For those of you who are interested, and I suspect I can number you on the fingers of one hand, the Crime and Courts Bill has reached the House of Lords. The section giving rise to a good deal of hot air is the proposal that the Lord Chancellor, who is also the Justice Secretary of State, should sit on the panel of the Judicial Appointments Commission and have a say on the appointment of senior judges.
At present he does not. The Lord Chancellor has the power of veto, which means he can refuse the recommendation of the Commission, but if he does so, he must give reasons. But I ask rhetorically, how he can possibly make an informed decision, and possibly exercise his veto, and give reasons for doing so, if he has been excluded from the selection process?
Since the enactment of the Human Rights Act, judges have found themselves in increasing conflict with the government, especially over the interpretation of European Convention rights, and in a previous article, I have already highlighted the absurdities of some of the rulings relating to the right to a family life.
Whether judges wish it or not, this single issue has become politicised, and the fine line between judicial independence and the will of the people is becoming finer by the day. Judges argue that they are simply interpreting the law as they understand it, politicians argue that the judges should wake up to reality and get a life!
Court watchers will have also detected a tension between the outgoing President of the Supreme Court and the Lord Chief Justice on the proper interpretation of the European Convention, so judges are not immune to reality and the impact their decisions have on the executive arm of the government.
This debate is given added urgency by the impending retirement of the President of the Supreme Court, and the selection of his successor, and suitable names are already being touted in the corridors of power.
Predictably, the legal profession, as ever on the front foot when reforms to the system are being canvassed, is against the proposal, claiming that this would erode the independence of the selection process at the expense of government interference. I beg to differ.
Judges need to be alive to political expediency and the will of the people, as the American Supreme Court has discovered in its narrow vote in favour of President Obama’s health-care plan. To have done otherwise would have brought the court and the President into a head on conflict, and there are lessons to be learned by our own Supreme Court.
I am open to persuasion on what powers the Lord Chancellor should have as part of the selection process, but that is a separate issue. Hearsay as reliable evidence in a court of law has been excluded since time immemorial, for the obvious reason that by its very definition, it is unreliable. If the Lord Chancellor is not allowed to take part in the selection process, he will of necessity have to rely on second hand reports back to him before deciding if he should exercise his veto.
This is the worst of both worlds.