Select Committee on Constitutional Reform Bill Written Evidence

Memorandum by Vernon Bogdanor, Professor of Government, Oxford University

  1.  The Constitutional Reform bill should be seen in the light of the programme of constitutional reform began in 1997 and perhaps not yet completed.

  2.  We are in the process of doing something quite unique in the democratic world, in slowly converting an uncodified constitution into a codified one, by piecemeal means, there being neither the political will nor the public consensus to proceed more rapidly. It may be said, therefore, that the British people, through their elected representatives, are in effect giving themselves a constitution. The theory of the American Constitution is that the people, through their elected representatives in Congress, are able to maintain a democratic dialogue, on how that Constitution is interpreted. The question may arise in Britain of whether the people should through Parliament, be able to initiate such a democratic dialogue. That is a fundamental and difficult question.

  3.  The three central proposals in the bill are:

    (a)  The abolition of the office of Lord Chancellor.

    (b)  The arrangements for the new Supreme Court.

    (c)  The new method of appointment of judges.

  4.  The previous arrangements were defended because they "worked", and not on any grounds of abstract principle. No one indeed believed that the British model was in any sense generally applicable. Indeed, it was something of an embarrassment. As Erik Jurgens, Rapporteur of the Committee on Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe told the House of Commons Select Committee on the Lord Chancellor's Department.

    "Every day in my Council of Europe work I am in confrontation with new democracies from central and Eastern Europe. When I tell them they should not do certain things they say `what about the British?' They have these [judges] appointed members of Parliament in the Upper House. They have a Lord Chancellor—all the things I tell them they should not have"[26]

  5.  The system "worked" since, although in theory, the Lord Chancellor could regularly sit as a judge, he has rarely done so in recent years; and although he could, in theory, act as a partisan Cabinet minister by making political appointments to the judiciary, this too did not happen in modern times. Similarly, the law lords, by convention, played no part in political controversy in the upper house.

  6.  There are three objections to the argument that the old system "worked". The first is that it has worked in a broadly satisfactory manner only in recent years. At the beginning of the 20th century, Lord Salisbury, as Prime Minister, spoke of "the unwritten law of our party system", and declared that

    "there is no clearer statute in that unwritten law than the rule that party claims should always weigh very heavily in the disposal of the highest legal appointments. In dealing with them you cannot ignore the party system as you do in the choice of a general or an archbishop. It would be a breach of the tacit convention on which politicians and lawyers have worked the British Constitution together for the last two-hundred years".[27]

  7.  Second, there have been cases when the supposed conventions were not observed, even in recent years. Lord Hailsham combined the office of Lord Chancellor with that of President of the City of Oxford Conservative Association, and was not inhibited by his role as head of the judiciary from making rumbustious and partisan political speeches. Lord Irvine acquired responsibility for constitutional reform, chairing the Cabinet committees which prepared the devolution legislation and the Human Rights Act. In 2001, Lord Scott spoke in the House of Lords on the controversial issue of hunting, while, in the recent debate in the Lords on the Constitutional Reform bill, Lord Hoffman voted against the government and in favour of the motion proposing the establishment of a Select Committee. There is thus no necessary presumption that the conventions will always be observed, and future political vicissitudes might make it expedient for them to be broken. Moreover, the process by which judges were appointed was, until recently, shrouded in some mystery, and was criticized as owing too much to arcane processes of networking. Such processes do not command public confidence in the modern age, and there have been many complaints that there are too few women and too few members of the ethnic minorities amongst the senior judiciary—98 per cent of the judges are male, 87 per cent. went to public school and 90 per cent attended either Oxford or Cambridge. The Judges Council accepted, in its response to the Consultation Papers on Constitutional reform that "One criticism that can be made of the existing situation is that the senior judiciary lacks diversity. The criticism is accepted, and the negative impact of this shortcoming is readily acknowledged".[28] The criticism should be taken particularly seriously at a time when the courts are likely to find themselves increasingly concerned with sensitive issues primarily affecting women, such as abortion, the status of embryos and stem cell research, and issues primarily affecting ethnic minorities such as racial discrimination. The court is not of course a representative forum, but, nevertheless, the judiciary needs to be more diverse so that a wider range of experience can be drawn upon.

  8.  But the third objection is the most important. Even if the conventions worked perfectly, it would still not be satisfactory to retain a system based so largely upon them. "British government", declared Sidney Low in 1904, "is based upon a system of tacit understandings. But the understandings are not always understood".[29] What may have been acceptable a hundred years ago is hardly likely to be acceptable today in a world in which deference has largely disappeared and political and judicial arrangements are expected to be capable of rational and public justification. Indeed, one central theme of the process of constitutional reform since 1997 is the need to refashion our political system so that it no longer depends on tacit understandings, but is based upon clear public principles for organizing and controlling power.

  9.  The need for clear public principles is strengthened by our commitment to the European Convention of Human Rights. Recently, the Council of Europe was disturbed by the situation in Luxembourg where the highest administrative court, the Conseil d'Etat, was accustomed to give advice to the government on pending legislation, legislation on which it would eventually have to make rulings. In 2000, in the case of McGonnell v UK (2000), 30 EHRR 289, it was ruled that, with regard to the Bailiff of Guernsey, it was "incompatible with the requisite appearance of independence and impartiality for a judge to have legislative and executive functions as substantial as those in the present case". In the Scottish case of Starrs v Ruxton, 2000 SLT 42, it was ruled that the provision by which part-time sheriffs were dependent for their continued employment on the executive was in breach of Article 6 (1) of the European Convention. This led to changes in the arrangements for tenure of part-time judges in Scotland and also in England and Wales, to avoid a possible challenge to the position of Recorders. There must, therefore, be some legitimate doubt as to whether the role of the Lord Chancellor and that of the law lords as members of the House of Lords would have been found compatible with Article 6 of the European Convention of Human Rights requiring "a fair hearing by an independent and impartial tribunal". The rule of law requires that the actions of government are subject to review by judges, and so the head of the judiciary must not only be independent of government but also be seen to be so. The essence of the rule of law, surely, is not only that constitutional arrangements are proper, but that they are seen to be proper. Thus, the requirement that judges be independent of government is itself a fundamental requirement of constitutionalism.

  10.  There should, therefore, be new arrangements for the appointment of judges. What ought these to be? The problem is one of weighing two opposed principles, judicial independence, the need to ensure that judicial appointments are not politicized; and accountability. Lord Falconer's introduction to the consultative paper, Constitutional Reform: A New Way of Appointing Judges, (July 2003), declares both that "The appointments system must be, and must be seen to be, independent of Government" but also that "those responsible for judicial appointments must be accountable to Parliament without it becoming part of the political process". Under our constitutional system, appointments made by the Queen are made on the advice of a responsible minister. They could not be made directly on the recommendation of a Judicial Appointments Commission. The reason for this is clear. It is that the sovereign must be shielded from controversy by a minister who can be questioned in Parliament.

  11.  However, the Secretary of State, like the Lord Chancellor, performs a dual role. He is, on the one hand, a responsible minister, a member of the government; as such, he plays his part in the formulation and defence of government policy, and is responsible for that policy. But he is also an agent of the state, and, insofar as he acts in this capacity, as he does in the appointment of judges, it is undesirable for him to be questioned in Parliament. Indeed, any political control on him in this latter role is improper. The Lord Chancellor could not of course be questioned in the Commons on individual appointments; and it would be undesirable were the Secretary of State for Constitutional Affairs, who could, of course be drawn in future from the House of Commons, to be questioned in the Commons. However, if the decision on judicial appointments is to be that of a responsible minister, he must have a genuine discretion, a discretion that could, in theory, always be abused for political purposes. How is this conflict—between the role of the Secretary of State as a responsible minister and as an agent of the state—to be resolved?

  12.  The first question to answer is what degree of discretion the Secretary of State should enjoy. In the case of senior civil service appointments, where the appointment is advertised, the minister currently has only a very limited discretion. (I am aware that the government is currently seeking to alter this principle.) He or she has the option either of accepting the recommendation of the Civil Service Commission or of rejecting it; but, if the recommendation is rejected, the post is re-advertised and the selection procedure begins again. The minister is not at liberty to choose a candidate other than the person recommended by the Commission.

  13.  The argument for this is that a civil servant serves not only the particular minister who chooses him or her, but will be required to serve other ministers, who may well be of a different political colour to that of the minister making the appointment. Judges, however, do not serve ministers or government at all; they are servants of the law itself. Therefore, a fortiori, a responsible minister ought not to enjoy a greater degree of discretion over the appointment of a judge than he enjoys over the appointment of a senior civil servant. He should, in other words, be required, in all cases, including appointments to the new Supreme Court, to accept or reject a nomination made by the Judicial Appointments Commission. But how can this principle be made compatible with the idea of a genuine discretion for the minister without which ministerial responsibility becomes meaningless?

  14.  In cases of appointments to the cross-benches of the House of Lords, the so-called "Peoples peers", and appointments from the opposition parties, the Prime Minister has indicated that, although it is for him to advise the Queen, he will, by convention, accept the names recommended to him by the House of Lords Appointments Commission. A similar convention should, it is suggested, be adopted in the case of judicial appointments. Thus, although it will be for the Prime Minister, after consulting with the Secretary of State for Constitutional Affairs, to advise the Queen, he will, by convention, accept the recommendations of the Judicial Appointments Commission. Were there to be circumstances where the Prime Minister or the Secretary of State felt that the convention ought not to be adhered to, then the appointments procedure would have to begin again.

  15.  The question then arises as to whether there ought to be any further measure of accountability to Parliament. It would clearly be highly undesirable for ministers to be questioned on individual appointments; while confirmation hearings after the American fashion, even if in principle desirable, would be unlikely to find favour at the present time.

  16.  Perhaps, however, some lesser degree of parliamentary scrutiny might be acceptable. There is likely to be increasing public interest in both the role and the composition of the judiciary. It is certainly to be hoped that the judiciary will rapidly become both more representative and more diverse, and, in particular, that more appointments of women and members of ethnic minorities will be made. Progress towards this aim will no doubt be charted by the Judicial Appointments Commission in its annual report. This report will presumably be scrutinised by the Constitutional Affairs Committee in the House of Commons and perhaps in the Lords also, in the same way as the annual report of the High Court of Australia is subject to scrutiny by the Legal and Constitutional Legislation Committee of the directly elected Australian Senate.

  17.  But there is a more fundamental need for accountability since, as a result of the process of constitutional reform since 1997, the role of the Supreme Court is likely to change very radically.

  18.  Lord Steyn has declared that the reforms since 1997, and in particular the Human Rights Act, are turning Britain into "a true constitutional state". He went on to insist that "A distinctive characteristic of such a state is that it has a wholly separate and independent Supreme Court which is the ultimate guardian of the fundamental laws of the country". (Emphasis added)[30] The implications are likely to prove very profound.

  19.  The idea of fundamental law is of course something wholly new in our constitutional experience. Indeed, Dicey insisted that our constitution knew nothing of fundamental law. Yet, while no doubt the principle of the sovereignty of Parliament remains at the core of our constitution, it would be difficult to deny that such legislation as the Human Rights Act, the devolution legislation, and, from an earlier period, the European Communities Act of 1972, is in practice fundamental. Certainly, interpretation of such legislation is a very different matter from interpretation of, for example, legislation connected with matters of taxation or company law, and involves judges in a quite different kind of exercise, one in which their philosophical predilections might well prove highly relevant. During the Pinochet case, indeed, both The Times and The Daily Telegraph, distinguished between those law lords who were "liberal" and those who were "conservative"[31] That of course is an exercise frequently undertaken in the United States. Were our Supreme Court to begin to take on some of the characteristics of a constitutional court, then the philosophical predilections of a judge might well become a factor relevant to his or her appointment.

  20.  If we have, in the years since 1997, been in effect giving ourselves a constitution, then should we not be able, through Parliament, to initiate a dialogue about how that constitution is interpreted? Some senior judges, including the Lord Chief Justice himself, have already begun a dialogue directly with the interested public by announcing their views in the form of lectures and articles for law journals. Why should they not also begin a dialogue with Parliament provided that such a dialogue does not involve the politicization of the judiciary? Thus, the process by which a parliamentary Committee, such as the House of Commons Constitutional Affairs Committee, seeks formal opportunities to meet Justices of the Supreme Court, including recently appointed ones, should be continued and intensified. The Constitutional Affairs Committee has recently concluded that

    "The views of Judges on the role of the Supreme Court, approaches to broad questions of law, especially constitutional law and human rights law and law reform are all matters of legitimate public interest. A constructive dialogue between parliament and the UK's most senior judiciary need in no way undermine judicial independence. The Supreme Court itself has much to gain from such dialogue, especially if senior members of the judiciary cease to sit as peers in the House of Lords.—we recognize the potential benefits to public understanding of the role of the new Supreme Court if a practice were to be adopted of inviting Judges, including recently appointed ones, to appear before an appropriate Committee from time to time (including this Committee)."[32]

  In taking on this role the Committee would be providing a further safeguard against any attempt by a minister to politicize the judiciary.

April 2004

26   Minutes of evidence 27 March 2003. Back

27   R F V Heuston, Lives of the Lord Chancellors, 1885-1940, Clarendon Press, 1964, Pp 52. Back

28   Judges' Council response to the Consultation papers on Constitutional Reform, November 2003, para 72, p 16. Back

29   Sidney Low, The Governance of England, T Fisher Unwin, 1904, p 12. Back

30   Johan Steyn, "Creating a Supreme Court", Counsel, October 2003, p 14. See also Vernon Bogdanor, "Our New Constitution", Law Quarterly Review, 2004. Back

31   R v Bow Street Metropolitan Stipendiary Magistrate ex p Pinochet Ugarte [1998] 4 All ER 897, HL; (No 2) [1999] 1 All ER 577 HL; No 3 [1999] 2 All ER 97, HL. The Times, 25 March 1999; 22 September 2000; The Daily Telegraph, 18 January 1999. Back

32   House of Commons, Constitutional Affairs Committee, HC 48-1, 2003-04, paras 86, 87. Back

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