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.