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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