Theresa May’s immigration rules expel the rule of law

The UK Government has instituted a remarkable constitutional innovation that redefines the concept of the rule of law. It has declared that the Government can tell judges how to interpret legal rules governing executive actions when those actions are challenged in court.

This is the implication of guidance attached to the new Immigration Rules laid (briefly) before Parliament and coming into force on 9 July 2012.

Home Secretary Theresa May has set out new rules on immigration but, crucially, severely curbed judges’ rights to interpret those rules in the light of Article 8 of the European Convention on Human Rights. She has done it on the basis of a misreading – or perhaps, more accurately, a misrepresentation – of case law on the immigration issue.

Since the Immigration Rules are not statutory (they are issued by the Government rather than passing through the full legislative process in Parliament) they can be struck down by courts if not in conformity with the European Convention. Article 8(1) says: “Everyone has the right to respect for his private and family life, his home and his correspondence.” It is blamed by the government for preventing the deportation of undesirables, including criminals or potential terrorists, if they can claim a “family life” in Britain. This has irritated the current and previous Governments for years.

Notoriously, even the fact that a foreign man and his British girlfriend co-own a cat was once adduced to enhance a non-national’s “family life” credentials under Article 8 – at least according to Mrs May.

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

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).

Judicial diversity: Lords call for positive discrimination and targets

The Lord Chancellor and Lord Chief Justice should be under an obligation to encourage diversity in Britain’s judicial appointments – and targets for women and ethnic minority appointments should be set if diversity is not improved within five years, according to a House of Lords Committee.

Minorities should be given priority when the choice of appointee is between equally qualified candidates, says the report by the Lords Constitution Committee. Dubbed the “tipping point” procedure by the Lord Chancellor, Kenneth Clarke, it would utilise Section 159 of the Equality Act 2010 which allows an element of positive discrimination where candidates are equally qualified. It cannot be used for judicial appointments, some argue, since judges must be appointed “solely on merit”, according to s.63 (2) of the 2005 Constitutional Reform Act (as explained here).

‘We do not consider that the concept of merit should be narrowly focused on intellectual rigour … a more diverse judiciary can bring different perspectives to bear on the development of the law and to the concept of justice itself’ Lords Constitution Committee

The committee’s report wants changes in the career structure for the judiciary as well as in work conditions – allowing more part time working and careers breaks as well as encouraging non-barristers to apply for higher judicial posts. The committee, in a series of hearings (all reported on Alrich’s Weblog), has heard calls for a more structured career option for judges, drawing on the skills of lower tier tribunal judges and chairs as well as advocates and also putting in place formal appraisal procedures and career development. Retirement age for Court of Appeal and UK Supreme Court judges should rise to 75 in part to give opportunities later in life to those who haven’t followed a conventional career.

General Powers and Super Pickles: the new local heroes

So, what is the “general power of competence” that, at the sweep of a minister’s pen, can banish the courts from interfering with local authority affairs and bring religious harmony to our land? UK Communities Secretary Eric Pickles brandished his pen to sign into law ahead of schedule provisions of the Localism Act 2011 to deal with the Bideford Town Council prayers row. They give councils in England “general powers of competence”, powers that allow them “the same power to act that an individual generally has”. The idea is to free them to offer services in innovative ways. But Pickles has a wider agenda: to keep “unaccountable judges” out of politics.

Hitherto local authority powers have been constrained by Acts of Parliament – they could do what was laid out in those Acts (particularly the Local Government Act 1972) and no more.

As a result, according to a Communities Department introduction to the new Act: “Sometimes councils are wary of doing something new – even if they think it might be a good idea – because they are not sure whether they are allowed to in law, and are concerned about the possibility of being challenged in the courts.The Government has turned this assumption upside down. Instead of being able to act only where the law says they can, local authorities will be freed to do anything – provided they do not break other laws.”

Ken Clarke gets his Henry VIII clause into judicial appointments

We need to talk about Ken – in particular the UK Lord Chancellor, Kenneth Clarke’s dangerous delusion that he has – or should have – Henry the Eighth powers.

As it happens, Clarke would make a rather good Henry VIII. Imagine Good King Hal as a bluff genial figure in the Carry On Henry mould, like the cigar-chomping Sid James, or perhaps with a bit of edge to him, something a little more like the Charles Laughton version – jovial but ruthlessness. Imagine, too, a man who by his proclamations can sweep away whole areas of constitutional law.

For this is what Clarke intends in his (as yet putative) Constitutional Reform (Reform) Act 2012 – the Act he is working up to “reform” the 2005 Constitutional Reform Act. This, for the first time in our history, enshrined separation of powers in our constitution – that the judiciary should be independent from the Executive and from Parliament.

Ken Clarke defends plans for government role in judicial appointments

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.”

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

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.

Ken Clarke’s piratical band hijacks judicial appointments inquiry

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.

Make search for ethnic minority and women judges obligatory, Lords Constitution Committee told

There should be an obligation to look for ethnic minority, women and other minority candidates for judge’s posts, witnesses told the latest session of the Lords Constitutional Committee looking into judicial appointments.

An amendment to Section 64 of the Constitutional Reform Act 2005, should be made to increase judicial diversity. Currently it says:

“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.” (Note: this section is discussed here)

The last few words should become “range of persons available for appointment”, Nwabueze Nwokolo, chair of the Black Solicitors Network, told the ninth session of the committee. Simply looking at the “range available for selection, we have seen, does not lead to appointment of a diverse judiciary”.

Kenneth Clarke: there should be a positive duty to appoint women and ethnic minority judges

Kenneth Clarke, the Justice Secretary, has announced a plan for “positive action” in judicial appointments to favour women and members of ethnic minorities and promote diversity. He wants to put an obligation into the appointments procedure to choose a person from an under-represented group when there are candidates of equal merit and increase posts for part-time judges.

Clarke told Woman’s Hour: “One of the more straightforward things I’m suggesting is that we enshrine in law for the resolution of doubt that other things being equal when you have two candidates of equal merit, you should prefer the under-represented group . There’s nothing wrong in that.”

The announcement suggests he will go further than Labour’s Equality Act of 2010, which allows employers, if they want, to choose a candidate from an underrepresented group in “tie-break” situations (see guidance note below). He envisages a change in the law for a “tie-break provision” making positive action in such cases obligatory for judicial appointments.