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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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Mark Elliott: Judicial Review Reform — The Report of the Joint Committee on Human Rights

MarkEarlier this week, the parliamentary Joint Committee on Human Rights has published its report on The implications for access to justice of the Government’s proposals to reform judicial review (HL 174 HC 868 2013-14). The report is, perhaps unsurprisingly, generally critical of the proposals and of the way in which they have been or are being introduced. I have already summarised the proposals and commented on some of them in earlier posts. In this post, I draw attention to some key passages in the JCHR’s report, commenting on them briefly and, at the end of the piece, offering some reflections on some of the underlying constitutional issues highlighted by the Committee.

The rule of law and the role of the Lord Chancellor

The JCHR is highly critical of the “politically partisan” way in which Chris Grayling, the Lord Chancellor and Justice Secretary, has sought to justify the proposed changes to judicial review:

In an article in The Daily Mail on 6 September 2013, the day on which the Government’s judicial review consultation was launched, the Lord Chancellor suggested that the rationale for the Government’s proposed reforms is that judicial review is being used as “a promotional tool by countless Left wing campaigners.” Such politically partisan reasons for restricting access to judicial review, in order to reduce the scope for it to be used by the Government’s political opponents, do not qualify as a legitimate aim recognised by human rights law as capable of justifying restrictions on access to justice, nor are they easy to reconcile with the Lord Chancellor’s statutory duties in relation to the rule of law.

The Committee concludes that as well as casting doubt upon the legitimacy of the reasons for the present reforms, the role played by the Lord Chancellor and Justice Secretary raises deeper constitutional questions about that combined role:

In our view, the Government’s proposals on judicial review expose the conflict inherent in the combined roles of the Lord Chancellor and Secretary of State for Justice. This raises issues which should be considered by a number of parliamentary committees, including the Commons Justice Committee and the Lords Constitution Committee. We think the time is approaching for there to be a thoroughgoing review of the effect of combining in one person the roles of Lord Chancellor and Secretary of State for Justice, and of the restructuring of departmental responsibilities between the Home Office and the Ministry of Justice that followed the creation of the new merged office.

The Committee raises an important point here; I offer some brief reflections on it, and on related matters, in the final section of this post.

Evidence

In making its case for reform, the Government has made much of the supposed increase in recourse to judicial review in recent years and decades. As my co-authors and I pointed out in the Bingham Centre’s response to the first set of proposals for reforming judicial review, the evidence base upon which the Government’s claims are made is very weak. In evidence given to the Committee, Professor Maurice Sunkin said:

if one leaves aside the immigration case load, the evidence does not show that there has been a substantial increase in the use of judicial review. In fact, the official statistics [...] reveal that, in non-immigration civil judicial reviews over the last 15 years or so, case numbers have remained fairly constant at just over 2,000 a year. [...] By any measure, that is not a large number compared with the number of decisions taken by Government annually.

Sunkin makes a compelling point (which, toghether with Varda Bondy, he makes at greater length in a blog post published in January 2013). The Committee concluded that the Government has not

demonstrated by clear evidence that judicial review has “expanded massively” in recent years as the Lord Chancellor claims, that there are real abuses of the process taking place, or that the current powers of the courts to deal with such abuse are inadequate.

Procedural defects and substantive outcomes

As presently drafted, cl 52 of the Criminal Justice and Courts Bill will insert new provisions into s 31 of the Senior Courts Act 1981 such that relief in judicial review cases must be refused “if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred”. This would represent a substantial departure from current practice, whereby the threshold is set at the higher level of inevitability. I have argued elsewhere that this proposal is highly problematic. The JCHR has reached the same view, citing both constitutional and practical difficulties. As to the former, the Committee says:

We note that Lord Pannick, the Bingham Centre for the Rule of Law and Tom Hickman and Ben Jaffey, are all of the view that the proposed reform in clause 52 of the Criminal Justice and Courts Bill is objectionable for constitutional reasons, because it instructs courts to ignore unlawful conduct by public authorities, even where that unlawfulness is material in the sense that it might have made a difference to the outcome. We agree with this view: it is in the public interest for public bodies to make lawful decisions.

As far as the practical implications are concerned, the Committee endorses the following passage from the Senior Judiciary’s response to the Government’s consultation paper:

In a small number of cases it may be obvious that a procedural flaw can have made no difference to the outcome. In these cases, permission will be refused. However, in most cases, the decision whether a procedural flaw made a difference to the outcome cannot be taken without a full understanding of the facts. At permission stage the requisite full factual matrix is rarely before the court. As foreshadowed in question 13, an obligation to focus further on the no difference principle at the permission stage would necessarily entail greater consideration of the facts, greater (early) work for defendants, and the prospect of dress rehearsal permission hearings. It is difficult to see how this outcome could be avoided.

The Committee concludes that cl 52 should be removed from the Bill, and that, if the Government insists on retaining it, that it should be redrafted in order to reflect the current approach based on an inevitability threshold.

Legal aid

I have written elsewhere—in this post, and as co-author of the Bingham Centre’s response to a later Government consultation—about the implications of legal aid changes for judicial review and access to justice. I will not therefore seek to summarise the changes here. Suffice to say that the Committee expresses two major concerns. First, it argues that one of the key proposals is not justified by reference to reliable evidence:

We do not consider that the proposal to make payment for pre-permission work in judicial review cases conditional on permission being granted, subject to a discretion in the Legal Aid Agency, is justified by the evidence. In our view, for the reasons we have explained above, it constitutes a potentially serious interference with access to justice and, as such, it requires weighty evidence in order to demonstrate the necessity for it—evidence which is currently lacking.

Second, it raises an important constitutional concern about the way in manner of the enactment of the reforms:

We also regret the fact that the Government has chosen to bring forward by a negative resolution statutory instrument a measure with such potentially significant implications for effective access to justice … In our view, the significance of the measure’s implications for the right of effective access to court is such that it should have been brought forward in primary legislation, to give both Houses an opportunity to scrutinise and debate the measure in full and to amend it if necessary. The Government could have given both Houses of Parliament the opportunity to do so by including a provision expressly authorising the change in the Criminal Justice and Courts Bill which is currently before Parliament, Part 4 of which contains some other significant proposals for reforming judicial review.

Other matters

The Committee takes a dim view of the proposal concerning interveners. As presently drafted, the Criminal Justice and Courts Bill would introduce a presumption that interveners must pay their own costs and any costs involved by other parties resulting from their intervention—a presumption that is rebuttable only if there are “exceptional circumstances”. The Committee recommends that the present discretionary approach be preserved:

Third party interventions are of great value in litigation because they enable the courts to hear arguments which are of wider import than the concerns of the particular parties to the case. Such interventions already require judicial permission, which may be given on terms which restrict the scope of the intervention. We are concerned that, as the Bill stands, it will introduce a significant deterrent to interventions in judicial review cases, because of the risk of liability for other parties’ costs, regardless of the outcome of the case and the contribution to that outcome made by the intervention.

The Committee also disagrees with the proposal to limit the availability of protective costs orders. While it welcomes some aspects of the proposals in this area, including the proposal to place PCOs on a statutory footing, the JCHR is concerned that the Government proposes to permit the making of PCOs only if leave to apply for judicial review has been granted. Criticising this aspect of the proposals, the Committee quotes with approval from the following submission it received from the Bingham Centre:

[D]efendants and interested parties not infrequently run up massive pre-permission bills, especially where the Defendant is a regulator or private body acting in a public capacity, or there is a private interested party. Cases may have pre-permission costs that comfortably exceed £30,000. The risk of unknown and potentially substantial pre-permission costs is a risk that those who would otherwise qualify for costs protection cannot possibly take. If a PCO cannot be obtained to protect against such a costs risk, very many claims with substantial wider public interest will not be brought. A PCO that cannot be obtained until it is too late to prevent the chilling effect of uncertain and unlimited costs exposure is a pointless PCO: it does not achieve the aim of enabling access to justice for those who cannot expose themselves to substantial costs risk. Here, again, the proposals appear to give with one hand (endorsing PCOs) but take back with the other through hidden financial disincentives that will in practice undermine PCOs and negate the attainment of the purpose they are intended to serve.

Finally, the Committee welcomes the Bingham Centre’s very recent report on Streamlining Judicial Review in a Manner Consistent with the Rule of Law, concluding that “the Government could go some way towards achieving its aims of reducing unnecessary cost and delay by other reforms which would make the process of judicial review more expeditious and therefore cheaper”.

Concluding remarks

The JCHR’s thoughtful analysis and sensible—if unsurprising—conclusions are to be welcomed. But perhaps more important, in the long term, than its conclusions in relation to individual aspects of the proposals are its comments, towards the beginning of the report and noted above, concerning the constitutional roles of the Lord Chancellor and Justice Secretary. Albeit relatively short, the history whereby those roles have emerged in their present forms is tortuous and complex. It has its roots in a botched Cabinet reshuffle undertaken by Tony Blair. Premised on the assumption that the centuries-old office of Lord Chancellor could be abolished via a Government press release, the reshuffle resulted in the departure from the New Labour government of Lord Irvine, Blair’s first—and the last old-style—Lord Chancellor. Irvine was succeeded by Lord Faulkner, who became both Lord Chancellor and Secretary of State for Constitutional Affairs.

At that point, the change was largely nominal, but reforms of a more seismic nature took place in 2007. The Department for Constitutional Affairs—which itself had only recently succeeded the Lord Chancellor’s Department—was replaced by the Ministry of Justice. This, however, was no mere rebranding exercise. Instead, it signified the transfer to the new Department of responsibility for swathes of policy that had hitherto fallen within the Home Office’s domain. The Lord Chancellor and Justice Secretary then assumed a more overtly political role, finding himself at the forefront of contentious policy areas including prisons and probation. Over time, therefore, the balance of emphasis within the combined Lord Chancellor/Justice Secretary role has changed, and the aspects of the role that relate to being a “regular” Minister have begun to eclipse those aspects that recall the traditional role of the Lord Chancellor as a guardian of constitutional propriety and judicial independence. It is perhaps no surprise that concerns of the type expressed by the JCHR in its recent report have arisen in a particularly acute form during the tenure of Chris Grayling, a non-lawyer for whom the Justice Secretary aspect of the role is clearly the more compelling one.

I think, however, that the issue goes even deeper than the tensions that are inherent in the Lord Chancellor/Justice Secretary role. Indeed, it is arguable that those tensions are merely superficial manifestations of more profound, and deeply-embedded, features of our constitutional architecture. That government Ministers (other, perhaps, than old-style Lord Chancellors) regard judicial review as an irritant is natural enough. Judicial review plays a key role in upholding the rule of law by ensuring that Government acts lawfully, and it is unsurprising that Ministers do not welcome adverse judicial rulings. In many legal systems, that courts are able to discharge such a role is a constitutional given, the relationship between the judicial and executive branches being a function of the terms of a written constitution over which no single organ of government has unilateral control.

In contrast, the system in the UK—in the absence of hierarchically-superior constitutional text capable of determining the balance of power between different governmental institutions—depends upon the courts and the executive exhibiting mutual respect for one another’s constitutional roles. Both the content of the Government’s recent judicial review proposals and the ways in which it has sought to introduce them evidence an erosion of executive respect for the courts’ constitutional function, and so a reluctance to observe the self-denying ordinance that previous governments—no doubt cheered on by old-style Lord Chancellors—have adhered to in the face of adverse judicial rulings. None of this is to suggest that there exists some sort of golden age in which the executive was entirely passive in the face of judicial admonishment—tensions between the executive and the judiciary are an inevitable and necessary feature of our system. It is, however, arguable that the present Government’s approach to judicial review reform evidences an unusually acute erosion of administrative respect for the courts’ constitutional role. If, therefore, the JCHR’s suggestion is taken up and there is a debate about the constitutional appropriateness of the combined roles of Lord Chancellor and Justice Secretary, it is to be hoped that these deeper, underlying issues about how to secure institutional comity within an unwritten constitutional order will form part of that debate.

Mark Elliott is Reader in Public Law at the University of Cambridge. He can be found on Twitter as @DrMarkElliott. This post originally appeared on Dr. Elliott’s blog Public Law for Everyone.

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Patrick O’Brien: Does the Lord Chancellor really exist?

patrick-obrienOn 12 June 2003 a minor constitutional revolution began with the resignation of Lord Irvine as Lord Chancellor and the announcement of a package of reforms including the abolition of his office and the creation of a Supreme Court, later to become the Constitutional Reform Act 2005 (CRA). To commemorate the tenth anniversary of these events, the Judicial Independence Project held a private seminar on 12 June 2013 at which some of those directly involved in the changes spoke about the experience and the effects it has had on constitutional change. A note of the seminar is available here. In part the seminar brought out the drama and the comedy of the day itself. An old friendship ended in acrimony: Irvine had been the Prime Minister’s pupil master and had introduced him to his wife. At the same time the senior judiciary, at an away day with civil servants, were taken by surprise by the announcement and had to have the details explained to them whilst they huddled, increasingly angry, around a single phone in a country pub.

The judiciary and lawyers have always seen the constitutional changes that ultimately became the CRA as being about them: about judicial independence and the courts. In fact for the government they were primarily about policy delivery and changes to the machinery of government. The Prime Minister wanted to replace the Lord Chancellor’s Department, which was perceived to be poorly managed, with a normal government department led from the Commons and capable of delivering the New Labour agenda of reform.

The reforms of 2003-2005 were also intended (at least in part) to make the judiciary more independent, but by removing the voice of the Lord Chancellor in Cabinet the judiciary felt that they would be left less independent. The perception remained – and largely remains – that the old Lord Chancellor was a staunch defender of the judiciary and their independence. Yet many of Lord Chancellors of recent decades had fallen out badly with the judiciary over reforms of one kind or another. Lord Mackay was highly respected as a judge and as Lord Chancellor but his reforms to pensions and the legal profession enraged the judiciary. Lord Elwyn-Jones’ refusal to promote Sir John Donaldson in the 1970s for fear of the political reaction amongst back bench Labour MPs is remembered bitterly as a low point for judicial independence.

The plan to abolish the Lord Chancellor was not followed through following pressure from the House of Lords and recognition that abolition would be an extremely complex matter. The title of Lord Chancellor was retained. But what is it that remains? Speakers at the seminar suggested that post-CRA the office no longer exists. There is something called ‘the Lord Chancellor’ but, shorn of the judicial functions and the speakership of the Lords that characterised the old office, the new office is a sort of vestigial organ attached to the Justice Secretary, to be exercised in wig and gown at state occasions but with little more substance than that (and the current incumbent appears to have foresworn the wig). The two remaining functions of significance to the judiciary that the Lord Chancellor retains are the protection of judicial independence and the appointment and discipline of judges (and the passage of the Crime and Courts Act has made his involvement in appointments less significant). The CRA says that a Lord Chancellor must be ‘qualified by experience’ but defines this so loosely (a person may have experience as a Minister, MP, lawyer or any ‘other experience the Prime Minister considers relevant’) as to render the requirement redundant: effectively, anyone can be Lord Chancellor if the Prime Minister agrees. In early interviews for the Judicial Independence Project, judges repeatedly emphasised that the major change to the office of Lord Chancellor would occur not when it was given to a non-lawyer but when the profile of the incumbent changed: when it moved from a big political beast at the end of his or her career to a politician on the way up. We crossed that Rubicon in September 2012 when the office moved from Ken Clarke to Chris Grayling and arguably the judges’ instincts have been borne out. Naturally sympathetic to the hawkish Home Office position rather than the traditionally dovish Lord Chancellor’s position on law and order, Grayling has not been slow to make his mark on issues from the rather severe cuts to Legal Aid to the restriction of judicial review and the eye-opening proposal to privatise part or all of the courts service. This is perhaps not surprising for a minister whose brief includes a large chunk of the former Home Office – the law-and-order-ish prisons and probation – and was picked for his experience as shadow Home Secretary.

Which brings us to a conclusion: if the Lord Chancellor does not really exist anymore should we not face this fact and get rid of the title and the legacy functions associated with it? This need not be considered a bad thing. The duty to uphold the independence of the judiciary in the CRA is given not just to the Lord Chancellor but to all ministers of the Crown and the Attorney General, Dominic Grieve, appears on occasion to speak to these kinds of issues (he has, for example, spoken to Grayling on the Legal Aid proposals in response to a letter written to him by a group of Treasury counsel). And there are others in government, Parliament and the civil service who work hard to maintain and support the courts and the rule of law. But perhaps the point is broader than that. Does the existence of the title ‘Lord Chancellor’ and its loose commitment in the CRA to the principle of judicial independence conceal the need for these others to step into the breach more frequently and more publicly? Do we need less personalised and more stable protections than the CRA provides?

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

Suggested citation: P. O’Brien, ‘Does the Lord Chancellor really exist?’, UK Const. L. Blog (26th June 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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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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