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).