Evidence submitted by Professor Sir John
Baker QC
I have only just discovered that there has been
an opportunity to make comments on the Constitutional Reform Bill
and am annoyed that, having registered to do so, I am too late.
The opportunity to make comments is a valuable one, but it is
new, and it cannot be expected that everyone will know about it.
The current constitutional changes are being driven through too
rapidly for full discussion, and for informed comment to be made
at the right moment. The consultation process has therefore been
defective. I know that the Constitutional Reform Bill has now
passed through Parliament, but I nevertheless wish to state my
opposition to much of what it proposes. I would also wish to add
my own protest at the way the reform was introduced, at the refusal
of the Government to allow discussion of the abolition of the
Lord Chancellor—which was announced as settled Government
policy before anyone knew it was being considered—and at
the appallingly inept way in which the Bill has been drafted.
Changes of such magnitude deserve proper public debate and carefully
prepared legislation. There is no conceivable case for treating
them as an emergency.
There are three main provisions, dealing with:
1. judicial appointments;
2. the headship of the judiciary; and
3. the establishment of a new appellate court.
All of them have been broadly accepted by the
Lord Chief Justice, and (it seems) by Parliament, but in my view
they are still full of dangers. The broad language of Clause 1,
designed to preserve judicial independence, was apparently inserted
at the insistence of the Lord Chief Justice; but I cannot see
how that provision—which does not seem even to apply to
the appointment process—would be in any way enforceable
in the courts. It is the system as it operates in reality which
matters.
The principal reason advanced by the Government
for these changes is some misunderstood theory about the separation
of powers. We have never had a separation of powers, but rather
an interlocking balance of powers. If we were to have a real separation
of powers, we would have to remove ministers from Parliament,
give the Commons more independence, and establish a Supreme Court
with powers of judicial review. There is a good case for all of
that, but I do not imagine the Prime Minister would find it very
appealing. The other reason advanced was that the Lord Chancellor
somehow infringes the principles of human rights. I think that
argument applies only to his judicial work. No doubt it was inappropriate
for the Lord Chancellor to sit on appeals in cases affecting the
Government, such as judicial review cases; but that was solved
very simply by his ceasing to do so. No further change was called
for by any human rights principles of which I am aware. I am left
with the unhappy conclusion that the driving force is an unworthy
one which the Government has tried to disguise.
Let me, then, consider the three proposals in
the Bill one by one:
1. APPOINTMENT
OF JUDGES
Judges have been appointed on the advice of
the Lord Chancellor since medieval times. That does not in itself
make it right, yet everyone accepts that—for the last century
at least—it has worked perfectly well. The Lord Chancellor,
though a party politician and a member of the Cabinet, accepted
the personal responsibility imposed by the judicial oath, by his
professional background, and by long convention, and genuinely
sought out the best candidates. He held the highest secular office
of state in the kingdom, and had no thoughts of further political
advancement; this unique stature gave him a valuable position
in Cabinet as a semi-independent protector of the rule of law.
Of course, his office was held at the will of the Prime Minister;
but no Prime Minister ever dared to remove a Lord Chancellor because
of a dispute over a judicial appointment. Recently the selection
procedures, which involve a large staff of civil servants, have
been made subject to independent scrutiny. Nevertheless, I believe
that the idea of a Judicial Appointments Board is not in itself
objectionable.
A predictable result of the Human Rights Act
is that the courts are increasingly obliged to frustrate Government
decisions, and this inevitably results in a desire to increase
political control of appointments. That has long been the system
in the United States, where (I am told) you need a campaign manager
and substantial funds if you wish to stand for certain judicial
offices. It is widely believed that the Supreme Court will change
direction after the next few appointments by President Bush. It
is immaterial whether or not one supports Mr Bush's views: the
lesson is that the Supreme Court may simply change American law
in a number of important areas as a direct result of party politics.
That is something we have not seen in this country since the 17th
century. But it should not be assumed that it could not happen
here, that English judges are somehow different, because Lord
Falconer has made it clear that he wants a different judiciary.
He wants judges to be more "representative" of the population,
whatever that means. He even inserted in the Bill a power for
the Minister to redefine "merit" for the purpose of
judicial appointments—though that was so outrageous that
he has now agreed to take it out. In my submission, the notion
that the judiciary should be "representative" of anything
other than the highest standards of professional expertise is
dangerous nonsense. How long will it be before the policy is extended
to surgeons and generals as well? As it happens, I read recently
that the Government indeed does wish merit to be redefined in
the case of medical practitioners, so that doctors will be more
"representative". I suggest that it is self-evidently
dangerous to treat judgeships, or licences to practise medicine,
as mere job opportunities to be distributed proportionally across
the population.
It is in this context that I am able to accept
that perhaps too much has come to rest on the ultimate judgment
of one man. I do not know how many suitable candidates there are
for the post of Lord Chancellor; but there is no real safeguard
against political pressure upon those who accept the post, and
no safeguard against incompetence other than removal by the Prime
Minister. The time may therefore be ripe to formalise control
of the process for sifting judicial candidates, so as to bring
it under the scrutiny of an independent commission.
But what is now proposed is that, after the
sifting, the appointments should be made on the advice of the
Minister for Constitutional Affairs, who need not be a lawyer
and will certainly be a rank-and-file politician aspiring to higher
office. The Minister will have most of the powers of the Lord
Chancellor but none of the historic qualifications or responsibility.
Members of the commissions set up to advise him will be appointed
by the Minister—the majority of them on his own initiative—and
he will have the right to reject their candidates. In the case
of the new Supreme Court—the one that matters most of all—three
out of the five members of the commission will be nominated by
the Minister; they will produce up to five candidates for the
Minister to choose from, and he will be entitled to reject them
all. Not only does such a system lack even the appearance of independence,
but there will be no individual on whom personal responsibility
for decisions can be pinned: the Minister will be able to shelter
behind the obscurity of a semi-anonymous non-autonomous body;
but that body will not itself have made a decision; it will have
had to list a number of candidates who are not front-runners,
some of them slipped in (perhaps) to appeal to the Minister. It
is true that the judges and the legal profession will be represented
on the commissions; but the net result is that the potential for
political influence will have increased.
The problem would be overcome very simply by
the continuance of the office of Lord Chancellor, provided that
the Prime Minister continues to observe convention in appointing
the right kind of senior lawyer to the position. Lord Falconer's
recent assertion that the dispute is simply about the title of
his post shows a serious lack of understanding—unless it
is a wilful distortion—of this fundamental point.
2. HEAD OF
THE JUDICIARY
The second reform is the replacement of the
Lord Chancellor as head of the judiciary by the Lord Chief Justice,
who will be given a budget, a staff of 30 or 40, and a press office.
The "Lord" Chief Justice will, however, no longer be
a Lord—since that would fall foul of the newfound Separation
of Powers doctrine—and will have no voice in Parliament
or in Government. He will therefore be less well placed than the
Lord Chancellor to protect the Rule of Law extra-judicially against
assaults from ministers. Moreover, he will have less time to spend
in court; and it may be unduly hopeful to suppose that the same
kind of candidates will come forward for the office when it has
become more administrative than judicial. A further concern is
that the Home Office has plans to take over the administration
of the court system, which will be easier to achieve when the
staff of thousands employed in what used to be the Lord Chancellor's
Department has been detached from the judiciary. The takeover
was reportedly attempted not long ago by Mr Blunkett, but fought
off for the time being by Lord Irvine and the judges. The courts
certainly cost money, for which someone should be politically
accountable; but control of the purse-strings in this instance
could very easily facilitate political interference. The Lord
Chief Justice will not be in a strong position to stop it.
3. THE SUPREME
COURT
As it happens, I do not believe this is very
significant constitutionally, though it might have been. The general
public may not be aware that we already have a Supreme Court,
established under the Judicature Acts of 1873-75, comprising the
Court of Appeal and the High Court. In 1876 the House of Lords
decided it did not want to lose its appellate jurisdiction, and
so it was brought back by a supplementary statute. The Supreme
Court of 1875 kept its incongruous name, but with the House of
Lords above it. By a clever expedient, however, the judicial House
of Lords after 1876 was almost completely separated from the upper
chamber of Parliament: life peers were invented, so that judges
could be ennobled for the purpose of sitting in the highest court,
and they sit in committee outside the chamber. The system has
worked extremely well. In its White Paper on the House of Lords
(2001), the Government vigorously defended judicial membership
of the Lords and said it was "committed" to maintaining
it. The commitment did not last very long. Somebody has decided
that Law Lords contravene our new-found doctrine of separation
of powers; so they too must be done away with. However, instead
of reverting to the original Victorian scheme, we are to have
a second supreme court, erected above the old one.
But this will not be a supreme court in the
sense in which that term is widely used in other countries: that
is, a constitutional court. It will have some constitutional functions
in relation to devolution, though even these will not quite be
supreme. What it will not have is the power to strike down legislation.
Many believe this to be a lost opportunity. I have myself until
recently been averse to the idea of a written constitution, with
an American-style supreme court having the power of judicial review,
because it would turn unelected judges into legislators. We must
not think in terms of empowering the judges as we know them today—the
character of the judges will change with their function. I am
still on balance unpersuaded. But I am not alone in wondering
whether, now that our unwritten constitution is beginning to unravel,
judicial review might not be the lesser of two evils. Some kind
of check is better than none.
Finally, I believe the very concept of a Minister
for Constitutional Affairs to be outrageous. It means that we
no longer have a constitution, in the sense of a body of principles
and practices above Government, limiting what it may legitimately
do. The constitution has been taken over by the Government and
put on a par with the health service, or education. We are heading
fast towards an absolutist model of government, without any of
the checks and balances found in written constitutions. If the
Government does not care about this, I earnestly hope that others
will.
Professor Sir John Baker QC
St Catharine's College, Cambridge
7 November 2004
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