2. Judges and the European Convention; or we need to talk Abu Qatada!

December 4, 2012 Leave a comment

This post is part two of a dialogue with Brian Walker on the Human Rights Act and the European Court of Human Rights (ECtHR). Brian raises three points that deserve close attention. Firstly, what is the status of the relationship between the ECtHR and Britain? Secondly, why do cases take so very long to get to Strasbourg? Thirdly, what can be done when British political and moral norms conflict substantially with the decisions made by the ECtHR – can Britain ignore Strasbourg? I will look at this problem through the prism of the Abu Qatada case in particular.

1. What is the status of the European Court of Human Rights in Britain?

The European Convention on Human Rights is an international treaty signed in 1950 which contains a bill of rights (such as the right to life and the right to a fair trial) that each Government that ratifies the Convention promises to protect and to respect. The role of the ECtHR is to enforce the Convention. Individuals who feel that their Convention rights have been violated by a signatory state may take a case to the ECtHR. None of this has anything to do with the EU, although the two are very often confused which leads to the Convention system suffering by association with the desperately bad press the EU gets in Britain.

Decisions by international courts such as the ECtHR bind Britain in international law but not in domestic law and it is possible for the two systems to conflict. If there is a conflict, international law requires that Britain change its domestic law but it is for individual countries to choose how they resolve these conflicts. Because of the way our system of government works, it is for the Government and Parliament to solve the problem – generally through legislation. The role of the courts in our system is simply to obey whatever legislation is passed by Parliament. As a result British courts are not obliged to follow the decisions of the ECtHR directly.

There is of course a ‘but’. The Human Rights Act (HRA) 1998 changed this situation somewhat by incorporating the European Convention into British law. Parliament enacted the HRA to allow people in Britain to make rights-based arguments in Britain. For the first time British domestic courts were empowered to take account of the human rights in the Convention in their decisions. I said above that it is for individual countries to choose how to apply international law in their own legal systems; the HRA was the means chosen by Britain to do so, an independent decision made by Parliament. Prior to the HRA, British cases with human rights elements tended to go to the Court in much larger volumes than from other countries because Britain had no domestic human rights legislation and so the courts could not protect rights as such directly. With the HRA human rights became domesticated: the bill of rights contained in the Convention is now also a bill of rights in domestic British law. We can truthfully, if a bit mischievously in light of current debate, call it a British Bill of Rights (one deserving of capitalisation).

The HRA states (in section 2(1)) that British courts are obliged to ‘take into account’ decisions made by the ECtHR. What does this mean and how can two of our most senior judges disagree about it? This goes back in part to the fact that we are dealing with two independent systems of law – international law and British law – that we are trying to fit together. From the perspective of international law decisions of the ECtHR bear directly upon the country to which they are addressed. So if the court decides that Italy must allow prisoners to vote the judgment of the court is addressed to Italy and no one else. Further, and unlike most British domestic courts, the ECtHR is not obliged to follow its own precedent. It can and occasionally does reverse itself. So a judgment that is made against Italy in one case might not necessarily be made against Britain in similar circumstances. An interesting feature of the ECtHR’s approach is that it applies what it calls a ‘margin of appreciation’ and a doctrine of proportionality in its decisions. It acknowledges that culture and moral norms are not quite the same in all the countries that are party to the Convention and that the way in which human rights are applied and realised may reasonably vary from country to country.

Against these facts we can set the practical reality that the ECtHR generally does follow its own precedents and so previous decisions of the ECtHR are strongly persuasive for all signatories to the Convention. Put simply if the Court decides in a case against Italy that prisoners should have the vote, it is probably going to decide the same in a case involving Britain. So there are good practical reasons to comply with judgments of the ECtHR even if they are not specifically addressed to Britain.

Here we return to British domestic law and the HRA and we can, I hope, begin to see an answer – or at least why the question does not admit of a straightforward answer. When Brian refers to Lord Phillips and Lord Judge disagreeing in front of the House of Lords Constitution Committee about whether British courts must follow the ECtHR they are really taking slightly different views about what is important. When Lord Phillips points out that, in the end Strasbourg ‘will win’ I take him to be making the practical and prudential point that the British courts should follow the case law of the ECtHR because if they don’t there will ultimately be an appeal by a disappointed litigant to Strasbourg which Britain is likely to lose, leading to Britain being obliged (in international law) to fix the problem (no doubt after a wasteful and rather expensive delay of several years). He is not saying that the HRA obliges British courts to follow the ECtHR as a matter of law, merely that it is better all-round if they generally do so. When Lord Judge says that once the British courts have taken account of the decisions of the ECtHR they are not actually obliged to follow them he is stating the legal position: section 2(1) of the HRA obliges British courts simply to take account of these decisions. Neither British law nor international law requires the courts to go any further (remember that a decision that is not directly addressed to the UK does not directly bind the UK).

So what this boils down to is that following the ECtHR is not simply a legal question. It is also a policy question and one that does not admit of easy resolution. What is not a matter of doubt is that the United Kingdom has a duty in international law to comply with the European Convention and decisions of the ECtHR that are addressed directly to it. To say, as the Lord Chancellor did on 22 November before the Constitutional Committee, that parliamentary sovereignty supersedes the rulings of the ECtHR is incorrect. We are dealing with two separate legal systems. The fact that Parliament may choose to disobey the international legal obligation created by an ECtHR ruling does not extinguish that obligation.

2. Why do cases take so long to get to Strasbourg?

The answer to the first question was complex. This question is mercifully straightforward. Strasbourg takes appeals from 47 different countries and has a backlog of 150,000 applications (half from just four countries: Russia, Turkey, Italy and Romania). The ECtHR has become very popular. Between 1955 and 1998 it received just 45,000 applications but it received 64,500 in 2011 alone. The result is that it can take years to get a decision from the ECtHR. Delay does not just upset politicians – judges are often just as critical of the way the Court processes its caseload.

This problem could be resolved by dealing with the way the Court processes its cases. In April the Council of Europe Conference agreed the Brighton Declaration (partly as a result of significant lobbying from the UK) in which members of the Council agreed to amend the Convention to ensure that the ECtHR deals only with serious violations of human rights rather than trivial ones and to recognise the principles of subsidiarity and margin of appreciation within the text of the Convention.

The agreement made in Brighton, assuming it is implemented, will still not completely eliminate delay. Delay also arises because of the way cases get to the ECtHR in the first place. Applicants must exhaust all remedies in their home country before they can file an appeal to Strasbourg. In Britain this will generally mean that a litigant will have to go all the way the Supreme Court – and lose – before he or she can go to the ECtHR. (Although not always: if the litigant can show that because of settled law they have no prospect of success at home this may not be required.) The legal process in Britain can take a long time, although there are procedures for fast-tracking urgent cases, so this can add to the delay taken to get to a final resolution from Strasbourg.

Finally, delay can be caused by changes in circumstances. In January in the Abu Qatada case (formally Othman v. UK, as Abu Qatada’s real name is Omar Othman), the ECtHR decided that the UK Government could not deport Qatada to Jordan for trial because there was a risk that evidence to be used in his trial was obtained by torture, which would violate his right to a fair trial. Following Othman the Home Secretary obtained assurances from Jordan regarding the trial process and then ordered that Qatada be deported. Qatada’s lawyers then launched an appeal against this last decision to extradite him, which was granted on the basis that the assurances from Jordan were not good enough. Put simply, the facts changed. While it is possible to limit the length of legal proceedings and the number of appeals that may be made on the basis of the same set of facts, where there is a significant change of circumstances it is hard to see how the right to appeal could be curtailed without fundamentally affecting the right to a legal hearing.

3. Can Britain ignore Strasbourg? And would a British Bill of Rights Make any Difference?

No and no. Or at least, not without breaking the law.

Staying with Abu Qatada, the most recent decision affecting his case was made by the British Special Immigration Appeals Commission (SIAC). SIAC was following the Othman decision, but it was doing so in respect of a principle that is so central to modern human rights law that no plausible bill of rights could fail to enshrine it: the prohibition on torture. Othman followed from an older ECtHR decision called Chahal, in which the Court held that Britain couldn’t deport Mr. Chahal to India because there was a real risk that he would be subjected to torture if they did so.

The right not to be subjected to torture is one of the few absolute human rights (perhaps the only absolute right) and it follows from a generally accepted belief that there can be no legitimate reason for torturing anyone. If there can be no legitimate justification for torture it follows that evidence obtained by torture must be obtained illegitimately and so any evidence obtained through torture must be excluded. If the Human Rights Act were replaced with a British Bill of Rights it would also have to respect this principle. Any bill of rights that did not would – and should – be a laughing stock.

If the new bill of rights did not respect these principles, British judges could no longer order British ministers to comply with human rights but the United Kingdom would still be obliged in international law to comply with decisions made against it by the ECtHR. It is true that it might not be easy to force the UK to comply with its obligations if the Government set its face against doing so. But this is not the same as saying that the legal obligation would cease to exist. The Government would find itself under domestic and international political pressure to comply and the Government did indeed comply with the original Chahal case and all the other judgments made against it by the ECtHR prior to the enactment of the HRA.

4. What happens now?

The Qatada case has dragged on for a very long time and there are two ways of looking at the problem. The first is that the courts, including the ECtHR, are repeatedly frustrating the will of the UK Government to remove a dangerous terrorist from Britain. The other way of looking at it is that the Government has quixotically pursued extradition to Jordan as a solution again and again in the face of objections that the trial process in Jordan is simply unsafe because of the use of torture. Previously it pursued internment until the House of Lords ruled that that was also unacceptable. There is another option: try him in Britain. The things of which Abu Qatada are accused by the Government (involvement in and direction of international terrorism) are certainly crimes in Britain. Allegations in the public domain suggest that there is the possibility that he could be charged with conspiracy to commit some fairly serious crimes, if nothing else. If he were convicted of them there would be no human rights obstacle to his being imprisoned for a very long time, perhaps for life. The difficulty appears to be that some of the evidence is secret and either too weak to secure a conviction or too sensitive to be made public (or both). Without being privy to the information it is impossible to know whether the Government’s claim is legitimate: we cannot know whether the judgment that prosecution is impossible is reasonable, although a succession of Home Secretaries and others seem to have been convinced that it is. But the security services have not historically had these kinds of difficulties in prosecuting Northern Irish terrorism. Indeed as the layers of secrecy have gradually been peeled away from the awful decades of conflict in Northern Ireland one thing that has become apparent is just how thoroughly the various terrorist groups were riddled with informers and spies seeking intelligence and evidence for prosecution. This appears to have continued with the dissident remnants of those organisations. Why can he not be prosecuted for terrorism in Britain?

But we need not go even that far. Has Qatada never been caught speeding, or jaywalking, or even stealing a library book? Famously, the US authorities eventually caught up with Al Capone by laying charges of tax evasion against him. Why has Britain not tried something similar against such an allegedly dangerous man? Put another way, are the ECtHR and – to a lesser extent – the British legal system taking the blame for the failure by the Government to deal sensibly with the problem posed by Qatada and a small group of dangerous men in a similar position?

In the last few days the Home Secretary has lodged an appeal against SIAC’s decision to stop Qatada’s extradition. Rightly or wrongly the ball is now back with the courts and, as Brian suggests, they will need to tread very carefully.

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Judicial Independence in Northern Ireland

November 26, 2012 Leave a comment

On 6 November the Judicial Independence Project held the sixth in our series of practitioner seminars on ‘Judicial Independence in Northern Ireland’. The series is run under Chatham House Rule but we have prepared a short note which is available on our website. Read it here.

A strong theme that emerged from the seminar was that the current system for administering the court system in Northern Ireland is an interim one – a step on the road to something more permanent – although one that has fortuitously turned out to work quite well. Most participants felt that something like the Irish or Scottish models for court administration, in which the court system is run by judges with a high degree of independence from the legislature and executive, should be the ultimate destination. However, there are practical problems with this because the judiciary in Northern Ireland is so small and it may be difficult for them to devote greater time to administration.

The appointment of judges is also a key issue in Northern Ireland. At present the Northern Ireland Judicial Appointments Commission (NIJAC) is judge-led, in large part because the main political parties did not trust each other with the appointment of judges. Some participants felt that this created an accountability problem for NIJAC and that there should be moves towards greater political oversight, although there was strong disagreement on this point.

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The Crime and Courts Bill and the JAC

November 2, 2012 Leave a comment

[Posted on behalf of Graham Gee. This post original appeared on the UK Constitutional Law Group Blog.]

The Crime and Courts Bill resumes its passage through the House of Lords this week. In a post in July, Patrick O’Brien offered some thoughts on proposals in the Bill on judicial appointments. I agree with Patrick’s analysis and merely want to add some thoughts on the limited changes relating to the Judicial Appointments Commission proposed by the Bill.

(1) One of the chief complaints of officials who operate under the CRA’05 is that it is overly prescriptive. The Crime and Court Bill’s key proposal on the JAC seeks to inject flexibility into the arrangements relating to the JAC’s composition and is fairly uncontroversial. Under Schedule 12 CRA, the JAC must have 15 members, comprising a lay chair, a further 5 lay members, 5 judicial members, a lay justice, a tribunal member, a barrister and a solicitor. The JAC recognizes that there is a case for “introducing a mechanism to allow flexibility into [its] size”. For example, it was envisaged that the JAC would in time assume responsibility for selecting lay magistrates. The MoJ has since made clear that this will not happen, raising the question of whether it is necessary for a lay magistrate to be a statutory member of the JAC. The Bill therefore seeks to inject flexibility into the JAC’s composition by requiring the Lord Chancellor to make provision about its composition via regulations agreed with the Lord Chief Justice. There are also uncontroversial proposals in the Bill on the role of the JAC’s vice-chair and the selection and term of commissioners.

(2) What bears emphasis is how little the Bill impinges directly on the JAC. This is surprising since, according to interviews conducted as part of a project on The Politics of Judicial Independence, relations between the JAC and the MoJ were so rocky between 2006-10 that thought was given to abolishing the JAC, and either brining judicial appointments back “in-house” in the MoJ or shifting responsibility to the Commissioner for Public Appointments. Given, then, that its very future was in doubt two years ago, what explains the fact that the JAC emerges relatively unscathed in the Bill? One explanation points to the significant personnel changes that have occurred since 2010 within both the JAC and the MoJ. Relations were rockiest when Jack Straw was Lord Chancellor and Baroness Prashar chaired the JAC. At the MoJ, not only are we onto our third Lord Chancellor since the start of 2010, there has been significant staff changes at all levels as well. Meanwhile the JAC has a new leadership team (headed by Chris Stephens as the chair and Nigel Reeder as Chief Executive) and an entirely new slate of Commissioners. There is, in essence, a “new” JAC. The question that arises is how willing is the new JAC to challenge the MoJ. For example, a constant source of tension between the JAC and MoJ has been the Lord Chancellor’s imposition of additional, non-statutory criteria for judicial office. Typically, the non-statutory criteria require applicants to demonstrate prior judicial experience. The “old” JAC routinely challenged the use of these criteria, arguing that it unnecessarily restricted the diversity of applicants. Will the “new” JAC be equally willing to challenge the Lord Chancellor on the use of non-statutory criteria?

(3) The Bill proposes to transfer the Lord Chancellor’s responsibility for making appointments below the High Court to the Lord Chief Justice. The proposal is for the JAC to make recommendations to the LCJ, who will have the power to decide whether to accept them. As Robert Hazell, Kate Malleson and I haveargued, this proposal is misguided. While there might be a case for claiming that at the lower levels of the judiciary, the involvements of the Lord Chancellor is not required on grounds of political accountability, the goal of improving judicial diversity requires the continued involvement of the Lord Chancellor. Experience in other countries suggests that diversity does not happen automatically as the composition of the legal profession changes. Rather, it requires political will to drive forward changes, some of which might not be well received by the judiciary. Removing the Lord Chancellor removes the scope for this political will.

In the context of this blogpost, what interests me is whether the proposed transfer of the appointment power from the Lord Chancellor to the LCJ might change the relationship between the JAC and the LCJ. There have been tensions from time to time between the JAC and the judiciary. It was significant, however, that the LCJ offered support—behind the scenes and in public—when relations with the MoJ were rockiest, highlighting the LCJ’s role as a guardian of the independence of the JAC from the Government. It seems almost inevitable that relations between JAC and the LCJ will change once the LCJ must decide whether or not to accept the recommendations for judicial office made by the JAC. Relations may be shaped in part by how frequently the LCJ rejects or requests reconsideration of the JAC’s recommendations. Since 2006, the JAC has made nearly 3,000 recommendations, with the Lord Chancellor rejecting or requesting reconsideration only 5. (These figures are for the High Court and below). It will be interesting to see whether the LCJ is as sparing with the use of these powers.

(4) Much of the debate on the Bill in the House of Lords has concentrated on the proposal that the Lord Chancellor is to be included in the selection panels for the offices of the Lord Chief Justice and the President of the UK Supreme Court. The price for inclusion on the panel is loss of the veto at the end of the appointment process currently enjoyed by the Lord Chancellor. A constellation of peers from across the political and legal communities oppose this proposal lest it lead to what they deem an inappropriate level of political involvement on senior appointments. (For the second reading debate, see here and here; for the committee stage, see here and here). Comparatively little attention has been paid to whether transfer of the Lord Chancellor’s responsibility for appointments below the High Court to the Lord Chief Justice will lead to excessive judicial influence on appointments to the lower ranks. This proposal to transfer responsibility to the LCJ must be read alongside the already extensive judicial influence on JAC-run selection exercises: (i) five commissioners on the JAC are judges; (ii) before the Lord Chancellor must consult with the LCJ before directing the JAC to begin a selection exercise; (iii) each selection panel contains a judge, who is normally from the jurisdiction to which the appointment relates; (iv) judges draft the case studies that form part of the selection process; (v) judges write references for applicants; and (vi) towards the end of the process, the JAC must consult with the LCJ about the candidate that it intends to recommend to the Lord Chancellor. The influence of (vi) should not be underestimated: there were suggestions that the former Lord Chancellor, Ken Clarke, would not appoint those who had not been approved by the LCJ. Judicial influence, in short, runs deep throughout every stage of the appointment process. To be clear, judges have a legitimate interest and important role to play in appointments. However, there is an argument to be made that there is already too much judicial influence on JAC-led processes—even before transferring the final appointment power over lower level posts from the Lord Chancellor to the LCJ.

(5) Concerns about the extent of judicial influence on JAC-run selection processes point to the importance of safeguarding the independence of the JAC not merely from the Government, but also from the judiciary. Since judges have a legitimate interest in appointments, and since they inevitably have an important if largely unseen role to play in the selection process, inappropriate judicial influence can be difficult detect and calls for constant vigilance. The risk of judicial capture is real. The primary duty to safeguard the independence of the JAC from inappropriate judicial influence falls on the JAC Chair, leadership team and the Commissioners. The public interest in judicial appointments requires that the JAC is willing and able to resist judicial capture.

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Judicial Independence and the Supreme Court

October 18, 2012 1 Comment

On 3 October the Judicial Independence Project held the fifth in our series of practitioner seminars on ‘Judicial Independence and the Supreme Court’. The seminar was run under Chatham House Rule but we have prepared a short note available on our project website: read the note.

Amongst the points made by contributors was that statistics do not bear out the popular perception that the Supreme Court is exercising more power over the Scottish legal system than was the case prior to Scottish devolution. Although there has been an increase in the volume of cases going from Scotland to the Supreme Court (and its predecessor the Appellate Committee of the House of Lords) the success rate for Scottish appeals was essentially the same as that for other cases under the Appellate Committee, and since the creation of the Supreme Court in 2009 the success rate for Scottish appeals has been notably less than that of others.

There were differing views on appointments to the Supreme Court. The Crime and Courts Bill proposes to remove the Deputy President from the appointment commission for the Court. Some regarded this as negative: the justices of the Court have the best knowledge about what the court needs in new appointments. Others disagreed, arguing that while this might be true, no part of government in a democracy should be self-replicating.

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The Blunkett Test

September 5, 2012 1 Comment

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When the Constitutional Reform Act 2005 was being drafted, nearly a decade ago now, one of the issues considered was referred to as ‘The Blunkett Test’: how would the new arrangements work if David Blunkett – a non-lawyer known at the time for his willingness to engage in publicity-friendly criticism of judges and judicial decisions if it made political sense – were made Lord Chancellor? The abstract question was about how to design the new constitutional arrangements so that they could survive bad personal relationships as well as good.

The Blunkett Test has so far been academic as the new style post-2005 Lord Chancellors (Lord Falconer, Jack Straw and Ken Clarke) have all been lawyers with obvious natural sympathy for the judiciary. As a result of yesterday’s government reshuffle we may now see something like the Blunkett Test played out for real. Ken Clarke, perceived to be too far to the left of his party on issues like human rights and prisons, has been replaced as Justice Secretary and Lord Chancellor by Chris Grayling, perceived to be further to the right on these points. But it’s not Grayling’s political attitudes that might be problematic but rather his status as a non-lawyer and a politician ‘on the up’ as Joshua Rozenberg puts it in an interesting analysis. Clarke, a barrister and an old-style political heavyweight with (one assumes) nothing left to prove in career terms, had little incentive to score political points at the expense of judges. Grayling might be tempted in his new position to make his mark by, for example, criticising sentencing practices and by doing so sour the very close working relationship he will need to maintain with senior judges. A young ambitious politician in the role is, indeed, exactly what judges have feared since 2005.

Lawyers have an unfortunate tendency to assume that non-lawyers cannot be trusted with the law and have difficulty understanding legal culture. Grayling has been in the job barely 24 hours and as such is an unknown quantity. Nonetheless, the transition will be worth watching. Since 2005, the division of responsibilities between the Home Office and the Ministry of Justice has seemed to work out as a sort of ‘good cop, bad cop’ with the incumbent Home Secretary making tough noises about terrorism, rights and so on and the incumbent Justice Secretary making more emollient sounds about the importance of the rule of law and due process. If the new Justice Secretary is more naturally sympathetic to the Home Office position, this may alter the balance.

Finally, from a constitutional perspective it is interesting that the role of Lord Chancellor has attracted so little official comment. Grayling is the first non-lawyer to be appointed Justice Secretary and the first non-lawyer to be appointed Lord Chancellor since the sixteenth century. Yet even the Ministry of Justice press release referred only to Grayling’s new role as Justice Secretary and made no mention of the position of Lord Chancellor. This seems to suggest that the convention that the Justice Secretary should also be Lord Chancellor is now well established, and perhaps also that the ancient but now diminished role of Lord Chancellor is being subsumed within the modern role of the Justice Secretary.

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Judicial Appointments and the Crime and Courts Bill 2012

June 25, 2012 Leave a comment

As part of the Judicial Independence Project we have prepared a short briefing document and comment on some of the changes to judicial appointments envisaged in the new Crime and Courts Bill 2012. The document is available here. The main points are that:

  • The stated philosophy behind Part 2 of the Bill – of leaving statements of principle on the face of the Bill and moving detailed technical provisions into statutory instrument – is welcome. However, as the Bill currently stands this intent is not realised and the distinction between matters that should remain in the Constitutional Reform Act and matters that should be left to statutory instrument is erratic.
  • The provisions governing the Lord Chancellor’s role in the appointment of the President of the UK Supreme Court and of the Lord Chief Justice of England and Wales are ambiguous as key points of principle are left for regulations to be made by the Lord Chancellor.
  • It appears that the Lord Chancellor may choose to sit on the selection bodies or may choose not to do so. Only in the former case will he lose his veto over an appointment but in either case it appears that he retains the right to compel the selecting body to reconsider its chosen candidate. In circumstances where the Lord Chancellor sits on the selecting body, his retention of a power to compel that body to reconsider its decision is inappropriate.
  • The rule prohibiting the President and Deputy President of the UK Supreme Court from sitting on selection commissions to appoint their successors is welcome. However, as it is currently expressed it appears to leave open the possibility that other office holders (for example the Lord Chief Justice) may be involved in the selection of their successors. It would be better to enshrine in the Bill a general prohibition against an incumbent or retiring judge sitting on a panel to select his or her successor.
  • The Bill as it stands has the potential to add further complexity to an already extremely confusing piece of legislation by adding new actors (the Lord Chief Justice and Senior President of Tribunals) and a new layer of rules (in the form of statutory instruments) to the appointments process. In a piece of legislation with constitutional significance this is unwelcome and measures should be taken to express the changes envisaged in a manner that leaves them reasonably accessible to the layperson.

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Recent Judicial Independence Seminars: ‘Law, Politics and the Future of Human Rights Act’ and ‘Judicial Independence and Judicial Appointments’

March 6, 2012 Leave a comment

The Judicial Independence Project recently held two seminars for politicians, judges, lawyers and academics, run under the Chatham House Rule. The first, on ‘Law, Politics and the Future of the Human Rights Act’ on 2 February, was jointly organised with Prof Dawn Oliver and Middle Temple. The headline conclusion was that most speakers expected that the Coalition Government’s Commission on a British Bill of Rights would come to nothing, leaving the Human Rights Act (HRA) intact. The nature of Britain’s international human rights obligations – under the Convention but also increasingly, and much more directly, under EU law – entail that Britain cannot really take away from Convention rights but can only add to them. However, some thought that there was still a possibility that the HRA might be weakened after the current process.

Several speakers also argued that the UK courts are not obliged to follow the decisions of the European Court of Human Rights in Strasbourg in every circumstance, and that Lord Bingham’s argument to this effect in the Ullah case was wrong. The UK could make greater use of the margin of appreciation afforded by the Convention to member states. However, there was also positive reference to the dialogue that occurred between the UK Supreme Court in connection with the Al Khawaja and Horncastle cases.

Speakers also acknowledged the phenomenon of public discontent with the HRA. This discontent is based mainly on perception rather than substance and survey evidence reveals very high support for human rights but poor support for the HRA itself, and poor understanding of the Act. But politicians will not ignore this public discontent while it exists.

The second seminar was on ‘Judicial Independence and Judicial Appointments’. Speakers commented on the vulnerability of the Judicial Appointments Commission (JAC). The Commissionis a young organisation but has already been reviewed by the Ministry of Justice (in 2010; the result was positive) and included, and then excluded, from the Public Bodies Bill as part of a list of quangos that were potentially to be abolished. As one speaker put it ‘we’ve planted a daffodil and a number of times we’ve pulled the daffodil out of the ground to review whether or not it’s working’. The JAC needs time to develop and establish itself.

There was some discussion about the role of Parliament in appointments. Some participants (although not all) felt that judges currently have too much involvement in appointment and argued that judicial independence does not require the involvement of judges in the selected of their successors. One suggested that a greater role for the Lord Chancellor and Parliament in appointments would be of benefit to judges. By increasing the legitimacy of appointments and by getting politicians to invest in the process, judges would gain some protection from conflict with politicians. It was suggested that UK Supreme Court justices, in particular, should not be appointed without the approval of a select committee.

You can read short notes of both of these seminars on the Project website:

Law, Politics and the Future of the Human Rights Act

Judicial Independence and Judicial Appointments

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Kate Malleson: Taking the politics out of judicial appointments?

February 24, 2012 Leave a comment

[Posted on behalf of Kate Malleson. This post originally appeared on the UK Constitutional Law Group Blog.]

Seven years after the judicial appointments process was completely refashioned under the provisions of the Constitutional Reform Act 2005 (CRA), the system is being looked at again. In November, the Ministry of Justice issued a consultation paper on ‘Judicial Appointments and Diversity: A Judiciary for the 21st Century’ pre-empting the forthcoming report of the House of Lords Constitution Committee inquiry on the same topic. A key issue in both the consultation paper and much of the evidence submitted to the Lords inquiry is the role of the Lord Chancellor in the appointments process. The provisions of the CRA reducing the role of the Lord Chancellor to that of a limited veto over the decisions of the judicial appointments commission (JAC) have been subject to a range of criticisms. The aim of the consultation paper is to address these concerns by achieving ‘…the proper balance between executive, judicial and independent responsibilities’. To this end, it proposes transferring the Lord Chancellor’s powers to the Lord Chief Justice in relation to appointments below the High Court or Court of Appeal while at the same time ensuring that the Lord Chancellor plays a more ‘meaningful role’ in relation to the higher judicial ranks. This would be achieved by requiring the JAC  to consult the Lord Chancellor on potential candidates for the most senior appointments and by including the Lord Chancellor on the JAC  selection panel for the appointment of the Lord Chief Justice and for the appointment of the President of the UK Supreme Court by the ad hoc Supreme Court appointment commission. At the same time, the Lord Chancellor’s current power of veto would be removed.

At first blush, therefore, these proposals look like a sensible attempt to recognise the distinction between the lower and upper ranks of the judiciary, acknowledging what the Lord Chancellor, Kenneth Clarke, has described as the ‘ritual’ element of his involvement in appointments at the lower ranks, while recognising the need for greater political accountability in appointments to the senior judiciary. The consultation paper notes the potential for a democratic deficit if the executive is not involved in the process: ‘We consider that the complete removal of the Lord Chancellor from the entire process would result in an accountability gap and are of the view that this gap increases with the seniority of the appointment being made’.

The first element of the proposed change, the removal of the role of the Lord Chancellor in relation to positions below the High Court or Court of Appeal, has attracted considerable support from those who gave evidence to the Lords inquiry. The Lord Chancellor himself stated in evidence to the Committee that in relation to this aspect of his role he simply ‘goes through the motions’ of reviewing the candidates about whom he knows little or nothing. In contrast, the proposed removal of the Lord Chancellor’s current right of veto in relation to the upper judiciary is far more controversial and it is hard to see that this aspect of the proposed change represents the creation of a more ‘meaningful’ role for the executive. The reason why the JAC was set up as a recommending commission rather than an appointing body, with the Lord Chancellor retaining the final say in appointments, was to provide a potential check on the decision-making of the independent commission in the event of something going wrong in relation to an appointment (whether the error was committed in good faith or bad) and to maintain a meaningful degree of political accountability in the process. The first of these functions would be lost under the proposals and the second would be weakened. In addition, the proposed change is likely to undermine efforts to increase diversity in the judiciary. Experience in other jurisdictions, as well as the UK, has shown that diversity does not automatically improve as the composition of the legal profession changes but requires political will to drive forward proactive changes, some of which are not supported by the judiciary or the legal profession.

A better option for striking the correct balance between the branches of government would be to retain the Lord Chancellor’s veto and for the JAC (and the ad hoc commission in relation to Supreme Court appointments) to provide the Lord Chancellor with a short-list of three names of candidates to choose from for all senior appointments whom the commissions consider to be very well-qualified and appointable. This would allow for an appropriate degree of political input in the process and would open space for the Lord Chancellor to promote greater diversity though his choice of candidates while maintaining selection on merit. It would also maintain the important function of a back-stop in case of error or malpractice.

The Judicial Independence Project recently made a submission to the Ministry of Justice consultation on Judicial Appointments and Diversity. The submission can be read here. 

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Appointments and Diversity: A Judiciary for the 21st Century

February 14, 2012 Leave a comment

The Judicial Independence Project has submitted a response to the Ministry of Justice consultation on ‘Appointments and Diversity: A Judiciary for the 21st Century’, which closed yesterday.

Summary

  • There is a legitimate role for the executive in the appointment of judges. Not onlydoes executive involvement provide a check on the decision-making of the JAC, and the selection commissions responsible for the most senior appointments, it also supplies an important mechanism of political accountability. Above all, executive involvement is critical for fostering the executive’s trust and confidence in the judges. Similar considerations apply to Parliament. If the executive and Parliament are wholly or largely excluded from the appointment process, they might be less inclined to respect the role and independence of the judiciary.
  • The Consultation Paper envisages the reduced involvement of the Lord Chancellorin appointments at the lower ranks of the judiciary, but increased involvement at the higher ranks, through participating in the ad hoc selection panels for the most senior judicial appointments.
  • On appointments to the lower levels of the judiciary, our view is that the goal ofincreasing diversity requires the continued involvement of the Lord Chancellor. Theexperience in a number of overseas jurisdictions, as well as in the UK, demonstrates that improving diversity does not happen automatically as a result of changes in the composition of the legal profession. There is no convincing evidence of a “trickle up” effect. Rather, increasing judicial diversity requires political will to push for reforms, some of which might not be supported by the judiciary or legal profession. Removing the Lord Chancellor from the process of selection to the lower ranks of the judiciary removes the opportunity for the exercise of this political will.
  • On senior appointments, we welcome the impetus to give the Lord Chancellor agreater role. We disagree, however, with the suggested way of doing so. Rather than the Lord Chancellor participating in the ad hoc selection commissions, we favour the commissions providing the Lord Chancellor a short-list of three candidates to choose from, each candidate having been identified by the commission as well qualified and suitable for appointment. This allows for an appropriate degree of executive input by providing greater scope for the Lord Chancellor to promote judicial diversity, whilst also maintaining merit-based selection. It also maintains the Lord Chancellor’s role as a “back-stop” in case of error or malpractice.
  • There should be no serving Justices of the Supreme Court on the panel that selectsany of the Justices (including the President and Deputy President). It is inappropriate for any members of the court to be directly involved in the selection of the other members.
  • A consistent theme in our interviews is that the Constitutional Reform Act is rigidand overly prescriptive. Several interviewees have cited the stipulation of the number of Commissioners in Schedule 12 as an example of this, and hence we welcome the proposal for greater flexibility in determining the composition of the JAC. We agree with the suggested approached to delivering changes to the appointment process.
  • As indicated at paragraph 2, we believe that there are good reasons for involvingParliament in the appointment of senior judges (e.g. the Justices of the UK Supreme Court, the Lord Chief Justice and the Heads of Division). Statements of our views on the scope for parliamentary involvement in judicial appointments and on the dubious strength of some of the arguments made against such involvement can be found in the written evidence we supplied to the House of Lords Constitution Committee as part of its inquiry into the judicial appointment process.

Read the full submission »

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Judicial Independence and Parliament

January 3, 2012 Leave a comment

The Judicial Independence Project recently held its third seminar for professionals (judges, politicians, civil servants and journalists, amongst others) on the topic of ‘Judicial Independence and Accountability: The Role of Parliament’.

The discussion focused on the relationship between Parliament and the courts and reference was made to the idea of ‘comity’ as the basis for this relationship: mutual respect combined with distance. Some worried, however, that comity might freeze relations so that there is little communication between both sides. It was noted that there is no constitutional bar to political criticism of the judiciary. It was generally agreed that criticism (even unfair criticism) does not affect the independence of judges.

Several speakers emphasised also that the high profile breaches of super-injunctions and anonymised injunctions by parliamentarians in 2011 were not breaches of the sub judice rule but rather breaches of court orders which are not captured by that rule. Injunctions of this kind raise different issues to sub judice and a new rule may be required.

The seminar was run under Chatham House Rule, but we have prepared a short anonymised note of the discussion.

Read the seminar note

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