Recent days have seen ferocious attacks against the roles of both judges and parliamentarians in our democratic system. Alan Renwick and Meg Russell write that this assault is just the latest in a series of signs that the quality of our democracy is under threat. In light of this they argue for concerted efforts to defend that democracy: by pushing back hard against immediate challenges to the rule of law, resisting the lures of populism, and listening to those tempted by populist and anti-political rhetoric.
Thursday’s High Court ruling on Article 50 (assuming it is confirmed by the Supreme Court), means no more than that the government cannot legally begin formal Brexit negotiations without parliament’s consent. The judges did not question the validity of the referendum result or try to block the UK’s withdrawal from the EU – they just clarified the law. Parliament – as demonstrated by many MPs’ reactions – will almost certainly feel politically bound to respect the referendum outcome and authorise the Article 50 trigger.
Yet, as is now well known, the judgement has unleashed a wave of vitriol from parts of the press, from some politicians, and even from certain government ministers. The Daily Mail labelled the judges who delivered the ruling as ‘enemies of the people’. The Telegraph presented the issue as one of ‘judges vs the people’. Nigel Farage talks of a ‘great Brexit betrayal’. The Communities Secretary, Sajid Javid, referred to the case as ‘a clear attempt to frustrate the will of the British people’. Hearing such reactions, many ordinary citizens are understandably outraged by what they perceive as the scheming duplicity of an arrogant governing elite.
This gross overreaction is deeply worrying and potentially dangerous. We tend to presume that the democratic system in the UK is rock solid. Yet the democracy indices produced by the Economist Intelligence Unit and Freedom House have charted declining democratic quality in recent years in many long-standing democratic countries, including Austria, Belgium, and the Netherlands. In the United States, commentators and senior political scientists are greatly troubled by how Donald Trump’s behaviour and rhetoric of rigged elections could weaken the foundations of the democratic system. Democracy faces similar challenges here in the UK too. In light of this, we need to cool the passions and encourage a national conversation about what democracy is and what sustains it.
The UK’s anti-terror regime has evolved rapidly over the past 15 years with the Investigatory Powers Bill the latest landmark. Much has been written about how the judiciary’s court decisions have influenced the anti-terror regime, but less attention has been paid to judges’ potential influence beyond their decisions in court. In a new report Anisa Kassamali examines off-the-bench judicial influence on the UK’s anti-terror regime, concluding that fears of judicial over-reach are unfounded. The report’s findings are summarised here.
Theresa May first published the Draft Investigatory Powers Bill as Home Secretary in November 2015, citing concerns around terrorism as one of its key drivers. State surveillance is a major feature of the UK’s anti-terror activities, and amongst other changes, the bill reconstructs the framework for the oversight of this system. As the bill now begins its report stage in the House of Lords, it is therefore apt to consider the role of the different branches of the state in tackling terrorism.
The Constitution Unit’s latest report focuses on the role of the judiciary. It is entitled Judges Keep Out: Off-the-bench Influence on the UK’s Anti-terror Regime and examines the state’s approach to terrorist threats from a constitutional angle. Have judges been overstepping their constitutional boundaries?
This question has previously been addressed only in relation to the judiciary’s court decisions. Kate Malleson is one of a number who argue that whilst ‘judges are not politicians in wigs’, the advent of procedures such as judicial review means that they ‘are increasingly required to reach decisions … which cannot be resolved without reference to policy questions’.
There has been much less focus on the judiciary’s activities outside of the courtroom – this report is the first systematic review of judicial impact on the UK’s anti-terrorism policies off-the-bench. Its findings are less controversial – it concludes that fears of judicial overreach, at least in this arena, are unfounded. It examines the question from two distinct angles – the impact of extra-judicial comments on anti-terrorism policies, and judicial involvement in the administration of the anti-terror regime.
The selection process for the next UK judges on the European Court of Human Rights is underway. In this post Kate Malleson and Patrick O’Brien discuss the process and argue that elements of it should be adopted for the selection of the senior judiciary in the UK.
The process of selecting the next UK judges on the European Court of Human Rights (ECtHR) has begun. The vacancy has arisen because the incumbent, Judge Paul Mahoney, is due to retire in September 2016, when he will reach the court’s retirement age of 70.
The selection exercise for Judge Mahoney’s replacement involves a two-stage process: a UK stage and a European one. The UK stage, currently in train, involves a selection exercise to produce a shortlist of three candidates. This shortlist will be submitted to the Parliamentary Assembly of the Council of Europe (PACE). At this second, European, stage, a sub-committee of PACE will interview the shortlisted candidates and make a recommendation on which should be appointed. Following this, in June 2016, one candidate will be selected for election to the ECtHR by majority vote of PACE.
Our primary focus here is on the UK stage of the appointment process. The Lord Chancellor is running the process on behalf of the Ministry of Justice (MoJ) and the Foreign and Commonwealth Office (FCO), and the process is being administered by the Judicial Appointments Commission (JAC). The Lord Chancellor has convened a seven-member panel, which includes a chair, two judicial members, three lay members and a legal member.
The specific scenario in which select committees seek evidence from a judge who has chaired an inquiry generates a lot of heat and light. But Patrick O’Brien indicates that the research he conducted with Robert Hazell shows the practice of judges giving evidence to parliamentary committees has been widely accepted as a positive and productive form of engagement. What is more, it creates opportunities for dialogue and for judicial accountability.
When is a judge not a judge? Lady Justice Hallett carried out a public inquiry into the ‘On the runs’ scheme in 2014. In its report on the same issue in March 2015 the Commons Northern Ireland Affairs Select Committee commented rather sternly that
‘we chose not to summon Lady Justice Hallett to attend, but we consider it to be a regrettable discourtesy to Parliament that she declined our initial invitation to give evidence to the Committee, especially as she had not acted in a judicial capacity when carrying out her review‘. [at para. 11]
Is a judge who chairs an inquiry acting as a judge, or acting as an inquiry chair? Judges, concerned about the implications of being drawn into disputes that are often highly politically charged, tend to believe that they are acting as judges and that their reports should speak for themselves. Parliamentary committees can find this attitude defensive and frustrating. Several years ago the Commons Cultural, Media and Sport committee ran into a similar conflict with Lord Justice Leveson in relation to evidence he gave as chair of the inquiry into phone hacking.
The specific scenario in which committees seek evidence from a judge who has chaired an inquiry generates a lot of heat and light. However, research I have done with Robert Hazell suggests that such ‘judge-led inquiry’ sessions, despite the problems that may attend them, make up only 5% of all evidence sessions these committees have with judges. The reality is that the vast majority of judicial evidence sessions are uncontroversial. The practice of judges giving evidence to parliamentary committees has been widely accepted as a positive and productive form of engagement by both judges and parliament.
A recent report laid out recommendations for improving diversity in the judiciary, including a quota system for women and BAME candidates. Kate Malleson and Colm O’Cinneide explore the legality of such measures under EU law, and specifically whether the quotas could be brought in under EU employment law or EU gender equality law.
In April 2014 Sadiq Khan, Shadow Secretary of State for Justice, asked Karon Monaghan QC and Geoffrey Bindman QC to review the options for a future Labour Government to improve diversity in the judiciary. On November 6th their report, entitled ‘Judicial Diversity: Accelerating change’, was published. Starting from the premise that ‘[t]he near absence of women and Black, Asian and minority ethnic (BAME) judges in the senior judiciary is no longer tolerable’, it proposes a range of recommendations designed to speed up the glacial pace of change. Perhaps the most controversial of these is for the introduction of a quota system for women and BAME candidates. The report reviews the use of quotas in other UK institutions as well as their use in judicial appointments processes around the world, before addressing the question of whether such quotas would be lawful under EU law. This is a key question: EU law casts a long shadow in this context, as the Monaghan and Bindman report makes clear, given that any legislation enacted in Westminster to give effect to a quota system in the process of judicial appointments must conform to the requirements of EU law.
There are two stages involved in any legal assessment of the proposed quota measures under EU law. The first is whether holding a judicial office is classified as being ‘employed’. If the answer is no, then the question of their legality under EU law does not arise as appointments to judicial office will not fall within its scope of application. If the answer is yes, then the judicial appointments process will qualify as ‘access to employment’ which will bring it within the scope of Article 1 of the Recast Gender Equality Directive 2006/54/EC. This will mean that the use of positive action measures, such as quota systems, in the process of judicial appointment will have to conform to the restrictions on the use of such measures set out in the relevant case-law of the Court of Justice of the EU (CJEU).
As the UK Supreme Court marks its fifth anniversary, Graham Gee and Kate Malleson reflect on how the process of selecting the Justices can be improved.
Earlier this month the UK Supreme Court celebrated its fifth anniversary. There has been a flurry of vacancies, retirements and new appointments during the Court’s first five years, with only four of the original Justices remaining on the bench. The next few years should (all being well) witness a period of relative stability on the Court, with the next mandatory retirement in 2016 (when Lord Toulson turns 70). A further flurry of appointments will follow in 2018, when five Justices reach mandatory retirement. The Court’s fifth anniversary is therefore an apt time to reflect on the process of selecting the Justices—and indeed we welcome the fact that the Court is currently conducting an internal review of the selection process.
The Court’s internal review has a relatively limited remit. It is largely concerned with the workings of the ad hoc selection commissions responsible for recommending to the Lord Chancellor candidates for appointment to the Court. Each commission enjoys some limited freedom to determine its own process, but within the parameters set out in statute. The Court’s review focuses on matters such as whether commissions should define merit, whether to interview candidates and whether candidates should make a presentation as part of the selection process. To tinker with the fine details of selection processes might seem a distraction when real and visible progress in securing diversity on our top court seems unlikely absent radical reforms such as gender quotas. There is some truth to this. In this blogpost, however, we suggest four changes to the workings of the commissions that would improve the way that our top judges are selected, even if falling short of the sorts of changes required to realise a genuinely diverse Supreme Court.
The 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.