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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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Senior judge backs role for politicians in judicial appointments

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A senior judge, Lord Justice Etherton, has told the House of Lords constitution committee that politicians should be involved in appointing judges to the UK Supreme Court with a consequent reduction in the influence of the court’s president and deputy president on the appointments panel.

The Court of Appeal judge said the composition of the judiciary “must be such that it commands respect” and hence needs to be more diverse. He told the hearing of the constitution committee into judicial appointments that political involvement was more likely to bring about greater diversity than the present system.

He pointed out that UK Supreme Court judges were nominated by a panel of five made up of judges and lay people including the president and deputy president of the court. [See comment below for explanation of the system.] Judges could also be among the other three members of the panel depending on whether Scotland and Northern Ireland sent judges to represent them. “Judges have a conclusive role in making those appointments. They do have that say because of their influence and standing in the [appointment] committee.”

He favoured increasing the membership of the appointments panel with more lay members, including politicians and academics, to get a better balance. He opposed US-style confirmation hearings in which potential judges might be questioned by parliamentarians. Read the rest of this entry

Parliament should have a say in judicial appointments, constitution committee told

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A call for parliamentary input into the appointment of judges has been made at a House of Lords inquiry into judicial appointments procedure. A legal academic, Professor Alan Paterson, told the Lords constitution committee there were dangers in continuing to push for full separation of powers between parliament and judiciary in the light of the increasing powers and responsibilities that have been given to judges. There were problems in a democracy with one branch of the state having such a big role – particularly a self-replicating body in which judges have a large influence over judicial appointments.

Paterson, director of the Centre for Professional Legal Studies, University of Strathclyde, was speaking at the first hearing by the committee into the judicial appointments process in which it will look at judicial diversity, whether Britain should have US-style confirmation hearings or some other form of parliamentary oversight and whether the current system protects judicial independence. It is expected to report by the end of the year.

Paterson said: “There is an argument for a slightly increased role for the executive and parliament to get involved in the pre-appointments stage.” He backed the idea of a parliamentary committee asking questions of potential judges on the Supreme Court and possibly the Court of Appeal. Among questions they would be asked might be their view on the role of the Supreme Court in a democracy or their view on parliamentary sovereignty – the idea that parliamentary legislation is supreme over all other sources of law. It is known that there was a split view among judges on this issue, he added. Read the rest of this entry

David Cameron, Sharon Shoesmith and the rule of law

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There is a breakdown in the rule of law in Britain – and the government is at the heart of it.

The latest evidence is in the government’s response to the Sharon Shoesmith Baby P case. David Cameron, the prime minister, is ready to throw good money after bad to challenge the Court of Appeal finding that the former Haringey council director of children’s services was sacked unlawfully at the insistence of Labour children’s minister Ed Balls.

The case has already cost £1m, but the money is neither here nor there; for Cameron it is a matter of principle – the principle that the government should be above the law.

He announced there would be an appeal to the Supreme Court because ministers want to uphold the principle that they – rather than the courts, through judicial review – should be responsible for their decisions. “It does seem to me important that governments are able to manage their organisations and provide accountability when things go wrong,” he said.

It is, apparently, a constitutional issue about ministers’ decisions being overturned by judges – on the face of it, one would have thought, an essential requirement if Britain is to be governed by the rule of law.

Unfortunately Cameron’s understanding of the idea of the rule of law is rather simplistic. He thinks Parliament is supreme so judges shouldn’t keep interfering with it. And since he’s the boss of Parliament, he must surely be the most supreme of all.

This was the prime minister who claimed the London university fees rioting was an example of a breakdown in the rule of law. He wasn’t talking about police kettling peaceful demonstrators or arresting people without charging them. He was talking about the rioters. A temporary and geographically limited breakdown in law and order perhaps, but a collapse in the rule of law?

So let us clarify for him what the rule of law is. This is the view of 19th century jurist AV Dicey: No one should be punishable except for a distinct breach of law established in the ordinary legal manner before courts of the land; nobody is above the law and everybody is subject to the ordinary law whatever his rank or condition; anyone may go to the law courts to remedy breaches in rights and liberties.

Dicey’s principles on the rule of law in the Law and the Constitution, 1885

“a. No man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the courts of the land;
b. No man is above the law, whatever his rank or condition is, he is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals;
c. It is because England has a constitution that the personal rights and liberties of individuals are always secure. This security comes from being able to go to the law courts to remedy any breach of these rights and liberties.”

This raises many questions but is a good starting point for those like Cameron who don’t have much of a grasp on the basic theory. Take this for example: before the royal wedding he felt there were too many pen pushers and local authority busybodies demanding vast amounts of paperwork, health and safety checks and expensive insurance for street parties. His response?

Let me put it like this. I am the prime minister, and I am telling you if you want to have a street party, you go ahead and have one.”

His clear view is that the will of the prime minister attached to a populist cause trumps the law and all the processes in place to ensure the law is followed. Street party organizers had permission from the highest authority in the land to ignore the law since the law was being unreasonably enforced by a bunch of bureaucrats.

Similarly with the Madeleine McCann case. The police, according to the classic view of the separation of powers, are independent from government. Yet Cameron has directed Scotland Yard to put millions of pounds of public money into further investigating the disappearance of the little girl, prompting Lord Harris to accuse him of driving a coach and horses through police operational independence.

Of course, Cameron only sent a letter. But the prime ministerial crest and the Downing Street postcode on the envelope would have ensured that it didn’t stay long in the Met’s pending tray.

In the Shoesmith case, Cameron’s objection is to a judicial review, the process whereby courts can examine the procedures of administrative bodies, including the government, to test their legality. The judges do not toss aside laws made by Parliament; they do not substitute their judgment for that of the minister on matters such as Shoesmith’s competence or culpability in the Baby P case. They simply examine whether the procedures used to arrive at the minister’s decision were correct and hence whether the decision was fair.

Judicial review became more accessible since reforms in the 1970s to allow ordinary people to, in Diceyan terms, remedy breaches of their rights and liberties. This is rather like that other Tory bugbear, the Human Rights Act. Cameron believes those rights and liberties are sufficiently protected by the fact that ministers are “accountable” – to Cameron himself.

When ministers have spread a bit more poison about unaccountable judges standing in the way of the democratically elected government, we may expect to see proposals for a “reform” of the way the judiciary is appointed. It won’t be difficult to undermine the Judicial Appointments Commission set up in 2006 as “an important step towards strengthening the drive to officially enshrine judicial independence in law, enhancing accountability and ensuring greater public confidence”. It has not done a good job in promoting diversity, it is extremely bureaucratic and unwieldy. But the real agenda will be to swing the balance of power back towards the Supreme Leader.

Note: The Supreme Court has now rejected leave to appeal in the Sharon Shoesmith case (2 August 2011)
Also as predicted above, the Ministry of Justice has now (November 2011) made its proposals to give the government more say in judicial appointments, discussed here

For a more considered look at the rule of law see the Thinking Legally blog: Bingham’s rule of law: Outdated? Utopian?

Jonathan Sumption debacle

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The Jonathan Sumption affair [in 2011] seems to be turning into a debacle. Sumption is a barrister who applied for one of the vacancies in the UK Supreme Court. It looked as if he had it in the bag, according to a Times leak – but now it is suggested he may be rather too busy adding to his millions in Berezovsky v Abramovich to attend at the pleasure of the highest court in the land.

Sumption has been a controversial candidate for the Supreme Court. He applied in 2009 but withdrew, it is said, after criticism from senior judges. His latest application has also been accompanied by murmurings in judicial circles about an alleged lack of experience for the job. Sumption is not a judge, you see.

Such criticisms are a bit unfair given the Constitutional Reform Act 2005 opened up applications to the Supreme Court from non-judges with a minimum 15 years’ experience. The intention was to add a bit of diversity to the team of posh old chaps (and a lady) at the top of the judicial tree.

And perhaps that is more to the point – in fact the appointment committee’s first non-judicial choice turned out to be, well, a posh old chap. Eton, Magdalen, Inner Temple, QC, OBE, that sort of thing. The most unusual and off-the-wall thing about him is that he likes penning history texts in his spare time. Oh, and it seems he did once meet cabinet ministers unshaven and in casual attire – at his French chateau.

So is this the real heart of the problem? The Ministry of Justice under Ken Clarke is doubtless wholly signed up to the coalition government’s social mobility agenda. Here was a rare opportunity, with two Supreme Court jobs up for grabs, to go for parity: one posh old chap matched by one of something else (a woman? a black person? a grammar school lad made good?). The pool of potentials had been extended hugely by the 2005 Act – and what was the result? Well, two posh old chaps (the other being Lord Wilson).

Of course, the committee can’t appoint from a diverse pool if nobody very diverse applies. But surely a tap on the shoulder, a word in an ear might give someone the confidence that, should their name go forward, it would be sympathetically treated? It’s worked for homogeneity for hundreds of years, why not diversity?

If the Supreme Court really has to attend on the whim of a very well paid barrister, then surely that makes a mockery of the 2005 reforms. Of course any top-flight lawyer who has the 15 years behind him (her?) and the requisite reputation is someone who at any time during the lengthy and delay-ridden appointment procedure is likely to find a tasty case popping up that requires his time and expertise. One that makes the £206,000 salary he might expect in his new role look pretty meagre.

It seems likely that Berezovsky v Abramovich is going to need Mr Sumption’s attentions for more than a few months. And it would seem  that the Ministry of Justice should be looking at rather better ways of satisfying the social mobility agenda than this.


Baroness Deech commented on the Sumption debacle here.

Lord Sumption has now (November 2013) given his view on the relationship between the UK courts and Strasbourg. See Hoffmann, Laws and Sumption: They come to bury the ECHR, not to praise it.

He has also, (September 2015) given his view on judicial diversity. He doesn’t think it’ll happen for a good 50 years yet: Evening Standard. The Supreme Court has published a clarification of these comments here.

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