Selecting the Justices: Four suggestions

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.

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Inquiring into the office of Lord Chancellor

Patrick ObrienThe 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.

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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.

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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”.

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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.