Are quotas for judicial appointments lawful under EU law?

malleson-photo-2010a_ocinneide

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).

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Student protests in Venezuela: how is the government manipulating the Constitution for political ends?

The Venezuelan Constitution is ranked fifth in the world in terms of the number of rights it guarantees. Yet the use of the constitution as a political crutch only underlines the government’s failure to uphold and respect these rights, writes Annabelle Huet.

MARQUINAM

Image Credit: MARQUINAM

In February 2014 student protests against the democratic legitimacy of the Venezuelan government and high crime rates erupted in Caracas. Two months on over 40 people have died, more than 70 have reported being abused and the opposition leader has been jailed. The Venezuelan President, Nicolás Maduro, accused the international community of conspiring to overthrow his government in an op-ed in the New York Times and qualified the actions of those inciting violence in Venezuela as “unconstitutional”. Yet it is interesting to note how the government has consistently referred to the constitution not only when denouncing the actions of the opposition but also when seeking to justify its own actions. Examining the constitution might therefore help us gain a better understanding of the dynamics of the conflict.

1. Comparative perspective

According to data collected by the Comparative Constitutions Project (CCP), the Venezuelan Constitution is ranked fifth in the world in terms of the number of rights it guarantees. In total, it protects 81 of the 116 rights coded by the CCP, which is consistent with the Latin American tradition of constitutionalising rights. It also contains some features which are unusual even for a Latin American constitution, such as gender inclusive pronouns and nouns for job titles and the recognition of the right to social security for homeworkers. However, in order for rights to be fully protected, the country needs a strong and independent judiciary willing to enforce them. Unfortunately, Venezuela scores very poorly on the CCP scale for judicial independence (1 out of 6), especially when compared to other Latin American countries such as Peru (6 out of 6), Bolivia and Chile (4 out of 6).

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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.

Northern Ireland chief justice to confront critics on bail decisions

15th March 2013

The Lord Chief Justice of Northern Ireland Sir Declan Morgan has given a rare TV interview designed to take the heat out of allegations of partiality between unionists and nationalists in granting bail. He is offering to explain the basis of recent decisions to the Justice Committee of the Northern Ireland Assembly and is making himself available to his most prominent critic, the Democratic Unionist First Minister of the powersharing Executive Peter Robinson. The meeting was in fact pre-arranged but will now take on a more urgent character. His private secretary had earlier sent a letter to the Assembly   explaining that in bail decisions  judges carefully weigh the risks – such as a risk of flight, likelihood of committing further offences, interfering with witnesses and preservation of public order – against the rights of the untried accused.

“It is essential that they are free to do this independently and without being subject to external influence.”

Now the chief justice has widened his response to add the offer of an appearance before Assembly members and a meeting with the First Minister if he still wants one. As a direct response to a running controversy this move is unprecedented and as I’ll argue shortly, carries risks which Morgan himself will be aware of.

Even post- Troubles Northern Ireland politics is still largely a zero sum game. In this case unionists are up in arms at bail being denied to two ring leaders of sporadic protests at the decision of Belfast City Council to reduce the number of days for flying the Union Jack above the City Hall. One of them Willie Frazer attracts both sympathy and hostility. Four family members including his father, all of them members of the security forces, were killed by the IRA over 10 years. He is head of a movement called FAIR,  Families Acting for Innocent (unionist) families  which campaigns for justice for victims of the Troubles  but specialises in provocative demonstrations and comments.   He was refused bail on March 1. At another hearing when bail was refused to another alleged loyalist agitator Jamie Bryson, the judge hit out against “ill informed debate” about bail decisions. This attracted the comment of “ judicial arrogance “ from a DUP minister.

Meanwhile, switching sides,  two prominent republicans in south Armagh  were  granted bail in connection with demonstrations eight years ago in favour of the ( not quite disbanded ) IRA which had been held responsible  for the notorious  murder of a Belfast man Robert McCartney in 2005. Despite a McCartney family campaign which reached Downing St and the Oval Office, IRA omerta  has held. The arrests of the two men Padraic Wilson and Sean Hughes were attacked by Sinn Fein politicians as “ political policing”  to  counter balance the actions against loyalists. Unionists immediately claimed partiality in deciding bail between republican and loyalists.

I accept that there are grounds for interesting speculation about how and why bail has been granted or refused but this has little to do with the judiciary.

Why charge Hughes and Wilson with IRA membership and encouraging a proscribed organisation in a demo that happened eight years ago? Is this a real new lead in the MCartney case? It doesn’t feel like it but who can tell at this stage? If there is no fire behind the smoke this might be seen as an unnecessarily provocative move just as the very moment a dissident republican attack had been foiled.

Why wait so long to lift the loyalists Frazer and Bryson? That one is easier to speculate about – because it’s better to exploit a lull (if that’s what is it is ) in the flags protest. But we’re unlikely to get straight answers to such questions and certainly not from the judiciary. Answers in some form may emerge from the PSNI and the DPP if charges are proceeded with.

Although the judges – and of course the police and the DPP – are now being attacked by both sides, this is not a full blown crisis between the politicians and the criminal justice system.  It even represents a sort of progress.  Republicans now argue for fair treatment from the criminal justice system rather than rejecting it altogether. What is happening is a symptom of the tensions created by an underlying shift in power between unionism and nationalism as a result of growing nationalist numbers and the  implementation of the equality provisions of the Good Friday Agreement.  From time to time there is controversy over where fairness lies and the criminal justice system is caught in the middle.

In an arid zero sum debate –  unionist loss is republican gain or vice versa – the judiciary has boldly moved to assert its good faith and educate the politicians in an impartial justice system which like any other body can make mistakes. The risk the chief justice is taking is that is that he may unwittingly feed an appetite for routine explanations of verdicts and sentences and produce disillusion and even louder complaints when he refuses. This could turn  the judiciary into what he and his colleagues greatly fear, a political football.   Much hangs on Northern Ireland’s politicians behaving responsibly to prevent the judiciary being sucked into their zero sum game.

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.

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!