Graham Gee and Kate Malleson: Judicial Appointments, Diversity and the Equal Merit Provision

This is posted on behalf of Graham Gee and Kate Malleson and originally appeared on the UK Constitutional Law Association Blog.

One of the changes introduced by the Crime and Courts Act 2013 was to amend section 63 of the Constitutional Reform Act 2005, which provides that the Judicial Appointments Commission (JAC) must select candidates for judicial office ‘solely on merit’. Schedule 13 of the 2013 Act clarified that making selections solely on merit does not prevent the JAC from recommending a candidate on the basis of improving diversity on the bench where there are two candidates of equal merit. This is variously known as the ‘equal merit’, ‘tie-break’ or ‘tipping point’ provision and derives from s 159 of the Equality Act 2010. After a consultation exercise last summer, the JAC last month published its policy on how it will implement the equal merit provision. In this post, we draw on research conducted as part of an AHRC-funded project on The Politics of Judicial Independence to explain why the JAC’s policy is disappointingly cautious, limits the prospect of further progress on diversity and offers further evidence of what we believe is the excessive judicial influence on judicial appointments 

Context

We begin with some words of praise for the JAC. Since its creation in 2006, the JAC has inter alia devised: robust processes that have for the most part identified suitably qualified candidates of good character; addressed problems that were an early feature of those processes (e.g. delays); and over time has fostered the confidence of the key stakeholders (i.e. ministers, judges and practitioners). It has done this all of this whilst becoming a leaner and more efficient operation in an age of increasingly scarce public resources. Between 2009-10 and 2014-15, its budget is projected to have fallen from £7.6m to £4.85m, its staff from 105 to 67, and yet the number of recommendations for judicial office that the JAC has made has risen from approximately 450 to 750 a year. These are important accomplishments that have helped to secure the JAC’s position on the institutional landscape, something that was much less certain around 2008-09 when the then Lord Chancellor, Jack Straw, considered abolishing the JAC and either bringing appointments back in-house or delegating more responsibility to the senior judges. Much credit is due to the leadership team of Christopher Stephens as Chair and Nigel Reeder as Chief Executive, who since 2011 succeeded in fostering much more constructive and cooperative relationships with the JAC, the senior judiciary and the Ministry of Justice.

Continue reading

Graham Gee: The Lord Chief Justice and Section 5 of the Constitutional Reform Act

This is posted on behalf of Graham Gee and originally appeared on the UK Constitutional Law Association Blog.

The Constitutional Reform Act redrew relationships between the senior judiciary and Parliament in a number of ways. Amongst the most significant was removing the right of the LCJ to speak in the Lords. Earlier this month, the new LCJ Lord Thomas repeated the lament of his immediate predecessors that it was a mistake to deprive the LCJ of the right to address Parliament on the floor of the House on important matters relating to the administration of justice. In this context, some have read the LCJ’s suggestion of a new approach to s5 of the CRA as significant. Drawing on interviews conducted between 2011-13 as part of an AHRC-funded project on The Politics of Judicial Independence, I want to shed some light on tensions that have arisen about the use of s5.

Section 5

Under s5, each of the LCJ, the LCJ for Northern Ireland and the Lord President “may lay before Parliament written representations on matters that appear to [the officeholder] to be matters of importance relating to the judiciary, or otherwise to the administration of justice”. In debates ten years ago on the bill that became the CRA, the then LCJ and Lord Chancellor—Lord Woolf and Lord Falconer—both suggested that s5 would be used rarely and only for high profile matters of serious concern to the judiciary. Subsequently, both Lords Phillips and Judge appeared to confirm this by describing s5 as a “nuclear option” to be used only in the face of a serious threat to judicial independence or the rule of law. (See here and here). But, in practice, neither used s5 in this way, invoking it instead for the more humdrum matter of laying before Parliament periodic reports on the management of the judiciary. Behind this lies a surprising and even at times rather silly disagreement between senior judges and parliamentary authorities; or what an interviewee called “a storm in a teacup”.

Continue reading

Where next for the Court Service? The struggle between the Judiciary and the Executive

14th August 2013

On 26th March 2013, a low key written ministerial statement appeared before the House of Commons from the Justice Secretary, Chris Grayling, declaring that he had asked staff to ‘explore proposals for the reform of the resourcing and administration of our courts and tribunals.’ Lodged between announcements that student loans were to be sold off and the reprivatisation of the East Coast mainline, it wasn’t until two months later when The Times splashed that one of the proposals was the full privatisation of Her Majesty’s Courts and Tribunal Service (HMCTS) that it attracted any attention.

From there, the ball started rolling: The Ministry of Justice denied the reports that a ‘wholesale’ privatisation was on the cards. It was revealed that management consultants McKinsey & Co and magic circle law firm Slaughter & May had been appointed to explore options for increasing revenue at HMCTS. A letter from the Lord Chief Justice was leaked. Since then, however, there has been silence as the proposals are worked on.

With the future of HMCTS in doubt, this blog post will give you a brief guide to the court service, as well as a look ahead to where it might be going. It uses a 2006 report commissioned by the Canadian Judicial Council into alternative models of court administration as the framework; a report that was influential in the judiciary’s thinking when negotiating with Jack Straw over the future of the court service in 2007.

The Executive takes charge

Originally, administration and funding of the courts was predominantly by local authorities. Although the Assizes received a subsidy from the Home Office, criminal and civil courts were largely run and staffed by local authority staff in local authority buildings. County courts would be found, not in dedicated court buildings, but crammed into civic buildings or magistrates’ courts.
It was against that background that a 1969 report into the courts chaired by Dr Beeching found “courts with no waiting rooms, no consulting rooms, no refreshment facilities and with toilet facilities which were disgustingly insanitary.” Lawyers, witnesses, police offers, victims and the accused would all jostle for space with disused furniture and each other.

That report led to the passage of the Courts Act 1971. While it may now be more famous for abolishing the Assizes and the creation of the Crown Court, the Act also had the effect of radically centralising court administration. The Lord Chancellor’s Department was transformed into a fully-fledged central government department with 10,000 civil servants running a unified court service.

This was the move into what the Canadian report describes as the executive model. In it, ultimate authority and responsibility flows through the Responsible Minister. Court administration is one part of a broader civil service and, often, a broader Justice department. The role for the judiciary in the model is ill-defined; whether their input is sought is purely a matter of executive discretion. One of the ideas fundamental to the model working and not compromising judicial independence is that there is a clear dividing line between judicial functions and administration: the allocation of cases to individual judges, for example, is a judicial function to be controlled by judges.

It isn’t difficult to see where tensions arose from. In 1989, Lord Browne-Wilkinson gave an FA Mann lecture that recalled Lord Hewart’s famous tract ‘The New Despotism.’ He pointed to several examples, such as the use of Deputy High Court judges or the number and quality of staff, which were ostensibly mere administrative decisions, but had a direct impact on the conduct of cases. After Lord Justice Purchas retired from the bench, he went on to pursue the argument that judges should run the court service in the New Law Journal.

The move to a Partnership

The end of the executive run court service was brought about by the constitutional reforms begun under Tony Blair. In 2003, on the day of the announcement that the Lord Chancellor’s position was to be abolished the senior judiciary and civil servants in the Lord Chancellor’s department had been meeting to discuss ways of better working together without an inkling of what was about to happen.

With each new announcement about the future of the Lord Chancellor, the judiciary felt it was increasingly necessary to try and negotiate safeguards for the court service. They wanted a service which would be accountable to the Lord Chief Justice as well as the Lord Chancellor, they wanted a bigger role for the judiciary in a new court service and they wanted the budget ring fenced to protect it from the new Ministry of Justice’s competing demands.

However, it was only with the installation of Jack Straw as Lord Chancellor in 2007 that they were able to achieve any progress and, having had sight of the Canadian report, elected for a partnership model. The judiciary had no appetite for taking court administration on themselves and envisaged a system which would guarantee a ‘judicial voice’ in the court service while day-to-day administration remained in the hands of professional civil servants, accountable to a joint judicial/executive board. It was with those intentions that Her Majesty’s Court Service (HMCS, later to merge with the tribunal service to form HMCTS) was created and the Framework document laid before Parliament.

While the 2006 Canadian report was ultimately cool on the partnership model, seeing it as a guaranteed way for gridlock or executive control by another name, the judiciary saw it as the best possible solution. By recognising the ultimate interdependence of the judiciary and executive in court administration, it was envisaged that the two could build a working relationship based on mutual trust.

The judges might have been right to be optimistic; the Swedish court service (Domstolsverket) has long operated on much the same basis with a significant degree of success.

New CTS – will judges run the courts?

Regrettably, leaked correspondence between the Lord Chief Justice and the Justice Secretary seems to indicate that that optimism has failed. In an attached note, Lord Justice Gross wrote that ‘the judiciary has for some time been concerned that continuing with the present model for HMCTS, both in governance and financial terms, was not an attractive option for the long term.’ Instead, the judiciary imagine a new court and tribunal service (“new CTS”).

But what would this new CTS look like and where are the judiciary trying to move to? The telling phrase comes later on in Lord Justice Gross’ note when he says that ‘The Chief Executive should be accountable, on a day to day basis, to the board and, in respect of broader matters of policy affecting the judiciary, to the LCJ.’ Note the omission of the Lord Chancellor; the Ministry of Justice is to be only ‘residually involved.’

This is more closely aligned to what the Canadian report would describe as a limited judicial autonomy and commission model. In this model, judges take responsibility for court administration, but backed by a commission independent of both the judiciary and executive. That commission could be used for a range of purposes; resolving disputes between the judiciary and executive over the court service, negotiating a budget or, in what seems to be the case with New CTS, safeguarding the judiciary against being drawn into political matters and day-to-day administration.

While such a model seems superficially attractive, the judiciary may get more than they bargained for with a New CTS. The Courts face two major tasks in the coming years even without the budgetary constraints the financial crisis has imposed. First, there is an ageing court estate that still suffers from some of the problems Dr. Beeching found in the 1960s. Family practitioners and judges need only think about the problems at the Principal Registry on High Holborn to understand the seriousness of the problem. Secondly, there is the procurement of major IT systems, an issue that has defeated everyone from HMRC to the Department for Work and Pensions. Judicial independence depends not just on a statutory guarantee, but a cultural perception (some might call it a mystique) of judges being above politics and above being mere managers of a public service. The impact of a failed IT system or a contested court closure might be enough to shatter that image, because they involve intensely political questions. The idea that there can be any neutral path that protects the judiciary might prove to be a fantasy.

Do the judiciary want to risk that perception in exchange for new powers over the court service? Might it be better to try and reinvigorate HMCTS? These are questions the judiciary need to be asking themselves seriously as the future of the court service is decided in the coming months. They may find that there’s no need to risk so much for what they want to achieve.

John Crook: The abolition of the Lord Chancellor

20th June 2013

[Posted on behalf of John Crook]

Sir Thomas More

Sir Thomas More

Last week a seminar was held marking the 10th anniversary of the abolition of the office of the Lord Chancellor. A note by Patrick O’Brien about what was discussed at this seminar is available here.

On 12 June 2003, in what was one of the great political mysteries of our time, Lord Irvine resigned from the office of Lord Chancellor. This was prompted by a policy announcement the day before. The Prime Minister’s press office announced plans to abolish the Office of the Lord Chancellor. The Lord Chief Justice would become head of the judiciary, a Supreme Court would be established and a new system for appointing judges would be introduced under the Constitutional Reform Act (CRA) 2005.

A memo written by Lord Irvine in 2009 has clarified much of what went on behind the scenes. He was provoked into responding by Lord Turnbull, the Cabinet Secretary in June 2003. Turnbull had told the House of Lords constitution committee that Irvine was consulted before the decision was taken to abolish his role but “the trouble was that he disagreed with it.”

Tony Blair told Lord Irvine about the reform a week before the announcement, on Wednesday 5 June. Irvine was surprised that Blair thought that abolishing the office of Lord Chancellor (who, amongst other things, was head of the judiciary and Lord Speaker of the House of Lords) was a routine transfer of departmental responsibilities. Irvine felt he had not fully appreciated its constitutional significance. On Tuesday 11 June, Lord Irvine submitted a minute to the Prime Minister explaining that the office of Lord Chancellor was statutory and could only be removed by statute; in the interim there were some functions that could only be performed by a residual Lord Chancellor. In the minute Irvine said he “personally regret[ed] the demise of the Office of Lord Chancellor…” but he offered to stay on to see the changes through. However, the Prime Minister felt that Lord Irvine’s support for the reforms was half-hearted so the role was given to Lord Falconer. Tellingly, in his autobiography Blair wrote that “Charlie Falconer [was] on side”, the implication being that Lord Irvine was not. The discussion at last week’s seminar bore this out. Add to this the dynamic of Irvine and Blair’s personal relationship. Irvine was Tony Blair and Cherie Booth’s pupil master: he helped facilitate the Prime Minister’s political career as well as introducing him to his future wife. It was this relationship that made Irvine a key advisor to the Prime Minister rather than the status of Irvine’s office. The events of June 2003 precipitated the unravelling of their relationship.

The government provoked something verging on a constitutional crisis because of the manner in which the reforms were formulated. At the previous attempt at reforming the Lord Chancellor’s Office in 2001, four members of the senior judiciary convinced Blair to abandon the reforms on the grounds that they threatened judicial independence. The reform would have placed the courts under the control of then Home Secretary David Blunkett who was perceived as lacking sympathy for courts and the judiciary, but left the Lord Chancellor in the Cabinet as the head of the judiciary. In the eyes of 10 Downing Street another attempt at reforming the Lord Chancellor’s Office would be a catch-22: if they discussed reforms with the department in advance, they would be leaked and opposition would again be given a chance to coalesce. If they failed to discuss reforms with the department they would be accused of bungling reform because they couldn’t work through all the detail in advance. But creating a Department of Constitutional Affairs would have been far more palatable to the judiciary than incorporating the Court Services within the Home Office. Concern that the judiciary would dig in their heels seems in retrospect to have been exaggerated.

The Lord Chief Justice was told about the reforms during an away day with civil servants. We now have an image of members of the Senior Judiciary huddled around a telephone, very annoyed, in a pub! It seems their annoyance was as much to do with the lack of consultation by Downing Street as the substance of the reforms. Eight months later, the Prime Minister himself conceded, ‘I think we could have in retrospect – this is entirely my own responsibility – done it better’.

Ultimately, the House of Lords, outraged by the manner in which the change was announced without consultation, ensured that the name ‘Lord Chancellor’ was retained. But to all intents and purposes the office of Lord Chancellor was abolished in the reforms of 2003-5. Importantly, for the purposes of judicial independence, the CRA 2005 provides that the office now has no judicial role. However, the real change to the office of Lord Chancellor has not been that the office has ceased to be held by a judge or lawyer, but that it is no longer held by a senior politician at the end of his or her career. Because the role combines responsibility for prisons with that of the courts, new-style Lord Chancellors are increasingly likely to be ambitious mid-career politicians.

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

Image

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.

Judicial Independence Across the World: Pakistan

This is the third blog that looks at judicial independence in various countries. We have already examined the situations in Papua New Guinea, Nepal & Morocco. We now turn our attention to Pakistan, where one controversial court case has brought the judiciary, legislature, President and opposition parties into open conflict. In common with some of our other case studies, the separation of powers has become very blurred – the executive and legislature are ignoring court judgments, and the judiciary seem to be unusually active in their rulings over political & moral matters.

Pakistan: In April 2012 the Prime Minister of Pakistan, Yousuf Raza Gilani, was convicted of contempt of court by the nation’s Supreme Court. The judgment said that Mr Gilani had ‘wilfully flouted’ a court order.  The court had ordered Gilani to write to the Swiss authorities requesting them to open a corruption case against the Pakistani President, Asif Ali Zardari. In order to make this ruling the court had to, controversially, strike down the National Reconciliation Ordinance, a 2007 political amnesty law, on the grounds that it was unconstitutional.

Yousuf-Raza-Gilani

Yousuf Raza Gilani

Gilani’s lawyer, Aitaz Ahsan (who is also a senator for Gilani’s Pakistan Peoples Party), countered that reopening a case against a serving President would itself be unconstitutional, as incumbents benefit from legal immunity.

National Assembly members then requested that the Speaker of the National Assembly (Dr. Fehmida Mirza, also a PPP member) ask the Election Commission to have Mr Gilani removed from office and disqualify him as an MP. The opposition argued that under Article 63(1) (g) of Pakistan’s constitution, any person found guilty of defaming or ridiculing the judiciary is banned from being an MP.

On the 24th May 2012 the Speaker refused to refer the case to the election commission claiming that, “I am of the view that the charges… are not relatable to the grounds mentioned (in the constitution)”.

Both main opposition parties, Pakistan Tehreek-i-Insaf (PTI) and the Pakistan Muslim League-N (PML-N), then separately petitioned the Supreme Court. PTI’s petition asks the court to declare Speaker Mirza’s ruling unlawful and issue a stay order against Mr Gilani exercising Prime Ministerial powers until the court has reached a judgment. The petition also asks that the Election Commission decide Gilani’s eligibility. The PML-N simply asks that Mr Gilani is barred from performing further duties.

The petitions will be heard by a three member Supreme Court bench.

The judicial independence picture is further complicated by the fact that Justice Khosa, one of the seven member bench that convicted Gilani in April 2012, thought it appropriate to add a note to the judgment that was somewhat of a morality lecture to Pakistani’s. The note even goes as far as to compare the Pakistani executive with Stalinist Russia and encourages Pakistan’s populace to take note of the Arab Spring!