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

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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.

About alrich

Journalist and blogger on legal and financial/economics issues

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