The Constitutional Reform Act 2005 led to greater judicial independence: politicians and parliament must continue to support it

As part of an ongoing inquiry, the Lords Constitution Committee has sought evidence as to whether ‘the amendment of the role of the Lord Chancellor by the Constitutional Reform Act 2005 (CRA), and the resulting separation of powers between the judiciary and the Government, [have] been successful’. Robert Hazell argues that the 2005 reforms led to greater judicial independence, a political achievement that requires continuing support from politicians and parliament.

The House of Lords Constitution Committee is currently undertaking an inquiry into the role of the Lord Chancellor and the Law Officers, in which it seeks to answer a number of questions, including whether ‘the amendment of the role of the Lord Chancellor by the Constitutional Reform Act 2005 (CRA), and the resulting separation of powers between the judiciary and the Government, [have] been successful’. Through written evidence, submitted with Professor Kate Malleson, I have attempted to answer that question. Our answers were based upon the main findings and conclusions of a three-year research project on the Politics of Judicial Independence, funded by the AHRC. The research explored the impact of the greater separation of powers introduced by the Constitutional Reform Act 2005 (CRA). Our principal conclusion – as explained in our 2015 book on the subject – was that judicial independence and judicial accountability have emerged stronger, not weaker; but that greater separation of powers requires increased engagement by the judiciary with other branches of government.

The changes made by the Constitutional Reform Act 2005

Until 2005 the head of the judiciary was a Cabinet minister, the Lord Chancellor. In an extraordinary breach of separation of powers, he could also sit as a judge in the UK’s highest court. The CRA removed the Lord Chancellor as head of the judiciary, handing that responsibility to the Lord Chief Justice in line with an agreement struck in the Concordat of 2004. The division of powers between the executive and judiciary was further refined in 2008 in a Framework Document for the management of the Courts Service (revised and updated in 2011 to incorporate the Tribunals Service). The CRA also created a new Supreme Court, and established the Judicial Appointments Commission.

The new politics of judicial independence are more formal, fragmented, and politicised

The old politics were informal, depending on regular meetings between the Lord Chancellor and senior judges; closed, in that these were virtually the only contacts between the judiciary and the government; and secretive, with both sides preserving each other’s confidences. They were also consensual and conservative, in that neither side wanted to change the system. The ‘new’ politics, by contrast, are much more formal. The CRA required more formal structures and processes to handle the relationships between more separate branches of government. We now have the Judicial Appointments Commission, Judicial Appointments and Conduct Ombudsman, and Judicial Conduct Investigations Office: all products of the CRA. The new formal processes include regular meetings between the judiciary and other branches of government, with the innovation of six-monthly meetings between the LCJ and Prime Minister, the introduction of regular meetings with senior officials in parliament, and annual appearances by the LCJ and President of the Supreme Court before the Constitution Committee.

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What happened to the Constitution, Democracy and Rights Commission?

The 2019 Conservative Party manifesto promised to appoint a Constitution, Democracy and Rights Commission to conduct a wide-ranging constitutional review. In practice, this promise has not been delivered. Tom Fleming and Petra Schleiter discuss this by summarising their recent article about the Commission, Radical departure or opportunity not taken? The Johnson government’s Constitution, Democracy and Rights Commission, as published in ‘British Politics’.

What did the government promise?

At the 2019 general election, the Conservative Party’s manifesto promised to appoint a ‘Constitution, Democracy and Rights Commission’. This body would be tasked with reviewing various aspects of the constitution and producing proposals ‘to restore trust in our institutions and in how our democracy operates’.

The Commission’s proposed remit was very broad, encompassing many of the central elements of the UK’s constitution. It would be asked to examine: ‘the relationship between the Government, Parliament and the courts; the functioning of the Royal Prerogative; the role of the House of Lords; and access to justice for ordinary people’, as well as the Human Rights Act, administrative law, and judicial review. However, the manifesto was decidedly vague about how the Commission would be organised. There was no information about its proposed membership, format, or timeline, beyond a commitment that it would be established within a year of the election.

The manifesto’s language suggested that this proposal stemmed in part from the government’s experience of the Brexit process. This was most obvious from the manifesto’s controversial description of ‘the way so many MPs have devoted themselves to thwarting the democratic decision of the British people in the 2016 referendum’ creating ‘a destabilising and potentially extremely damaging rift between politicians and people’. This led some observers to warn against the dangers of the Commission ‘fighting the last war’ rather than crafting durable constitutional reforms.

Whatever its motivation, the proposed Commission had the potential to be a radical departure from previous investigations of constitutional reform in the UK. In particular, it held out the prospect of a joined-up review of multiple interconnected constitutional issues. Such joined-up thinking is vital for ensuring a coherent reform agenda, but has been conspicuous by its absence in recent decades.

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Getting a new parliament up and running: what happens after the election?

sir_david_natzler.smiling.cropped.3840x1920.jpgbeamish.jpg (1)We may not yet know the result of the election, but we do know that we will have a new parliament. David Natzler and David Beamish explain what will happen when the new parliament commences next week. No matter the outcome of today’s vote, certain processes will need to be followed: parliament will need to be officially opened, MPs will need to be sworn in, and committees will need to be re-established — and their members and chairs must be elected.

The dates

The first days of a new parliament follow a well-trodden path, and the surest guide to what will happen is usually to look up what happened last time, in June 2017. However, much depends on the political context. And we will not know that context until the early hours of Friday 13 December at the earliest. All we know for sure is that the new parliament will meet on Tuesday 17 December, and that if the current Prime Minister returns, the State Opening – the start of the new session – will be only two days later, on Thursday 19 December. If there is a hung parliament, the State Opening could be delayed. Continue reading

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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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.