Wednesday, 28 March 2012

Constitution Committee Report on the Judiciary

Updated 29th March:

The House of Lords Constitution Committee has issued a report  which argues that a more diverse judiciary would increase public confidence in the justice system - see Parliament - Constitution Committee. Several recommendations in the report are aimed at improving diversity.  These include placing the Lord Chancellor and the Lord Chief Justice under a legal duty to encourage diversity.  Whilst emphasising that "appointment based on merit is vital and should continue", the report supports applying the Equalities Act 2010 s.159 to judicial appointments so that diversity can be a relevant factor if two candidates are found "to be of equal merit."   Further recommendations include:
  • more flexible working and career breaks for to encourage applications from women and others with caring responsibilities
  • greater commitment on the part of the Government, the judiciary and legal professions to encourage applications from lawyers other than barristers.  "Being a good barrister is not necessarily the same thing as being a good judge."
  •  While the Committee does not currently support the introduction of targets for the number of Black Asian and Minority Ethnic and women judges, it says this should be looked at again in five years if significant progress has not been made. 
  • Stressing the importance of judicial independence, the report believes that the Lord Chancellor's role in individual appointments should be limited.  The power to reject nominations for posts below the High Court should be transferred to the Lord Chief Justice.
The Committee did NOT favour US-style or post appointment parliamentary hearings since political considerations would undoubtedly influence both the parliamentarians chosen to sit on the panels and the questions put to candidates.

Judges should have formal appraisals as is common in business, the professions and civil service.  

The Committee also recommends that the retirement age for the most senior judges, those in the Court of Appeal and the Supreme Court, should be raised to 75. This would prevent a loss of talent in the highest courts whilst allowing more time for women and others who have not followed a traditional career path to reach the highest levels of the judiciary. The retirement age for all other judges should continue to be 70.

See the full report - Judicial Appointments 

The Bar Council's reaction to the report is here 

Earlier this week Law and Lawyers looked at another report relating to Selecting the Senior Judiciary.

Addendum 29th March 2012:

On 28th March, The Guardian published an article entitled - "Britain must beware the dystopic drift towards a US-style judiciary."  The article was triggered by a hearing in the Supreme Court of the USA where the State of Florida is challenging the Patient Protection and Affordable Care Act.   Of course, in the UK, the courts may not declare an Act of Parliament to be "unconstitutional" but the courts may decide that a statute infringes the European Convention on Human Rights and, if so, the court may issue a declaration of incompatibility thereby placing pressure on Parliament (Ministers) to amend the law.

The Guardian argues that. if the US Supreme Court sweeps away healthcare, the five judges will not just have entered the political arena but laid claim to control of it.  (My emphasis).  The article continues:

"Yet we are beginning, even here, to drift into a more explicitly politicised set of interconnections between politics and the courts. Judicial review is as widespread here. Our judges make more speeches than they used to. This week, a Northern Ireland judge has decided to issue contempt of court proceedings against the former cabinet minister Peter Hain. Yesterday a House of Lords report pressed for changes in the way the judges are appointed to ensure greater diversity.

The government remains committed to enacting a British bill of rights in place of the Human Rights Act, and is regularly picking fights with the European courts.

America's dystopic politicisation of the courts and the judiciary belongs, ... , to a foreign country. But this is a slippery and dangerous slope down which we should not allow ourselves to slide."

See also the post by legal blogger Carl Gardner at Head of Legal blog - "Written Constitutions: a warning from America."


  1. Reports on all the Lords Constitution Committee hearings on judicial appointments (with relevant links to materials)and a posting on the final report can be found by browsing (As it happens you can also find material on the government's battle with the ECHR and politicisation of judges)

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