Professor Robert Hazell, Professor of Government and the Constitution, The Constitution Unit, University College London, and Professor Kate Malleson, Professor of Law, Queen Mary University of London – written evidence (RLC0006)

 

House of Lords Constitution Committee inquiry into the Role of the Lord Chancellor and the Law Officers

 

1.1              This submission is directed to the third question in the call for evidence, namely Has the amendment of the role of the Lord Chancellor by the Constitutional Reform Act 2005, and the resulting separation of powers between the judiciary and the Government, been successful?’. It is based upon the main findings and conclusions of a three year research project on the Politics of Judicial Independence, funded by the AHRC, conducted from 2011 to 2014. The research explored the impact of the greater separation of powers introduced by the Constitutional Reform Act 2005, which replaced the Lord Chancellor as head of the judiciary by the Lord Chief Justice, created the new Supreme Court, and established the Judicial Appointments Commission. Our research methods included analysing all the literature; conducting over 150 interviews with judges, ministers, parliamentarians, and senior officials; and holding ten private seminars with judges, policy makers and practitioners. Our principal conclusion is that judicial independence and judicial accountability have both emerged stronger, not weaker; and that greater separation of powers requires more, not less engagement by the judiciary with the other branches of government.[1]

 

The changes made by the Constitutional Reform Act 2005

 

2.1              Until 2005 the head of the judiciary was a Cabinet minister, the Lord Chancellor. He was responsible for the judicial appointments system, and appointed the judiciary; he determined their pay and pensions; he was responsible for investigating complaints against judges, and imposing discipline; he could dismiss junior judges; he was responsible for providing and running the Courts Service. In an extraordinary breach of separation of powers, he could also sit as a judge in the highest court.

 

2.2              The Constitutional Reform Act 2005 removed the roles of the Lord Chancellor as head of the judiciary, but otherwise left the office in being. It set out the functions to be transferred to the Lord Chief Justice as head of the judiciary, implementing the 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 new politics of judicial independence are more formal, fragmented, and politicised

 

3.1              By the ‘politics of judicial independence’ we mean the institutional relationships necessary to uphold judicial independence, and in particular the relations between the judiciary and the political branches of government. We focus on the political branches as a corrective to the tendency amongst lawyers to look primarily to the law and legal remedies, recognising that judicial independence is itself a political achievement.

 

3.2              The old politics under the ‘old’ Lord Chancellor were informal, depending on regular meetings between the Lord Chancellor and the 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.

 

3.3              The ‘new’ politics, by contrast, are much more formal. The Constitutional Reform Act 2005 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 Constitutional Reform Act.[2]

 

3.4              In terms of more formal processes, the most obvious are the detailed procedures laid down in the 2004 Concordat between the Lord Chief Justice and Lord Chancellor, and the later Framework Documents 2008 and 2011, in which they agreed to manage the Courts Service as a partnership between them. Another example is the formal recruitment processes to the judiciary: now organised by open competition for all judicial office, from the lowest to the highest positions. The new formal processes also include regular meetings between the judiciary and the 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 Lord Chief Justice and President of the Supreme Court before the House of Lords Constitution Committee.

 

3.5              The second difference is that the new politics are more fragmented. There is less reliance on the single channel of the Lord Chancellor as the buckle between the judiciary and the government, and greater reliance on multiple channels. On the government side these include the Attorney General, Treasury Solicitor, Crown Prosecution Service, and Parliamentary Counsel. On the judicial side there are now important leadership roles played by all members of the Judicial Executive Board, in particular the Senior Presiding Judge and Senior President of Tribunals.

 

3.6              These multiple channels now include Parliament. The judiciary frequently appear before parliamentary committees, as expert witnesses on different areas of the law and how it works in practice. Parliament occasionally provides a forum for helping to resolve major conflicts between the judiciary and executive: examples would be the (most unusual) Select Committee established by the House of Lords in 2004 to hear evidence on the Constitutional Reform Bill,[3] and the urgent inquiry by the Lords Constitution Committee in 2007 into the implications for the judiciary of the creation of the new Ministry of Justice.[4]

 

3.7              A third difference of the new politics is that they can be more highly charged politically, with more overt conflict, often played out in the media. All governments will experience tensions with the judiciary; the difference now is that they are more likely to come out into the open. Lord Phillips made no secret of his frustration at the failure of the Department for Constitutional Affairs to discuss the budget of the Courts Service, in breach of the 2004 Concordat;[5] and in 2011 he fell into a public row with the Lord Chancellor Ken Clarke about the budget of the Supreme Court.[6] Chris Grayling as the new Lord Chancellor signalled his wish to “draw blood” in negotiating changes to the judges’ pensions.[7]

 

3.8              A fourth difference, flowing from all these factors, is that the judges are more visible and more exposed. They appear frequently before parliamentary committees; they give press conferences and issue press releases, supported by the new Judicial Communications Office; the Lord Chief Justice issues a periodic report, and holds annual press conferences for the media.  The LCJ and senior judges are more media-wise than their predecessors, and since they can no longer rely on the Lord Chancellor to speak for them, they must be more ready to speak for themselves.

 

3.9              Having enumerated the differences, there remain some similarities between the old politics and the new. Like the old, the new politics also depend on informal channels and contacts between government and judiciary, which help cement good relations. And like the old, the new politics depend heavily on personalities to help smooth out conflicts and to negotiate compromises. One senior judicial interviewee told us that he would have found a way for the judges to talk to Charles Clarke (Home Secretary 2004-06) when he wanted to discuss a successful court challenge to his anti-terrorism legislation, at a time when Lord Bingham declined to do so.[8]

 

Have the 2005 changes strengthened or weakened judicial independence?

 

4.1              The judiciary feel strongly that the 2005 changes relating to the Lord Chancellor have weakened judicial independence. Many of our judicial interviewees were still in mourning for the old Lord Chancellor, a respected figure who had been their voice in Cabinet. Typical was Lord Judge, who lamented that ‘There is nobody in the Cabinet who is responsible for representing to members of the Cabinet how a particular proposal may affect the judiciary’.[9]

 

4.2              But the judiciary may have slightly selective memories about the vigilance of the old Lord Chancellor. Lord Sankey did not prevent the cuts to judicial salaries in 1931; Lord Kilmuir was gung ho about the legality of the 1956 invasion of Suez, against the advice of the Attorney General, and the Foreign Office Legal Adviser;[10] Lord Elwyn Jones refused to promote Sir John Donaldson in the 1970s because of his role in the Industrial Relations Court; Lord Mackay incurred the judges’ wrath because of his changes to judicial pensions in 1993, and his dismantling of some of the Bar’s restrictive practices.

 

4.3              Our own conclusion is that judicial independence is stronger, in a whole range of different ways, than in 2005. The judiciary have become institutionally more independent of the executive, and of the legislature; they have greater autonomy and responsibility for running the judicial system and the courts; and there are now multiple guardians of judicial independence as a value, instead of the single Lord Chancellor.

 

4.4              The biggest change, not sufficiently acknowledged by the judiciary, has been the expansion of the judiciary and the courts service to embrace the whole of the Tribunals system, following the implementation of the Leggatt review in the Tribunals Courts and Enforcement Act 2007. That has been a huge change, and great leap forward for the independence of Tribunals and the judiciary who run them. Tribunals used to be wholly dependent on their sponsoring government departments for their funding, and for the appointment of Tribunal members. Now the appointments are all made by the Judicial Appointments Commission and the Senior President of Tribunals, independent from government; and the funding of Tribunals comes from HM Courts and Tribunals Service. The incorporation of Tribunals saw the judiciary grow by more than half, from around 3,600 to 5,600 judges; with the inclusion of magistrates, the total size of the judiciary is now some 18,000.

 

4.5              Judicial appointments are the next biggest change, responsibility for which has shifted from the executive in the form of the Lord Chancellor, to the judiciary. Formally the process is managed by the independent Judicial Appointments Commission (JAC), but in practice the process is heavily influenced by the judiciary at every stage. The Lord Chief Justice is consulted at the start of each competition. Judges prepare case studies and qualifying tests. Judges write references. A judge sits on the panels that interview candidates; and judges are consulted in statutory consultation. On the JAC, 7 of the 15 commissioners are judges. Once the JAC has completed its selection, at lower levels (Circuit judges and below) all judicial appointments are now formally made by the LCJ, and Tribunal appointments are made by the Senior President of Tribunals. The LCJ and SPT are now responsible for 97 per cent of all judicial appointments. At more senior levels appointments are still formally decided by the Lord Chancellor; but in practice it has proved impossible for the Lord Chancellor to go against the wishes of the judiciary.[11]

 

4.6              The third big advance for judicial independence has been the creation of the new Supreme Court. It is no longer hidden away in the House of Lords, but has its own building, its own budget and its own staff, with greater institutional freedom to run its own affairs.[12] The difference is most clearly marked in the greater visibility of the court. The Supreme Court’s new website is completely different from the minimalist website of the old law lords; the proceedings are now televised on Sky TV; the Justices have more room; and have greater capacity to sit in panels of seven or nine. Even opponents to the move acknowledge that the new court has been a great improvement.[13]

 

4.7              The fourth respect in which judicial independence has been strengthened is in their institutional autonomy. The judiciary have become a more independent and self-governing branch of government. The Lord Chief Justice as head of the judiciary now makes decisions which previously were made by the Lord Chancellor, namely appointing to the lower levels of the judiciary, strongly influencing senior appointments, and jointly overseeing judicial discipline with the LCJ. The courts service, which used to be run by the executive, is now managed as a partnership jointly between the executive and the judiciary. So are the Tribunals, with the Senior President of Tribunals one of the three judges on the board of the Courts and Tribunals Service.

 

4.8              So why are the judiciary so reluctant to acknowledge these gains for judicial independence? One possible reason why judges may feel that matters have grown worse since the loss of the old Lord Chancellor is that the constitutional changes of 2005 were swiftly followed by the economic crisis of 2007. This has led to severe reductions in funding for the courts, a freeze on judicial salaries and adverse changes to judicial pensions. These cuts have been difficult to bear, but have not threatened judicial independence in the sense of the judiciary’s ability to decide cases impartially, and free from undue influence. Judges who maintain that judicial independence has become weaker need to be more specific in stating in what ways it has been weakened, and how.

 

Have the changes strengthened or weakened judicial accountability?

 

5.1              Our research looked at the impact of the changes of 2005 on the accountability of the judiciary, as well as their independence. They are often two sides of the same coin: the judiciary need a high degree of independence, but if they are allowed to be too independent, they may become insufficiently accountable. Accountability involves two main forms: giving an account (narrative or explanatory accountability); and being held to account (culpable or sacrificial accountability).[14] What we found is that accountability has become stronger in both senses.

 

5.2              Much judicial business which was previously conducted behind closed doors in the old Lord Chancellor’s Department is now out in the open. This is not just a result of the 2005 changes, but results from wider initiatives in Whitehall and Westminster to make government departments and agencies more open and accountable, primarily by publishing more information about their activities. We now have annual reports from the Ministry of Justice;  the Courts and Tribunals Service; the Judicial Appointments Commission; the Office for Judicial Complaints; and the Judicial Appointments and Conduct Ombudsman, plus the annual Judicial and Court Statistics.

 

5.3              The Lord Chief Justice has started to give a regular account to Parliament, appearing in an annual evidence session before the Lords Constitution Committee.[15] He is not alone. Our research recorded the growing accountability of the judiciary to Parliament, with 148 appearances by 72 judges before 16 different committees in the years 2003 to 2013. This is mainly explanatory accountability: it involves judges giving an account of different parts of the justice system, appearing as expert witnesses to explain how the system works in practice.[16]

 

5.4              The Office for Judicial Complaints (now the Judicial Conduct Investigations Office) is the main vehicle for litigants to complain about judges, and for judges to be held accountable for poor conduct. It is more visible than its predecessor, the Judicial Correspondence Section of the Lord Chancellor’s Department. On average it has received some 1500 complaints a year since 2006, resulting in a dozen judges and 50 or so magistrates each year being sanctioned in some way, ranging from dismissal to a formal warning. In the case of judicial appointments or judicial discipline, the Judicial Appointments and Conduct Ombudsman provides an alternative avenue for complainants who feel that their application for judicial office, or their complaint against a judicial office holder has not been dealt with fairly.[17]

 

Greater judicialisation of politics requires greater political awareness in the judiciary

 

6.1              The judicialisation of politics is widely accepted as a growing phenomenon in all advanced democracies, as well as the UK.[18]  It refers to the growing influence of the courts on public policy and political decision making, fuelled by the growth of international and European as well as domestic law.

 

6.2              Now that the judiciary are formally more separate, and more exposed, senior judges have become political actors in their own right, with increased public exposure of the judiciary, to the media and to Parliament. Senior judges appear regularly before parliamentary committees; the Lord Chief Justice holds press conferences and issues press releases, as does the Supreme Court; the judiciary have developed an impressive website, and are regular users of Twitter.  Much of the time they are simply explaining the judicial role, or the significance of particular judgements. But sometimes they will use a public occasion to take issue with the government if they feel the government is not listening to them behind the scenes.

 

6.3              With the greater separation between the worlds of law and politics, there is a risk of a growing gulf in understanding. With their horror of ‘politicisation’, the natural instinct of the judiciary is to insulate themselves more and more from the world of politics. The Judicial Appointments Commission is a good example of the result of that kind of thinking. But the judiciary depend on politicians, not just for the resources to support the justice system, but for wider support, to uphold the rule of law and judicial independence. And so we come back to the central conclusion from our research, that judicial independence is a political achievement, which requires continuing support from politicians and from Parliament. As the judiciary become a more separate branch of government, the judges need not to isolate themselves, but to redouble their efforts to engage with the political branches. And politicians need to renew their engagement with the law and the courts, so that they respect and understand the constitutional role of the judiciary.

 

14 March 2022

7

 


[1] G Gee, R Hazell, K Malleson, P O’Brien, The Politics of Judicial Independence in the UK’s Changing Constitution (Cambridge University Press, 2015).

[2] Until 2013 the JCIO was named the Office for Judicial Complaints (OJC). The OJC was not formally created by the Constitutional Reform Act, but was established by the Lord Chancellor and Lord Chief Justice in April 2006 to handle complaints and discipline under Part 4 of the Act.

[3] House of Lords Select Committee on Constitutional Reform Bill, Constitutional Reform Bill: First Report, Session 2003–04, HL Paper 125-I (London: TSO, 2004). See also House of Commons Constitutional Affairs Committee, Constitutional Reform Bill [Lords] – the Government’s Proposals, Session 2004-05, HC Paper 275-I.

[4] House of Lords Constitution Committee, Relations between the executive, the judiciary and Parliament, Session 2006-07, HL Paper 151.

[5] Lord Phillips, Further Evidence from the Lord Chief Justice, in House of Commons Constitutional Affairs Committee, The Creation of the Ministry of Justice, Session 2006-07, HC Paper 466.

[6] ‘Judicial Independence and Accountability: A View from the Supreme Court’ Lecture to the UCL Constitution Unit, 8 February, 2011 at pp. 11-12. The Lord Chancellor retorted that the Supreme Court ‘cannot be in some unique position where the court decides on its own budget and tells the Ministry of Justice and the government what it should be’: http://news.bbc.co.uk/today/hi/today/newsid_9391000/9391865.stm.

[7] Frances Gibb, “Grayling seeks ‘to draw blood’ in changes to judges’ pensions”, The Times, 26 September. 2012.

[8] The case was about the Belmarsh detainees, A(FC) and others v Home Secretary [2004] UKHL 56. Lord Phillips showed some sympathy for Charles Clarke’s frustration in his speech to the Cardiff Business Club, 26 February, 2007, at pp. 6-7.

[9] In evidence to the Lords Constitution Committee, 30 January, 2013.

[10] Geoffrey Marston, ‘Armed Intervention in the 1956 Suez Canal Crisis: the Legal Advice Tendered to the UK Government’, International and Comparative Law Quarterly, Vol. 37, No. 4 (Oct., 1988), pp. 773-817.

[11] In 2010 the Lord Chancellor did not wish to appoint Sir Nicholas Wall as President of the Family Division, but reluctantly did so: J Straw, Aspects of Law Reform: An Insider’s Perspective (The Hamlyn Lectures) (Cambridge University Press, 2013), pp. 58–59. Sir Nicholas Wall subsequently resigned on grounds of ill health. Straw had reportedly wanted to appointed Lady Justice Heather Hallett: see Joshua Rozenberg, "Jack Straw on Judicial Appointments: 'Labour Went Too Far'" The Guardian, 4 December, 2012.

[12] There were tensions in the early years, especially over the budget. See Lord Phillips, “Judicial Independence and Accountability: a View from the Supreme Court” UCL Lecture, 8 February, 2011.

[13] Lord Hope, ‘Life on the Law Lords’ corridor – the last 40 years’ Stair Society Lecture, 2013, final para.

[14] V Bogdanor, ‘Parliament and the Judiciary: the Problem of Accountability’, Third Sunningdale Accountability Lecture, 2006.

[15] This has been an annual fixture since at least 2006. The LCJ has appeared occasionally before the Commons Justice Committee, but this is not such a regular fixture.

[16] Robert Hazell and Patrick O’Brien, ‘Meaningful Dialogue: Judicial Engagement with Parliamentary Committees at Westminster’, Public Law , 2016 (January) pp. 54-73.

[17] JACO received an average of 350 complaints a year. The number doubled, from 222 in 2006-07 to 466 in 2011-12. Most complaints are about judicial conduct, with less than 10 per cent about appointments 

[18] Alec Stone Sweet, On Law, Politics and Judicialisation (Oxford University Press, 2003).