“Recent judicial reforms will ensure judicial independence from interference by the State, but greater transparency of judicial appointments may also decrease the public’s reverence for judicial office.” 1. Introduction The drive for constitutional reform is on the basis of the foundational concept of the separation of powers. Integral to this is that the judiciary should be free to uphold the rule of law and prevent elective dictatorship. Although well-intentioned, elements of the change appear haphazard and as we shall see have not fully resolved the problem of independence. A corollary of the drive has been a review of judicial appointments to ensure independence and open the process to public scrutiny.
Although welcome, there are still inherent difficulties in making appointments purely autonomous and these problems may cause a decline in the reputation of judges. 2. The background to judicial reform In 2003 the Government created a Department for Constitutional Affairs to oversee the process of rapid reform that had already comprised devolution, the removal of hereditary peers from Parliament, and the Human Rights Act 1998. The Constitutional Reform Act 2005 was the legacy of the short-lived department that then became the Ministry of Justice in 2007. The Act aimed to institute the separation of powers and particularly ensure judicial independence and the rule of law. This was partly to meet the requirements of the European Convention on Human Rights Article 6, which specifies the right to a fair trial. But the legislation also aimed to meet public expectations and prevent governmental interference in potentially controversial cases. Over the past almost two decades judges have increasingly had to rule on politically contentious matters, resulting in unprecedented conflict between the executive and the judiciary. Decisions on charged policy areas such as immigration and security may have political effects which governments past have occasionally attempted to influence.
This has been exacerbated by the ability of the courts to review legislation in the light of the Human Rights Act 1998. A particularly public conflict over judicial review of criminal sentencing has been on-going since Michael Howard’s tenure as Home Secretary (1993-97). In a parliamentary debate of 17th February 1999, the Lord Chancellor referred to the essential counter-balance of his role and back to that period of “unprecedented antagonism between the judiciary and the Government over the judicial review of ministerial decisions.” The conflict continued when the judiciary would not permit the government to set minimum terms for life sentences in conflict with Article 6 of the European Convention on Human Rights which has it that sentencing must be by independent trial (1). (An Incredible irony given that Home Office lawyers drafted Article 6). Obiter it was stated: “The protection of the judiciary from Executive interference is, in my view, a high order duty – perhaps the highest order duty – of any Lord Chancellor. The office is a buffer between the judiciary and the executive which protects judicial independence.” In 2003 following the formation of the Department of Constitutional Affairs the Lord Chancellor was assigned to a new role distinct from the judiciary. On the judgement of A & ORS v Secretary of State for the Home Department (2003) EWCA Civ 1502 on which the then Home Secretary David Blunkett declared: “Frankly I’m fed up with having to deal with a situation where Parliament debates the issues and the judges overturn them”. In a letter to the London Evening Standard on 12th May 2003 Blunkett referred to his “so-called ‘war on the judges’” and called for “a long hard look at the constitutional relationship between parliament and the judges and be clear how it’s changed”. The government subsequently passed the Criminal Justice Act 2003, which set tariffs for sentencing, through Parliament under controversial circumstances. In a House debate of 21st May 2003, Lord Rodgers of Quarry Bank expressed regret that the Lord Chancellor could no longer mediate on the matter.
The tariffs have since frequently been ignored by sentencing judges. 3. The reforms and their effect on the judiciary The judicial powers of the Lord Chancellor were relinquished along with the (largely ceremonial) role of Speaker of the House of Lords. The legal functions were conveyed to the Lord Chief Justice who becomes the President of the Supreme Court of England and Wales. The Law Lords were removed from their seats in Parliament to become Justices of the Supreme Court. A new Judicial Appointments Commission was established by the Constitutional Reform Act (s. 61) and came into being on 3rd April 2006. Its mission is to strengthen judicial independence and make appointments more transparent and accountable. The Commission selects candidates on the basis of merit and aims to encourage a diverse range of applicants.
Recommendations are made to the Lord Chancellor who makes appointments and gives reasons for his selections. The Commission is sponsored by the Ministry of Justice. The effect of the new Lord Chancellor has been mixed. Undoubtedly there is greater separation of powers; perhaps even for the first time in the UK (2). However some have criticised the new system of checks and balances. The position of Lord Chancellor is taken by the Secretary of State for Justice.
The new Ministry of Justice has assumed responsibility for prisons and probations leaving the Home Office the powers to deal with immigration, security and policing. The former Lord Chief Justice, Lord Woolf, has been a cautious voice against unconsidered reform (3). Recently he has criticised the conflict of interest inherent in the roles of Lord Chancellor and Secretary of State for Justice (4). With the Lord Chancellor’s power to make appointments and traditional influence as a figurehead among the judiciary, there is a potential for political manipulation of judges due to the Minister’s responsibility for prisons also. 4. Judicial appointments The creation of the Judicial Appointments Commission has certainly made the process more open to the public than the previous “old-boys network”. In the words of the once Lord Chancellor, Lord Elwyn Jones (5): “When a vacancy had to be filled, the heads of the Divisions… were invited into my office to consider likely names. Usually we agreed as to the one most meriting appointment. Occasionally two names were equally supported.
Then the choice was left to me”. There were disputes as to whether an independent body could make decisions as efficiently as the Lord Chancellor possibly could. Lord Woolf argued that one person is better because a committee could lead to a “Buggins’ turn next” attitude. However these doubts have been placated by the presence of legal experts and lay persons in selecting candidates, while appointments are still made by the Lord Chancellor. One of the commitments of the Commission was to break the prevailing dominance of white, male, middle class, privately educated Oxbridge graduates. Merit is still the primary criteria of selection, but it is debated as to how diversity could possibly be achieved without discrimination and even inefficiency, which may also decrease public confidence in the judiciary.
The question is one of how merit is to be measured (a stated objective of the Commission). The educational excellence and experience of the traditional judicial appointment is a measure of their merit. But it is arguable that that background is a result of traditional privileges and that ‘merit’ could be expanded to include a broader range of backgrounds.
This problem has been expressed as a dichotomy with a choice between ‘maximal merit’ – always choosing the best candidate – and ‘minimal merit’, whereby selection from a number of qualified candidates is based on policy grounds. The distinction masks the problem with bias: it is precisely what is ‘best’ that is at stake. But it does make clear that the intrusion of political considerations compromises judicial independence. Paradoxically the ‘traditional appointment’ without diversity considerations might seem elitist and removed from the public.
For these reasons, transparency and public openness to the inherent difficulty and bias of the process might reduce the public’s reverence for the office. A year after the establishment of the Commission, a review of its appointments highlights this problem. A Commons inquiry concluded that the system is “improving – but can do better” (6). There is still a deficit of women and minorities with some complaints by female judges. The Lord Chief Justice (who is no longer involved in appointments) has claimed that plans for more women may be “illegal” and compromise “impartiality”. 5. Conclusion The changes wrought by the Constitutional Reform Act 2005 and thereafter have had mixed effects. There has never been strict separation of powers. Indeed, parliamentary sovereignty implies that the legislature is, or should be, the most powerful branch. Judicial independence must be interpreted in this light.
Curzon has suggested that it is “The practice in the UK whereby judges are freed from outside pressure”, which has previously been assured by the Consolidated Fund, the Act of Settlement and its successors (7). Recent changes to appointments have made the process more open, but not necessarily more independent. Appointments are still subject to policy pressures in the form of diversity or to accusations of continuing elitist favouritism. The process involves not only the Appointments Commission but also the Lord Chancellor, who is no longer a part of the judiciary but is a government minister. His role also conflicts with that of the Secretary of State for Justice which undermines the reform of the Lord Chancellor‘s office and has the potential for State interference.
Furthermore political scandals associated with the Attorney General have issued claims for reform of that office also (8). To borrow a phrase of the journalist Melanie Phillips; our system is one of ‘transparent inaccountability’, and it is this which may reduce reverence for the office of the judge. Footnotes (1) R v Secretary of State for the Home Department, ex parte Anderson  UKHL 46. (2) See: Stevens R (1999) ‘A loss of innocence?: judicial independence and the separation of powers’, Oxford Journal of Legal Studies 19(3), pp. 365 – 402. He argues that the concepts are more those of political rhetoric than legal history. However: Rt Hon Lord Justice Brook ‘Judicial Independence – Its History in England and Wales’, https://www.judcom.nsw.gov.au/fb/fbbrook.htm. (3) Lord Woolf, ‘The Rule of Law and a Change in Constitution’, Squire Centenary Lecture, Cambridge University, 3 March 2004. Interview with Lord Woolf, New Statesman 16 Feb 2004. ‘Legal Reform creates a vacuum, says Lord Woolf’, The Independent 10 July 2003. H. Woolf, ‘Judicial Review – the tensions between the executive and the judiciary’ (1998) 114 LQR 579. (4) ‘Lord Woolf fears Home Office reforms’, https://news.bbc.co.uk/2/hi/uk_politics/6586437.stm. (5) Quoted in Gillespie A. (2007) The English Legal System; Oxford University Press: Oxford. (6) Gibb F. ‘Judicial Appointments Commission: what does its first report card say?’, The Times, June 25th 2007. (7) (2002), quoted in Gillespie (2007). (8) Gibb F. ‘Attorney-General’s first task is to rewrite her job description’, The Times, July 26th 2007. References Books: (1) Barnett H.(2006), Constitutional and Administrative Law, Routledge-Cavendish: Oxon. (2) Gillespie A. (2007) The English Legal System; Oxford University Press: Oxford. Articles: (3) Bogdarov F. ‘Our New Constitution’, Lecture at Gresham College, May 29th 2007, www.gresham.ac.uk/eventapp?PageId=45&EventId=547. (4) Gibb F. ‘Attorney-General’s first task is to rewrite her job description’, The Times, July 26th 2007. (5) Gibb F. ‘Judicial Appointments Commission: what does its first report card say?’, The Times, June 25th 2007. (6) H. Woolf, ‘Judicial Review – the tensions between the executive and the judiciary’ (1998) 114 LQR 579. (7) Interview with Lord Woolf, New Statesman 16 Feb 2004. (8) Kettle M. ‘Parliament holds the key to this standoff with the judges’, The Guardian, May 19th 2007. (9) ‘Legal Reform creates a vacuum, says Lord Woolf’, The Independent 10 July 2003. (10) ‘Lord Woolf fears Home Office reforms’, https://news.bbc.co.uk/1/hi/uk_politics/6586437.stm. (11) Marquand D. ‘Britain’s own C-word’, New Statesman, June 28th 2007. (12) Rt Hon Lord Justice Brook ‘Judicial Independence – Its History in England and Wales’, https://www.judcom.nsw.gov.au/fb/fbbrook.htm. (13) Stevens R (1999) ‘A loss of innocence?: judicial independence and the separation of powers’, Oxford Journal of Legal Studies 19(3), pp. 365 – 402. Statutes: (14) Constitutional Reform Act 2005. (15) Human Rights Act 1998. Cases: (16) A & ORS v Secretary of State for the Home Department (2003) EWCA Civ 1502.
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