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Tag Archives: Constitutional Reform Act 2005

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).

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Ken Clarke defends plans for government role in judicial appointments

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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.”

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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.

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Ken Clarke’s piratical band hijacks judicial appointments inquiry

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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.

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Judicial appointments, diversity and merit – an unsquared circle

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What is it about the concept of “merit” that is causing such problems in judicial circles? Surely any appointments procedure should be a simple matter of assessing candidates’ merit for the job and then appointing the best one. Unfortunately things just aren’t that easy, as the sixth hearing of the House of Lords Constitution Committee into judicial appointments has found.

The previous week the President of the Supreme Court, Lord Phillips, had asserted that judges should be appointed on merit. No story there, you would think. It’s even enshrined in law with simple elegance. Constitutional Reform Act 2005, Section 63, Subsection 2: “Selection must be solely on merit”. Move on to Section 64, though, and you get this:

“Encouragement of diversity: (1) The [Judicial Appointments] Commission, in performing its functions under this Part, must have regard to the need to encourage diversity in the range of persons available for selection for appointments.”

But keep going to Subsection 2 and you read this: “(2) This section is subject to section 63”. And we know, because we have come in a circle, that section 63 says: “Selection must be solely on merit”.

It is this virtuous yet apparently inconsistent circle that the Constitution Committee witnesses have been dancing around for several months now. It is accepted that we want more diversity in gender, ethnicity “and I suppose, sexual orientation”, as Lord Irvine put it the other week. More of every type of diversity (or individuals with “protected characteristics” as the Equality Act 2010 uncomfortably calls them.) But we keep coming up against this issue of merit. Read the rest of this entry

Jack Straw and Lord Falconer, titans of the Lords Constitution Committee arena

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It was a battle of the Titans, and, given the usually quiet, orderly atmosphere of the House of Lords Constitution Committee, and given the subject matter, judicial appointments procedure, it was almost quite exciting. In the red corner, Jack Straw, Lord Chancellor under Gordon Brown; in the also somewhat reddish corner, Lord Falconer, a former Lord Chancellor to, and friend of, Tony Blair (friend in the modern political sense, that he was often mysteriously seen with Blair on official business, claiming to be his “adviser”).

The buffer, as it were, placed between these antagonists for their own protection was yet another former Lord Chancellor, Lord Mackay of Clashfern.

The issue was who should appoint members of the judiciary – and each of the three had rather different ideas. Straw made his startling claim: the UK Supreme court is a shadowy unaccountable organisation that is, shockingly, “developing a social policy” which it is imposing on the unsuspecting citizens of Britain by issuing so-called “judgments” – new forms of legislation that had overthrown the supremacy of Parliament.

Well, he did not take it quite this far. In fact he was at pains to point out that he personally had nothing against what the Supreme Court was doing, that most people would obviously agree with its excellent judgments on letting (alleged) terrorists and child molesters wander the streets freely, that he could understand quite how they had found themselves in the terrible position of being legislators rather than interpreters of legislation: it’s all the fault of that pesky Human Rights Act (you know, Labour’s pesky Human Rights Act of 1989).

But since the Supreme Court was developing a social policy, there needed to be some political control of who was developing it. The current legislation on this was not fit for purpose (you know, Labour’s pesky Constitutional Reform Act of 2005). Read the rest of this entry

Jack Straw on judicial appointments: yes, Parliament must have a role

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The focus in the debate on judicial appointments has turned on the Supreme Court. Jack Straw, former Labour Lord Chancellor, has told the Lords Constitution Committee hearings into judicial appointments that the process for selecting the Supreme Court judges is not satisfactory (polite speak for totally out of order).

He told the fourth hearing: “Effectively we’ve ended up with a system where the president of the Supreme Court is selecting his successors, and that can’t be satisfactory. It defies every constitutional principle.” He said: “I do not believe the current system is a sustainable model and will have to be changed.”

There was also public concern, he said, about the Supreme Court “legislating in areas of social policy”. It was right to ask questions about this and perfectly legitimate for Parliament to have a role in appointing to the Supreme Court because of it.

Former Lord Chancellor Lord Falconer rejected the idea and insisted: “Do not mix politics with the appointment of the judiciary.” Read the rest of this entry

House of Lords judicial appointments hearings: the story so far

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The judicial appointments hearings by the House of Lords Constitution Committee recommence this week so it’s worth a resume of where we are at given the importance of the issue – and the possibility that the press will start to recognise the fact.

The story so far: The Constitutional Reform Act of 2005 for the first time in Britain enshrined, at least in part, the principle of separation of powers in an aspect of the constitution, the position of the judiciary. So the Law Lords were removed from the House of Lords and set up in the Supreme Court, losing their right to sit in the Lords in political roles; appointment of the judiciary was taken out of the hands of the Lord Chancellor (a Cabinet post) and handed to an independent Judicial Appointments Committee; and the Lord Chancellor himself lost his judicial role – his former right to sit in legal cases as a judge.

Now all the talk is of throwing out the principle of separation of powers and establishing a new form of political input in the appointment of judges – perhaps an enhanced role for the Lord Chancellor, a role for Parliament or for some committee of Parliament, perhaps with US style confirmation hearings. There seems to be no front runner as yet.

Such calls are made on the political right because of anger at the “unaccountable” judiciary with powers to balk the government, particularly on human rights issues; and on the liberal left because of the pressing need for a more diverse judiciary, achievable, it is believed, most quickly by political intervention. One supporter of this view, Cheryl Thomas, acknowledged, though, that it depends whether that intervention is from, as it were, a Reagan (who put the cause of judicial diversity back – certainly by eight years) or a Clinton, who made it one of his priorities. Read the rest of this entry

Judicial appointments and politicisation of ‘unaccountable judges’

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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: Read the rest of this entry

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