Inquiring into the office of Lord Chancellor

Patrick ObrienThe House of Lords Constitution Committee has opened an inquiry on the office of Lord Chancellor. Here, Patrick O’Brien outlines the evolution of the Lord Chancellor’s role. He argues that in an important sense the Lord Chancellor no longer exists and formal abolition of the role could result in positive judicial developments.

On 16 July, Graham Gee and I (as part of the Judicial Independence Project), together with Professor Andrew le Sueur of the University of Essex, gave evidence to the House of Lords Constitution Committee as part of its inquiry into the office of the Lord Chancellor. The inquiry as the call for evidence puts it:

seeks clarity on what the current role is, whether changes to it are needed and what criteria (if any) should apply when appointing future holders of the office.

The pre-2003 Lord Chancellor [LC] was a unique office that combined judicial, parliamentary and executive roles. Occupied by a senior lawyer, generally without any further political ambition, the post was almost apolitical, yet sat at the heart of government. The sacking of the last ‘old’ LC, Lord Irvine, by Tony Blair in 2003 was intended to kick off a series of constitutional reforms that would have included the abolition of the office. Significant resistance in the House of Lords led, however, to a compromise in which the office was retained but in a greatly reduced form. No longer would the LC be a judge or the speaker of the House of Lords. It would now be a purely executive office. The Constitutional Reform Act 2005 sought to preserve two key roles of the LC within the reformed constitutional arrangements: that of ‘minister for courts and the judiciary’ and that of special constitutional guardian of the principles of judicial independence and the rule of law within Cabinet.

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Graham Gee and Kate Malleson: Judicial Appointments, Diversity and the Equal Merit Provision

This is posted on behalf of Graham Gee and Kate Malleson and originally appeared on the UK Constitutional Law Association Blog.

One of the changes introduced by the Crime and Courts Act 2013 was to amend section 63 of the Constitutional Reform Act 2005, which provides that the Judicial Appointments Commission (JAC) must select candidates for judicial office ‘solely on merit’. Schedule 13 of the 2013 Act clarified that making selections solely on merit does not prevent the JAC from recommending a candidate on the basis of improving diversity on the bench where there are two candidates of equal merit. This is variously known as the ‘equal merit’, ‘tie-break’ or ‘tipping point’ provision and derives from s 159 of the Equality Act 2010. After a consultation exercise last summer, the JAC last month published its policy on how it will implement the equal merit provision. In this post, we draw on research conducted as part of an AHRC-funded project on The Politics of Judicial Independence to explain why the JAC’s policy is disappointingly cautious, limits the prospect of further progress on diversity and offers further evidence of what we believe is the excessive judicial influence on judicial appointments 

Context

We begin with some words of praise for the JAC. Since its creation in 2006, the JAC has inter alia devised: robust processes that have for the most part identified suitably qualified candidates of good character; addressed problems that were an early feature of those processes (e.g. delays); and over time has fostered the confidence of the key stakeholders (i.e. ministers, judges and practitioners). It has done this all of this whilst becoming a leaner and more efficient operation in an age of increasingly scarce public resources. Between 2009-10 and 2014-15, its budget is projected to have fallen from £7.6m to £4.85m, its staff from 105 to 67, and yet the number of recommendations for judicial office that the JAC has made has risen from approximately 450 to 750 a year. These are important accomplishments that have helped to secure the JAC’s position on the institutional landscape, something that was much less certain around 2008-09 when the then Lord Chancellor, Jack Straw, considered abolishing the JAC and either bringing appointments back in-house or delegating more responsibility to the senior judges. Much credit is due to the leadership team of Christopher Stephens as Chair and Nigel Reeder as Chief Executive, who since 2011 succeeded in fostering much more constructive and cooperative relationships with the JAC, the senior judiciary and the Ministry of Justice.

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Graham Gee: The Lord Chief Justice and Section 5 of the Constitutional Reform Act

This is posted on behalf of Graham Gee and originally appeared on the UK Constitutional Law Association Blog.

The Constitutional Reform Act redrew relationships between the senior judiciary and Parliament in a number of ways. Amongst the most significant was removing the right of the LCJ to speak in the Lords. Earlier this month, the new LCJ Lord Thomas repeated the lament of his immediate predecessors that it was a mistake to deprive the LCJ of the right to address Parliament on the floor of the House on important matters relating to the administration of justice. In this context, some have read the LCJ’s suggestion of a new approach to s5 of the CRA as significant. Drawing on interviews conducted between 2011-13 as part of an AHRC-funded project on The Politics of Judicial Independence, I want to shed some light on tensions that have arisen about the use of s5.

Section 5

Under s5, each of the LCJ, the LCJ for Northern Ireland and the Lord President “may lay before Parliament written representations on matters that appear to [the officeholder] to be matters of importance relating to the judiciary, or otherwise to the administration of justice”. In debates ten years ago on the bill that became the CRA, the then LCJ and Lord Chancellor—Lord Woolf and Lord Falconer—both suggested that s5 would be used rarely and only for high profile matters of serious concern to the judiciary. Subsequently, both Lords Phillips and Judge appeared to confirm this by describing s5 as a “nuclear option” to be used only in the face of a serious threat to judicial independence or the rule of law. (See here and here). But, in practice, neither used s5 in this way, invoking it instead for the more humdrum matter of laying before Parliament periodic reports on the management of the judiciary. Behind this lies a surprising and even at times rather silly disagreement between senior judges and parliamentary authorities; or what an interviewee called “a storm in a teacup”.

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John Crook: The abolition of the Lord Chancellor

20th June 2013

[Posted on behalf of John Crook]

Sir Thomas More

Sir Thomas More

Last week a seminar was held marking the 10th anniversary of the abolition of the office of the Lord Chancellor. A note by Patrick O’Brien about what was discussed at this seminar is available here.

On 12 June 2003, in what was one of the great political mysteries of our time, Lord Irvine resigned from the office of Lord Chancellor. This was prompted by a policy announcement the day before. The Prime Minister’s press office announced plans to abolish the Office of the Lord Chancellor. The Lord Chief Justice would become head of the judiciary, a Supreme Court would be established and a new system for appointing judges would be introduced under the Constitutional Reform Act (CRA) 2005.

A memo written by Lord Irvine in 2009 has clarified much of what went on behind the scenes. He was provoked into responding by Lord Turnbull, the Cabinet Secretary in June 2003. Turnbull had told the House of Lords constitution committee that Irvine was consulted before the decision was taken to abolish his role but “the trouble was that he disagreed with it.”

Tony Blair told Lord Irvine about the reform a week before the announcement, on Wednesday 5 June. Irvine was surprised that Blair thought that abolishing the office of Lord Chancellor (who, amongst other things, was head of the judiciary and Lord Speaker of the House of Lords) was a routine transfer of departmental responsibilities. Irvine felt he had not fully appreciated its constitutional significance. On Tuesday 11 June, Lord Irvine submitted a minute to the Prime Minister explaining that the office of Lord Chancellor was statutory and could only be removed by statute; in the interim there were some functions that could only be performed by a residual Lord Chancellor. In the minute Irvine said he “personally regret[ed] the demise of the Office of Lord Chancellor…” but he offered to stay on to see the changes through. However, the Prime Minister felt that Lord Irvine’s support for the reforms was half-hearted so the role was given to Lord Falconer. Tellingly, in his autobiography Blair wrote that “Charlie Falconer [was] on side”, the implication being that Lord Irvine was not. The discussion at last week’s seminar bore this out. Add to this the dynamic of Irvine and Blair’s personal relationship. Irvine was Tony Blair and Cherie Booth’s pupil master: he helped facilitate the Prime Minister’s political career as well as introducing him to his future wife. It was this relationship that made Irvine a key advisor to the Prime Minister rather than the status of Irvine’s office. The events of June 2003 precipitated the unravelling of their relationship.

The government provoked something verging on a constitutional crisis because of the manner in which the reforms were formulated. At the previous attempt at reforming the Lord Chancellor’s Office in 2001, four members of the senior judiciary convinced Blair to abandon the reforms on the grounds that they threatened judicial independence. The reform would have placed the courts under the control of then Home Secretary David Blunkett who was perceived as lacking sympathy for courts and the judiciary, but left the Lord Chancellor in the Cabinet as the head of the judiciary. In the eyes of 10 Downing Street another attempt at reforming the Lord Chancellor’s Office would be a catch-22: if they discussed reforms with the department in advance, they would be leaked and opposition would again be given a chance to coalesce. If they failed to discuss reforms with the department they would be accused of bungling reform because they couldn’t work through all the detail in advance. But creating a Department of Constitutional Affairs would have been far more palatable to the judiciary than incorporating the Court Services within the Home Office. Concern that the judiciary would dig in their heels seems in retrospect to have been exaggerated.

The Lord Chief Justice was told about the reforms during an away day with civil servants. We now have an image of members of the Senior Judiciary huddled around a telephone, very annoyed, in a pub! It seems their annoyance was as much to do with the lack of consultation by Downing Street as the substance of the reforms. Eight months later, the Prime Minister himself conceded, ‘I think we could have in retrospect – this is entirely my own responsibility – done it better’.

Ultimately, the House of Lords, outraged by the manner in which the change was announced without consultation, ensured that the name ‘Lord Chancellor’ was retained. But to all intents and purposes the office of Lord Chancellor was abolished in the reforms of 2003-5. Importantly, for the purposes of judicial independence, the CRA 2005 provides that the office now has no judicial role. However, the real change to the office of Lord Chancellor has not been that the office has ceased to be held by a judge or lawyer, but that it is no longer held by a senior politician at the end of his or her career. Because the role combines responsibility for prisons with that of the courts, new-style Lord Chancellors are increasingly likely to be ambitious mid-career politicians.

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

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.

Judicial Independence in Northern Ireland

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.

The Crime and Courts Bill and the JAC

[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.