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

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