Tag Archives: lord chancellor

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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