Not since the Blair era has a government been so committed to a significant programme of constitutional reform as the Johnson government, but with very different objectives. The Blair government sought to modernise the constitution and, through the Constitutional Reform Act 2005, to formalise a separation of powers in respect of the judges by (i) reviewing the judicial role of the Lord Chancellor; (ii) providing for the establishment of a Supreme Court physically separated from the second legislative chamber; and (iii) establishing an Independent Judicial Appointments Commission reducing, but not removing, the role of the Lord Chancellor in judicial appointments. A separate system was established for appointments to the Supreme Court in which the Lord Chancellor also has a role. The Johnson government wants to turn the clock back.
The Conservative and Unionist Party manifesto 2019 included a “need to look at the broader aspects of our constitution” including the relationship between the government, parliament and the courts. The manifesto made explicit reference to reviewing the Human Rights Act, administrative law and judicial review, which it views as being “abused to conduct politics by another means”. The elected government can therefore claim a democratic mandate to pursue these proposals and argue that the Salisbury convention should prevent the House of Lords voting down at second or third reading a government bill that seeks to implement such manifesto commitments.
There are a number of ways in which the government might seek to limit the power of the judges – imposing substantive limitations on their jurisdiction by, for example, codifying the grounds of judicial review or making exercises of prerogative power non-justiciable; imposing limitations on access to judicial review by, for example, denying standing to pressure groups (a failed proposal of the Cameron government) or through financial disincentives to bring applications for judicial review. A further option would be to increase political influence in senior judicial appointments.
The manifesto makes no specific reference to reform of the Supreme Court and the process of judicial appointments, other than a general reference to setting up a Constitution, Democracy & Rights Commission that will “come up with proposals to restore trust in our institutions and in how our democracy operates”. In fact, public trust in the judges appears to be high. A MORI poll conducted in November 2019 found that 81% of those polled trusted the judges. Politicians were at the bottom of the poll at 14% with ministers faring little better on 17%. Perhaps the eyes of reform are looking in the wrong direction.
It was somewhat alarming, if not entirely unsurprising, therefore, when it was recently reported that ministers were planning to re-name the Supreme Court, cut the number of judges on the court and bring in specialists to hear specific cases (“Supreme Court reforms are ‘cheap revenge”, The Times 16 November 2020).
A report published by Policy Exchange in December 2019 – Protecting the Constitution: How and why Parliament should limit judicial review by Professor Richard Ekins recommended the enactment of legislation – a Constitutional Restoration Act – to, inter alia, “restore a measure of political control over senior judicial appointments”. While accepting that “it would be a bad mistake to politicise judicial appointments” Professor Ekins recommends that the government through parliament must “secure sound appointments to senior judicial office.” He advocates remedial action by way of more active involvement of the Lord Chancellor in judicial appointments and “meaningful ministerial involvement” in the selection of senior judges. The latter proposals should be resisted.
Judicial independence is a cornerstone of the separation of powers in the constitution and the signature of a mature and confident liberal democracy. The judges need to be shielded from executive interference. Just as the judges should not invade the arena of politics, so the executive must not interfere with the judicial function of impartiality and political neutrality in upholding the law.
At the same time, the judges must be perceived to be legitimate. The role of the judges themselves in making judicial appointments is open to the criticism that it serves to perpetuate judges in their own image and slows progress in the appointment of women and ethnic minorities to, in particular, high judicial office. Graham Gee, commenting on the Crime and Courts Bill 2012 (UKCLA Nov 1 2012) noted that: “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”. Of the Supreme Court justices appointed to date only 3 have been women with no ethnic minority representation.
The key question is what should the objectives of a judicial appointments system be, and how can those objectives best be achieved? The appointments system should reflect the need to secure an independent and diverse judiciary while at the same time securing some element of accountability of the judges themselves. Judicial independence would be undermined by increased ministerial participation in the appointments process.
More active involvement of the Lord Chancellor?
One of the criticisms prior to the CRA was that the appointments process was not open and transparent and that it endangered at least the appearance of judicial independence. Particular criticism was levelled at the role of the Lord Chancellor who was the head of the judiciary, a member of Cabinet, and Speaker of the House of Lords.
If the Lord Chancellor is to have a more active involvement in senior judicial appointments, it is essential that they have the confidence of both the judges and the public. Prior to the CRA a highly legally qualified Lord Chancellor was at least equipped to make an informed assessment of the legal quality of candidates for judicial office and the ability to fulfil their constitutional role as protector of the judges and the rule of law. Since the CRA, legal qualification has not been a prerequisite for appointment as Lord Chancellor. Section 2 requires the PM to recommend for appointment someone who is “qualified by experience”, but not necessarily legal experience. Of the nine appointees since 2005, four (including the present incumbent, Robert Buckland QC) were barristers (three of whom were QCs) and one a solicitor. Four appointees had no legal qualification.
Section 3(1) of the 2005 Act imposes an explicit obligation on the Lord Chancellor to uphold the continued independence of the judiciary. This is essential if a Lord Chancellor is to retain the confidence of the judges. Graham Gee gave evidence to the Select Committee on the Constitution (July 2014) that several senior judges had commended recent Lord Chancellors. One senior judge had said that both Jack Straw and Kenneth Clarke “understood the rule of law and judicial independence”. A second senior judge had been “quite impressed” by Chris Grayling, whom another judge had said had “worked very hard” to inform himself. Gee also commented (Do Lord Chancellors defend judicial independence? UKCLA 18 August 2014) that Jack Straw had clamped down on breaches of the convention that ministers must not criticise judicial decisions or the judges who deliver them. In 2006 Lord Falconer and in 2011 Ken Clarke had spoken to their respective Home Secretaries, John Reid and Theresa May, about criticism of judicial decisions relating to sex offenders. But Lord Falconer was a QC and a “crossover” from the pre-CRA era having been appointed Lord Chancellor and Secretary of State for Constitutional Affairs in 2003. Jack Straw had already held very senior political office as Home Secretary, Foreign Secretary and Leader of the House of Commons and had qualified as a barrister, albeit practicing for only two years. Ken Clarke had similarly held senior political office as Health Secretary, Education Secretary and Chancellor of the Exchequer and was a QC. All commanded respect in their own right.
A Lord Chancellor without legal qualification and/or senior political standing is, at the least, more open to criticism for a failure to appreciate the full import of that role. Liz Truss (July 2016-June 2017) came in for particular criticism for her failure to robustly defend the Divisional Court judges in Miller 1 after they were famously described in the Daily Mail as “enemies of the people”. Reportedly, “circuit judges were very concerned and wrote to the Lord Chancellor because litigants in person were coming and saying, ‘You’re an enemy of the people’ (House of Lords Constitution Committee 7th Report 2017-19). Liz Truss defended her position on the basis of press freedom. Her position was described as “constitutionally absolutely wrong” by the Lord Chief Justice, Lord Thomas.
A Lord Chancellor seeking political advancement might not be inclined to question the conduct of fellow, possibly more senior, ministers, let alone the Prime Minister who appointed them. The same applies to other political appointees such as the Attorney General who might be expected to foster the rule of law. For example, the current Attorney General, Suella Braverman, publicly validated the proposed breaches of international law in the initial text of the UK Internal Market Bill 2020.
Justice is only “manifestly and undoubtedly seen to be done” if one has faith in the independence and impartiality of the judges, which itself demands confidence in the judicial appointments process. Political influence by the executive in judicial appointments will promote claims of politicisation of the judges and engage public skepticism, as was the case with the Trump nominations of Brett Kavanaugh and Amy Coney Barrett to the US Supreme Court. Increased ministerial influence in the appointment of judges cannot be achieved without, in practice or in the public perception, politicising the judges.
A preferred solution might be to engage Parliament in the process of judicial appointments. The example of the US, with confirmation of presidential nominations to the US Supreme Court by Senate, is a much cited, if not generally supported, example. The refusal of the Republican majority Senate to consider President Obama’s nomination of Merrick Garland (now Biden’s nominee as US Attorney General) was highly controversial, the seat being eventually filled by Neal Gorsuch, President Trump’s first nominee. The United States system also operates in the constitutional framework of a strict separation of powers between the executive and the legislature (although the Vice President sits in Senate and has a casting vote). In the United Kingdom it might well be perceived as political interference, in particular if exercised by an executive-dominated House of Commons. As Sir Stephen Sedley commented (“On the separation of powers” London Review of Books Vol 34 No. 4, 23 Feb. 2012) “if we had parliamentary confirmation hearings for new judicial appointees … politicians would probably applaud. What would happen to a candidate who stood up for the integrity of modern public law and for judicial independence within the separation of powers is anybody’s guess”.
More persuasive solutions on the appointments system designed to address the democratic deficit in the ranks of the senior judiciary were offered by Paterson and Paterson in their comprehensive review, Guarding the Guardians? Towards an independent, accountable and diverse senior judiciary (2012). In brief, they argued that a senior judiciary JAC should be established with responsibility for appointments to the Supreme Court, the Court of Appeal, the office of the Lord Chief Justice and the Heads of Division. It would be composed of three senior judges, three parliamentarians and three lay members. The parliamentarians should be drawn from each of the three largest parties at Westminster, each to be selected by the respective parties. To ensure relevant expertise, these members could be drawn from the House of Commons Justice Committee or the House of Lords Constitution Committee. Consultation with the devolved regions would be assured and one lay member would be drawn from each of the regional JACs, preferably elected by the respective regional JAC membership. The parliamentarians would provide “the much-needed connection to the democratic process” and enhanced legitimacy for the appointee, but the political input would remain firmly a minority one to prevent over-politicisation of the process. Similarly, the minority representation of the senior judiciary would counter charges of “unaccountable self-perpetuation”. The Lord Chancellor should retain their veto power as being a “real and meaningful executive power”. It was not recommended that the incumbent Lord Chancellor be a member of the appointments commission, the prophetic question being posed: “What happens … if it is a less established or well respected Lord Chancellor with a poorer relationship with the senior judiciary?”
Increased accountability of the judges should not be secured through ministerial involvement or more active involvement of the Lord Chancellor in senior judicial appointments. Rather, a balanced appointments system which engages representation from the senior judges, parliament and lay members would imbue the judicial appointments process, and the judges themselves, with democratic legitimacy.
My thanks to Michael Gordon and Alison Young for their valuable comments. Any errors are mine alone.
David Stott is an Affiliated Lecturer in the Department of Land Economy at the University of Cambridge.
(Suggested citation: D. Stott, ‘Ministerial Influence in Judicial Appointments – Taking Back Control?’, U.K. Const. L. Blog (13th January 2021) (available at https://ukconstitutionallaw.org/))