Constitutional Renewal II: an independent judiciary?
This is the second in a series of posts by Andrew Blick on the Constitutional Renewal Bill. You can read the first post here.
Andrew Blick (London, Democratic Audit): There is a crucial tension within the Governance of Britain programme. On the one hand it sets out to provide greater independence to the judiciary. On the other hand it proposes making the legal system more accountable to Parliament. On the strength of Tuesday's evidence session with the Joint Committee on the Draft Constitutional Renewal Bill, this problem needs closer attention than it is currently receiving.
In theory everyone should take an interest in they way they are governed and their rights – but in practice they don’t. For this reason the important issues raised by the Draft Constitutional Renewal Bill are much more likely to achieve traction when they engage a particular interest group. Yesterday’s session of the Joint Committee was well-attended, because it attracted the interest of the legal profession, which is to its credit consistently the most likely to become involved in constitutional matters. (The government consultation on judicial appointments received 34 responses, compared to a paltry 11 for treaties.)
Tim Dutton QC, Chairman of the Bar Council, and Andrew Holroyd, President of the Law Society, were questioned about the Renewal proposals for judicial appointments. Vital principles are at stake here and it is a shame that time was wasted by one committee member, a solicitor, demanding to know why more solicitors were not appointed judges; and another making a rambling speech about the need to appoint judges on a basis of merit, which the witnesses assured us was the position already.
Broadly, Dutton and Holroyd welcomed the government proposals which will remove the Prime Minister from judicial appointments and reduce the role of the Lord Chancellor. They rightly raised concerns about the idea – not consulted on but now being floated by the government – that the Lord Chancellor should be able to set targets for the Judicial Appointments Commission. Mr Dutton said the idea should be ‘approached with caution’. He was absolutely opposed to appointment quotas. While he could see a potential role for performance targets, it was critical that they should not interfere with the process, nor should they be perceived as so doing. There was opposition as well to the idea that the Lord Chancellor should be able to delegate functions to junior ministers or senior officials. Mr Holroyd was of the view that the existence of such an ability would imply that the Lord Chancellor was, undesirably, still involved in the process.
It was around the issue of the relationship between Parliament and the judiciary that things got interesting. Both witnesses accepted the idea that the legislature should be able to scrutinise, as Mr. Holroyd put it, ‘processes’; and Mr. Dutton approved of the principle of examination by select committee ‘twice a year’. But they completely rejected the notion of pre-appointment hearings for judges, on a basis of an understandable fear of politicisation.
But I wonder whether there might be ways of involving Parliament in the judiciary without compromising its vital independence. If they could be achieved, it might be possible to reduce the hostility to judges common amongst many parliamentarians, including – or perhaps especially – those from legal backgrounds. This lack of trust is proving to be a major barrier to the idea of a formalised constitution and bill of rights: we all know the familiar refrains about not wanting to hand political power to judges. At present it is intended that there will be pre-appointment hearings for chairs of the Judicial Appointments Commission. Might this process be extended further, to take in (as was suggested in the government consultation paper) judges with leadership roles such as the Lord Chief Justice and the Heads of Division? And could post-appointment hearings, such as those recently introduced in Canada, be of use?
