Kate Malleson: Taking the politics out of judicial appointments?

[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

Liaison Committee inquiry on the effectiveness of Select Committees

Robert Hazell and Meg Russell appeared before the House of Commons Liaison Committee today. They gave expert evidence on the issue of the power and effectiveness of Select Committees.

Meg Russell recently completed a research project on the impact of Select Committees in collaboration with House of Commons Committee staff.  They coded data on committee inquiries and recommendations, conducted interviews and quantitative analysis, bringing it together into a report available at the link below

Further Information

Constitution Unit gives evidence to Justice Committee scrutinising FOIA

Robert Hazell and Ben Worthy both appeared before the House of Commons Justice Committee today. They gave expert evidence as part of the post-legislative scrutiny of the Freedom of Information Act (2000).

The Constitution Unit has led a number of groundbreaking research projects on the impact of the FOI Act on central and local government, and conducted surveys into the requester and provider experience.

Further Information


NHS Reform Under the X-Ray

“The person I trust most for my health, number one, is my GP. And I’ve always seen him or her as a kind of a gateway to any other services. And it’s his judgment, ultimately, or her judgment, that I would back.”  That’s what Eric Pickles told The Telegraph last Saturday. There’s something bucolic about the government’s attempt to put commissioning power into the hands of local GPs, and take it away from “faceless bureaucrats”  in the Primary Care Trusts; it comes from the England of Cameron’s mother, the Berkshire Magistrate, from John Major’s England of “cricket grounds, warm beer, green suburbs, dog lovers, and old maids cycling to holy communion”.  But, the government are also, as Hague once put it, “Thatcher’s children”. Andrew Lansley wants to empower patients, and by empower them, he means increase their choices, and by increase their choices, he means create a market, and by create a market, he means promote efficiency and cut NHS costs, and by cut NHS costs he means offset the effect of the £20 billion of savings required by 2015.

The leaked account of the Strategic Risk Register, which lists the potential pitfalls of the reforms, suggests it challenges both horns of the government’s approach. GPs, it is alleged to say, may lack the experience and skills to manage funds efficiently. Equally, the introduction of a market may lead to private companies failing to do more with less, and simply siphoning away public funds in profit. Consequently, the NHS could eventually prove “unaffordable”.If this is an accurate report of the contents of the Strategic Risk Register – if it seriously moots the possibility of the reforms rendering the National Health Service prohibitively expensive – then it is not surprising that Andrew Lansley does not want to publish the report until after the Health and Social Care Bill is enacted.

The government is appealing an Information Commission order that they should release the full document. The Department of Health has pointed out that Risk Registers express the dangers of policies in “worst case” scenario terms and so can be open to misinterpretation if read out of context. It suggests that Risk Registers in their current form could not be produced if they were subject to FOI requests, for fear of giving the public the wrong impression.This is a version of the chilling effect argument, which Blair put like this:

“Governments, like any other organisations, need to be able to debate, discuss and decide issues with a reasonable level of confidentiality. This is not mildly important. It is of essence. Without the confidentiality, people are inhibited and the consideration of options is limited in a way that isn’t conducive to good decision-making. In every system that goes down this path [FOI] what happens is that people watch what they put in writing and talk without committing to paper…’

The Information Commissioner recognises the danger of FOI causing a chilling effect.  However, in this case it emphasised the fact that, whatever information is released vis-a-vis health reform, officials will still be required to be fully frank when they produce Risk Registers. The Commissioner felt that publishing information about NHS reform might make officials less forthright on that particular subject during the current process, but that there would not be a chilling effect on the record of risk across the policy spectrum.

The appeal will be heard by the Information Tribunal on 5 and 6 March, which may or may not be before the third reading of the Health Bill in the House of Lords – the last chance to substantially amend it. However, Labour propose to discuss the publication of the Risk Register  in an opposition day debate on 22 February. It is possible that this move will prove more effective than the Freedom of Information Act in getting the Strategic Risk Register into the public domain.

Appointments and Diversity: A Judiciary for the 21st Century

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.


  • 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 »

FOI and Accountability?

Does freedom of Information increase accountability? Officials think that it does not, according to a survey by the Ministry of Justice recently mentioned in the Guardian.  The key word here is think. They think it doesn’t because they don’t directly see its effects.

Officials don’t notice FOI because often it works with other accountability mechanisms, especially the  media or NGOs (see Voices for Libraries on going campaign).  FOI rarely hunts alone and its use is lost amid lots of other questions, communications and research. A long running parliamentary investigation into extraordinary rendition , for example, used FOI in the UK and the US alongside Parliamentary Questions to show that a little more was known about the mysterious flights than was admitted at the time.

Officials also don’t notice it because it is not always high profile or immediate. For every MPs’ expenses  scandal or list of visitors to Chequers there is the patient, often slow, digging up and fitting together of pieces of a jigsaw. Chris Ames has spent many years exposing bit-by-bit the inner workings of government as it prepared for the War in Iraq. His work has raised many questions about the defences made by the politicians involved.  At local level there are many groups using it to pursue all sorts of important issues that may escape officials’ radars, allotments being a good example.

FOI does make government more accountability but not everyone sees it.  Sometimes it is not the kind of accountability politicians or officials want. Often it is for unexpected things. But that doesn’t mean it isn’t happening.

Addendum Clarifying and Modifying ‘Welfare Reform and the Financial Privilege’

On 2 February, I posted an analysis of the financial privilege on the blog of the UK Constitutional Law Group, and it was cross-posted by the Constitution Unit at University College London.   This post was based on an analysis of written authorities and contested recent practice in Parliament concerning the financial privilege. It circulated widely and was the subject of considerable commentary, some critical.  The Clerk of the Commons and Clerk of Legislation have also since published a briefing note and chart (the “Clerks’ Note”) that sheds important new light on the process by which the privilege is invoked in the Commons.  In light of the Clerk’s Note, further feedback and additional research, I am issuing this note to clarify the original analysis, vary it in part, and respond to some criticisms.

Is the privilege invoked opportunistically?  Is it nonetheless a concern?

The Clerks’ Note shows that the process by which the financial privilege is raised is non-partisan, and is therefore not invoked opportunistically by the Government. The Clerk of Legislation (who is independent) will designate Lords amendments having financial implications, and this matter is submitted to the Speaker to draw the issue to the House’s attention when the Lords amendments are introduced for consideration.  Should the Commons choose to agree the amendments, they will ‘waive’ the privilege, and if they do not agree them, they ordinarily offer (in the Reasons Committee) the privilege as the reason for disagreement (even when there has been substantive debate on the matter and the actual reason is a policy disagreement).

The upshot of this is that under the authority of the Speaker, the Clerks will decide whether the financial privilege is engaged by asking whether a bill has ‘any financial implications.’ This test that is used is the ‘wide reading’ that I criticised in my original post.  Subject to the important note below about the existence of precedents, that critique stands.  The Commons may choose to waive the privilege in specific cases, and that is a political decision.  Its previous forbearance seems to have made the system work to the acceptance of both Houses.   Its more recent approach calls the whole procedure into question.

The question of precedents: is the financial privilege being relied upon to disagree Lords amendments more often in recent times?

The Clerks’ Note was accompanied by a chart setting out a range of recent precedents in which financial privilege was engaged, in many cases waived, but in a number of cases not waived. I drew attention in my original post that there had been a recent revival in the reliance upon privilege. The reaction on the Lords in this and earlier recent cases, and reports of the Labour Party seeking legal advice in respect of this particular instance, suggests great unease about this.  In a note from the Clerk of the Parliaments prepared for the Leader of the House of Lords and filed with the House of Lords library on 10 February 2009, it is reported that between 2000-2008, the privilege was designated as engaged in respect of 335 Lords amendments (with 154 of these in the 2007-2008 period alone).  Yet between 2009 and 2012, there have been (according to the Clerks’ Note) 266 Lords amendments where the financial privilege was in play.  Between 2000-2008 privilege was offered as a reason for rejecting amendments in 42 cases, whereas between 2009-2012 it was offered in 43 cases.  Further, in my own search of all of Hansard (see here and also here) since 1900 for references to ‘financial privilege’ (an imperfect proxy but relevant to where its use has been discussed in Parliament), 83 hits are returned between 1900-2000 (mostly condensed into the years between 1960-2000), and 54 are returned from 2000-2010.  The claim that there has been a surge therefore has clear support.  The causes for this may be diverse and the recent trend might be too brief to assert long-term implications, but it remains an important snapshot.

On the other hand, having analysed many of the debates in those pre-2000 cases, I have confirmed that the privilege was invoked reasonably consistently, if much more sparingly, mostly from the 1960s onwards, in respect of a range of social welfare legislation.  This was true of bills relating to social security and pensions (Social Security Pensions Bill (1975), and Social Security Bill (1989)), housing, education (Education (Grants and Awards) Bill (1984)), health care reorganization (National Health Service Reorganisation Bill (1973), dental charges (National Health and Medicines Bill (1988)), and a number of other similar bills.   I have analysed the debates in at least fifteen such precedents (representing the substantial bulk of the relevant total).  I frankly concede that they for the most part indicate that the Lords have, in that period, and with a few isolated protests, accepted the claim of privilege in respect of bills relating to expenditure on social welfare policy. This is a material addition to my earlier post, and it supports the view that the reliance on the privilege in disagreeing Lords amendments to the Welfare Reform Bill is not a strong break with past (if sporadic) practice.  The key present issue is the frequency of reliance upon the privilege in disagreeing to Lords amendments, and whether the Commons should revise its practice in light of the constitutional policy concerns raised in my original post and by others.

Will this reliance on the privilege adversely affect the Lords’ scrutiny and revision of important statutes?

Some have argued in correspondence that the Lords enjoy the right to offer amendments that infringe the privilege, and the Commons can and normally does waive privilege when agreeing them. So the Lords need fear neither constitutional impropriety nor irrelevance when offering amendments on privileged matters.

Yet the problem remains that if proposed Lords amendments are opposed by the Government sponsoring the bill, then any debate may have an air of futility.   The more frequently the privilege is invoked as a reason for disagreeing Lords amendments, the more such fears would be well-founded.  Related concerns have been raised by peers on a few different occasions: in addition to some comments noted in my first post, see e.g. HL Deb, Vol 712, c.26-29 (Lord Jenkin); HC Deb, Vol. 463, c440 (Question of George Young to Harriet Harman); HL Deb, Vol.694, c708-9 (Lord Oakshotte); HL Deb, Vol 705, c1292 (Baroness Miller); and esp. HL Deb, Vol 734, c160-161 (Baroness Thomas), though contrast HL Deb, Vol 734, c161 (Baroness Hollis, defending the role of debate where privilege engaged).  Further, if the Lords wish to assert their (established) right to reject the entire bill, then the way in which that right would need to be exercised may itself stifle debate.  After approving the bill (with amendments) at the Third Reading, it is difficult and perhaps even impossible for the Lords to reject the bill in its entirety at the ping-pong stage.  The option to reject a bill would, it seems, ordinarily need to be exercised before a series of amendments can be sent to the Commons for consideration.

Is the privilege being ‘abused’ in this case?

It is not in the following two senses: it is not invoked opportunistically by the Government or the Speaker, and there are a range of precedents supporting this type of use of the privilege both recently and from the mists of time.  However, the reaction in the Lords and press suggest that this is more than business as usual. It is more plausible to say that any constitutional abuse lies in what appears to be the more frequent refusal to waive the privilege, the possibility that the financial privilege has extended well beyond its initial purpose, and that the Commons’ (unquestioned) right to define the scope of the privilege is liable to be extended very widely and in an unchecked manner.

The recourses open to the Lords

I originally suggested two recourses were open, but this claim needs revision.

  •  The Lords may adopt a resolution stating that (i) this not be regarded as a precedent, or (ii) protesting the application of the privilege in this case: In light of the twentieth century precedents, both of these options, though available, will seem ineffective. The option of a resolution may still stand, in my view, but as a way to protest the general trend identified above and its constitutional implications.
  • Rejection of the entire bill: The Welfare Reform Bill has been through the Third Reading in the Lords and so rejecting this particular bill is apparently not a realistic option.  It remains an option for other bills.
  • Amendments in lieu of amendments: The Clerks’ Note clarifies an additional recourse not mentioned in my initial post, namely that the Lords could offer amendments in lieu of their initial amendments when the Commons’ disagreement is communicated. Yet by convention the Lords will not offer amendments that ‘invite the same response.’  There is thus an option to continue the dialogue in this fashion, and the utility of such dialogue would depend on how cautiously the convention of ‘not inviting the same response’ is observed or interpreted by the Lords.  There have been objections even by peers whose amendments have been rebuffed on privilege grounds to trying to use this option to reassert an amendment which is essentially a matter of privilege.  Yet the Clerks’ Note shows that this option has been pursued in recent years, the precise form of these amendments not being known to me.

Erskine May – 23rd and 24th Edition

It has been pointed out that my original post referenced the 23rd edition of EM, when in fact the 24th was published in June 2011. This was all well known at the time of writing – the new edition was neither available online nor received by the university library. I relied also on an up to date Halsbury’s for all key claims, and shortly thereafter acquired the 24th  edition and vetted all claims.

Dr Jeff King

Senior Lecturer in the Faculty of Laws, University College London