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.

Judicial Independence and the Supreme Court

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.

The Blunkett Test

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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.

Judicial Appointments and the Crime and Courts Bill 2012

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.