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.