord Chief Justice. This represents a potentially significant power shift in judicial appointments, yet it has attracted very little attention. In this post, we outline some of our concerns.

Current Practice

The Judicial Appointments Commission currently selects a candidate for each vacancy on the Circuit and District Bench. The JAC is required by statute to consult with the LCJ about its proposed candidate. After consultation, the JAC recommends a candidate to the Lord Chancellor, who can accept or reject the recommendation, or invite the JAC to reconsider it. In practice, the Lord Chancellor almost always accepts the recommendation of the JAC, with only 5 vetoes from almost 3000 recommendations since 2006.

Recent Lord Chancellors have exhibited little interest in lower level judicial appointments. Jack Straw, for example, described the Lord Chancellor’s role in such appointments as “ridiculous”. Similarly, Ken Clarke described it as “ceremonial and ritualistic”, explaining that neither he nor his officials in the Ministry of Justice were in a position to “second-guess” the recommendations of the JAC because they did not know the candidates.

As successive Lords Chancellors have retreated from involvement with lower level appointments, the views of the LCJ on candidates selected by the JAC have assumed greater importance. Indeed, it was said that Ken Clarke would only accept a recommendation from the JAC that had first been approved by the LCJ.

It is perhaps not surprising that there was widespread support in response to the government’s consultation paper for transferring the final say in lower level judicial appointments from the Lord Chancellor to the LCJ. Many will have concluded, like the Lords’ Constitution Committee, that the change will “promote the independence of the judiciary and increase public confidence in judicial appointments”. The LCJ, after all, is said to be in a better position to understand the particular requirements of judicial office and, thus, to decide whether a person selected by the JAC should be appointed to the bench. We are less confident, however, about whether this change is welcome. We have three main concerns.

Diluting the Executive’s Role and Responsibility

One of the assumptions driving the proposal is that there is no longer a legitimate role for the executive in lower level judicial appointments. This assumption is questionable. The involvement of the Lord Chancellor injects a critical measure of democratic legitimacy into the process of selecting judges. Equally significantly, it encourages the Lord Chancellor to take seriously his or her statutory responsibility for the operation of the appointment system as a whole. Moreover, if democratic accountability is not channeled through the Lord Chancellor, will the LCJ account directly to Parliament for the operation of lower level appointments? If so, does this pose a greater threat to judicial independence than the involvement of a government minister?

Even if it is argued that at the lower ranks involving the Lord Chancellor is not needed on grounds of democracy legitimacy, the goal of improving judicial diversity demands continued ministerial involvement. Experience in the UK and in other countries shows that improving diversity does not happen automatically as the composition of the legal profession changes. Rather, it needs political will to drive forward changes, some of which might not be supported by judges.  While we welcome the amendment introduced in the Lords to place the Lord Chancellor and the LCJ under a statutory duty to encourage judicial diversity, an amendment that mirrors the existing duty placed on the JAC, we worry that removing the Lord Chancellor from lower level appointments removes the opportunity for the exercise of political will to promote greater diversity in the judiciary at all levels.

Excessive Judicial Influence

In an important report published last year, Alan Paterson and Chris Paterson charted the level of judicial influence in senior judicial appointments. Similar concerns can be voiced in respect of lower level appointments. There are currently 5 judges on the JAC. Before instructing the JAC to begin a selection exercise the Lord Chancellor must consult with the LCJ. Each selection panel includes a judge. Judges draft the case studies that form an important part of the selection process. They write references for applicants. Finally, as noted above, the JAC consults with the LCJ about the candidate that it intends to recommend to the Lord Chancellor.

In other words, judges are already heavily involved in selecting their own colleagues. Shifting the formal decision-making power for lower tiers to the LCJ represents a significant extension of judicial influence in ways that might ultimately undermine, rather than bolster, public confidence in the judiciary.

A Changed Relationship between the JAC and LCJ

The proposal to transfer the veto power to the LCJ did not consider the implications of the LCJ more frequently refusing to accept recommendations from the JAC. We should perhaps expect more vetoes given that the rationale for the reform is that the LCJ will be better able to arrive at an informed evaluation of the JAC’s recommended candidate.

There might also be other reasons why the LCJ and the JAC could disagree about a recommendation. If, for example, the JAC decided to implement the tie break provisions under s.159 of the Equality Act 2010 to increase diversity, and if a future LCJ objected to this approach, we could expect to see the veto used more frequently. If such a scenario did arise, would the decision of the LCJ be subject to judicial review? If so, who would hear such a challenge? If the LCJ’s decision is not subject to judicial review, how, if at all, could it be challenged? Moreover, would the LCJ be required to give reasons for his or her decision?

These questions suggest that there are potential pitfalls which have not been thought through. It would not be surprising if the JAC sought to avoid them by only making recommendations likely to secure the approval of the LCJ. This then underscores our earlier concern – that judges potentially have too much influence in judicial appointments.

Finally, the LCJ has to date served as a guardian of the independence of the JAC. During its rocky first five years, the JAC came perilously close to being abolished by the Ministry of Justice; it experienced what one insider described as “a near death experience”. At the time when tensions between JAC and the MoJ were at their greatest, the LCJ spoke out publicly in defence of the JAC. He could do so without any potential conflict of interest because his role in the judicial appointments process was relatively limited. If in the future the LCJ can exercise a veto over the decisions of the JAC, it may be much more difficult to serve as a reliable guardian of the JAC.

Kate Malleson (Queen Mary) and Graham Gee (University of Birmingham) are collaborating with Robert Hazell and Patrick O’Brien (Constitution Unit UCL) on an AHRC-funded project on The Politics of Judicial Independence.

 Suggested citation: K. Malleson and G. Gee, ‘Who should have the final say in lower level judicial appointments?’ UK Const. L. Blog (30th January 2013) (available at http://ukconstitutionallaw.org)

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Graham Gee: The Crime and Courts Bill and the JAC

The Crime and Courts Bill resumes its passage through the House of Lords this week. In a post in July, Patrick O’Brien offered some thoughts on proposals in the Bill on judicial appointments. I agree with Patrick’s analysis and merely want to add some thoughts on the limited changes relating to the Judicial Appointments Commission proposed by the Bill.

(1) One of the chief complaints of officials who operate under the CRA’05 is that it is overly prescriptive. The Crime and Court Bill’s key proposal on the JAC seeks to inject flexibility into the arrangements relating to the JAC’s composition and is fairly uncontroversial. Under Schedule 12 CRA, the JAC must have 15 members, comprising a lay chair, a further 5 lay members, 5 judicial members, a lay justice, a tribunal member, a barrister and a solicitor. The JAC recognizes that there is a case for “introducing a mechanism to allow flexibility into [its] size”. For example, it was envisaged that the JAC would in time assume responsibility for selecting lay magistrates. The MoJ has since made clear that this will not happen, raising the question of whether it is necessary for a lay magistrate to be a statutory member of the JAC. The Bill therefore seeks to inject flexibility into the JAC’s composition by requiring the Lord Chancellor to make provision about its composition via regulations agreed with the Lord Chief Justice. There are also uncontroversial proposals in the Bill on the role of the JAC’s vice-chair and the selection and term of commissioners.

(2) What bears emphasis is how little the Bill impinges directly on the JAC. This is surprising since, according to interviews conducted as part of a project on The Politics of Judicial Independence, relations between the JAC and the MoJ were so rocky between 2006-10 that thought was given to abolishing the JAC, and either brining judicial appointments back “in-house” in the MoJ or shifting responsibility to the Commissioner for Public Appointments. Given, then, that its very future was in doubt two years ago, what explains the fact that the JAC emerges relatively unscathed in the Bill? One explanation points to the significant personnel changes that have occurred since 2010 within both the JAC and the MoJ. Relations were rockiest when Jack Straw was Lord Chancellor and Baroness Prashar chaired the JAC. At the MoJ, not only are we onto our third Lord Chancellor since the start of 2010, there has been significant staff changes at all levels as well. Meanwhile the JAC has a new leadership team (headed by Chris Stephens as the chair and Nigel Reeder as Chief Executive) and an entirely new slate of Commissioners. There is, in essence, a “new” JAC. The question that arises is how willing is the new JAC to challenge the MoJ. For example, a constant source of tension between the JAC and MoJ has been the Lord Chancellor’s imposition of additional, non-statutory criteria for judicial office. Typically, the non-statutory criteria require applicants to demonstrate prior judicial experience. The “old” JAC routinely challenged the use of these criteria, arguing that it unnecessarily restricted the diversity of applicants. Will the “new” JAC be equally willing to challenge the Lord Chancellor on the use of non-statutory criteria?

(3) The Bill proposes to transfer the Lord Chancellor’s responsibility for making appointments below the High Court to the Lord Chief Justice. The proposal is for the JAC to make recommendations to the LCJ, who will have the power to decide whether to accept them. As Robert Hazell, Kate Malleson and I have argued, this proposal is misguided. While there might be a case for claiming that at the lower levels of the judiciary, the involvements of the Lord Chancellor is not required on grounds of political accountability, the goal of improving judicial diversity requires the continued involvement of the Lord Chancellor. Experience in other countries suggests that diversity does not happen automatically as the composition of the legal profession changes. Rather, it requires political will to drive forward changes, some of which might not be well received by the judiciary. Removing the Lord Chancellor removes the scope for this political will.

In the context of this blogpost, what interests me is whether the proposed transfer of the appointment power from the Lord Chancellor to the LCJ might change the relationship between the JAC and the LCJ. There have been tensions from time to time between the JAC and the judiciary. It was significant, however, that the LCJ offered support—behind the scenes and in public—when relations with the MoJ were rockiest, highlighting the LCJ’s role as a guardian of the independence of the JAC from the Government. It seems almost inevitable that relations between JAC and the LCJ will change once the LCJ must decide whether or not to accept the recommendations for judicial office made by the JAC. Relations may be shaped in part by how frequently the LCJ rejects or requests reconsideration of the JAC’s recommendations. Since 2006, the JAC has made nearly 3,000 recommendations, with the Lord Chancellor rejecting or requesting reconsideration only 5. (These figures are for the High Court and below). It will be interesting to see whether the LCJ is as sparing with the use of these powers.

(4) Much of the debate on the Bill in the House of Lords has concentrated on the proposal that the Lord Chancellor is to be included in the selection panels for the offices of the Lord Chief Justice and the President of the UK Supreme Court. The price for inclusion on the panel is loss of the veto at the end of the appointment process currently enjoyed by the Lord Chancellor. A constellation of peers from across the political and legal communities oppose this proposal lest it lead to what they deem an inappropriate level of political involvement on senior appointments. (For the second reading debate, see here and here; for the committee stage, see here and here). Comparatively little attention has been paid to whether transfer of the Lord Chancellor’s responsibility for appointments below the High Court to the Lord Chief Justice will lead to excessive judicial influence on appointments to the lower ranks. This proposal to transfer responsibility to the LCJ must be read alongside the already extensive judicial influence on JAC-run selection exercises: (i) five commissioners on the JAC are judges; (ii) before the Lord Chancellor must consult with the LCJ before directing the JAC to begin a selection exercise; (iii) each selection panel contains a judge, who is normally from the jurisdiction to which the appointment relates; (iv) judges draft the case studies that form part of the selection process; (v) judges write references for applicants; and (vi) towards the end of the process, the JAC must consult with the LCJ about the candidate that it intends to recommend to the Lord Chancellor. The influence of (vi) should not be underestimated: there were suggestions that the former Lord Chancellor, Ken Clarke, would not appoint those who had not been approved by the LCJ. Judicial influence, in short, runs deep throughout every stage of the appointment process. To be clear, judges have a legitimate interest and important role to play in appointments. However, there is an argument to be made that there is already too much judicial influence on JAC-led processes—even before transferring the final appointment power over lower level posts from the Lord Chancellor to the LCJ.

(5) Concerns about the extent of judicial influence on JAC-run selection processes point to the importance of safeguarding the independence of the JAC not merely from the Government, but also from the judiciary. Since judges have a legitimate interest in appointments, and since they inevitably have an important if largely unseen role to play in the selection process, inappropriate judicial influence can be difficult detect and calls for constant vigilance. The risk of judicial capture is real. The primary duty to safeguard the independence of the JAC from inappropriate judicial influence falls on the JAC Chair, leadership team and the Commissioners. The public interest in judicial appointments requires that the JAC is willing and able to resist judicial capture.

Graham Gee is a lecturer at the University of Birmingham. He is working with colleagues from UCL and Queen Mary on an AHRC-funded project on The Politics of Judicial Independence.

Suggested citation: G. Gee, ‘The Crime and Courts Bill and the JAC’  UK Const. L. Blog (1st November 2012) (available at http://ukconstitutionallaw.org)

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Patrick O’Brien: Three Thoughts about the Crime and Courts Bill and Judicial Appointments

The Crime and Courts Bill 2012 is currently going through the Lords. This post draws on a longer Briefing Paper – available here – that I’ve written as part of the Judicial Independence Project. The measures on judicial appointments in the Bill take effect primarily as amendments to the Constitutional Reform Act 2005 (CRA).

1. The measures on diversity won’t make much difference

Schedule 12 of the Bill contains two measures that are intended to assist in increasing the diversity of the judiciary. The first concerns fractional working, intended to increase the number of women in the judiciary (the operating assumption being that women retain a greater share of childcare responsibilities than do men). Current statutory limits on thenumber of judges in the High Court, Court of Appeal and UK Supreme Court are replaced with references to ‘full-time equivalents’ (so the new total for the UKSC is 12 judges or full-time equivalent). This approach is very sensible but I doubt that it will have much impact in the short to medium term. Anecdotal evidence suggests that the option of moving to a fractional post, which has been made available to district judges, has generally been taken up by male judges approaching retirement and wishing to reduce their work commitments. Those women senior enough in their careers to be eligible for senior judicial posts must presumably already have adequate childcare arrangements.

The second measure on diversity concerns the ‘tipping-point’ provision of the Equality Act 2010 (s. 159). Where two candidates are of equal merit, s. 159 allows a selecting body to prefer one for the purpose of increasing diversity. Paragraph 9, Schedule 12 of the new Bill inserts a new section 64(4) into the Constitutional Reform Act 2005 (CRA) which provides that the requirement in the CRA that judges be appointed solely onmerit does not prevent the application of section 159 of the 2010 Act (my emphasis). This issue is highly controversial and many judges and lawyers seem to be convinced that it is logically impossible for two candidates to be of equal merit. Nonetheless as it stands this is about the most conservative possible implementation of a positive action policy. Section 63(4) is a negative permission – rather than a positive instruction – to use the ‘tipping-point’ provision and could easily go ignored.

2. The provisions on the Lord Chancellor’s role in appointments are ambiguous

The Bill gives the Lord Chancellor new powers to sit on the committees that appoint the President of the Supreme Court and the Lord Chief Justice (or, more precisely, give the Lord Chancellor the power to make regulations to this effect). New section 27(1C)(c) CRA 2005 provides that the commission to select the President of the Supreme Court ‘may include the Lord Chancellor’ (my emphasis). On the face of the Bill it would therefore appear that the Lord Chancellor is permitted, but not compelled, to sit on a commission to select the President. New section 27A empowers the Lord Chancellor to make regulations about membership and procedures so it is presumably possible for the Lord Chancellor to make rules giving himself the option to sit or compelling him to sit (but not prohibiting him from sitting). The regulations may, further, permit him to reject a recommendation but only if he does not sit out of the understandable concern that the LordChancellor not have two bites of the cherry. So we arrive at a rather odd situation whereby the Lord Chancellor might choose to sit and lose his veto on the appointment or choose not to sit in order to preserve his veto.

Whatever about the rights and wrongs of giving the Lord Chancellor a more direct role in the process (there are good arguments on both sides) the manner in which it is achieved here leaves a lot to be desired. It doesn’t seem appropriate that the Lord Chancellor should be given the power to determine when and how his own veto over judicial appointments should operate. Indeed, allowing the Lord Chancellor the flexibility to choose whether or not he should have the veto potentially gives him more power than a veto alone. A Lord Chancellor who did not like the obvious candidate for the job of President and wished to prevent him or hergetting the job might choose to do the latter. On the other hand a Lord Chancellor who wished to boost a favoured candidate might sit on the committee to influence the process. The point needs to be settled in the CRA itself, not in regulations made by the Lord Chancellor.

The provisions governing the Lord Chancellor’s power to require that a commission reconsider its decision also appear to be contradictory. The Bill prohibits the Lord Chancellor from chairing a commission he sits on. Yet he may (by regulations) give himself the power to require a commission to reconsider a recommendation, apparently irrespective of whether or not he has been a member of the commission. The ‘reconsideration rule’ will place the Lord Chancellor in a pre-eminent position within any commission. The other members will in practice be required to seek his agreement to any decision they wish to make. These anomalies are replicated for appointment panels for the Lord Chief Justice (new section 94C). It is likely that this is in fact an oversight. The rules governing appointment regulations are general, whereas the rules about appointment of the President of the Supreme Court and the Lord Chief Justice are specific. If however, it is intended that the Lord Chancellor should have these overlapping powers then, as in the case of the veto, the appropriate place for this to be specified is in the CRA itself, not in secondary legislation made by the Lord Chancellor.

3. The value of simplicity

Standing back from the Bill itself, I am struck by the sheer complexity of the appointments regime envisaged. The Ministry of Justice policy document Appointments and Diversity: A Judiciary for the 21st Century explains that the drafting of the new provisions has been motivated by the widely held opinion that the CRA is too detailed and prescriptive and so has adopted a philosophy of keeping core principles in the Act but leaving details to be resolved by secondary legislation. This is a sensible approach, but the Bill as its stands doesn’t realise it because the core principles are treated inconsistently. For example, the distinction between the requirement that a judge of the Supreme Court sit on UKSC appointment commissions (required by the Bill) and the separate requirementthat a non-Supreme Court judge must also sit (a policy declared in Appointments and Diversity but which does not appear in the new Bill itself) is surely not one of principle. The new system in its entirety will, if anything, be even more complex than the present arrangements. It will be a hydra with three heads – the Lord Chancellor, Lord Chief Justice and the Senior President of Tribunals (and indeed five heads if you include the formal roles of the Prime Minister and the Queen), all of whom will have roles in approving appointments of various types – and at least five variants of appointment commissions/panels in addition to the JAC. There is the potential for further variations on these commissions/panels through the use of regulations. As things stand, the use of regulations in the Bill adds complexity and uncertainty to the CRA rather than removing it.

These arrangements will no doubt operate reasonably well and the theory may be more difficult than the practice. There is, however, a point of principle at stake in simplicity. The CRA is not just addressed to civil servants and those with an interest in the appointment process. It has constitutional significance and there are sound democratic reasons for it to be comprehensible to the general public. Judges occupy a position of power and authority and their appointment is a small but important aspect of the way we are governed (one that is increasingly questioned in the context of human rights law in particular). An appointments system that cannot easily be explained – and if we are honest is difficult even for lawyers working in the area to follow – will remain closed to the public. It should be possible to achieve the principled changes envisaged in the Crime and Courts Bill in a way that satisfies the ‘Dinner Party Test’.

Patrick O’Brien is a Research Associate at the Constitution Unit, University College London. 

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Kate Malleson: Taking the politics out of judicial appointments?

Seven years after the judicial appointments process was completely refashioned under the provisions of the Constitutional Reform Act 2005 (CRA), the system is being looked at again. In November, the Ministry of Justice issued a consultation paper on ‘Judicial Appointments and Diversity: A Judiciary for the 21st Century’ pre-empting the forthcoming report of the House of Lords Constitution Committee inquiry on the same topic. A key issue in both the consultation paper and much of the evidence submitted to the Lords inquiry is the role of the Lord Chancellor in the appointments process. The provisions of the CRA reducing the role of the Lord Chancellor to that of a limited veto over the decisions of the judicial appointments commission (JAC) have been subject to a range of criticisms. The aim of the consultation paper is to address these concerns by achieving ‘…the proper balance between executive, judicial and independent responsibilities’. To this end, it proposes transferring the Lord Chancellor’s powers to the Lord Chief Justice in relation to appointments below the High Court or Court of Appeal while at the same time ensuring that the Lord Chancellor plays a more ‘meaningful role’ in relation to the higher judicial ranks. This would be achieved by requiring the JAC  to consult the Lord Chancellor on potential candidates for the most senior appointments and by including the Lord Chancellor on the JAC  selection panel for the appointment of the Lord Chief Justice and for the appointment of the President of the UK Supreme Court by the ad hoc Supreme Court appointment commission. At the same time, the Lord Chancellor’s current power of veto would be removed.

At first blush, therefore, these proposals look like a sensible attempt to recognise the distinction between the lower and upper ranks of the judiciary, acknowledging what the Lord Chancellor, Kenneth Clarke, has described as the ‘ritual’ element of his involvement in appointments at the lower ranks, while recognising the need for greater political accountability in appointments to the senior judiciary. The consultation paper notes the potential for a democratic deficit if the executive is not involved in the process: ‘We consider that the complete removal of the Lord Chancellor from the entire process would result in an accountability gap and are of the view that this gap increases with the seniority of the appointment being made’.

The first element of the proposed change, the removal of the role of the Lord Chancellor in relation to positions below the High Court or Court of Appeal, has attracted considerable support from those who gave evidence to the Lords inquiry. The Lord Chancellor himself stated in evidence to the Committee that in relation to this aspect of his role he simply ‘goes through the motions’ of reviewing the candidates about whom he knows little or nothing. In contrast, the proposed removal of the Lord Chancellor’s current right of veto in relation to the upper judiciary is far more controversial and it is hard to see that this aspect of the proposed change represents the creation of a more ‘meaningful’ role for the executive. The reason why the JAC was set up as a recommending commission rather than an appointing body, with the Lord Chancellor retaining the final say in appointments, was to provide a potential check on the decision-making of the independent commission in the event of something going wrong in relation to an appointment (whether the error was committed in good faith or bad) and to maintain a meaningful degree of political accountability in the process. The first of these functions would be lost under the proposals and the second would be weakened. In addition, the proposed change is likely to undermine efforts to increase diversity in the judiciary. Experience in other jurisdictions, as well as the UK, has shown that diversity does not automatically improve as the composition of the legal profession changes but requires political will to drive forward proactive changes, some of which are not supported by the judiciary or the legal profession.

A better option for striking the correct balance between the branches of government would be to retain the Lord Chancellor’s veto and for the JAC (and the ad hoc commission in relation to Supreme Court appointments) to provide the Lord Chancellor with a short-list of three names of candidates to choose from for all senior appointments whom the commissions consider to be very well-qualified and appointable. This 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. It would also maintain the important function of a back-stop in case of error or malpractice.

Kate Malleson is a Professor of Law at Queen Mary, University of London

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News: Ministry of Justice consultation on judicial appointments and diversity

The Ministry of Justice has this morning published a consultation paper “Appointments and Diversity: A Judiciary for the 21st Century” (CP19/2011). It seeks views on

  • transferring the Lord Chancellor’s decision-making powers to the Lord Chief Justice of England and Wales for appointments either below the High Court or the Court of Appeal
  • requiring the Judicial Appointments Commission of England and Wales to consult the Lord Chancellor at an early stage of senior appointments in England and Wales
  • making the Lord Chancellor part of the selection panels for the Lord Chief Justice of England and Wales and for the President of the UK Supreme Court, and making other changes to the composition of panels
  • removing the Prime Minister from the process (an entirely formal role)
  • encouraging more diverse applicants by creating part-time judicial roles in the High Court and Court of Appeal and making use of the tie-break provision in the Equality Act 2010
  • reducing the number of Judicial Appointment Commissioners.

Meanwhile, the House of Lords Constitution Committee is continuing with its inquiry into judicial appointments.

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Kate Malleson: Judicial views on the selection process for senior judges

The President of the Supreme Court, Lord Phillips, gave evidence to the House of Lords Constitution Committee¹s inquiry into the judicial appointments process last week. He argued against the introduction of any form of parliamentary hearings for Justices of the Supreme Court or the Lord Chief Justice. In this view, he is joined by most, if not all, the other members of the Supreme Court and senior judiciary who remain to be convinced that there is any role for Parliament in the appointment process of individual judges. More surprising, was Lord Phillips’ view about potential reforms to the role of the Lord Chancellor in the process. He argued that he would like the Lord Chancellor to be on the selection commission for Supreme Court appointments, believing that this would be preferable to the LC having a veto late in the process. Even more unexpectedly, Lord Phillips strongly objected to the requirement that he must sit on the panel to choose his successor – he said that he had tried to argue that one can interpret the provision to excuse the President when the next President is to be selected but that he had not been successful in persuading others that his interpretation is tenable. Although this is the first time (as far as I am aware) that Lord Phillips has expressed this view publicly, he is not alone amongst the judges in accepting that the current process, whereby the President and Deputy President both sit on the Supreme Court ad hoc selection committee is problematic. There has been a strong groundswell of opinion outside the judiciary that this arrangement is likely to promote self-replication and is inconsistent with all other senior appointments processes in either the public or private sector. It appears from the evidence taken by the Committee that some of the senior judges share this concern. This therefore looks like an area in which the Committee is likely to recommend reform.  The last surprise from Lord Lord Phillips was his decision to produce a draft of a provision that might replace the ‘merit’ provision in the Constitutional Reform Act 2005. His amendment read that: “The Commission must select that candidate who will best meet the needs of the Court having regard to the judicial qualities required of a Supreme Court Justice and the current composition of the Court”. Having produced the draft provision Lord Phillips made clear that he  himself would object to such a change and would argue against it. What the Committee will make of that position, is hard to know.

This post originally appeared in  the Constitution Unit’s Blog as part of a project on judicial independence.

Kate Malleson is Professor of Law at Queen Mary University of London.

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Robert Hazell and Kate Malleson: Increasing democratic accountability in the appointment of senior judges

The Lords Constitutional Committee’s inquiry into the judicial appointments process has asked what role should be played by the executive and Parliament in the appointments process of the senior judiciary. The case for enhancing the input of both branches of government is now very strong.

One consequence of the Constitutional Reform Act 2005 is that the appointment of judges has been almost wholly removed from the hands of the executive. This change was based on a  misunderstanding of the British constitution, which rests not on rigid separation of powers, but on a careful balance of powers between all three branches of government.

For the system of government to work properly there needs to be trust, confidence and mutual respect between all three branches of government: executive, legislature and judiciary. Appointments to the judiciary are too important to be left to the Judicial Appointments Commission alone. Because of its power to put forward a single name, and the extreme difficulty for the Lord Chancellor in rejecting that name, the JAC has become de facto an appointing body.  Ministers should have greater choice; and the legislature should be more strongly involved, in its classic scrutiny role. To act as a check and balance on both executive and judiciary, and to hold the ring when there are tensions between them, Parliament has an important role to play.

The creation of the JAC was a logical next step from the reforms already undertaken to make the process of judicial appointments fairer, more open and more transparent. But the Executive needs to have a meaningful final say in senior judicial appointments, which is the system in other common law countries.

The arguments advanced for giving a role to Parliament are strengthened if (as we believe should happen) Ministers are given an element of choice, by requiring the JAC to submit a short list rather than a single name. The Commission could submit the names ranked in their order of preference, with a commentary explaining the reasons for their preference. That would help to make explicit the criteria and reasoning applied by the Commission, and require ministers to be explicit about their own criteria if they decided not to follow the Commission’s rank order.

To present ministers with a single name assumes too simplistic a model of “merit“. Ministers may take a different view about the balance of skills and experience that are required when filling a vacancy.  They may feel that a public or constitutional lawyer is required to fill a gap on the Supreme Court, rather than another commercial lawyer; someone who can provide stronger leadership (as implicitly Lord Irvine did when appointing Lord Bingham to be senior law lord) or a candidate who can enhance the diversity of the Court. That is essentially a policy decision, and it is right that policy decisions should ultimately be made by ministers.

To guard against concerns that ministers might allow political bias to creep into their decisions, they should be subject to scrutiny by Parliament. Judicial appointments and the work of the Commission generally should be subject to scrutiny by the Commons Justice Committee and the Lords Constitution Committee (as evinced by the current inquiry). But very senior judicial appointees (Justices of the Supreme Court, and the four heads of division) should be invited by Parliament to present themselves for a scrutiny hearing. The committee would have no power of veto over the appointment. The main purpose of the hearing would be to introduce the new appointee to Parliament, and to give the committee the opportunity to develop a dialogue with the most senior judges on constitutional, legal and judicial policy.  Such dialogue is becoming increasingly frequent, with the judges having given evidence 19 times to the Commons Justice Committee in the last five years, four times to the Lords Constitution Committee, and once to the Joint Committee on Human Rights, the Commons Public Administration Committee, and the Public Accounts Committee.

Since 2008 Select Committees have been scrutinising appointments to the most important public bodies.  Pre-appointment scrutiny hearings for the top 60 public appointments were first introduced under Gordon Brown’s premiership.  Fears were expressed that this would undermine the integrity of the public appointments process; or that Select Committees would engage in inappropriate lines of questioning.  Research conducted by the Constitution Unit shows that neither concern has proved justified.

The arguments for parliamentary scrutiny of top judicial appointments also contain reasons which are specific to judges:

—  Parliament has the power to scrutinise all acts of the executive. Appointments of senior judges are an important exercise of ministerial discretion, and it is equally important that they should be subject to parliamentary scrutiny.

—  The judges fear that ministers may show political bias if they are given a choice. Parliamentary scrutiny can be a useful check against such bias.

—   Parliament nowadays has little contact with the judges. The senior judges are largely unknown to MPs. Supreme Court justices will be unknown to the Lords now that the law lords have departed. There is value in a formal presentation of the senior judges to Parliament, to foster continuing dialogue.

—    Through such dialogue political and judicial actors can better understand the constraints under which the other operates.  This understanding has been lacking in some aspects of the privacy debate

—  The judges should meet the body vested with the constitutional power to dismiss them. Senior judges can be removed only by resolution of both Houses of Parliament.

The main arguments advanced against such a proposal are as follows:

—  It would risk politicising judicial appointments, as they are in the United States. But the American constitution involves built-in conflict between President and Congress. Supreme Court appointments in the US are less on merit, and overtly partisan, in a manner quite foreign to the UK.

—  It would expose appointees to intrusive questioning about their personal and private lives. Even in the US, such questioning is the exception not the rule. In the UK, it is unknown: Select Committees have followed the Liaison Committee guidelines on proper lines of questioning.

The committee conducting the scrutiny hearings could be the Justice Committee in the Commons, the Constitution Committee in the Lords, or a joint sitting of both committees. Given the constitutional guardian function of the House of Lords, and the role of both Houses in dismissing judges, we would favour a joint session of both committees.

Robert Hazell is Director of Constitution Unit in the Department of Political Science, UCL. Kate Malleson is Professor of Law at Queen Mary, University of London.  They are leading an AHRC-funded project on the politics of judicial politics in Britain’s Changing Constitution.

 

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