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).

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

 

Judicial appointments, diversity and merit – an unsquared circle

What is it about the concept of “merit” that is causing such problems in judicial circles? Surely any appointments procedure should be a simple matter of assessing candidates’ merit for the job and then appointing the best one. Unfortunately things just aren’t that easy, as the sixth hearing of the House of Lords Constitution Committee into judicial appointments has found.

The previous week the President of the Supreme Court, Lord Phillips, had asserted that judges should be appointed on merit. No story there, you would think. It’s even enshrined in law with simple elegance. Constitutional Reform Act 2005, Section 63, Subsection 2: “Selection must be solely on merit”. Move on to Section 64, though, and you get this:

“Encouragement of diversity: (1) 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.”

But keep going to Subsection 2 and you read this: “(2) This section is subject to section 63”. And we know, because we have come in a circle, that section 63 says: “Selection must be solely on merit”.

It is this virtuous yet apparently inconsistent circle that the Constitution Committee witnesses have been dancing around for several months now. It is accepted that we want more diversity in gender, ethnicity “and I suppose, sexual orientation”, as Lord Irvine put it the other week. More of every type of diversity (or individuals with “protected characteristics” as the Equality Act 2010 uncomfortably calls them.) But we keep coming up against this issue of merit.

Early in these hearings lecturer Dr Erika Rackley suggested that diversity should be regarded as a component of merit.This hasn’t found much favour. Phillips said: “Diversity doesn’t have anything to do with merit. You are just fudging it if you add a bit of diversity.” Outstanding candidates based on merit were needed. “I would be reluctant to introduce a formula that might result in that being overborne by diversity considerations.” He would like a Supreme Court with a 50-50 balance of men and women (rather than 11-1 now) “from the point of view of perception” but it’s more important “that it consists of the 12 most outstanding candidates”.

‘You are sitting here with a Supreme Court with one woman on it and the Court of Appeal not representative. I think that that is a problem’ – Roger Smith

Witnesses have been asked: what if two candidates of equal merit were found – would that be a time to give preference to the woman or the black candidate? It is a scenario in which the Equality Act 2010 would envisage “positive action” while banning “positive discrimination” (see note below). Mostly witnesses have been a bit iffy about this, not least because they find it difficult to imagine two exactly comparable candidates.

But a small ray of inspiration seemed to make its way into Committee Room One in the latest hearing. Roger Smith, director of Justice, which promotes legal access and human rights, suggested that the problem was that people were envisaging merit as a pinnacle when in reality it was a plateau. If it is a pinnacle, you have to appoint the “best” person at the summit. But if it’s accepted that there might be a number of good people all capable of doing the job, they exist on a plateau:  “If it is a plateau and you are saying that for a judge at this level you need this range of skills, knowledge and so on, it is possible that other criteria may play a part in the decision-making process”. The implication here is that those making the choice could take in wider concerns – what skills or characteristics were needed on the team rather than simply who was the best of the best. Smith insisted that he was not arguing that “diversity is a component of merit”. “No one should get a post that they are unable to carry out.” But once you have decided who attains the minimum qualification for the Supreme Court but “beyond that, I think that you can take into account various issues”.

The committee was rather interested in this. Where could they read more on the “plateau” theory? It’s something they had never heard of before. That’s because I’ve just made it up, acknowledged Smith. But it was important to come up with some answer: “We are sitting here with a Supreme Court that has one woman on it and the Court of Appeal not representative either. I think that that is a problem … The visual impact of our Supreme Court is a problem.” We were shown up by the Canadian and US Supreme Courts.

Peter Lodder, QC, chairman of the Bar, saw change in the air. In particular the lower part-time courts were more diverse and we could look to incremental change , albeit not as fast as Smith might like. There were some female judges in the Court of Appeal and he was pleased that Rabinder Singh QC had just been appointed to the High Court. But we should “make sure the person is worthy of the position” – that merit thing again.

John Wotton, president of the Law Society, said there was little evidence of discrimination in the legal profession as a whole. “However, the further one goes up the tree, the less diverse the group appears to become.”

Procedural issues

But how do you do find the right person, however defined? This too has been a theme of the hearings, with talk of excellent candidates being put off by the Judicial Appointments Commission’s complex processes for assessing candidates (the old nod and wink were so much more efficient). A new claim was made at the latest hearing: that many of those who did brave the JAC systems were falling down at one of the first hurdles, the written test.

Initially the test had been criticised for not being legally based; that was changed but then those who had specialist knowledge of the legal example used in the test had drawn on their knowledge – and been penalised for doing so.

There had been controversy about the test, acknowledged Lodder, but not every candidate could be interviewed. “There has to be some sort of process for the large number of applicants for a limited number of places”. The fact that there were many more applicants than before was partly down to success in encouraging them to come forward but also a feature of the economy. When times are hard, lawyers don’t see their future remaining in practice and turn to a judicial career as a safety net.

All three witnesses rejected any notion of Supreme Court judges having to face parliamentary confirmation hearings or other political input into judicial appointments. Smith suggested Sonia Sotomayor’s confirmation hearings in the United States was an example of how bad the system was, showing how an experienced lawyer would simply dead-bat questions. Some of these were unedifying such as those directed against her once having taught international law – because that is a threat to US law.

Lodder warned that such a process would lead to politicisation of the system. The current system [since the 2005 Constitutional Reform Act] in which that political influence had been removed was welcome. 

Reports on all the Constitution Committee hearings on judicial appointment so far can be found on the Alrich blog. The fifth hearing (Lords Judge and Phillips) is here

The seventh, with Baroness Hale and Baroness Neuberger, is here

The webcast of this hearing is here

Note: Equality Act 2010 guidance on positive action appointments in tie-breaker between candidates of equal merit.

Any use of positive action will only be lawful if:
• The candidate is appointed on merit – the candidate must be as qualified as any other candidate to be appointed. A candidate cannot be appointed just because he or she has a particular protected characteristic, such as being from an ethnic minority
• The employer does not have a general policy of always favouring people with certain protected characteristics
• Any action taken by the employer is a proportionate means of achieving the aim of addressing disadvantage or under-representation in the workforce
Government Equalities Office

Jack Straw and Lord Falconer, titans of the Lords Constitution Committee arena

It was a battle of the Titans, and, given the usually quiet, orderly atmosphere of the House of Lords Constitution Committee, and given the subject matter, judicial appointments procedure, it was almost quite exciting. In the red corner, Jack Straw, Lord Chancellor under Gordon Brown; in the also somewhat reddish corner, Lord Falconer, a former Lord Chancellor to, and friend of, Tony Blair (friend in the modern political sense, that he was often mysteriously seen with Blair on official business, claiming to be his “adviser”).

The buffer, as it were, placed between these antagonists for their own protection was yet another former Lord Chancellor, Lord Mackay of Clashfern.

The issue was who should appoint members of the judiciary – and each of the three had rather different ideas. Straw made his startling claim: the UK Supreme court is a shadowy unaccountable organisation that is, shockingly, “developing a social policy” which it is imposing on the unsuspecting citizens of Britain by issuing so-called “judgments” – new forms of legislation that had overthrown the supremacy of Parliament.

Well, he did not take it quite this far. In fact he was at pains to point out that he personally had nothing against what the Supreme Court was doing, that most people would obviously agree with its excellent judgments on letting (alleged) terrorists and child molesters wander the streets freely, that he could understand quite how they had found themselves in the terrible position of being legislators rather than interpreters of legislation: it’s all the fault of that pesky Human Rights Act (you know, Labour’s pesky Human Rights Act of 1989).

But since the Supreme Court was developing a social policy, there needed to be some political control of who was developing it. The current legislation on this was not fit for purpose (you know, Labour’s pesky Constitutional Reform Act of 2005).

And here Jack had a sad personal story to tell. When he had tried to exercise even the minimal rights of intervention in the appointments process regarding a Divisional Court appointment, his (in his view) restrained and collegiate attempts to have another candidate considered were leaked to the Times and he had to abandon them. He was coy about the details but we can exclusively reveal (unless you have a Times paywall sub) that he was referring to his attempt to have the appointments panel rethink the proposed appointment of Sir Nicholas Wall to fill the post of President of the Family Division (see note below).

This he was wholly entitled to do under the legislation (the Lord Chancellor can accept or reject the selection, or else ask the appointment panel to reconsider its choice, giving reasons). But he is supposed to do it quietly and confidentially. Instead it was leaked, it became unpleasantly political and, Straw declared, there was even a move to have him JR’d.

This, to be clear, does not mean there was a plot to ensure he shared the mysterious fate of John Ross Ewing of “Who shot JR” fame or his credibility-stretching comeback. It was rather the almost equally bizarre possibility that a Lord Chancellor could be judicially reviewed by a High Court judge for his attempt to influence the appointment of a Divisional Court judge.

His fellow former Lord Chancellors showed scant sympathy, both saying he should have stood his ground and risked the somewhat unequal court battle. As to leaks, Falconer pointed out that they never happened from his department on his watch since his staff behaved as if their tongues had been cut out (or maybe their lips sewn up – something pretty non-ECHR-compliant at any rate). Blame the judges. “Judges can’t stop talking to the press.”

‘The idea that a member of the cabinet, appointable by the Prime Minister, should be the person who appoints the people the Prime Minister and Home Secretary are attacking is in effect an unthinkable situation’ Lord Falconer

Nor did Falconer see in Straw’s tale of woe an argument for handing some form of say in appointments to parliamentarians or returning it to the Lord Chancellor, Lord Mackay’s preference. Mackay said: “It is important that the Lord Chancellor should continue to have a role and I’ve never objected to the Prime Minister having a role”, though he added that that was on the basis that Prime Ministers always accept the view of their Lord Chancellors. Their roles ensured that people saw there was government approval for the appointment, that “the government as a whole is responsible”.

Falconer saw the flaw in all this. Previous prime ministers and home secretaries had sought to gain political advantage by attacking the judges – as the current incumbents continued to do. “The idea that a member of the cabinet, appointable by the Prime Minister, should be the person who appoints the people the Prime Minister and Home Secretary are attacking is in effect an unthinkable situation.” The appointments should be beyond the reach of the PM and Home Secretary – though he defended the current limited role and powers of the Lord Chancellor. He sees reform of the Supreme Court appointments more on the lines of adding more lay members to the present tiny judge-dominated 5-member selection panel.

Straw was unsure what he wanted but said there should be a parliamentary role – possibly with the chair of the Lords Constitution Committee and the Commons Justice Committee meeting to deliberate on the choices. Presumably he hopes to guarantee himself a good write-up from Baroness Jay in the final Lords committee report.

It seems inevitable that the Lords committee will recommend change to the appointment procedure in the report, expected by the year end, and also that the Government will embrace it. But it is more likely to head back to something closer to Mackay’s position or even Straw’s than to extend the full Judicial Appointments Commission system up the ranks to the Court of Appeal and Supreme Court.

The legal establishment would balk at more JAC control of the higher echelons since, apparently, top judges, barristers and solicitors, supremely confident as they seem and able to hold a court of law in thrall with their eloquence, are rather shy of putting themselves forward for high judicial office if there is any great risk of, as Straw put it, being “knocked back”. How much more so if they had to go through the days of filling out application forms, the panel interviews and the role play that is the modern human resources way of doing things.

A straight report of this hearing, the fourth of the Lords Constitution Committee into judicial appointments, is here

The third hearing with some background and the JAC view is here

The fifth hearing, with Lords Phillips and Judge, is here

A monumentally detailed piece on the legal/constitutional issues by ObiterJ is here

Note:

The Times article of March 4 2010 begins thus: ‘Jack Straw has challenged the appointment of a new head of the family justice system who castigated the Government over its policies, including opening family courts, The Times has learnt. An appointments panel staffed by senior judges put forward Sir Nicholas Wall to fill the post of President of the Family Division, but only one month before the post is vacated no announcement has been made.’

Jack Straw on judicial appointments: yes, Parliament must have a role

The focus in the debate on judicial appointments has turned on the Supreme Court. Jack Straw, former Labour Lord Chancellor, has told the Lords Constitution Committee hearings into judicial appointments that the process for selecting the Supreme Court judges is not satisfactory (polite speak for totally out of order).

He told the fourth hearing: “Effectively we’ve ended up with a system where the president of the Supreme Court is selecting his successors, and that can’t be satisfactory. It defies every constitutional principle.” He said: “I do not believe the current system is a sustainable model and will have to be changed.”

There was also public concern, he said, about the Supreme Court “legislating in areas of social policy”. It was right to ask questions about this and perfectly legitimate for Parliament to have a role in appointing to the Supreme Court because of it.

Former Lord Chancellor Lord Falconer rejected the idea and insisted: “Do not mix politics with the appointment of the judiciary.”

Straw made clear that he believed there was a role for Parliament but not for the executive in appointments whereas the reverse was true for the Court of Appeal and below – a role for the Lord Chancellor but not for parliamentarians.

“There is plainly a lack of mutual confidence between the senior judiciary and this place [Parliament] in respect of the role of the senior judiciary and its broadening authority into areas that are inevitably political.”

If, as is likely whichever government is in power, there was a gradual detachment of our system of law from the European Court of Human Rights in Strasbourg that would make the UK Supreme Court “more powerful, not less”. Since it had the power under Section 4 of the Human Rights Act 1998 to declare laws incompatible with the European Convention on Human Rights “there’s an unexploded bomb in the middle of the minister’s room”. This justified a legitimate role for Parliament in appointments, not the “obscenity” of US-style public hearings but possibly representatives from the Lords Commission and the Commons Justice Committee.

‘If you bring in the politicians you are inevitably putting the politicians in the position where they will express a preference as to the type of person they want as a judge’ Lord Falconer

Straw insisted, citing the human rights cases, that there was declining public respect for the “social policy” Supreme Court judges appeared to be pursuing. “The Supreme Court has developed a social policy. I don’t blame them for this.” They were making decisions in areas they weren’t four years ago and there had been a shift in how they interpreted Section 2 of the Human Rights Act [on how UK judges assess ECtHR jurisprudence in coming to their decisions]. “When Lord Bingham was in the chair he had one view and now there is another lot who have a rather different and narrower view, which personally I welcome. It’s nothing to do with their politics.”

It was legitimate for parliament to ask how far the Supreme Court feels it should be legislating in areas of social policy.

For Lord Falconer this was the danger of political input. Parliamentarians would ask whether candidates took the “Bingham view” or the “Phillips view” (the view of Lord Phillips, current president). They would say, “if you take the Bingham view we would be very keen to support you and if you take the Phillips view we would not”.

He accepted that many decisions of the Supreme Court had been politically controversial (Belmarsh, sex register). “But it’s clear we want [a case] to be decided on a judicial basis not a political basis.” Thus: “If you bring in the politicians you are inevitably putting the politicians in the position where they will express a preference as to the type of person they want as a judge” – perhaps a Baroness Kennedy on the left or a Lord Campbell of Alloway on the right. The consequence would be that “the Lord Chancellor would be put under pressure as to whether he said no to particular appointments”.

The perception that the British judiciary was independent in appointment and in the job they did meant civil liberties were safe, the quality of judges was not diluted (in contrast with the US) and Britain attracted commercial parties from abroad willing to have their disputes in British courts. “Do not mix politics with the appointment of the judiciary.”

He accepted there was distrust among politicians and the public and suggested judges could come to meetings to explain their actions – but post-appointment, not before.

Comment

Mr Straw’s phrase “selecting his successors” is significant in the light of the suggestion floated by Joshua Rozenberg in his Guardian blog that Lord Neuberger, Master of the Rolls, would be a good replacement for Lord Phillips when he stands down. Lord Phillips would chair the appointment panel but it must be said the two mens’ approaches are rather different. Phillips has a somewhat romantic notion of the role of the Supreme Court in its relations with government. In the BBC4 series on the court he shone with a glow of righteousness as he explained its resistance to government oppression in holding terrorist suspects without trial (A v Home Secretary) – enraging the Labour Government and not encouraging much love from the Conservatives.

Neuberger takes a different view of the court which may or may not have caused him not to join it on its formation in 2009 and prefer the hard slog in the workhorse of the appellate system that is the Court of Appeal Civil Division.

Neuberger feared the Supreme Court would, with the might of the European Convention on Human Rights in its collective back pocket, become a constitutional court, rendering legislation passed by a democratically elected and nominally supreme Parliament nugatory if it failed to meet its exacting standards.

As Joshua Rozenberg points out in exchanges on his blogpost about this matter, such a view would not prevent him taking up the reins of the Supreme Court – not least since he would be able to put a stop to that sort of nonsense. It would, too, be an appointment devoutly to be wished by the Government and senior opposition figures such as Straw. Neuberger is a trusted pair of hands, a black letter man, not one to encourage “creative” judging or excessive deference for the European Convention. But as things stand, the Government cannot have its say, as Jack Straw pointed out at the Constitution Committee hearing.

And since Phillips is intending to retire sooner rather than later, the Constitution Committee will have to get a bit of a lick on, and the Government will have to have its reforming legislation on standby if they really want to put a halt to his dangerous social policy development for another generation.

A sketch of this “interesting and vigorous”  (Lord Crickhowell) and “entertaining” (Lady Jay) fourth hearing with Jack Straw battling Lord Falconer is here  

Note: All the Lords hearings so far into judicial appointments have been reported on the Alrich Weblog. The third hearing (with a round-up of earlier hearings) is discussed here

House of Lords judicial appointments hearings: the story so far

The judicial appointments hearings by the House of Lords Constitution Committee recommence this week so it’s worth a resume of where we are at given the importance of the issue – and the possibility that the press will start to recognise the fact.

The story so far: The Constitutional Reform Act of 2005 for the first time in Britain enshrined, at least in part, the principle of separation of powers in an aspect of the constitution, the position of the judiciary. So the Law Lords were removed from the House of Lords and set up in the Supreme Court, losing their right to sit in the Lords in political roles; appointment of the judiciary was taken out of the hands of the Lord Chancellor (a Cabinet post) and handed to an independent Judicial Appointments Committee; and the Lord Chancellor himself lost his judicial role – his former right to sit in legal cases as a judge.

Now all the talk is of throwing out the principle of separation of powers and establishing a new form of political input in the appointment of judges – perhaps an enhanced role for the Lord Chancellor, a role for Parliament or for some committee of Parliament, perhaps with US style confirmation hearings. There seems to be no front runner as yet.

Such calls are made on the right because of anger at the “unaccountable” judiciary with powers to balk the government, particularly on human rights issues; and on the liberal left because of the pressing need for a more diverse judiciary, achievable, it is believed, most quickly by political intervention – though one supporter of this view acknowledges that it depends whether that intervention is from, as it were, a Reagan (who put the cause of judicial diversity back, well, certainly eight years) or a Clinton, who made it one of his priorities.

The Lords Constitution Committee has been considering these matters and its first two hearings are reported here and here. The third brief hearing just as everyone was heading off on summer holiday, is a handy source for arguments against the idea of political input, with Lord Justice Goldring, senior presiding judge, making the case.

‘The interest of the media in creating tension sometimes, between judiciary and government, can lead to claims of lack of transparency in court proceedings’ Mrs Justice Macur

There is a view that because of the European Convention on Human Rights and the Human Rights Act 1998 plus a general increase in judicial review of administrative decisions,judges’ jobs have become more political and hence should be under some sort of political scrutiny. Lord Justice Goldring rejected this. “In the context of judicial review, the administration or the executive has to obey the law and the judges interpret and decide whether or not the executive has obeyed the law. I do not think constitutionally the fact there has been an increase in the number of such cases makes any difference.”

Such decisions are often commented upon by the media, he noted, and Mrs Justice Macur, Family Division judge, added: “The position of the court has changed in so far as the interest of the media in creating tension sometimes, between judiciary and government, can lead to claims of lack of transparency in court proceedings, particularly in the Family Court.”

The Family Court is perhaps a special case with many aggrieved parents enlisting the support of the press to pierce its secrecy, justified as being in the interests of the children. The wider press campaign against the judiciary, however, is considered here.

Lord Goldsmith, one of the panel questioning the witnesses, pursued the HRA point: “Some people say, in those circumstances with much greater power given to the judges … then it is right that somebody should know a bit more about what the judges believe in these areas and what their values are before they come on to the Bench in order to make those decisions.”

For Goldring this raised the nightmare of purely political appointments: “The moment you actually say, ‘What do we want to ask the judge?’ it becomes very difficult, because you assume, ‘Judge A said he had this opinion and Judge B said she had that opinion. We need to balance that opinion with this opinion.’ It is a very slippery slope.” It is better not to know too much of judge’s views gleaned from putative confirmation hearings. Otherwise the danger is that in any particular case litigants will consider the judge biased from the start.

‘It certainly came as a surprise to me to discover that the panel appointing the Supreme Court was so narrow, and so totally dominated, as already has been indicated, by the President and Vice-President’ Lord Crickhowell

“Let us take privacy as an example – if I were being asked about privacy as a potential judge and expressed a view, what happens when the first case involving privacy is in front of me? What will the litigants think if they look back at the interview that I gave and the newspaper says, ‘He expressed himself in favour, rather Article 8 [of the European Convention] sympathetic,’ for example?” No questions could be asked in such confirmation hearings that would not immediately raise issues about a particular candidate’s political bias.

Goldring was happy for a greater oversight role for the Lord Chancellor in Court of Appeal and Supreme Court appointments – where the full-on Judicial Appointments Committee process is not applied. Goldring noted: “The criticism is that it [Supreme Court appointment] involves the President and the Vice- President of the Supreme Court, and perhaps that is not entirely desirable.” Another questioner, Lord Crickhowell, added: “It certainly came as a surprise to me to discover that the panel appointing the Supreme Court was so narrow, and so totally dominated, as already has been indicated, by the President and Vice-President.”

Goldring acknowledged that the public must have faith in the appointments procedure, and that is a knotty problem that has not found any clear line of answers in the hearings. Everyone has been agreed that appointments should be made on merit but there has been little agreement on what merit means or how to ensure it. Concern has been expressed about how to ensure diversity and also how to ensure quality work from the judiciary after appointment. Goldring said that “apart from appeals looking at the substance of decisions – obviously if somebody generates many successful appeals, at least you can see that something is going wrong – there is no structured system for assessing the success of the appointments that have been made. There is no system, in other words, of appraisal.”

Macur suggested that appraisal should come at the early stages of a judicial career and progress up the ranks should only come with success. That speaks to another strand of thought that has come out of the hearings – the idea of a career judiciary. This goes rather counter to the recent trend of extending judicial roles beyond those with judicial experience – itself an attempt to increase diversity. The barrister Jonathan Sumption, straight to the Supreme Court despite only briefly having touched base with judicial experience years ago, is a beneficiary of the new thinking, though not many feel his appointment did much for diversity. A “professionalised” career judiciary is another thing altogether.

Goldring reckoned quality judges would not be attracted under such a system – by which he probably meant lawyers in many cases turned to the higher levels of the judiciary only after making their mark (and a comfortable cushion of wealth) as advocates. “Civil service” judges would be second-best – and more lacking in independence. He did, however, back movements between branches of the judiciary, drawing on tribunal chairs/judges, for example, for higher judicial posts.

A representative of the Judicial Appointments Committee will no doubt appear before the resumed hearings. In its written submission it has welcomed the idea of legislation to clarify the Constitutional Reform Act but “would be very wary of changes that would impact in any way on the principle of the separation of powers, independence in selection, both from the judiciary and the executive, and selection on merit alone”.

The JAC considers diversity in applicants for the posts under its control (below Court of Appeal) has increased (women and black and ethnic minority) but would oppose moves to expedite this long-term aim. A number of witnesses in the hearings have articulated a view that “diversity” should be counted on the list of matters of merit when considering an applicant, while others have talked rather of choosing on the basis of “diversity” only when candidates are otherwise equal.

The Judicial Appointments Committee submission notes: “Selections for judicial appointment are made in a unique environment where in the majority of cases the candidates are selected for positions where there is no probation period; no appraisal and almost no termination for poor performance. Selection on merit alone is therefore even more critical.”

Note: All the Lords hearings so far into judicial appointments have been reported on the Alrich Weblog. The second hearing is here

Some recent comment on judicial appointments:

The Guardian

Erika Rackley

Joshua Rozenberg

UK Constitutional Law Group

Judicial appointments and politicisation of ‘unaccountable judges’

The starting gun has been fired on the politicisation of the (unaccountable) judiciary. The (unaccountable) House of Lords is to consider the issue – and what little commentary there has been since consultation was launched on 13 May has been (unaccountably) favourable. Parliamentary scrutiny is deemed a good thing, not least because the Judicial Appointments Commission is seen as a rather bad thing.

The remit of the House of Lords Constitution Committee inquiry ranges over various issues, but crucially it asks: “Should Parliament scrutinise judicial appointments?” High among its concerns is that “decisions made by individual judges now regularly provoke political and public debate and public confidence in the legal system has been tested”.

What this means is that the public – or more accurately the press and certain politicians – do not like some of the judgments that judges have arrived at. As a result, the cry has gone up that the judges are “unaccountable”. Here are some examples:

David Cameron 2010: “It’s your life that’s affected by political decisions and the people who make those decisions should answer to you – that’s why we need accountability … And it’s why we will abolish the Human Rights Act and introduce a new Bill of Rights, so that Britain’s laws can no longer be decided by unaccountable judges.”

Michael Howard 2011: Powers of ‘unelected, unaccountable’ judges should be slashed, says former Tory leader.

Bill Cash 2011: “The sovereignty of Parliament is the democratic basis of the UK constitution but has become increasingly questioned by judicial assertions.”

Paul Dacre (Daily Mail editor-in-chief): “It is the others I care about – the crooks, the liars, the cheats, the rich and the corrupt sheltering behind a law of privacy being created by an unaccountable judge.”

Douglas Carswell MP 2011: “How much longer can we justify having a remote and unaccountable Judicial Appointments quango appoint judges?”

Well, not much longer, it would seem. It must be said, the Judicial Appointments Commission has not exactly covered itself in glory. The JAC is bureaucratic, slow and inefficient and not delivering on its brief to increase judicial diversity. The appointment of millionaire ex-Etonian barrister Jonathan Sumption to the UK Supreme Court, a post to be taken up, apparently, at his convenience, is quite rightly being used by commentators as a stick to bash the commission.The balancing appointment of the eminently staid Sir Nicholas Wilson, who came up through the Family Division and Court of Appeal, didn’t help. Both, in their own special ways, are far from being people in touch with the world.

But the real issue at stake is as outlined in the political comments above. The Judicial Appointments Commission is supposed “to maintain and strengthen judicial independence” – and that is what offends the Camerons, Cashes and Carswells of this world.

The most controversial area that must be covered by the House of Lords Constitution Committee inquiry will be the UK Supreme Court. Britain, despite Montesquieu’s views on the matter, has come late to the idea of the separation of powers and an independent judiciary. Not until 2009, thanks to the Constitutional Reform Act 2005, were the old Law Lords detached from the House of Lords where they, theoretically, had a legislative as well as judicial role. The aim was to ensure their independence in the light of Article 6 of the European Convention on Human Rights:

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”
Article 6 ECHR

Immediately there were complaints such as this in the Daily Telegraph that “a Supreme Court is likely to be emboldened to go much further than its predecessor in making rulings beyond what Parliament intended”.

There is certainly a view, enunciated more authoritatively by the Master of the Rolls, Lord Neuberger, in 2009, that the UK Supreme Court could become a constitutional court on the US model even though Parliament is not bound by a constitution, only by laws it makes (and unmakes) itself. The argument is that the Human Rights Act 1998 and judicial review allow judges to challenge statute and declare executive action unlawful (as in the Sharon Shoesmith affair).

Of course politicians do not like that sort of thing, which is why they want to get their sticky fingers on judicial independence – to make judges “accountable”. The idea of some form of parliamentary scrutiny is bound to come up in the Lords inquiry – not least because the committee itself has asked the question: “Is there a case for introducing confirmation hearings for the most senior judicial posts”. (It’s called a leading question in legal parlance – designed to elicit the answer you want.)

The House of Lords Constitution Commission will examine this along with any other proposals to deal with judges’ “unaccountability” – or independence from government and Parliament, as it should properly be called. That a political body should do this at this time – so soon after important changes intended to enhance judicial independence – is deeply worrying.

Written submissions have to be with the Constitution Commission by June 30 after which hearings will take place in the House of Lords. For views favouring parliamentary scrutiny see Joshua Rozenberg and James Grant