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 (pdf) 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.
The Lords Constitution Commission reported on Judicial Appointments in 2012, concluding: “We support the current appointments model and believe that no fundamental changes should be made.” It rejected a parliamentary role because “Political considerations would undoubtedly inform both the selection of parliamentarians to sit on the relevant committees or panels and the choice of questions to be asked”. Various recommendations for change were made particularly on enhancing diversity. The report is here: Publications.parliament.uk/pa/ld201012/ldsele (pdf).