Will the reforms in the Constitutional Reform Bill achieve the aims set out in Lord Falconer’s statement of 26th January 2004?
The Constitutional Reform Bill is the illegitimate progeny of the botched Cabinet reshuffle of June 2003 which led to the hasty removal of Lord Irvine and the appointment of Lord Falconer as Lord Chancellor with a mandate to abolish himself!
Its principle limbs are:
The abolition of the Judicial Committee of the House of Lords and its replacement by a new Supreme Court (separating Legislature and Executive);
The establishment of a Judicial Appointments Commission to assume the functions of the Lord Chancellor in the appointment of judges (separating Judiciary and Executive)
The abolition of the post of Lord Chancellor (separating Legislature, Executive and Judiciary).
It is highly doubtful whether the proposed reforms will achieve Lord Falconer’s stated aims principally because the intended changes are susceptible to the colloquial criticism, “If it ain’t broke, don’t fix it!”.
It has to be admitted that the current role of the House of Lords in the judicial process is an historical anomaly. The Judicial Committee is the ultimate appellate court in the UK and Commonwealth but it continues to sit in the Palace of Westminster. More controversially, its members remain an integral part of the second legislative chamber. This has led to the apparently plausible criticism that the arrangement represents a breach of the doctrine of separation of powers and gives rise to the populist criticism that the Law Lords are making laws which in their judicial capacity they will then have to interpret and enforce. In reality, their Lordships have proved to be scrupulous in refraining from debate where this is likely to generate a conflict of interest between their judicial and legislative roles. The Government’s stance is that complete separation between politicians and the judiciary is essential in order to maintain public trust and it is sought to emphasise this division by the relocation of the ultimate appeal court to a new and doubtless stratospherically expensive building. This is costly window dressing. Nowhere in the current debate is there any compelling evidence of public disquiet at a system that has endured without significant criticism of this type for centuries. Further, Lord Woolf, the most senior judge in England and Wales has condemned the proposal as exchanging a first class final appeals court for a second class supreme court. The Supreme Court of the USA is extolled as a role model but it is conveniently forgotten that the proposed UK Supreme Court would not possess the power of its transatlantic cousin to strike down legislation and will therefore be bereft of much of the influence of the latter. At best a great deal of money will be spent in replicating for all practical purposes the existing set-up. Far from endorsing the independence of the new court, Woolf fears that it will reduce the judiciary to “a department of the Home Office” as a result of becoming answerable through the Department of Constitutional Affairs. This reform may be regarded as a product of the political dogma which dictates the dismantling at all costs of the ancient structure and operations of the House of Lords.
The proposal to establish a Judicial Appointments Commission while not similarly politically motivated is equally flawed in its present form. Traditionally the Lord Chancellor is the head of the judiciary and responsible for the appointment and supervision of judges. Admittedly there has been criticism by the public and, in particular, members of the legal profession of the process of appointing High Court Judges with allegations of “secret files” and a lack of transparency in the recruitment process. It cannot be denied that the Lord Chancellor (at the very latest upon appointment) becomes a career politician with a seat in the Cabinet and thus at the very heart of the government of the day. While this is apparently unsatisfactory, criticisms of judicial appointments do not contain allegations that they are driven by party political considerations. This is in stark contrast to the position in the USA where appointments to the Supreme Court are in the gift of the President and there is intense interest in and scrutiny of the political composition of the court. In a lecture to the UCL Constitution Unit in November 2003, the Chairman of the Bar of England and Wales, Matthias Kelly, QC, expressed concern at the proposed operational structure of the Commission. He argued that it should be “a non-departmental public body with a supporting agency” accountable to Parliament for its activities but not specifically accountable for the selection of particular individuals. There is a danger that scrutiny of the activities of the Commission may become akin to unseemly American-style confirmation hearings. The DCA Consultation Paper, Constitutional reform: a new way of appointing judges, (July 2003) suggests that “the Commission should be a recommending Commission, putting up a short-list of candidates for appointment to the Secretary of State”. It is hard to understand how the involvement in this way of the Department of Constitutional Affairs would assuage the supposed public concern at political involvement in the judicial appointment process.
Every discussion of separation of powers in the UK constitution (Legislature, Judiciary and Executive) highlights the anomalous position of the Lord Chancellor who (with remarkable physiological ingenuity!) maintains a foot in all three camps. It has to be conceded that given the strict prohibition of judges holding party political affiliations, the sight of a member of the government of the day dispensing justice in the ultimate appellate court is incongruous. This is a major reason why it was proposed to replace the Lord Chancellor with a Secretary of State for Constitutional affairs and remove him from the House of Lords and, in particular, its judicial function. However, again the necessity for this is questionable. Even Lord Hailsham – a thoroughly political animal – appeared to manage appropriate detachment from the political imperatives of the day when giving judgment in the House of Lords. It now seems that we are to retain a Lord Chancellor but that he need not be a Law Lord or even a lawyer. Enter a rehabilitated former Home Secretary perhaps?
BBC News, Lords Inflict Supreme Court Blow, 9 March 2004, www.news.bbc.co.uk
BBC News, Q & A: Supreme Court Row, 9 March 2004, www.news.bbc.co.uk
Constitutional Reform Bill, www.publications.parliament.uk
DCA, Constitutional Reform: a new way of appointing judges, July 2003
Elliott, C. & Quinn, F., English Legal System, (4th Ed., 2002)
Kelly, M., QC, Where are we heading with Constitutional Reform?, Lecture to UCL Constitution Unit, 18 November 2003
The Guardian, Q & A: the constitutional reform bill, 8 March 2004