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.