As part of an ongoing inquiry, the Lords Constitution Committee has sought evidence as to whether ‘the amendment of the role of the Lord Chancellor by the Constitutional Reform Act 2005 (CRA), and the resulting separation of powers between the judiciary and the Government, [have] been successful’. Robert Hazell argues that the 2005 reforms led to greater judicial independence, a political achievement that requires continuing support from politicians and parliament.
The House of Lords Constitution Committee is currently undertaking an inquiry into the role of the Lord Chancellor and the Law Officers, in which it seeks to answer a number of questions, including whether ‘the amendment of the role of the Lord Chancellor by the Constitutional Reform Act 2005 (CRA), and the resulting separation of powers between the judiciary and the Government, [have] been successful’. Through written evidence, submitted with Professor Kate Malleson, I have attempted to answer that question. Our answers were based upon the main findings and conclusions of a three-year research project on the Politics of Judicial Independence, funded by the AHRC. The research explored the impact of the greater separation of powers introduced by the Constitutional Reform Act 2005 (CRA). Our principal conclusion – as explained in our 2015 book on the subject – was that judicial independence and judicial accountability have emerged stronger, not weaker; but that greater separation of powers requires increased engagement by the judiciary with other branches of government.
The changes made by the Constitutional Reform Act 2005
Until 2005 the head of the judiciary was a Cabinet minister, the Lord Chancellor. In an extraordinary breach of separation of powers, he could also sit as a judge in the UK’s highest court. The CRA removed the Lord Chancellor as head of the judiciary, handing that responsibility to the Lord Chief Justice in line with an agreement struck in the Concordat of 2004. The division of powers between the executive and judiciary was further refined in 2008 in a Framework Document for the management of the Courts Service (revised and updated in 2011 to incorporate the Tribunals Service). The CRA also created a new Supreme Court, and established the Judicial Appointments Commission.
The new politics of judicial independence are more formal, fragmented, and politicised
The old politics were informal, depending on regular meetings between the Lord Chancellor and senior judges; closed, in that these were virtually the only contacts between the judiciary and the government; and secretive, with both sides preserving each other’s confidences. They were also consensual and conservative, in that neither side wanted to change the system. The ‘new’ politics, by contrast, are much more formal. The CRA required more formal structures and processes to handle the relationships between more separate branches of government. We now have the Judicial Appointments Commission, Judicial Appointments and Conduct Ombudsman, and Judicial Conduct Investigations Office: all products of the CRA. The new formal processes include regular meetings between the judiciary and other branches of government, with the innovation of six-monthly meetings between the LCJ and Prime Minister, the introduction of regular meetings with senior officials in parliament, and annual appearances by the LCJ and President of the Supreme Court before the Constitution Committee.
The second difference is that the new politics are more fragmented. There is less reliance on the Lord Chancellor as the buckle between the judiciary and the government, and greater use of alternate channels, such as the Attorney General, Treasury Solicitor, Crown Prosecution Service, and Parliamentary Counsel on the government side, and the Senior Presiding Judge and Senior President of Tribunals for the judiciary.
Judges frequently appear before parliamentary committees, as expert witnesses on different areas of the law and how it works in practice. Parliament occasionally provides a forum for helping to resolve major conflicts between the judiciary and executive: examples would be the (most unusual) 2004 Lords Select Committee on the Constitutional Reform Bill , and the urgent inquiry by the Constitution Committee in 2007 into the implications for the judiciary of the creation of the new Ministry of Justice.
A third difference is that the new politics can be more highly charged, with more overt conflict. All governments will experience tensions with the judiciary; the difference now is that they are more likely to come out into the open. In 2011, Lord Phillips was critical of the government’s proposed budget for the Supreme Court, of which he was President. A year later, Lord Chancellor Chris Grayling signalled his wish to ‘draw blood’ in negotiating changes to judicial pensions.
A fourth difference, flowing from all these factors, is that judges have greater visibility and exposure. They give press conferences and issue press releases, supported by the new Judicial Communications Office. The LCJ issues periodic reports and holds annual press conferences. With the Lord Chancellor no longer able to speak for them, judges must be more ready to speak for themselves.
Some things remain unchanged. The new politics still depends on informal channels and contacts between government and judiciary, relying heavily on personalities to help smooth out conflicts and to negotiate compromises.
Have the 2005 changes strengthened or weakened judicial independence?
The judiciary feel strongly that the 2005 changes have weakened judicial independence. Many of our judicial interviewees were still in mourning for the old Lord Chancellor, a respected figure and their voice in Cabinet. But the judiciary may have slightly selective memories about the vigilance of the old Lord Chancellor. Lord Sankey did not prevent cuts to judicial salaries in 1931; Lord Elwyn Jones refused to promote Sir John Donaldson in the 1970s because of his role in the Industrial Relations Court; Lord Mackay incurred wrath because of his changes to judicial pensions in 1993.
Our own conclusion is that judicial independence is stronger. The judiciary have become institutionally more independent of both executive and legislature; they have greater autonomy and responsibility for running the judicial system and the courts; and there are now multiple guardians of judicial independence, instead of the Lord Chancellor alone.
The biggest change, not sufficiently acknowledged by the judiciary, has been the expansion of the courts service to embrace the Tribunals system, following the implementation of the Leggatt review in the Tribunals Courts and Enforcement Act 2007. That has been a great leap forward for the independence of Tribunals and their judges. Tribunals used to be wholly dependent on their sponsoring government departments for funding and appointments. Appointments are now all made independent of government and funding comes from HM Courts and Tribunals Service.
Judicial appointments are the next biggest change, responsibility for which has shifted from the Lord Chancellor to the judiciary. Formally the process is managed by the independent Judicial Appointments Commission (JAC), but in practice the process is heavily influenced by the judiciary. Judges prepare qualifying tests, write references, sit on interview panels, and are part of a statutory consultation. On the JAC, seven of the 15 commissioners are judges. At lower levels (Circuit judges and below) all judicial appointments are now formally made by the LCJ, and Tribunal appointments are made by the Senior President of Tribunals; they are now responsible for 97% of all appointments.
The third big advance for judicial independence has been the creation of the Supreme Court. No longer hidden away in the House of Lords, it has its own building, its own budget and its own staff, with greater institutional freedom to run its own affairs. The Supreme Court’s new website is completely different from the minimalist website of the old law lords; the proceedings are now televised by Sky News; the Justices have more room and have greater capacity to sit in panels of seven or nine. Even opponents to the move acknowledge that the new court has been a great improvement.
The fourth respect in which judicial independence has been strengthened is in their institutional autonomy. The judiciary have become a more independent and self-governing branch of government. The LCJ makes decisions which previously were made by the Lord Chancellor, namely appointing to the lower levels of the judiciary, strongly influencing senior appointments, and jointly overseeing judicial discipline. The courts service, which used to be run by the executive, is now managed jointly by the executive and the judiciary. So are the Tribunals, with the Senior President of Tribunals one of three judges on the board of the Courts and Tribunals Service.
So why are the judiciary so reluctant to acknowledge these gains? One possible reason is that the constitutional changes of 2005 were swiftly followed by the economic crisis of 2007. This has led to severe reductions in funding for the courts, a freeze on judicial salaries and adverse changes to judicial pensions. These cuts have been difficult to bear, but have not threatened judicial independence in the sense of the judiciary’s ability to decide cases impartially, and free from undue influence. Judges who maintain that judicial independence has become weaker need to be more specific in stating in what ways it has been weakened, and how.
Have the changes strengthened or weakened judicial accountability?
Our research looked at the impact of the 2005 changes on the accountability of the judiciary, as well as their independence. They are often two sides of the same coin: the judiciary need a high degree of independence, but if they are allowed to be too independent, they may become insufficiently accountable. Accountability involves two main forms: giving an account (narrative or explanatory accountability); and being held to account (culpable or sacrificial accountability). What we found is that accountability has become stronger in both senses.
Much judicial business which was previously conducted behind closed doors is now out in the open. This is not just a result of the 2005 changes, but results from wider initiatives to make government departments and agencies more open and accountable. We now have annual reports from the Ministry of Justice, HM Courts and Tribunals Service, the Judicial Appointments Commission, the Office for Judicial Complaints, and the Judicial Appointments and Conduct Ombudsman, plus the annual Judicial and Court Statistics.
Our research recorded the growing accountability of the judiciary to parliament, with 148 appearances by 72 judges before 16 different committees between 2003 and 2013. This is mainly explanatory accountability: it involves judges appearing as expert witnesses to explain how the system works in practice.
The Judicial Conduct Investigations Office is the main vehicle for judges to be held accountable for poor conduct. It is more visible than its predecessor, the Judicial Correspondence Section of the Lord Chancellor’s Department. On average it has received some 1500 complaints a year since 2006, resulting in a dozen judges and 50 or so magistrates each year being sanctioned in some way, ranging from dismissal to a formal warning. The Judicial Appointments and Conduct Ombudsman provides an alternative avenue for complainants who feel that their application for judicial office, or their complaint against a judicial office holder has not been dealt with fairly.
Greater judicialisation of politics requires greater political awareness in the judiciary
The judicialisation of politics is widely accepted as a growing phenomenon in all advanced democracies. It refers to the growing influence of the courts on public policy and political decision making, fuelled by the growth of international and European as well as domestic law.
Now that the judiciary are formally more separate, and more exposed, senior judges have become political actors. The LCJ holds press conferences and issues press releases, as does the Supreme Court; the judiciary have developed an impressive website, and are regular users of Twitter. Much of the time they are simply explaining the judicial role, or the significance of particular judgments. But sometimes they will use a public occasion to take issue with the government if they feel it is not listening to them behind the scenes.
With greater separation between the worlds of law and politics, there is a risk of a growing gulf in understanding. Horrified by ‘politicisation’, the natural instinct of the judiciary is to insulate themselves more from politics. The Judicial Appointments Commission is a good example of the result of that kind of thinking. But the judiciary depend on politicians to uphold the rule of law and judicial independence. And so we come back to the central conclusion from our research, that judicial independence is a political achievement, which requires continuing support from politicians and from parliament. As the judiciary become a more separate branch of government, the judges need not to isolate themselves, but to redouble their efforts to engage with the political branches. And politicians need to renew their engagement with the law and the courts, so that they respect and understand the constitutional role of the judiciary.
This post is a summary of Robert’s written evidence to the Constitution Committee’s inquiry, which is ongoing. At 10:15 this morning, it will hear evidence from Lord Keen of Elie QC, a former Advocate General for Scotland, which will be streamed live.
For more information on the Politics of Judicial Independence project, see the Unit’s website.
About the author
Robert Hazell is the founder of the Constitution Unit, and was leader of its Politics of Judicial Independence project.