Parliamentary boundary changes: Liberal Democrats fight for the moral low ground

On the face of it, the Liberal Democrats, in seeking to veto boundary changes in revenge for lost House of Lords democratisation, have deserted their preferred moral high ground for low politics. The legislation to equalise voters in each constituency and reduce Commons constituencies from 650 to 600 was duly passed by Parliament and the Boundary Commission is doing the work to produce the new set-up by the next election in 2015.

Liberal Democrat opposition to the outcome will involve standing against the will of Parliament as expressed in that legislation, countering the crucial independence of the Boundary Commission and, paradoxically, Lib Dem ministers undermining what is in effect their own legislation.

Given their illiberal and undemocratic stance in their opposition to equalisation of constituencies and reduction in parliamentary seats, do they have any strong moral argument to justify it?

Theresa May’s immigration rules expel the rule of law

The UK Government has instituted a remarkable constitutional innovation that redefines the concept of the rule of law. It has declared that the Government can tell judges how to interpret legal rules governing executive actions when those actions are challenged in court.

This is the implication of guidance attached to the new Immigration Rules laid (briefly) before Parliament and coming into force on 9 July 2012.

Home Secretary Theresa May has set out new rules on immigration but, crucially, severely curbed judges’ rights to interpret those rules in the light of Article 8 of the European Convention on Human Rights. She has done it on the basis of a misreading – or perhaps, more accurately, a misrepresentation – of case law on the immigration issue.

Since the Immigration Rules are not statutory (they are issued by the Government rather than passing through the full legislative process in Parliament) they can be struck down by courts if not in conformity with the European Convention. Article 8(1) says: “Everyone has the right to respect for his private and family life, his home and his correspondence.” It is blamed by the government for preventing the deportation of undesirables, including criminals or potential terrorists, if they can claim a “family life” in Britain. This has irritated the current and previous Governments for years.

Notoriously, even the fact that a foreign man and his British girlfriend co-own a cat was once adduced to enhance a non-national’s “family life” credentials under Article 8 – at least according to Mrs May.

Lady Neuberger condemns Constitutional Reform Act 2005 amendments in Crime and Courts Bill 2012

Lady Neuberger has described as “a disgrace” the plans to put the Secretary of State for Justice on the commission appointing the President of the UK Supreme Court and the Lord Chief Justice.

Placing a government representative on the panel would breach the constitutional division of powers between the political executive and the judiciary, she said (reported here). She joins the chair of the Lords Constitution Committee, Baroness Jay, in criticising the plan set out in the Crime and Courts Bill 2012.

The Bill has important amendments to Britain’s Constitutional Reform Act 2005 that reduce the independence from the Government of judicial appointments in various ways.

In particular the Secretary of State for Justice (aka Lord Chancellor) is to sit on the appointment commission for the President of the Supreme Court (while the sitting president himself would be removed) and on the appointment commission for the Lord Chief Justice; there is to be a new requirement that he be consulted on other senior judicial appointments; whole sections of the 2005 Act on judicial appointments procedure are to be removed; powers to decide how to replace those sections are given to the Secretary of State; as are powers to decide the make-up of the Judicial Appointments Commission (with a view to increasing the proportion of lay members compared with judicial members); the Secretary of State will have the power to repeal or amend those sections.

It is intended that the 12 Supreme Court justices should become a “maximum” of 12 (or full-time equivalents) with the Secretary of State deciding exactly what number is required.

There are also amendments intended to increase diversity such as provision for part-time judicial posts and a “tipping point” provision whereby diversity requirements can come into play if two judicial candidates are deemed of equal merit.

According to the Home Office publicity the bill will “reform the judicial appointments process to promote greater transparency and improve judicial diversity”.

What it nowhere mentions is that it will bring the Lord Chancellor into a direct role in appointing the President of the Supreme Court and Lord Chief Justice. The ancient title of Lord Chancellor, once the highest judicial figure in the land and ranking after princes of the blood and the Archbishop of Canterbury, now hides the face of a purely political ministerial appointee, the Secretary of State for Justice, currently Kenneth Clarke. So the result (and intention) of the legislation is to gain a political handle on judicial appointments, taken away from the political realm by the 2005 Constitutional Reform Act.

The public statement (see below) makes no mention of this. Nor does it mention that in future the Lord Chancellor will be given powers to change the judicial appointments procedure at will (with minimal and passive oversight by Parliament).

Judicial diversity: Lords call for positive discrimination and targets

The Lord Chancellor and Lord Chief Justice should be under an obligation to encourage diversity in Britain’s judicial appointments – and targets for women and ethnic minority appointments should be set if diversity is not improved within five years, according to a House of Lords Committee.

Minorities should be given priority when the choice of appointee is between equally qualified candidates, says the report by the Lords Constitution Committee. Dubbed the “tipping point” procedure by the Lord Chancellor, Kenneth Clarke, it would utilise Section 159 of the Equality Act 2010 which allows an element of positive discrimination where candidates are equally qualified. It cannot be used for judicial appointments, some argue, since judges must be appointed “solely on merit”, according to s.63 (2) of the 2005 Constitutional Reform Act (as explained here).

‘We do not consider that the concept of merit should be narrowly focused on intellectual rigour … a more diverse judiciary can bring different perspectives to bear on the development of the law and to the concept of justice itself’ Lords Constitution Committee

The committee’s report wants changes in the career structure for the judiciary as well as in work conditions – allowing more part time working and careers breaks as well as encouraging non-barristers to apply for higher judicial posts. The committee, in a series of hearings (all reported on Alrich’s Weblog), has heard calls for a more structured career option for judges, drawing on the skills of lower tier tribunal judges and chairs as well as advocates and also putting in place formal appraisal procedures and career development. Retirement age for Court of Appeal and UK Supreme Court judges should rise to 75 in part to give opportunities later in life to those who haven’t followed a conventional career.

While reluctant to require targets, the committee says: “If there has been no significant increase in the numbers of women and BAME [Black, Asian and Minority Ethnic] judicial appointments in five years’ time, the Government should consider setting non-mandatory targets for the Judicial Appointments Commission to follow.” In January Ken Clarke suggested he might set targets if his own Ministry of Justice proposals to increase diversity failed.

The Lords committee, chaired by Baroness Jay, maintains that judicial appointments should be on merit but hints at the principal that diversity should be a component of merit, an the argument put by some of those in academia and the legal profession who appeard at its hearings. “We do not consider that the concept of merit should be narrowly focused on intellectual rigour”, it says. Being a member of an under-represented group will not in itself make someone a more meritorious candidate, but “a more diverse judiciary can bring different perspectives to bear on the development of the law and to the concept of justice itself”. It can also increase public confidence in a judiciary.

On the issue of judicial independence the committee rules out anything other than a limited role for the Lord Chancellor. His right of veto for lower judicial posts should be transferred to the Lord Chief Justice, a proposal Mr Clarke has also made in the Ministry of Justice report on judicial appointments. The committee rejects any idea of US-style confirmation hearings “in order to ensure judges continue to have appropriate independence from Parliament”. It also rejects a proposal by the MoJ for the Lord Chancellor to be given a short list of candidates for the senior posts to select from (currently he gets one name to accept or reject). It notes:”The use of short lists would undermine judicial independence and be contrary to the principle of appointment on merit.”

Comment
Any talk of even non-mandatory targets and moderate tie-breaker “positive discrimination” will cause horror in some quarters, but many of the Constitution Committee proposals will amount to pushing on a semi-open door only lightly held back by the Ministry of Justice.

The Lord Chancellor, Ken Clarke, has said he already uses Section 159 “tipping point” process for (non-judicial) appointments within his ambit. The issue will merely be whether the “solely on merit” requirement for judges needs to be legislated away or whether the definition of merit can simply be expanded to encompass the wider requirements of a modern judiciary rather than a narrow old-fashioned view of barristerial excellence.

Clarke objects to targets but told the committee in January: “If these proposals [in the Ministry of Justice consultation paper] don’t work then let’s try targets.” He, like the committee, wants the bench to look more like the general population.

On judicial independence the Constitution Committee report also mirrors some of the points Clarke made to it. He wants to divest himself of a say in minor judicial appointments that he knows he cannot practically have a view on; like the committee, he wants the President of the Supreme Court excluded from appointing his own successor; he is no supporter of US-style confirmation hearings. He told the committee: “The American experience is shocking and wanting to get closer to that would be deplorable.”

But the far more real threat to judicial independence is not from Parliament but from greater government control: the Ministry of Justice proposals for the Lord Chancellor to have more say on appointing senior judges (rather than the current partial veto); a seat for him on the panel appointing the Supreme Court president and Lord Chief Justice; wide “Henry VIII” powers for him to be able to redraft appointment procedure with little parliamentary control.

The committee rightly rejected the idea that the Lord Chancellor be given a list of  applicants to choose his judges from – after all, if you can choose one of three, how can that guarantee the most meritorious one succeeding? More importantly it would allow the government to game the system and judges aspiring for promotion to make sure they were well in with the government in crowd by their public statements or behind the scenes.

Neither does the committee see any useful role for parliamentarians on selection committees. How would the parliamentarians be selected? Where would their loyalties lie? The implication, of course, is that the Lord Chancellor should not get his seat at the appointments table either – though that is not spelled out in the report.

The report opposes the idea of allowing the Lord Chancellor powers to issue directions to the Judicial Appointments Commission even on such worthy matters as diversity. After all, once you give him power to do “good” things, how can you stop him going further? “Such a power could lead to political interference and undermine the independence of the appointments procedure,” says the report.

Beyond one loosely secured door at the Ministry of Justice is a far more solid barrier behind which plans are being made to curb judicial independence. The Lords committee has begun to prise it open by asserting important principles. But in all these things, it’s the political battle that will really matter.

Note: All the hearings that led to the committee’s conclusions have been reported on Alrich’s Weblog. Browse them down the side or start from the last hearing here and work back through the links at the bottom.

The Constitution Committee report can be found here

Those interested in judicial independence may wish to view Ken Clarke gets his Henry VIII clause into judicial appointments

The Crime and Courts Bill of May 2012 includes an amendment to the 2005 Act introducing a ‘tipping point’ procedure:

Neither “solely” in subsection (2) [s.63 (2) of the 2005 Constitutional Reform Act], nor Part 5 of the Equality Act 2010
(public appointments etc), prevents the selecting body, where two persons are of equal merit, from preferring one of them over the
other for the purpose of increasing diversity within—
(a) the group of persons who hold offices for which there is selection under this Part, or
(b) a sub-group of that group.”

Additionally references to limits on numbers of judges are amended to “full-time equivalents” to offer opportunities to part-time judges.

Section 159 of the Equality Act 2010
Positive action: recruitment and promotion
(1) This section applies if a person (P) reasonably thinks that—
(a) persons who share a protected characteristic suffer a disadvantage connected to the characteristic, or
(b) participation in an activity by persons who share a protected characteristic is disproportionately low.
(2) Part 5 (work) does not prohibit P from taking action within subsection (3) with the aim of enabling or encouraging persons who share the protected characteristic to—
(a) overcome or minimise that disadvantage, or
(b) participate in that activity.
(3) That action is treating a person (A) more favourably in connection with recruitment or promotion than another person (B) because A has the protected characteristic but B does not.
(4) But subsection (2) applies only if—
(a) A is as qualified as B to be recruited or promoted,
(b) P does not have a policy of treating persons who share the protected characteristic more favourably in connection with recruitment or promotion than persons who do not share it, and
(c) taking the action in question is a proportionate means of achieving the aim referred to in subsection (2).

Baroness Warsi and the holy alliance to capture the British constitution

Following Baroness Warsi’s return from her spiritual sojourn in Rome and her crusade against “militant secularism”, the British constitution  itself has become the battleground for the struggle. History is being rewritten to dismiss secularists from the temple of democracy.

The Queen, in this Jubilee year, is seeking to rebrand the Protestant Established Church as an umbrella organisation – with her responsibility in it redesignated as “a duty to protect the freedom of all faiths in the country”.

Meanwhile, in a BBC Newsnight debate with Richard Dawkins, Michael Nazir-Ali, former Bishop of Rochester, has claimed Magna Carta and the 1689 Bill of Rights as Christian documents – along with other good things such as the abolition of slavery, industrial legislation and “reform of the nursing profession”.

Secularists have nothing to do with great beacons of British humanity and liberty, was his implication.

Well, up to a point, he’s not wrong. Christians were indeed instrumental, for example, in campaigning against slavery – just as Christians were deeply involved in the African slave trade.

Slavery was in fact abolished in England by William the Conqueror, who declared: “We forbid anyone to sell a Christian into a foreign land and especially to heathens. For let great care be taken lest their souls for which Christ gave His life be sold into damnation.”

All very Christian and, fortunately, allowing the trade in heathen Irish slaves to continue pretty well unimpeded. And justifying the later trade in heathen African slaves – many of whom were trafficked to utopian Christian colonies of the Americas. Among them was the Puritan colony of Providence Island in the West Indies. African slave labour was a crucial part of this new Eden, which had the support of 17^th century Puritan radicals such as John Pym and John Hampden. The struggles of these men for the Parliament and Puritanism culminated a generation later in the expulsion of the Catholic King of England, James II, in the Glorious Revolution – and Nazir-Ali’s beloved Bill of Rights.

So, yes, it was a Christian document – but one by which one Christian sect could ensure another Christian sect, the Roman Catholics, would never come to power in England again.

‘That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law’ – Bill of Rights 1689

So what was in this Christian document? The provision of most continuing relevance is Article 9: “That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.”

This in effect enshrines parliamentary supremacy as well as free speech (in Parliament only, not throughout the country). So law courts cannot interfere with either the legislation that comes out of Parliament nor the procedures that arrived at it. And nor, importantly, can the Pope, regarded by Catholics as a higher authority than Parliament.

But beyond that the Bill of Rights is for the most part a series of complaints against James II, condemning his habit of suspending laws he didn’t like (generally those banning Catholics from public office), using the Ecclesiastical Court as his legal power base, raising non-parliamentary taxes, keeping a standing army.

There is nothing here that could be interpreted as an assertion of brotherly love or humane Christian values, no truths held to be self evident, no rights of man, not equality or fraternity – and only liberty for some.

Article 7 for example says: “That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law.” This meant defence against Catholics – because James, the document complains, caused “severall [meaning many] good Subjects being Protestants to be disarmed at the same time when Papists were both Armed and Imployed contrary to Law”.

The Bill of Rights was a Christian document in the sense that it set the seal on the Protestant capture of the English state. The declaration of Rights, from which the Bill was derived, demands that England be ruled by Protestants in perpetuity by banning any monarchical marriage with papists. Parliament was to be Protestant, which is why 26 Church of England bishops continue in place in the House of Lords. Catholics were, as far as possible, banned from Parliament and public service, as were Dissenters. The state religion was to continue to be legally privileged as the Established Church.

If Nazir-Ali wishes to adopt the Bill of Rights as a great Christian document, he must accept its words, their meaning, and the historical baggage that comes with it. It is a narrow, sectarian document that institutes victor’s law and some of its unpleasant implications remain with us today. It is why the Queen is the Supreme Governor of the Church of England, not, on any reading of history or the British constitution, the representative of all religions.

Nazir-Ali fails to see this and instead is seeking to claim for his Church the primary role in the political evolution of Britain – on the “Whig interpretation” that sees Magna Carta and the Bill of Rights as milestones on the road to democracy, and Anglican Protestantism as the highest stage of spiritual development.

He has said that the idea that Christian ideas are “embedded in our constitutional arrangements is no longer understood in the corridors of power. A disconnected view of history and the fog of multiculturalism have all but erased such memory from official consciousness.” He is seeking to fill the memory gap with his own fictionalised version of history.

One cannot but believe when a holy alliance is formed of a conservative Christian bishop, a Tory Muslim peer and the head of the Catholic Church, it is politics rather than religion that is behind it. But then, it was always politics that was behind religion.

Note: A legal view on the Bideford Town Council prayers ban is here

Ken Clarke gets his Henry VIII clause into judicial appointments

We need to talk about Ken – in particular the UK Lord Chancellor, Kenneth Clarke’s dangerous delusion that he has – or should have – Henry the Eighth powers.

As it happens, Clarke would make a rather good Henry VIII. Imagine Good King Hal as a bluff genial figure in the Carry On Henry mould, like the cigar-chomping Sid James, or perhaps with a bit of edge to him, something a little more like the Charles Laughton version – jovial but ruthlessness. Imagine, too, a man who by his proclamations can sweep away whole areas of constitutional law.

For this is what Clarke intends in his (as yet putative) Constitutional Reform (Reform) Act 2012 – the Act he is working up to “reform” the 2005 Constitutional Reform Act. This, for the first time in our history, enshrined separation of powers in our constitution – that the judiciary should be independent from the Executive and from Parliament.

Not only does Clarke want to undo the Act’s work, which made the appointment of judges wholly independent from the political input of the Lord Chancellor (apart from a very limited veto power), he also wants to add a “Henry VIII clause” to give himself and his successors powers to change whole chunks of the Act at will, without the full legislative procedure of Parliament. Thus his Ministry of Justice consultation paper, Appointments and Diversity: A Judiciary for the 21^st Century proposes to “take all those provisions currently detailed within the Constitutional Reform Act (Part 3, sections 26 to 31 for UK Supreme Court appointments and Part 4, Chapter 2 for other judicial appointments) off the face of primary legislation. Such change would be replaced by secondary legislation and guidance that would be subject to the affirmative procedure and agreement between the Lord Chancellor and Lord Chief Justice and, in relation to Supreme Court appointments, the President of the UK Supreme Court.”

This is a proposal for a Henry VIII clause of the purest kind. There is some confusion in people’s minds, not least in Clarke’s, about what exactly Henry VIII powers are. They are not mere secondary legislation, the run-of-the-mill largely administrative regulations and statutory instruments that parliamentary Acts may allow ministers to issue. These usually simply let ministers top and tail the broad intentions of the substantive Act, giving them powers to make decisions or issue rules within the framework of the Act. There are hundreds, maybe more than 1,000, each year and it would be impossible for each to go through full parliamentary scrutiny. Occasionally they can be controversial, mostly they are not.

Henry VIII clauses are something far more insidious. Here a parliamentary Act allows a minister to amend the Act itself or even to repeal it if he considers it necessary to do so. For example the Civil Contingencies Act 2004 s 20 (2)  allows senior ministers to pass emergency regulations if they consider it urgently necessary to do so, including making “provision of any kind that could be made by Act of Parliament ” (s.22 (3)). This is eerily similar to the wording of the original 1539 Act that is regarded as the origin of the term “Henry VIII powers”, the Statute of Proclamations, which declared that proclamations made by Henry VIII “shall be obeyed, observed and kept as though they were made by Act of Parliament”. The reason for such an Act was that things happen “many times which do require speedy remedies, and that by abiding [waiting] for a Parliament in the meantime might happen great prejudice to ensue to the realm”. This isn’t quite Ken Clarke’s view. He simply sees Parliament as a bit of annnoyance.

Parliament has been very timorous towards the Executive and has steadily allowed all its powers to be eroded and has allowed the institution to be turned into a bit of a sausage machine – Ken Clarke

At a meeting of the House of Lords Constitution Committee on 19 January 2011 he acknowledged that “most parliamentarians do not like Henry VIII clauses and people have been denouncing them for years”. He said he largely agreed with the criticism and hoped to “minimise their use”, but added: “There are occasions when decisions have to be taken that will take years if you have to set out every detail in a Bill. That is why – it is not for any sinister reason – successive governments have brought forward these proposals.” He complained that Parliament had a habit of holding up the Government’s programme “because there is some row going on at some stage and it makes it more difficult to go through the whole process”.

He said all this almost in the same breath as saying: “Parliament has been very timorous towards the Executive and has steadily allowed all its powers to be eroded and has allowed the institution to be turned into a bit of a sausage machine.” One assumes that is a criticism of Parliament – but perhaps not, in light of Ken’s Henrician delusion. Perhaps it is simply gracious and grateful acknowledgement of Parliament’s due deference to the requirements of the Executive.

At any rate, only a month before, the Lord Chief Justice, Lord Judge, had been rather less sanguine about Henry the Eighth clauses, telling the same committee: “I was rather horrified to discover that something like 120 bills with Henry VIII clauses had been enacted in the Session of 2008-9. That is astonishing. In times of war, you do not have Henry VIII clauses. Henry VIII’s power itself only lasted about seven years; I think that [Statute] was removed immediately on his death and that was supposed to be the end of it.”

So what exactly is the Ministry of Justice consultation paper suggesting should be taken “off the face of primary legislation” and handed over to Clarke’s royal whim? Start with section 26-31: it’s all about selecting the senior members of the UK Supreme Court, done formerly by the Lord Chancellor, now by a panel independent of the Government, and under Clarke’s proposals, by a bigger panel which would include him or his successors as an esteemed member. But if that doesn’t come up with the right results he can exercise his Henry the Eighth powers and change the Act and so change the system.

Part 4 of Chapter 2 will also come under his Henry the Eighth powers. This is a huge wodge of provisions, section 63 to 107, starting with “judges shall be appointed solely on merit” (discussed here) and encouraging diversity. Taking it off the face of the primary legislation would allow the Lord Chancellor to change the procedures of the Judicial Appointments Committee, currently independent of government (Clarke is on record as saying it is a slow and expensive body); change his own modest powers of veto – perhaps to abolish them? Or perhaps to beef them up. And change the way the less elevated judicial figures are appointed.

The “affirmative procedure” mentioned in the consultation document involves fast-tracking legislation by having the Joint Committee on Statutory Instruments look at it within 20 days (so there is some, albeit limited, debate but amendment is not allowed) and having it speedily affirmed by both Houses of Parliament.

An attempt was made by the Constitution Committee chair Baroness Jay during its latest January 2012 meeting with Clarke to question him about potential Henry VIII clauses in his intended new Bill. Unfortunately he scuttled off to some more important business before the question could be put, leaving Lord McNally, his Justice Minister, to field it. Jay noted that according to the proposals “you hope you might be using more secondary legislation in respect of judicial appointments” and asked: “What aspect you regard as of sufficient constitutional importance not to be included in that. Obviously from our point of view, if there were a lot of Henry VIII clauses around these kinds of issues, it wouldn’t be regarded with much enthusiasm by this committee.”

Lord McNally replied: “I think I am reasonably confident in his absence that the Secretary of State would be totally against using Henry the Eighth powers in this exercise.” Baroness Jay called this “a very clear steer” and seemed happy to take it on trust.

Let us hope she was right to do so. Meanwhile the message must be: Carry on Ken – but drop the Henry VIII act.

All the Constitution Committee’s sessions have been reported on Alrich’s Weblog. The final session with Ken Clarke is reported here and you can follow the links back to the first.

The Ministry of Justice proposals on judicial appointments are discussed here. They have been incorporated (May 2012) into a new bill, the Crime and Courts Bill

The House of Lords Delegated Powers and Regulatory Reform Committee is mildly critical of the Crime and Courts Bill proposals for turning legislated powers into delegated Henry VIII powers, saying “It is for the House as a whole to decide whether, as a matter of policy, the reasons given by the Government justify the change.” Report here

 

Ken Clarke defends plans for government role in judicial appointments

The Lord Chancellor, Kenneth Clarke, has defended his proposals to give the government a bigger role in appointing senior judges, saying it would help in the important relationship between the executive and the judiciary.

Speaking at the 12th hearing of the House of Lords constitution committee into judicial appointments, he said: “I am in favour of no political patronage in appointments,” adding that his consultation paper, published late last year, makes it clear the Lord Chancellor would not take a direct role. “But with the [appointment of the] Lord Chief Justice and the President of the Supreme Court, there should be greater involvement of the Lord Chancellor because the executive should have more influence in that, but not a decisive one.”

The proposal is for the Lord Chancellor (now Secretary of State for Justice, Clarkes’s preferred title, he revealed) should sit on the panels appointing the two senior roles.

He said: “The one absolutely immoveable thing is that we appoint on merit … The second thing that I regard as absolutely immutable is the independence of the judiciary. No suspicion of political patronage should come back.” He added: “We now have a system that makes it absolutely clear that it is independent of the political sphere.”

Nevertheless he insisted that his proposal to sit on the appointment panels was right. He compared the position of the two senior appointments to that of the Governor of the Bank of England, who was independent and couldn’t be told what to do by the Chancellor of the Exchequer. “But you do meet each other and there’s always stuff coming up [between the judiciary and the executive] where you sort out what your views are.” There is a personal relationship involved because of the issues the Lord Chancellor deals with – issues of case management and accountability for the performance of the Bench. “I think there is an acceptance there has got to be an executive role [in judicial appointments].”

Committee member Lord Norton noted that there seemed to be agreement that the President of the Supreme Court should no longer be involved in appointing his own successor, including agreement from the current president, Lord Phillips. “We also have a view that there should be a minimum of lay members and a minimum of judges [on the appointment panel] but no view on where the balance lies.” Should there be a majority of lay people? he asked. Clarke and Lord McNally, Justice Minister, agreed on the importance of lay members and said the issue of numbers was out to consultation, though Clarke acknowledged the wording of the consultation paper was “quite obscure” on the issue. There was an issue about the sort of people who sat on the committee. “There is a danger of a self-perpetuating quangocracy … a lot of people who look like recently retired civil servants.”

He rejected any idea of confirmation hearings involving parliamentarians questioning candidates because they would inevitably become political. “The American experience is shocking and wanting to get closer to that would be deplorable.” Parliamentarians would start asking nominees what their views were “and obscure events in the past would be ferreted out”. In America questioning seemed to focus on judges’ social attitudes and sexual history. “I’m sure we wouldn’t go that far, but partisanship would creep in.”

Lord McNally noted that “the current system works very well; there should be no view about going back” to the time before the 2005 Constitutional Reform Act when the Lord Chancellor had the major appointing role. However after the latest batch of appointments to the Supreme Court [all white men] “After I faced some hostile questions [in the House of Lords] about gender, Lord Howard sidled up to me and said, ‘If you left it to the Lord Chancellor, you could have as many women as you want’. I think he was being mischievous.”

With the Lord Chief Justice and the President of the Supreme Court, there should be greater involvement of the Lord Chancellor because the executive should have more influence in that – Kenneth Clarke

Clarke registered his reservations about the functioning of the Judicial Appointments Commission, set up under the 2005 Act reforms, though he said there was no problem with the actual appointments made. “The quality remains the same and there is greater transparency.” The issues were cost of appointments, whether they were too process-dominated, how long each appointment takes, (“some of the minor appointments shouldn’t take 18 months”) and the fact that every commissioner need not be involved in every appointment. “The process is taking over from the point, though no doubt I would like it to be rather cheaper and quicker and cut out a little of the form filling and process.”

On the issue of diversity in the judiciary he said: “Once you protect merit as the overiding criteria, [and] the independence of the judiciary, then the policy aim we have is to improve diversity.”

He rejected any idea of setting quotas or even targets for numbers of women and ethnic minority judges. Women did not want people saying “She is one of the women we have to have to get up to target.” However he did acknowledge “If these proposals [in the consultation paper] don’t work then let’s try targets.”

“We want the Bench to look more like the general population,” he said, “so long as you’ve got the most talented and independent people selected from the population.”

He favoured choosing a woman or ethnic minority candidate in “tie-breaker” (or, as he called them, “tipping point”) situations, where there are two top candidates of equal merit (under so-called Section 159 principles, considered here). “I would like to think it’s a principle I have always applied … People say you never get two people of equal merit but I don’t agree. For years I’ve applied the tipping point principle.”

His worry was that high proportions of women and ethnic minority people were entering the profession but that was not feeding through to the judiciary. Of those called to the bar, more than 50% were women, yet they get thinned out at higher levels. This was no longer prejudice but might be to do with the career structure. His consultation paper proposals for more part-time and flexible working might help by allowing women with family responsibilities to “have an edge”.

McNally noted that there was far more flexibility in other professions such as the civil service. “Judges say you can’t have flexible judges. That would disrupt the courts.” 

After Mr Clarke left the hearing, Lord McNally was asked about proposals in the consultation paper that suggested the Lord Chancellor could be given powers to change the legislation on judicial appointments without going through a full parliamentary procedure – so-called “Henry the Eighth powers” – which Baroness Jay, chair of the committee, said “would not be regarded with great enthusiasm” by its members. McNally said: “I think I am reasonably confident in his absence that the Secretary of State would be totally against using Henry VIII powers in this exercise.”

Note: since this posting the bill bringing the Lord Chancellor into the selection committee for the president of the Supreme Court has been published. See the Crime and Courts Bill (May 11 2012) amendments to Schedule 12 to the Constitutional Reform Act which also gives the Lord Chancellor Henry VIII powers to change the appointments procedure (new S. 27A).

The issue of Clarke’s Henry VIII clause is discussed here. The proposals are to “take all those provisions currently detailed within the Constitutional Reform Act (Part 3, sections 26 to 31 for UK Supreme Court appointments and Part 4, Chapter 2 for other judicial appointments) off the face of primary legislation” and put them in the hands of the Lord Chancellor through secondary legislation. (Consultation paper para 27).

The Ministry of Justice proposals on judicial appointments are discussed here

Mr Clarke answered a question on the Judicial Appointments Commission in Parliament on 11 January 2012, saying: “I do not think that the Judicial Appointments Commission can be criticised on the basis of the quality of appointments; I have not heard any credible evidence that people think that quality is deteriorating. However, it is costing too much, it is not very efficient, and it takes too long. Its budget is about £10 million – £9.8 million, to be precise – and it can take 18 months from start to finish to appoint a judge. In the light of the review, we will be looking at that and making sure that it operates with efficiency.”

All the Constitution Committee’s sessions have been reported on Alrich’s Weblog. The previous session is reported here and you can follow the links back to the first.

A lesson from history: don’t politicise judicial appointments, says senior judge

 

Parliament or government should not be brought into Britain’s judicial appointments process, a senior judge has told a House of Lords committee. To bring politics back into appointments “would be against our own history,” said Lord Justice Toulson, vice-chairman of the Judicial Appointments Commission (JAC).

His comments follow suggestions from the Ministry of Justice that the Lord Chancellor, who is a member of Parliament and political appointee to the Cabinet, should have more power in judicial appointments. An MoJ consultation paper asks whether he should sit on panels appointing to the most senior judicial posts (President of the Supreme Court and Lord Chief Justice) and/or should have power to give his view on short lists of candidates for other senior positions (Lord Chief Justice, Heads of Division, Senior President of Tribunals and Lords Justices of Appeal). At present the Lord Chancellor simply has a limited veto of the single name presented to him in each case.

The Judicial Appointments Commission is an independent body set up under the 2005 Constitutional Reform Act. Toulson told the Lords Constitution Committee at its eleventh session on judicial appointments that the power the Lord Chancellor had over the JAC was a narrow one, deliberately limited by Parliament. The JAC was not a servant of the Crown.

In democracies the question is raised, should the executive or legislature not have more control over who we put in as judges so they are less likely to make decisions that conflict with government policy? Experience shows that creates quite serious problems – Lord Justice Toulson

He acknowledged that the 1998 Human Rights Act [which renders more likely the judicial review of government actions when human rights abuses are alleged] had resulted in judges making decisions that were particularly controversial or unpopular with the government, raising tensions between the judiciary and the government. But Britain was not alone in experiencing such tensions. The debate was raging in the USA, Canada and particularly Australia. “It’s a commonplace in any democracy … we don’t get it when judges are political placemen, but we do in a mature democracy. In that debate the question is raised, should the executive or legislature not have more control over who we put [in] as judges so they are less likely to make decisions that conflict with government policy? That’s what it comes down to. Experience shows that that creates quite serious problems, and our history has been to go in the opposite direction.”

He noted that early last century political considerations played a large part in judicial appointments; that changed in the latter half of the century when successive Lord Chancellors made it a point of principle to disregard such matters in judicial appointments. “To move back to bringing in the legislature or executive into the appointment of judges would therefore be a movement against our own history.”

He added: “I seriously question whether introducing the legislature or the executive will do any good or improve public confidence in the judiciary.”

Christopher Stephens, JAC chairman, said he was happy to see a widened representation on the appointment bodies for senior judges, noting that the Supreme Court appointments panel of five members was weighted at present towards judges by three to two. [The makeup of the panel can change depending on whether Scottish and Northern Irish members are judges or lay people.]

He would welcome more lay representation but not a role for Parliament or having the Lord Chancellor sitting on appointment panels. He was happy with the role of the Lord Chancellor at the very final stages of appointment, receiving a name and having a right to veto it or send it back for reconsideration. But he was deeply opposed to a proposal that had been mooted that the Lord Chancellor should receive three names to choose from. “If merit is the cornerstone of what we do, we have to find the best person, not the second best or third best person. We think that means one and only one.”

Diversity delayed?

Members of the Lords committee were concerned that little progress seemed to have been made in increasing diversity in the judiciary since the establishment of the JAC in 2006, when appointments were taken away from the Lord Chancellor.

Dame Hazel Genn, a JAC commissioner, questioned this contention. She noted that, for example, the USA had been taking action on judicial diversity for a very long time “and still struggles”. Canada too had had decades of positive constitutional steps to promote diversity.

In Britain at the lower levels of the judiciary progress was already being made with a widened pool of people putting themselves forward. There was less progress higher up, since “the most visible bits of the judiciary are areas … where the pool of qualified women and black/ethnic minority candidates is small”.

There was also a large measure of attrition among women as they proceeded through their legal careers. The JAC was working with the professions to help alleviate the problem. There was not one single measure that could be introduced to make a difference. Outreach, myth-busting, increasing potential candidates’ confidence, offering extensive information about the jobs and how people were selected – these were all things the JAC was doing.

Stephens noted that there were things the profession could do to improve diversity, among them encourage flexible working. The number of salaried High Court judges, for example, was limited to 118 and if two people wanted to job share, they would count as two of the 118. A change in the law would be needed to be able to talk in terms of two being one “full-time equivalent”.

All the Constitution Committee’s sessions are being reported on Alrich’s Weblog. The previous session, which also looks at the Ministry of Justice proposals, is reported here and the others can be tracked backwards via URL links. The Lord Chancellor, Kenneth Clarke, will appear at the next session.

Lord Chancellor’s powers
The limited powers of the Lord Chancellor regarding the JAC noted by Lord Justice Toulson are contained in the Constitutional Reform Act 2005, Section 65 which says:

(1) The Lord Chancellor may issue guidance about procedures for the performance by the Commission or a selection panel of its functions of–
(a) identifying persons willing to be considered for selection under this Part, and
(b) assessing such persons for the purposes of selection.
(2) The guidance may, among other things, relate to consultation or other steps in determining such procedures.
(3) The purposes for which guidance may be issued under this section include the encouragement of diversity in the range of persons available for selection.
(4) The Commission and any selection panel must have regard to the guidance in matters to which it relates.

The MoJ consultation paper proposes “powers that relate to the selection processes and composition of selection panels” could be included within “secondary legislation and guidance that would be subject to the affirmative procedure and agreement between the Lord Chancellor
and Lord Chief Justice and, in relation to Supreme Court appointments, the President of the UK Supreme Court”.

The “affirmative procedure” (explained on the parliamentary website here)  is usually used when administrative changes are needed quickly – not for matters of constitutional import. The whole selection process would in effect come under the control of the Lord Chancellor (Sections 26-31 and 63-107 of the Constitutional Reform Act) to be changed at any time with minimal parliamentary scrutiny and “agreement” with the two senior judicial figures over whose appointment he will have had a large measure of influence. This would also allow him to modify the limited power of veto on judicial appointments he has, outlined in Section 29 of the Constitutional Reform Act:

(2) At stage 1 the Lord Chancellor must do one of the following –
(a) notify the selection;
(b) reject the selection;
(c) require the commission to reconsider the selection.
(3) At stage 2 the Lord Chancellor must do one of the following—
(a) notify the selection;
(b) reject the selection, but only if it was made following a reconsideration at stage 1;
(c) require the commission to reconsider the selection, but only if it was made following a rejection at stage 1.
(4) At stage 3 the Lord Chancellor must notify the selection, unless subsection (5) applies and he makes a notification under it.
(5) If a person whose selection the Lord Chancellor required to be reconsidered at stage 1 or 2 was not selected again at the next stage, the Lord Chancellor may at stage 3 notify that person’s name to the Prime Minister.
(6) In this Part references to the Lord Chancellor notifying a selection are references to his notifying to the Prime Minister the name of the person selected.

Ken Clarke’s piratical band hijacks judicial appointments inquiry

What, it must now be asked, is the point of the House of Lords Constitution Committee hearings on judicial appointments?

The committee set out in fair weather in the summer on a stately voyage to explore the waters of the British constitution with the aim of balancing accountability, independence, transparency and the need to foster diversity in judicial appointments.

Meanwhile the oily-fingered engineers in the dark recesses of the Ministry of Justice, headed by the Lord Chancellor, Kenneth Clarke, were constructing a less majestic vessel which they launched as a public consultation document last week – Appointments and Diversity: A Judiciary for the 21st Century.

This seems not only to have taken the wind out of the Lords committee’s sails but to have hijacked the process altogether, with some pretty clear plans – among them proposals to bring a political role back into judicial appointments. Cap’n Ken and his piratical crew are steering the debate, full steam ahead, into waters very much of their choosing.

Baroness Jay, who chairs the Lords committee, made the best of things at her tenth session, saying the Lords report, not to be finalised until the new year, would consider “wider” matters than the merely “mechanical” issues of organisation covered by the Ministery of Justice consultation. Yet, she acknowledged, her committee had yet to get near making any proposals while the MoJ was already thinking in terms of legislation. Some might suggest that, despite the consultation until 13 February, the MoJ mechanics have put the nuts and bolts pretty much in place and they will simply need a quick tightening up when the time comes.

So what are the Ministry of Justice proposals? It must be remembered that the Lord Chancellor, under the 2005 Constitutional Reform Act, has been merged with a new wholly political figure of a Justice Secretary but then largely removed from judicial appointments and from any judicial role. His power of veto in appointments is limited to sending the single name put before him by the Judicial Appointments Commission (JAC) back for reconsideration or blocking it and demanding another name.

The MoJ’s most controversial proposal arises (the MoJ would have us believe) out of the fear that judges are too involved in appointments at a senior level with the danger that they appoint in their own image. This seems particularly to be the case for the UK Supreme Court where justices are appointed by a small panel dominated by the court’s president and deputy-president. Hence, it is argued in some quarters, the debacle over the appointment of Jonathan Sumption. The president is also involved in appointing his own successor.

The answer? The MoJ proposes the Lord Chancellor should have the chance to comment on a short list of judicial candidates for senior posts; that one of the Supreme Court appointment panel members be replaced; and that the Lord Chancellor be on the panel for the appointment of the president of the Supreme Court (and also for the Lord Chief Justice). Apparently the proponents of this plan see no chance of the Lord Chancellor himself exercising undue influence, no possibility of his insisting on appointing in his own political image …

‘There should be no suspicion that politics is influencing appointments. The current system makes clear there is separation with regard to the political influences and the appointment system’ – Lord Woolf

This idea did not find much favour in the latest Lords committee session. Baroness Prashar, former JAC chair, said of the Lord Chancellor’s role: “I think the current role is appropriate … I would not be in favour of the Lord Chancellor sitting on the panel.” Instead “we can have a consultation when a vacancy comes up … to seek a view on the sort of person the Lord Chancellor would like” – meaning the qualities and skills of the person, not who that person should be.

Two former Lord Chief Justices, Lords Woolf (England and Wales) and Carswell (Northern Ireland) saw the political dangers of some of the proposed changes. Woolf wanted the current role for the Lord Chancellor maintained. There should be no great hurry to return to the former position where “the Lord Chancellor dictated what happened”.

Woolf said the 2005 reforms were intended to achieve separation of powers [between the legislature, judiciary and executive: the Lord Chancellor formerly had a foot in each]. “There should be no suspicion that politics is influencing appointments,” Woolf said. “The system makes clear there is separation with regard to the political influences and the appointment system.”

He pointed out: “We are still in the early days of seeing the Constitutional Reform Act reforms settle down and at the moment I think they are working rather well … the principle behind them should be retained.”

He told the committee: “I think it is very good that the message we have for the world outside in this jurisdiction, unlike other jurisdictions, is that there is clear water now between the executive and the judiciary.”

Lord Carswell said he would be strongly against any proposal to give the Lord Chancellor a say regarding a short list of candidates rather than saying yes or no to the single name he receives now. It had been tried in Northern Ireland, with three names offered up instead of one. “It results in political appointments, unquestionably. It has done there and I’m afraid it would here.” Parliamentary hearings on US lines would also be “most unfortunate” since those taking part “would all be seeking to find people with similar views to their own”.

He objected less to the Lord Chancellor having a role in appointing the Lord Chief Justice, and Woolf too could understand why it had been proposed. However, the latter believed the Lord Chancellor’s current powers of veto were sufficient, though he could be at least consulted.

The Ministry of Justice document also asks “whether the role of the Lord Chancellor should have more meaningful involvement in appointments for the most senior judiciary in England and Wales (Lord Chief Justice, Heads of Division, Senior President of Tribunals and Lords Justices of Appeal) as well as appointments for the President of the UK Supreme Court”. In addition it asks whether the Lord Chancellor should transfer his decision-making role and power to appoint less senior judges (below High Court or Court of Appeal level) to the Lord Chief Justice.

One can’t help thinking that Clarke and his successors would happily divest themselves of the burden of rubber-stamping hundreds (686 in total last financial year) of appointments in which they can have little interest and on which they have few opinions. It’s just admin, so one for the Lord Chief Justice, presumably. Lord Carswell was not averse to this change but Lord Woolf was, seeing merit in maintaining the Lord Chancellor’s role and restricted power to reject a candidate. “It may be limited but it does mean the government can’t wash its hands of what’s happening.”

On the issue of allowing the Lord Chancellor to make comments on shortlisted candidates, Lord Woolf noted: “I think there are occasions when they [the politicians] would really like to change what is proposed by the appointments commission.” The Lord Chancellor’s power “has to be confined because once you open the door it will be pushed further and further and we shall be back in the situation where there is a risk, one way or another, that the political system will say who should be the judges”.

All the Constitution Committee’s sessions have been reported on Alrich’s Weblog (and will continue to appear in future despite the argument of this one). The previous session is reported here and you can follow the links back to the first.

Note: since this post the Lords committee has published its report and the Ministry of Justice has published its bill, ignoring their lordships’ concerns

 

Make search for ethnic minority and women judges obligatory, Lords Constitution Committee told

There should be an obligation to look for ethnic minority, women and other minority candidates for judge’s posts, witnesses told the latest session of the Lords Constitutional Committee looking into judicial appointments.

An amendment to Section 64 of the Constitutional Reform Act 2005, should be made to increase judicial diversity. Currently it says:

“The [Judicial Appointments] Commission, in performing its functions under this Part, must have regard to the need to encourage diversity in the range of persons available for selection for appointments.” (Note: this section is discussed here)

The last few words should become “range of persons available for appointment”, Nwabueze Nwokolo, chair of the Black Solicitors Network, told the ninth session of the committee. Simply looking at the “range available for selection, we have seen, does not lead to appointment of a diverse judiciary”.

Cordella Bart-Stewart, an immigration judge and former chair of the Black Solicitors Network, backed such an amendment, noting that in Northern Ireland there is a positive obligation regarding judicial diversity.

‘If there was an obligation in the process there would be much more of an imperative to work harder in terms of widening that pool and going into non-traditional places in seeking out the best candidate’ – Cordella Bart-Stewart

Asked by Lord Pannick whether they were saying the Judicial Appointments Commission should take into account sex, ethnicity and whether candidates go to a university other than Oxbridge, Bart-Stewart said: “I’m not saying that in the selection that has to be done but if there was an obligation in the process there would be much more of an imperative to work harder in terms of widening that pool and going into non-traditional places in seeking out the best candidate.

“None of us around this table want to see any dilution of our judges. It’s not going to be of any benefit to the country or the regard in which our judiciary is held around the world.” But an obligation would concentrate minds. She also favoured targets, though accepted the target for women Supreme Court judges need not be 50 per cent – but it should be above 10 per cent.

Kaly Kaul QC of the Association of Women Barristers said the AWB would not support targets or any dilution of the quality of the judiciary. But work could be done on increasing the pool of available appointees. “Trickle up” had failed.

Another potentially controversial proposal (given the doctrine of judicial independence) was on judicial appraisal. Bart-Stewart said: “Appraisal should be extended across the board” meaning to senior judges as well as to those in the lower echelons such as tribunal chairs/judges, who are already appraised.

Kaul suggested there should even be provisional appointments to judicial jobs with appraisal once people were in post – and by implication the loss of the post if the individual fails to measure up.

Linked to the idea of appraisal is that of career progression. Kaul said: “I don’t think a career judiciary is a good idea but improvements could be made if people were fast-tracked.” Bart-Stewart noted: “Once you are in the system there’s not much encouragement in terms of moving forward.” There was a pool of “missing talent” not being made available to the higher positions.

Joy Van Cooten, chairwoman of the Association of Women Solicitors, added that there was no adequate career path from lower to higher levels of the profession. “Sixty per cent of our entrants are women but that does not translate into the judiciary. There has been some success in the lower courts but when we get to the higher courts there are no [women solicitors] except one appointed as a deputy high court judge.”

Nwokolo favoured an approach to appointment characterised as the “plateau of merit” at an earlier hearing by Roger Smith, director of JUSTICE. (This suggests that if there were several candidates all able to do the job, appointment decisions based on the need to appoint people from under-represented groups could be made.) “We don’t want a judiciary that is not meritorious … [but] you may be leaving out a lot of people who would benefit society as a whole.” With the plateau of merit “you look at society as a whole and accept merit exists in many different places and identify merit where you wouldn’t normally look.”

The JAC, since being set up following the 2005 Constitutional Reform Act, had made progress but had not done well on diversity. It should be bigger and its make-up should reflect society with members properly trained in diversity issues so it could identify merit wherever it was, she suggested. Meritorious people are out there. “We do this country a disservice when we appoint from a very narrow pool of people.

Note: Each of these sessions has been reported on in Alrich’s Weblog, with commentary in some cases. The previous session with Lord Neuberger and Lady Justice Hallett is here.

The session with Baroness Hale is here and an interview on Woman’s Hour by the Justice Secretary, Kenneth Clarke, on positive action and increasing part-time judges is here

The latest session is streamed here