Can Mr Grayling’s vestigial organ protect judicial independence?

The independence of the judiciary is a cornerstone of liberty.  Fundamental to that independence is an appointments process in which promotion does not depend upon the wishes of the government.  The more senior the appointment the more important that principle is.

Any day now we shall know the identity of the next Lord Chief Justice.

 My guess is that it will be the erudite and delightful Lady Justice Hallet. She once decided one of my bail applications in a most courteous manner, displaying in the process many of the qualities now required of a Lord Chief Justice such as “clear vision” (she rejected it) and “decisiveness” (she did so quickly).

 Whoever is chosen to replace Lord Justice Judge will have been chosen by the most modern of selection procedures.

 The new criteria for selection leave much to be desired, managing as they do to combine the bleedin’ obvious – “ability to write high quality judgements” – with the creepily political – “ability to modernise the judicial system … ability to lead change in encouraging a more diverse judiciary”.

Why, for example, should an “ability to modernise the system” be a requirement at all? It presupposes that a modernising reforming judge is going to make a better Lord Chief Justice than a conservative, old-fashioned judge. Many would say the system would be better left unmodernised. Surely cautious traditionalist judges have a role to play too; why should they be automatically excluded from the office of Lord Chief Justice?

In any case, it is very hard to discern what “modernising the system” means in this context. Does it mean that the candidates should believe in recycling their wigs, donning the ghastly modern designer robes of the sort now unhappily worn by District Judges, and twittering all day like #sparrows? The answer may be that “modernising” does not have a fixed meaning at all; it means whatever the government of the day wishes it to mean.

We know one thing the Blair government meant by it: the abolition, in the Constitutional Reform Act 2005, of the anomalous role of a Lord Chancellor acting as both head of the judiciary with responsibility for judicial selection, and as a high ranking cabinet minister . The justification generally given for this peculiarity – which seemed to violate the principle of separation of powers – was that the Lord Chancellor was able to safeguard the independence of the judiciary within government. Rather than considering whether the 1400 year old system actually worked in practice, Mr Blair decided that because it was out of keeping with constitutional theory it needed to be “modernised”.

 The result was the creation of a Ministry of Justice, something hitherto alien to our constitution. Instead of a judge, steeped in the traditions of the English common law, at the apex of the legal system we now have a politician. It is undeniably modern, miserably so, but is it better? It would hardly be surprising if the instinct of the current Minister of Justice and Lord Chancellor, professional politician Chris Grayling, was to try to increase his political influence over the judiciary, rather than to defend its independence.

 The Government would no doubt say that is nonsense. After all, one of the other modernisations of the 2005 Act was the establishment of a judicial appointments commission (“JAC”) which makes decisions about judicial appointments at arms length and supposedly without government interference.

 But in this case at least the JAC has done nothing to dispel the fear that it is all too happy to do the bidding of its political overseers in the Ministry of Justice. Candidates for the post were required to provide as a reference “the most senior civil servant with whom you have had significant contact ….

 This is quite wrong. Cosying up to senior civil servants is the very last thing that judges should do, yet the process encourages, indeed almost requires it. The interests of civil servants and those of judges are completely different and not infrequently hostile to each other. It is the job of a civil servant to further the interests of the executive. It is often the job of judges, especially senior judges, to frustrate those same interests. Whilst the good reference of a senior civil servant should perhaps not lead to automatic disqualification, the favoured candidates should be judges with either bad references, or better still those who have had no dealings with senior civil servants at all.

 The most senior civil servant at the Ministry of Justice is the Permanent Secretary, the formidable Dame Commander of the Order of the Bath, Ursula Brennan. Insofar as judges have “significant contact” with senior civil servants it is likely to be with Dame Ursula. No doubt a good word from her would be of great help – perhaps even a necessity – in securing judicial promotion, whilst an unenthusiastic response would be the kiss of death. Yet it is far from impossible that one task of the senior judiciary in the near future will be to rule on the legality of the Ministry’s controversial plans to restrict criminal legal aid; plans that it is her job to implement.

 No-one would expect any existing judge to be remotely influenced by the worry that an adverse ruling would annoy Dame Ursula; and as a civil servant of the utmost integrity it is inconceivable that even if she were annoyed she would allow that to influence the wording of her reference. Nevertheless there is something badly wrong with an appointments process that exposes both judge and civil servant to the dangers of such influence. And if nothing else, it looks like an establishment stitch up.

 In the past we could rely on a Lord Chancellor who would resolutely defend the independence of our judges. Nowadays we have to make do with Chris Grayling. A recent post by Patrick O’Brien on the UK Constitutional Law blog addressed the difficult question of whether the Lord Chancellor actually exists. It had been naively assumed that he did, but Dr O’Brien, a cautious constitutional lawyer, intriguingly argues that such a view might be wrong. In so far as there still is a Lord Chancellor Dr McO’Brien suggests he exists only as a sort of “vestigial organ” to the Justice Secretary.

 So there we are. Our senior judiciary modernised. Promotion now dependent upon the good word of civil servants. And the independence of the judiciary safeguarded, if at all, only by the vestigial organ of an ambitious politician.

(This is a longer version of an article that appeared in the July/August 2013 issue of   Standpoint)

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Author: Matthew

I have been a barrister for over 25 years, specialising in crime. You may also have come across some of my articles I have written on legal issues for The Times, Standpoint, Daily Telegraph or Criminal Law & Justice Weekly

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