The new Constitutional Settlement: Protecting the Judges

Last week, to my surprise, the Solicitors’ Journal thought it worth devoting quite a lot of space to a profile of meIt included quite a number of ideas and memories which will be familiar to assiduous readers of these blogs.  And it ended with the thought that I would be likely to say that in the ten years since my retirement very little has changed, with lawyers and judges still fighting yesterday’s battles.  This extract from the 2007 talk I quote below suggests that there may be little new under the sun:

So far as sentencing difficulties are concerned, I would like to think that the recent hubbub over the sentence imposed by the Recorder of Cardiff acted as a wake-up call to everyone who is concerned with the future of the rule of law. The judges have repeatedly told Parliament that it is unwise to fetter their sentencing discretion. Parliament has repeatedly refused to pay attention to their advice. On this occasion the Recorder imposed a sentence that was impeccable in technical terms. The fact that it seemed to make no sense at all was the fault of the Home Office, and of Parliament, and not of the sentencing judge. In the old days the Lord Chancellor, as head of the judiciary, would have bluntly told ministers who complained about the sentence to keep their tanks off his lawn, and they would have obeyed. As it was there was silence for three days, while the Recorder was pilloried up hill and down dale. Nobody in Government was willing to put his head above the parapet to support the rule of law. It was a bad start.

And the talk ended like this:

Last summer people at the top of Government took fright at all the strident criticisms of judges’ decisions in individual cases, when the judges were simply doing their best to apply the law.  As a result the Lord Chancellor’s statement in July ended this threat to the rule of law for the time being.  But it will always be around under our new style arrangements.  It is no secret that there are a lot of judges who are apprehensive about the future if ever a career politician on his way up the political ladder becomes Lord Chancellor.  This is a consummation devoutly not to be wished.

Almost immediately after I had the interview which led to this profile, there was the most enormous brouhaha (to which I contributed, in a tiny way, with the occasional tweet) about the fact that the new Lord Chancellor, Liz Truss, remained as silent as a Trappist monk for 48 hours after certain leading newspapers had mounted a frontal assault on the professional integrity of the Lord Chief Justice, the Master of the Rolls, and Sir Philip Sales, for their judgment in the Article 50 case.  The Daily Mail and the Daily Telegraph even carried large photographs of each of them on their front page, with the headlines:

“Enemies of the people” (Daily Mail)

and

“The judges versus the people” (Daily Telegraph)

And even when Ms Truss finally broke silence, it was with an anodyne sentence about the independence of the judiciary, coupled with a further sentence laying stress upon the importance of the freedom of the Press.

Later she sought to justify her silence by saying that she thought that her only role in the defence of the rule of law was to defend the judiciary against attacks by politicians.[1]

Later still, as Tory Parliamentarians joined the Bar Council and many, many others in calling for her to take her statutory duties more seriously, she seems to have recognised the mistake she made (without actually admitting that she had made one) by being fulsome in her praise of the quality of our judiciary in a speech she made last Wednesday.  She said:

“This week’s events show the importance of the judiciary in our constitution and our free society. Our independent judiciary is vital.

From the Supreme Court down, we are unrivalled around the world in having judges who are independent, impartial and incorruptible.

I can think of no higher calling than joining the judiciary.”

It is, indeed, nearly ten years since I gave a talk on a private occasion about some of the effects of the new constitutional settlement which had recently come into force. In the light of what has just happened, I think it may be of interest if I published my speaking notes in full (although there is a long passage in which I repeat things I wrote nearly 20 years ago about my predictions for the future).

 

The new Constitutional Settlement

A paper given at a private meeting on 9th January 2007

When I was invited to talk to you, I was told you wanted to devote a meeting to the proper balance between the executive and the judicial elements of the Constitution. [Two previous speakers have talked] about the Supreme Court, but you hadn’t yet had a speaker on the wider issue. Someone thought that a recently retired judge would be the right person to address this topic. So here I am.

I need to say a word or two about where I come from.  I was a High Court judge for eight years and then a Court of Appeal judge for another ten.  I chaired the Law Commission for three years, and I was a member of the Judicial Studies Board for three years. I served on the Judges’ Council for seven years.  Over a six year period I was a full member of two departmental boards.  This was very much a first of its kind, especially as the second of them was administering £200 million of public money.    I was the judge in charge of modernisation for five years, and I finished up as the Number 2 judge in the Court of Appeal. I did a bit of judging, too.  When I retired voluntarily last year at the age of 70, I said I was saying goodbye to a job I loved and to a court I had loved ever since I joined it. I meant every word of it.

Perhaps most importantly for this occasion I had plenty of opportunities for discussions over the years with judges from a lot of different jurisdictions. I was also for five years one of the small group of senior judges who advised Harry Woolf when he was Lord Chief Justice. I therefore had an insider’s view of much that was going on when parts of our constitution were being dug up and relaid.

When people talk of the constitutional reforms, they usually think about the three things written on the back of a grubby envelope and announced on 12th June 1993. The Appellate Committee of the House of Lords was to be abolished: there was to be a new Supreme Court separate from Parliament. The office of Lord Chancellor would be abolished: the Lord Chief Justice would really be head of the judiciary and someone else would have to be found to be Speaker of the House of Lords. And there would be a new Commission responsible for judicial appointments and promotions: what would happen if and when the Commission recommended a name the Government did not like would have to be worked out.

But those weren’t the only constitutional changes that have affected the relations between the judiciary and the executive in the last ten years. There was the Human Rights Act. There was Scottish and Welsh devolution. The magistrates’ courts have come out of the cold so that magistrates now come under the Lord Chief Justice. Tribunals are coming out of the cold, too, with a Court of Appeal judge as the Senior President of Tribunals, reporting to the Lord Chief Justice. And rows over sentencing and sentencing policy go on and on in a way that doesn’t do much good to anybody.

I foresaw most of these changes in a crystal-gazing article that was published in 1999[2]. It may not surprise you that I didn’t foresee the shambolic way in which some of them were introduced. You have asked me to talk about tensions and opportunities, and I want to spend a few minutes telling you what I wrote then, when I was having a shot of guessing what might happen during the next 25 years.

“A few controversial judicial decisions, and more and more lay people, fanned by the media, were asking ‘Who are these judges?’ ‘Where do they come from?’ ‘How are they picked?’ ‘What training do they receive?’ ‘What opportunities do they get for getting off their benches and meeting judges from other countries, or having a refresher spell at a university, or learning more about the kind of things about which they are now being asked to make these very influential judgments?’ At one level the debate will have been a superficial one, although in a typically British way a more open selection process will have emerged which satisfies the need for greater democratic accountability in judicial appointments without being tarred with the worst excesses of the American system. At a deeper level, the persistence with which these questions will have been asked will have brought about a revolution in the way the judicial profession in England and Wales is organised and resourced.

The knowledgeable onlooker in 1999 would have perceived very striking differences between the organisation and training of the English judiciary when compared with that of most other jurisdictions, whether in common law or civil code countries. Of course he would have been wise to devote most of his attention to comparable common law countries, because there are so many differences in the systems of justice in place on the continent of Europe that apparent similarities may tend to deceive. He would have seen, however, that their arrangements naturally encourage a far higher level of recruitment of women to the Bench – even able young women in their 20s who find it easy to combine minor judicial work with family life – and that their judicial training colleges make it very much easier to put in place effective arrangements for continuation training.

When he looked further afield, to the United States and Canada, for instance, our onlooker would have seen great differences. In those countries the power of senior judges to run their courts was bolstered by statute, and statute also underpinned the provision of well-financed educational resources for the judiciary and the provision of transparently fair complaints systems, run by the judges themselves. Responsibility and authority were united in the same place, not divided, as in England and Wales.

Of course, these arrangements carried within them latent disadvantages. One only had to go abroad to judicial conferences in the 1990s to perceive the advantages of our seemingly anachronistic system which turned its back on the philosophy of Montesquieu, Locke and Blackstone, and placed the titular head of the judiciary in the heart of executive government with a seat in the cabinet. It was unthinkable then that the judiciary in England and Wales would be bringing lawsuits against the executive claiming better pay and conditions, as was happening in six of the ten Canadian provinces in the late 1990s; or that a member of the Cabinet, who moonlighted as a radio chat-show host, would write off the whole of the district judiciary of his country as lawyers who weren’t able enough to hold down their private practices, as happened in New Zealand at about the same time. History will be kinder to Lords Mackay and Irvine for the efforts they made to defend the independence of the judiciary against some of their more impetuous cabinet colleagues than some of their contemporary critics were ever willing to be.

Change occurred slowly. By 2024, however, it was nearly complete. In the same way that the strength of the case for rights-based law eventually overwhelmed the traditionalists’ powerful arguments in favour of the status quo, so the kind of public pressure I have described (coupled with the pressures from a different breed of young judges, many of them women) led gradually to the creation of a more overtly professional judiciary, with its own written code of ethics and its own written complaints procedures. It had become a judiciary, too, with far greater responsibility for running its own affairs, and with much more attention being paid to the needs of judges to travel to conferences abroad, to enjoy sabbatical leave at universities, and to have wider opportunities for refresher training than the Judicial Studies Board in 1999 was ever equipped or mandated to provide. The executive and the legislature would of course remain responsible for allocating budgets to the judiciary, but the remorseless logic that underlay the creation of a professional judiciary required the transfer of a greater degree of budgetary responsibility to the judges than was ever regarded as thinkable by senior civil servants in 1999.

This in turn led to the appointment of judges to posts entailing administrative and management responsibilities on a scale that was already very familiar on the other side of the Atlantic in 1999. The Treasury’s insistence that every judge must serve for twenty years before earning a full judicial pension led to much more attention being paid to matters like career development and professional job satisfaction than were ever thought necessary in the 1980s, and it was no longer feasible or sensible to leave these vitally important matters in the hands of very busy senior judges who had received no training in senior personnel management, or with civil servants whose first loyalties were to their masters in the executive branch of government. There was a good deal of creative tension before these reforms were eventually worked through, but once they were established, everyone wondered why they had not been put in place before. Needless to say, the new arrangements had to be guaranteed by statute, and in 2024 it was a familiar sight to see senior members of the judiciary with management and budgetary responsibilities going to Westminster to discuss with the relevant Commons Committee the way they were spending the resources allocated to them, and identifying their strategic needs for more resources over future five-year planning periods.

The historian of the future, as I have said, saw the passing of the Human Rights Act as a catalyst. It also brought with it the downside disbenefits which its opponents had always feared. After half a century in which appointments to the Bench had been taken completely out of politics, much more attention was being paid to the political and social attitudes allegedly adopted by our most senior judges, and a few appointments were made which were more obviously attributable to the supposed political penchants than to the judicial abilities of the appointee. After a certain amount of to-ing and fro-ing, the minister responsible for supporting the judiciary was eventually to be found in the House of Commons, although that part of his department which serviced the judges was effectively ring-fenced from its more overtly policy-driven neighbours.

What I had said about the effect of the Human Rights Act, which had not yet come into force, was this:

The historian of 2024 will see that the Human Rights Act 1998 was a very important catalyst for change. For 50 years this country had been resisting the introduction of rights-based law. Senior civil servants and ministers could see that a change of this kind would upset the delicate balance between the different sources of governmental power, and would make the law more uncertain in its operation. For them, these considerations tipped the argument heavily against giving the judges a greater power to do justice in those areas where thirty years of exposure to Strasbourg jurisprudence had shown that English law needed a finer tuning than common law judges and an increasing volume of statute-based law were ever going to be capable of providing.

That argument has now been won and lost, and the English judiciary will never be the same again. For one thing, English judges will have to ask ever more searching questions than they have ever had to ask before. Is this obvious violation of an individual right recognised by Strasbourg necessary in a democratic society for one of the acceptable purposes identified in the European Convention? In the early days after the Act came into force, there were those judges who believed that decisions like these were still matters for Parliament, and theirs was merely the familiar supervisory role, circumscribed by concepts like Wednesbury unreasonableness and ‘a reasonable margin of discretion’ for decision-makers. It took two or three decisions of the House of Lords to make it clear that the Convention meant what it said, and that on issues like this English judges had to make up their own minds on the evidence presented to them, even if the matters they sometimes had to balance in their judgments were as unalike as apples and bananas – matters which English culture and tradition had always previously left to the politicians to decide in that hothouse down at Westminster.

And after discussing a lot of other things, including more investment in applied technology in the courts, I ended by saying:

It is time to put the crystal ball away. This is only a game, and perhaps if I am still alive in 2024, I will find I got things far more often wrong than right. But the exercise was well worth doing, if only to plot out one set of futures which could make our system of justice much more accessible and acceptable to the people of this country than it is today.

We are now nearly a third of the way down the track. A lot of what I foretold is now happening.  A brilliant new Appointments Commission is already making sensible changes and asking sensible questions.  There is now a transparent judicial complaints procedure in place, although for the time being officials are accountable both to the Lord Chancellor and the Lord Chief Justice in a fairly schizophrenic way.  We now have an explicit Code of Judicial Conduct, written for judges by judges and not by civil servants.  Far more authority in relation to the business of the courts has passed to the Lord Chief Justice, although the budgetary arrangements and accountability are still all over the place.  And at long last more resources are being provided to help with the selection and training of judges, although we are still miles away from what is commonplace in the private sector.

In that article I wrote about opportunities.  They are now there to be grasped, if only the new arrangements are given a fair wind.  I attach very great importance to the changes in the world of the magistrates and of the tribunal judges.  I would prefer to wait to be asked questions about the opportunities, because you will know better than I do what you are interested in.

It was always obvious that there would be tensions.  There would have been tensions even without any of these constitutional changes.  In my professional lifetime the judges, helped by the Law Commission, have developed a mature system of administrative law that is far more fit for its purpose of calling public authorities to account when they act in excess of power.  I use the phrase “excess of power” generally, to embrace all three of the traditional grounds for interference by judicial review: unlawfulness, irrationality and procedural impropriety.  To give just one recent example, when we intervened in the recent Swindon case about Perceptin, we did so on what a public lawyer would describe as traditional Wednesbury grounds.  Once the Swindon Health Trust had expressly ruled out expense as a legitimate ground for refusing Perceptin, it was obvious that they had adopted a policy for allocating Perceptin that meant that it would not be available to anyone.  That was a policy which made no rational sense.  We therefore ordered the trust to reconsider it.  The Human Rights Act had nothing to do with the case.

In all the talk today about tensions between the judges and the executive, we come back again and again to sentencing difficulties and the Government’s seeming unwillingness at times to accept the logic of European Convention human rights law.  That law does not allow a country to expel someone who would be destined to be subjected to torture or other inhuman treatment in the country to which they are sent.  The obligation to avoid torture or other inhuman treatment admits of no qualifications.

So far as sentencing difficulties are concerned, I would like to think that the recent hubbub over the sentence imposed by the Recorder of Cardiff acted as a wake-up call to everyone who is concerned with the future of the rule of law.  The judges have repeatedly told Parliament that it is unwise to fetter their sentencing discretion.  Parliament has repeatedly refused to pay attention to their advice.  On this occasion the Recorder imposed a sentence that was impeccable in technical terms.  The fact that it seemed to make no sense at all was the fault of the Home Office, and of Parliament, and not of the sentencing judge.  In the old days the Lord Chancellor, as head of the judiciary, would have bluntly told ministers who complained about the sentence to keep their tanks off his lawn, and they would have obeyed.  As it was there was silence for three days, while the Recorder was pilloried up hill and down dale.  Nobody in Government was willing to put his head above the parapet to support the rule of law. It was a bad start.

So far as the Human Rights Act is concerned, there are two dangers. The first was the one I wrote about in 1999.  The second lies in the unwillingness of our ministers and MPs to master the subject.  As a result they come out with public pronouncements that appear to make no sense at all.  A lot of us thought that it might be better to introduce a modern rights code in Britain ten years ago, rather than one that was over 50 years old and fraying at the edges.  We were persuaded that it would be impractical to have one set of rights at national level and a different set of rights at international level.  I am still not quite sure how it can be done.

Last summer people at the top of Government took fright at all the strident criticisms of judges’ decisions in individual cases, when the judges were simply doing their best to apply the law.  As a result the Lord Chancellor’s statement in July ended this threat to the rule of law for the time being.  But it will always be around under our new style arrangements.  It is no secret that there are a lot of judges who are apprehensive about the future if ever a career politician on his way up the political ladder becomes Lord Chancellor.  This is a consummation devoutly not to be wished.

A final comment

Plus ça change…

 

[1] Perhaps her advisers were overly influenced by the passage in Lord Dyson’s Third Annual BAILII Lecture two years ago on Criticising judges: fair game or off – limits? in which he made no reference to any role to be played by the Lord Chancellor in defending the judiciary against attacks by the media.

[2]   The Courts and the Judiciary in 2024: 25 Years On, published in “Now and Then, a Celebration of Sweet & Maxwell’s Bicentenary 1999”.

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