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Lady Neuberger condemns Constitutional Reform Act 2005 amendments in Crime and Courts Bill 2012

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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).

While the diversity provisions are modest, though welcome, the new powers for the Government on judicial appointment via the Secretary of State are a dangerous attack on judicial independence and on the principle of the separation of powers, established for the first time in the country’s history in the 2005 Act. The quasi-“Henry VIII” powers allowing the Secretary of State to in effect draft his own law on appointments procedure are particularly disturbing.

The Ministry of Justice seems to think what the Secretary of State is being given are not Henry VIII powers because they are not strictly to amend the 2005 Act.

This is disingenuous in the extreme. Since the provisions in the 2005 Act will be removed “from the face of the act”, the Lord Chancellor’s powers won’t be able to amend them – because there will be nothing there to amend! Instead the Lord Chancellor can come up with his own personalised legislation which will not need to go through Parliament in the way statutes normally do but instead by the “affirmative procedure” – just like “Henry VIII” secondary legislation. He can just pop it in among the other 3,000 statutory instruments a year that sit in Parliament but are not generally scrutinised.

One provision in the 2005 Act that is not being repealed or amended is S.3(1) which says: “The Lord Chancellor, other Ministers of the Crown and all with responsibility for matters relating to the judiciary or otherwise to the administration of justice must uphold the continued independence of the judiciary.” It looks as if the Lord Chancellor and the Government have put themselves in breach of this provision by bringing forward the changes in the Crime and Courts Act…

Note: Since it is often difficult to read back to the original Act on the basis of amendments, the relevant sections of the 2005 Act  have been stitched together with the amendments in the Crime and Courts Bill regarding judicial appointments and also diversity here: Amendments to 2005 Act

Note: MoJ public response to comments on its proposals (Pdf):
Report on response to consultation on Appointments and Diversity: A Judiciary for the 21st Century

The Lords Constitution Committee has published its view of the Crime and Courts Bill here

These items may also be of interest:

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

Ken Clarke defends plans for government role in judicial appointments

Ken Clarke gets his Henry VIII clause into judicial appointments

Kate Malleson writes on the changes here

Baroness Jay told the House of Lords on May 28 2012:
“The Bill makes a number of alterations to the structure of a judicial appointments process. As the Minister has already said, the Lord Chancellor’s powers to appoint judges below the level of the High Court are to be transferred to the Lord Chief Justice. Similarly, the Lord Chancellor’s role in appointing judicial members of tribunals is to be transferred to the Senior President of Tribunals. Both these changes are welcome, as they will promote the independence of the judiciary from the Executive and, I suspect, increase public confidence in the appointments process by more accurately reflecting the realities of judicial appointments at a lower level. I also welcome the decision to end the anomalous position whereby the President of the Supreme Court chairs the panel which appoints his successor. This was certainly something that the Constitution Committee felt was important.

There are other structural changes which are in the Bill and give cause for concern. In terms of constitutional principle, the most significant is the decision to allow the Lord Chancellor to sit as a member of the selection panels for the Lord Chief Justice and President of the Supreme Court. I have two concerns about this. First, in spite of what the Minister said, the inclusion of the Lord Chancellor on the selection panel risks the politicisation of the process, which would clearly run contrary to the principles behind it. Secondly, the Government propose to balance the inclusion of the Lord Chancellor on these selection panels with the removal of his current power to reject the decision of those panels. It would clearly be damaging for the fairness of the process if a member of the panel also had a veto over it. However, it raises the prospect, at least in theory, of the Lord Chancellor being outvoted on the panel and thus finding himself faced with a Lord Chief Justice or President of the Supreme Court with whom the Executive did not feel able to work. The Government may need to think again about this proposal, to which I am sure we will return in Committee.

About alrich

Journalist and blogger on legal and financial/economics issues

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