THE JUDICIARY 9
The importance of the courts and the judges within the common law has already been considered in previous chapters of this book. It has been suggested that the judges have considerable scope for determining the meaning and effect of law through their marshalling, not to say manipulation, of the rules of precedent and statutory interpretation. The purpose of the present chapter is further to consider those issues but more essentially to consider the actual roles of judges, how they are appointed and how the operation of their judicial functions may raise constitutional issues as to the interests the judiciary represent.
The recent past has seen what can only be seen as enormous changes in relation to the judiciary. Not only has the new Supreme Court replaced the House of Lords as the highest court in the United Kingdom, but there has also been a change in the way in which judges are appointed and a reduction in the central role of the Lord Chancellor. Each of these changes has already had an impact on the constitution of the United Kingdom and it is at least arguable that they will have an even greater impact in the future, as will be considered below.
Central to the general idea of the rule of law (see Chapter 2 above) is the specific proposition that it involves the rule of law rather than the rule of people. Judges hold a position of central importance in relation to the concept of the rule of law. They are expected to deliver judgment in a completely impartial manner through a strict application of the law, without allowing their personal preference, or fear or favour of any of the parties to the action, to affect their decision in any way.
This desire for impartiality is reflected in the constitutional position of the judges. In line with Montesquieu’s classic exposition of the separation of powers, the judiciary occupy a situation apart from the legislative and executive arms of the State, and operate independently of them. Prior to the English revolutionary struggles of the seventeenth century between Parliament and the monarch, judges held office at the king’s pleasure. Not only did this mean that judges could be dismissed when the monarch so decided, but it highlighted the lack of independence of the law from the State in the form, and person, of the monarch. With the victory of Parliament and the establishment of a State based on popular sovereignty, and limited in its powers, the independence of the judiciary was confirmed in the Act of Settlement 1701. The centrality of the independence of the judges and the legal system from direct control or interference from the State in the newly established constitution was emphasised in the writing of the English philosopher, John Locke, who saw it as one of the essential reasons for, and justifications of, the social contract on which the social structure was assumed to be based.
In order to buttress the independence of the judiciary and remove them from the danger of being subjected to political pressure, it has been made particularly difficult to remove senior judges once they have been appointed. Their independence of thought and opinion is also protected by the doctrine of judicial immunity. Both of these principles will be considered in more detail below, as will the change in the procedure for appointing judges which cannot but have had an impact on their perceived independence from politics and politicians.
9.2.1 THE CONSTITUTIONAL ROLE OF THE LORD CHANCELLOR
The following brief historical consideration of the constitutional position of the Lord Chancellor and the Appellate Committee of the House of Lords, as the highest court in England was correctly referred to, has to be placed within the immediate context of the changes made by the Constitutional Reform Act 2005, which radically altered both institutions. The point of it is to highlight why those changes were, and arguably had to be, made.
The Lord Chancellor always held an anomalous position in respect of the separation of powers in the contemporary State, in that the holder of that position played a key role in each of the three elements of the State. The Lord Chancellor was the most senior judge in the English court structure, sitting as he did in the House of Lords. At the same time, however, the Lord Chancellorship was a party political appointment, and the occupant of the office owed his preferment to the Prime Minister of the day. Not only was the incumbent a member of the executive, having a seat in the Cabinet, but he was also responsible for the operation of his own government department. In addition to these roles, it should not be overlooked that the Chancellor was also the Speaker of the House of Lords in its general role as a legislative forum.
The party political role of the Lord Chancellor gave rise to a furore when, in February 2001, Lord Irvine, the then New Labour appointee, personally wrote to lawyers who were known sympathisers of the Labour Party, asking them to donate at least £200 to the party at a fundraising dinner he was to host. His political critics made much of the fact that, as the person ultimately responsible for appointing the judiciary, his soliciting of party funds from those who might apply for such positions in the future could be represented as improper. As such, the press immediately entitled it the ‘cash for wigs’ affair, echoing the previous ‘cash for questions’ scandal in the House of Commons and the subsequent ‘cash for peerages’ scandal. The Lord Chancellor, however, refused to apologise for his action. In a statement to the House of Lords, delivered in his political persona and therefore two paces apart from the woolsack on which he sat when acting as the Speaker of the House of Lords, he stated that:
I do not believe I have done anything wrong nor do I believe that I have broken any current rules. If I did I would be the first to apologise.
According to Lord Irvine, it was misconceived to claim that the Lord Chancellor was not a party political post, and that every minister from the Prime Minister down was involved in fundraising. The best that could be said for the Lord Chancellor was that, although he had done nothing unlawful, he had acted in an unwise, politically naïve and injudicious manner, and one that once again brought the anomalous constitutional role of his office to the political foreground and renewed calls for its reformation, if not removal.
In addition to difficulties arising directly from his responsibility for implementing political policies in relation to the legal system, the Lord Chancellor’s judicial role also came into question. As a consequence of the fact that the appointment of the Lord Chancellor is a purely political one, there is no requirement that the incumbent should have held any prior judicial office. Indeed, in the case of Lord Irvine, he had never served in any judicial capacity, making his reputation as a highly successful barrister. Nonetheless, as Lord Chancellor, he was the most senior judge and was entitled to sit, as he thought appropriate (see 9.2.2 below for further observations about the Lord Chancellor’s residual powers).
There was, however, a much more fundamental issue relating to the manner in which the Lord Chancellor’s former multifunctional role may be seen as having breached the doctrine of the separation of powers. There cannot but be doubts as to the propriety of a member of the executive functioning as a member of the judiciary and Lord Irvine himself withdrew from sitting in a case in March 1999 in which he recognised the possibility of a conflict of interest. That case involved an action by the family of a man who had died in police custody. The suggestion was made that the Lord Chancellor’s participation in the judicial panel raised doubts as to whether the case would be decided by an independent and impartial tribunal. Given his recent guidelines warning the judiciary about the need to be sensitive to issues of conflict of interest, the Lord Chancellor clearly felt himself required to stand down from hearing the case.
In McGonnell v UK (2000), the European Court of Human Rights (ECtHR) confirmed the previous decision of the Commission in relation to the judicial function of the Bailiff of the island of Guernsey. It was held that the fact that the Bailiff had acted as the judge in a case in which he had also played an administrative role was in breach of Art 6 of the European Convention on Human Rights (ECHR). In the words of the Commission decision:
It is incompatible with the requisite appearance of independence and impartiality for a judge to have legislative and executive functions as substantial as those carried out by the Bailiff.
Although those words could apply equally to the Lord Chancellor, the actual court decision was limited to the situation of the Bailiff, and Lord Irvine made it clear that he considered its application to be limited to the particular facts of the Guernsey situation. Nonetheless, the Lord Chancellor continued not to sit on cases where there might appear to be a conflict between his judicial and other roles. In February 2003, the Lord Chancellor’s dual role as judge and member of the executive came under attack in the parliamentary assembly of the Council of Europe, which oversees the operation of the ECHR (see Chapter 15). A Dutch member, Erik Jurgens, a vice president of the assembly, tabled a motion that stated that:
The assembly … has repeatedly stressed that judges should be a completely independent branch of government. It is undeniable that combining the function of judge with functions in other branches of government calls that independence seriously into question.
Mr Jurgens was quoted as saying that he was advising eastern European countries seeking entry to the Council of Europe that they would not be admitted unless their judges were totally independent, so it was an anomaly that one of the original members had a figure like the Lord Chancellor, and further that:
Sooner or later a case is going to come to the European Court of Human Rights at Strasbourg, and I think they will certainly say that this is an unacceptable combination.
In April 2003, Lord Irvine defended the unique position of the Lord Chancellor in an appearance before the parliamentary select committee with oversight of the Lord Chancellor’s Department. Questioned on the conflict inherent in his power to make law and still sit as a judge, he responded that he had ‘difficulty seeing why this issue is so important’, and argued against changing a legal system that had an enviable international reputation, simply for the sake of constitutional purity. As he put it:
The basic point is that the higher judiciary accept this role – they believe profoundly that it is a superior system to any other.
220.127.116.11 The Constitutional Reform Act 2005
While Lord Irvine preferred to maintain his position rather than bow to constitutional purity, his views were apparently not shared by his colleagues in government and most importantly the Prime Minister, who sacked him in June 2003. As part of a Cabinet reshuffle, which appeared to involve a power struggle between the Home Secretary and the Lord Chancellor, which the former won, Lord Irvine was not only removed from office, but it was announced that his office itself was to disappear. A new ministry, the Department for Constitutional Affairs, was to replace the Lord Chancellor’s Department and Lord Falconer was appointed Secretary of State for Constitutional Affairs to replace Lord Irvine as Lord Chancellor. It would appear that the announcement was made without anyone having thought through the constitutional implications, or indeed practicalities, of simply abolishing the position of the Lord Chancellor. Initially, Lord Falconer said he was not the Lord Chancellor and that he would not be assuming all of the functions of his predecessor. However, the realisation soon dawned that it was simply impossible to eradicate the role of the Lord Chancellor by simple diktat. Lord Falconer had to be Lord Chancellor even if by default, as someone had to perform the constitutional functions attached to the Lord Chancellor’s office. So, on the first day in his new role, Lord Falconer was to be seen in wig and tights sitting on the woolsack in the House of Lords, for the simple reason that someone had to do it. As a consequence, Lord Falconer was, at least for the time being, both Secretary of State for Constitutional Affairs and Lord Chancellor, although in the former role he was charged with the duty of abolishing the latter role. It should be noted that from the outset Lord Falconer made it clear that he would not, and never did, sit as a judge. As regards his legislative role in chairing sessions of the House of Lords, the CRA subsequently provided for the election of an independent Lord Speaker and in July 2006 the House of Lords elected Baroness Hayman as the first office holder.
The proposal of the original Constitutional Reform Bill for the complete abolition of the officer of the Lord Chancellor was extremely controversial. Reference has already been made to the concerns of the judiciary as to the abolition of the role of the Lord Chancellor and those concerns were also shared by politicians and social commentators. Many of the latter argued against what they saw as the ditching of hundreds of years of history and practice for the sake of dressing up a Cabinet reshuffle as a matter of constitutional importance.
The government, nonetheless, insisted on pursuing its reforms, and justifying them on the basis of transparency and the recognition that it was no longer appropriate for one person to perform the disparate functions of the Lord Chancellor in clear contradiction of the doctrine of the separation of powers. However, as many correctly pointed out, the constitution of the UK never actually incorporated a strict separation of powers. Nonetheless, that recognition cannot be taken as justifying a situation that, as preceding analysis has shown, was clearly founded on fundamental conflicts of interest and was almost certainly contrary to the European Convention on Human Rights. In this regard, the changes introduced by the Constitutional Reform Act 2005 can be seen to be not only pertinent, but also timely, in their endeavour to address an issue before it became a problem. Nonetheless, as was explained above, the government did submit to the wish to retain the ancient office of Lord Chancellor, although the importance of the role was significantly reduced. Following a cabinet reshuffle in 2007, which also involved the replacement of the Department of Constitutional Affairs by a new Justice Ministry, the Justice Minister, Jack Straw, became the first member of the House of Commons to assume the role and title of Lord Chancellor. The current Justice Minister and Lord Chancellor is Kenneth Clarke MP.
As part of the reform of the office of Lord Chancellor its former judicial functions transferred to President of the Courts of England and Wales who is currently Lord Judge, who succeeded Lord Phillips as Lord Chief Justice in October 2008. In this new position, he is responsible for the training, guidance and deployment of judges. He is also responsible for representing the views of the judiciary of England and Wales to Parliament and ministers.
9.2.2 THE CONSTITUTION AND THE ROLE OF THE HOUSE OF LORDS AND THE SUPREME COURT
As has been mentioned previously, by virtue of the Constitutional Reform Act 2005, The Supreme Court replaced the House of Lords as the highest court in the United Kingdom in October 2009. The Judicial Committee of the Privy Council remains as a distinct entity, but follows The Supreme Court to its new location.
Consequently The Supreme Court is the final court of appeal for all United Kingdom civil cases, and criminal cases from England, Wales and Northern Ireland and hears appeals on arguable points of law of general public importance. However, once again, the explanation for this event requires a brief consideration of its historical and constitutional context. A number of issues came together to raise questions about the operation of the House of Lords as the final court of appeal in the English legal system and the role of the Privy Council. Among these were the devolution of parliamentary power to the Scottish Parliament and Welsh Assembly, the previous and proposed further reform of the House of Lords, the enactment of the Human Rights Act and the role of the House of Lords itself in the Pinochet case (see below). However, of far greater significance was the proposal in the Constitutional Reform Act 2005 to replace the currently constituted Appeal Committee of the House of Lords with a new Supreme Court.
In other constitutional systems, both civil, as in France, or common law, as in the United States of America, not only is there a clear separation of powers between the judiciary, the executive and the legislature, but there is also a distinct Constitutional Court, which deals with such issues. The United Kingdom constitution provides for neither of these. It remains to consider whether, under the changed circumstances of the contemporary constitution, the Supreme Court, as the highest court in the land, will simply assume the previously limited role of the House of Lords, or whether it will, over the passage of time, assume new function and increased powers as are consonant with Supreme Courts in other jurisdictions. It is a commonplace of politics that the devolution of power from the UK Parliament in London, particularly to the Scottish Parliament in Edinburgh, will give rise to disputes as to the relationship between the two bodies. Eventually, such issues will have to be resolved in the courts. Jurisdiction was originally with the Privy Council but has been subsequently transferred to the Supreme Court.
Equally, the Human Rights Act has, for the first time, given the courts clear power to declare the UK Parliament’s legislative provision contrary to essential human rights (see above, at 2.5). Even allowing for the fact that the HRA has been introduced in such a way as to maintain the theory of parliamentary sovereignty, in practice, the courts will inevitably become involved in political/constitutional issues. Once the courts are required to act in constitutional matters, it is surely a mere matter of time before they become Constitutional Courts, as distinct from ordinary courts, with specialist judges with particular expertise in such matters.
The case for the reform of the Lord Chancellor’s position and against the location of the most senior judges in the House of Lords was presented to the commission examining the reform of the House of Lords, by JUSTICE, the civil rights organisation. Both aspects of the challenges were strongly rejected by the then Lord Chancellor Irvine in a speech to the Third Worldwide Common Law Judiciary Conference in Edinburgh, delivered in July 1999. Nonetheless, spring 2002 saw a spate of speeches and interviews highlighting disagreement, if not actual tension, between the Lord Chancellor and some of the most senior members of the judiciary. In March of that year, Lord Steyn, then the second longest serving Law Lord, expressed the view that Lord Irvine’s insistence on sitting as a judge in the House of Lords was a major obstacle to the creation of a Supreme Court to replace the House of Lords. In April, the Lord Chancellor’s response was reported in the Financial Times newspaper. The article stated that, ‘Lord Irvine may have an impressive intellect, but his lack of diplomacy means he will seldom be short of enemies’. The point of that comment was supported by the Lord Chancellor’s reaction to Lord Steyn’s previous comments, dismissing them in a tone of effete arrogance, as ‘rather wearisome … he’s not a political scientist, he knows nothing about the internal workings of government – or very little’. As reported, he reduced Lord Steyn’s argument to a demand for ‘a grand new architectural venture’, stating that the argument that ‘the Lord Chancellor, because of his desire to continue sitting, is preventing the judges from having a new building – that’s just nonsense’.
Lord Irvine’s views should, however, be contrasted with those of the former senior Law Lord, Lord Bingham, expressed in the Spring Lecture given at the Constitution Unit at University College London in May 2002. In a paper entitled A New Supreme Court for the UK, Lord Bingham directly addressed all of the issues raised above, except for the role of the Lord Chancellor, before stating his preference for:
… a supreme court severed from the legislature, established as a court in its own right, re-named and appropriately re-housed, properly equipped and resourced and affording facilities for litigants, judges and staff such as, in most countries of the world, are taken for granted.
As to the views and future role of the Lord Chancellor, the reduction of his direct judicial powers was implicit in the speech. As Lord Bingham concluded: ‘… inertia … is not an option.’
Once again, Lord Irvine’s political antennae appear to have lacked acuity, in that, not only was he replaced as Lord Chancellor by Lord Falconer, but as has been seen, his successor proposed the establishment of a Supreme Court much along the lines of that suggested by Lord Bingham. Thus Part 2 of the Constitutional Reform Act 2005 contained provisions for the following:
• The establishment of a new, independent Supreme Court, separate from the House of Lords with its own independent appointments system, its own staff and budget and its own building: Middlesex Guildhall. This new Supreme Court should not be confused with the old Supreme Court, which was the title previously given to the High Court and Court of Appeal. In future those courts will be known as the Senior Courts of England and Wales.
• The 12 judges of The Supreme Court will be known as Justices of The Supreme Court and will no longer be allowed to sit as members of the House of Lords. As a matter of fact, all of the present members are life peers and as a result will be able to sit in the House of Lords on their retirement from their judicial office, but this may not always be the case in the future.
• The current Law Lords will become the first 12 Justices of The Supreme Court, and the most senior will be appointed President of The Supreme Court. Lord Phillips, the former Lord Chief Justice, was appointed the first President of the new court and when it actually sat for the first time in October 2009 there were only 11 justices in office.
These measures can be considered in two parts: first, the creation of a Supreme Court, distinct from the House of Lords; and second, the removal of the right of the members of that new Supreme Court to sit as members of the Upper House. Neither of these proposals found favour with a majority of the members of the Law Lords; indeed, in their collective response to the Consultation Paper on constitutional reform, six of the 12 expressed their opposition to the creation of a Supreme Court and eight supported the retention of at least some judicial representation in the House of Lords. The minority supported the complete separation of judicial and legislative activity, as did Lord Falconer, who explained the need for reform thus:
The present position is no longer sustainable. It is surely not right that those responsible for interpreting the law should be able to have a hand in drafting it. The time has come for the UK’s highest court to move out from under the shadow of the legislature.
The relevance of Lord Falconer’s argument was given added power by the decision of the Scottish Court of Sessions, the equivalent of the Court of Appeal, in Davidson v Scottish Ministers (No 2) (2002). The case involved a challenge to a previous court decision, on the grounds of Art 6 of the ECHR, for the reason that one of the judges in the earlier case, the former Lord Advocate Lord Hardie, had spoken on the issue before the court while a member of the Scottish Assembly. The Court of Sessions held that Lord Hardie should at least have declared his previous interest in the matter and that, in the light of his failure to do so, there was at least the real possibility of bias, and ordered the case to be retried.
In other constitutional systems, both civil, as in France, or common law, as in the United States of America, not only is there a clear separation of powers between the judiciary, the executive and the legislature, there is also a distinct Constitutional Court, with the power to strike down legislation on the grounds of its being unconstitutional. It has to be emphasised that the UK Supreme Court will not be in the nature of these other supreme courts, in that it will not be a constitutional court as such and it will not have the powers to strike down legislation. Consequently, although the proposed alterations clearly increase the appearance of the separation of powers, the doctrine of parliamentary sovereignty remains unchallenged. It was presumably the lack of such power that led Lord Woolf to comment that the new court would effectively replace a first-class appeal court (the House of Lords) with a second-class Supreme Court.
It remains to be seen, however, whether, under the changed circumstances of the contemporary constitution, the Supreme Court, as the highest court in the land, will simply assume the previously limited role of the House of Lords, or whether it will, with the passage of time, assume new function and increased powers as are consonant with Supreme Courts in other jurisdictions. This issue arose in September 2009 when the former Law Lord, Lord Neuberger, who gave up his position in the House of Lords to become Master of the Rolls, spoke on a BBC radio programme and expressed the opinion that the advent of the Supreme Court was not unproblematic: as he put it; ‘The danger is that you muck around with a constitution like the British constitution at your peril because you do not know what the consequences of any change will be’, and that there was a real risk of ‘judges arrogating to themselves greater power than they have at the moment’. Former Lord Chancellor, Lord Falconer, also expressed the view that the Supreme Court ‘will be bolder in vindicating both the freedoms of individuals and, coupled with that, being willing to take on the executive’, but Lord Phillips the President of the Supreme Court was more conciliatory towards the executive expressing the view that, although he could not predict how the court would function in the future, he did not foresee it changing in the way suggested by Lord Neuberger.
9.2.3 JUDICIAL IMPARTIALITY
Re Bow Street Metropolitan Stipendiary Magistrate ex p Pinochet Ugarte (1999)
No consideration of the operation of the judiciary generally, and the House of Lords in particular, can be complete without a detailed consideration of what can only be called the Pinochet case (the various cases are actually cited as R v Bartle and R v Evans (House of Lords’ first hearing); Re Pinochet (House of Lords’ appeal against Lord Hoffmann); R v Bartle and R v Evans (final House of Lords’ decision)).
In September 1973, the democratically elected government of Chile was overthrown in a violent army coup led by the then General Augusto Pinochet Ugarte; the President, Salvador Allende, and many others were killed in the fighting. Subsequently, in the words of Lord Browne-Wilkinson, in the final House of Lords’ hearing ( 2 All ER 97 at 100):
There is no doubt that, during the period of the Senator Pinochet regime, appalling acts of barbarism were committed in Chile and elsewhere in the world: torture, murder and the unexplained disappearance of individuals on a large scale.
Although it was not suggested that Pinochet had committed these acts personally, it was claimed that he was fully aware of them and conspired to have them undertaken.
In 1998, General Pinochet, by now Senator for life and recipient of a Chilean amnesty for his actions (extracted as the price for his returning his country to democracy), came to England for medical treatment. Although he was initially welcomed, he was subsequently arrested on an extradition warrant issued in Spain for the crimes of torture, murder and conspiracy to murder allegedly orchestrated by him in Chile during the 1970s. Spain issued the international warrants, but Pinochet was actually arrested on warrants issued by the metropolitan stipendiary magistrate under s 8(1)(b) of the Extradition Act 1989. The legal question for the English courts was whether General Pinochet, as Head of State at the time when the crimes were committed, enjoyed diplomatic immunity. In November 1998, the House of Lords rejected Pinochet’s claim by a 3:2 majority, Lord Hoffmann voting with the majority but declining to submit a reasoned judgment.
Prior to the hearing in the House of Lords, Amnesty International, which campaigns against such things as State mass murder, torture and political imprisonment, and in favour of general civil and political liberties, had been granted leave to intervene in the proceedings, and had made representations through its counsel, Geoffrey Bindman QC. After the Pinochet decision, it was revealed, although it was hardly a secret, that Lord Hoffmann was an unpaid director of the Amnesty International Charitable Trust, and that his wife also worked for Amnesty. On that basis, Pinochet’s lawyers initiated a very peculiar action: they petitioned the House of Lords about a House of Lords’ decision; for the first time, the highest court in the land was to be subject to review, but review of itself, only itself differently constituted. So, in January 1999, another panel of Law Lords set aside the decision of the earlier hearing on the basis that Lord Hoffmann’s involvement had invalidated the previous hearing. The decision as to whether Pinochet had immunity or not would have to be heard by a new, and differently constituted, committee of Law Lords.
It has to be stated in favour of this decision that the English legal system is famously rigorous in controlling conflicts of interest, which might be seen to affect what should be a neutral decision-making process. The rule, which applies across the board to trustees, company directors and other fiduciaries as well as to judges, is so strict that the mere possibility of a conflict of interest is sufficient to invalidate any decision so made, even if in reality the individual concerned was completely unaffected by their own interest in coming to the decision. In the words of the famous dictum of Lord Hewart, it is of fundamental importance that ‘justice must not only be done but should manifestly and undoubtedly be seen to be done’ (R v Sussex Justices ex p McCarthy (1924)). With regard to the judicial process, it has been a long established rule that no one may be a judge in his or her own cause, that is, they cannot judge a case in which they have an interest. This is sometimes known by the phrase nemo judex in causa sua. Thus, for example, judges who are shareholders in a company appearing before the court as a litigant must decline to hear the case (Dimes v Grand Junction Canal (1852)). It is therefore astonishing that Lord Hoffmann did not withdraw from the case, or at least declare his interest in Amnesty when it was joined to the proceedings. The only possible justification is that Lord Hoffmann assumed that all of those involved in the case, including the Pinochet team of lawyers, were aware of the connection. Alternatively, he might have thought that his support for a charitable body aimed at promoting civil and political liberties was so worthy in itself as to be unimpeachable: could not, and indeed should not, every English judge subscribe, for example, to cl 3(c) of the Amnesty International Charitable Trust memorandum, which provides that one of its objects is ‘to procure the abolition of torture, extra-judicial execution and disappearance’?
In either case, Lord Hoffmann was wrong.
Once it was shown that Lord Hoffmann had a relevant interest in its subject matter, he was disqualified without any investigation into whether there was a likelihood or suspicion of bias. The mere fact of his interest was sufficient to disqualify him unless he had made sufficient disclosure. Hitherto, only pecuniary or proprietary interests had led to automatic disqualification. But, as Lord Browne-Wilkinson stated, Amnesty, and hence Lord Hoffmann, plainly had a non-pecuniary interest sufficient to give rise to an automatic disqualification for those involved with it.
The House of Lords therefore decided that Lord Hoffmann had been wrong, but it remained for the House of Lords to extricate itself, with whatever dignity it could manage, from the situation it had, through Lord Hoffmann, got itself into. This it endeavoured to do by reconstituting the original hearing with a specially extended committee of seven members. Political and legal speculation was rife before the decision of that court. It was suggested that the new committee could hardly go against the decision of the previous one without bringing the whole procedure into disrepute, yet the earlier court had actually contained the most liberal, and civil liberties minded, of the Lords. It was assumed that the new hearing would endorse the earlier decision, if with reluctance, but what was not expected was the way in which it would actually do so.
In reaching the decision that General Pinochet could be extradited, the House of Lords relied on, and established, Pinochet’s potential responsibility for the alleged crimes from the date on which the UK incorporated the United Nations Convention on Torture into its domestic law through the Criminal Justice Act 1988–29 September 1988. Consequently, he could not be held responsible for any crimes committed before then, but was potentially liable for any offences after that date. Thus, although the later House of Lords’ committee provided the same decision as the first one, it did so on significantly different, and much more limited, grounds from those on which Lords Steyn and Nicholls, with the support of Lord Hoffmann, relied. Such a conclusion is neither satisfactory in law nor political practice, and did nothing to deflect the unflattering glare of unwanted publicity that had been visited on the House of Lords.
It is important not to overstate what was decided in Re Pinochet. The facts of that case were exceptional and it is unlikely that it will lead to a mass withdrawal of judges from cases; however, there might well be other cases in which the judge would be well advised to disclose a possible interest. Finally, with regard to Re Pinochet, whatever one’s views about the merits, sagacity or neutrality of the current judiciary, there is considerable evidence to support the proposition that, historically, judges have often been biased towards certain causes and social classes. For example, JAG Griffith’s book, The Politics of the Judiciary (1997) (see 10.7.1 below), is brimming with concrete examples of judges who have shown distinctly conservative and illiberal opinions in cases involving workers, trade unions, civil liberties, Northern Ireland, police powers, religion and other matters. Lord Hoffmann was wrong, but it is nonetheless ironic that the first senior judge to have action taken against him for possible political bias was someone whose agenda was nothing more than being against torture and unjudicial killings.
Locabail (UK) Ltd v Bayfield Properties Ltd (1999)
Following a number of other cases in which lawyers sought to challenge a judgment on the grounds that through a social interest or remote financial connection the judge was potentially biased, the Court of Appeal delivered authoritative guidance on the matter in Locabail (UK) Ltd v Bayfield Properties Ltd and Another (1999).
The Court of Appeal ruled that all legal arbiters were bound to apply the law as they understood it to the facts of individual cases as they found them without fear or favour, affection or ill will: that is, without partiality or prejudice. Any judge, that term embracing every judicial decision-maker, whether judge, lay justice or juror, who allowed any judicial decision to be influenced by partiality or prejudice deprived the litigant of his important right and violated one of the most fundamental principles underlying the administration of justice. The law was settled in England and Wales by the House of Lords in R v Gough (1993), and in consequence, the relevant test was whether there was in relation to any given judge a real danger or possibility of bias. When applying the real danger test, it would often be appropriate to inquire whether the judge knew of the matter relied on as appearing to undermine his impartiality. If it were shown that he did not, the danger of its having influenced his judgment was eliminated and the appearance of possible bias dispelled. It was for the reviewing court, not the judge concerned, to assess the risk that some illegitimate extraneous consideration might have influenced his decision.
There was one situation where, on proof of the requisite facts, the existence of bias was effectively presumed and in such cases, it gave rise to automatic disqualification, namely, where the judge was shown to have an interest in the outcome of the case which he was to decide or had decided: see Dimes v Proprietors of the Grand Junction Canal (1852), R v Rand (1866) and R v Camborne Justices ex p Pearce (1955). However, it would be dangerous and futile to attempt to define or list factors which might, or alternatively might not, give rise to a real danger of bias, since everything would depend on the particular facts. Nonetheless, the court could not conceive of circumstances in which an objection could be soundly based on the religion, ethnic or national origin, gender, age, class, means or sexual orientation of the judge. Nor, at any rate ordinarily, could an objection be soundly based on his social, educational, service or employment background or history; nor that of any member of his family; nor previous political associations, membership of social, sporting or charitable bodies; nor Masonic associations; nor previous judicial decisions; nor extracurricular utterances, whether in textbooks, lectures, speeches, articles, interviews, reports or responses to consultation papers; nor previous receipt of instructions to act for or against any party, solicitor or advocate engaged in a case before him; nor membership of the same Inn, circuit, local Law Society or chambers.
By contrast, a real danger of bias might well be thought to arise if there existed personal friendship or animosity between the judge and any member of the public involved in the case; or if the judge were closely acquainted with any such member of the public, particularly if that individual’s credibility could be significant in the decision of the case; or if in a case where the credibility of any individual were an issue to be decided by the judge, he had in a previous case rejected that person’s evidence in such outspoken terms as to throw doubt on his ability to approach such a person’s evidence with an open mind on any later occasion.
It might well be thought that the Court of Appeal was bound to come to this conclusion. Had it ruled that membership of certain societies, or a particular social background, or the previous political associations of a trial judge were grounds for appeal, two consequences would follow. First, there would be a rapid expansion of the use by law firms of special units that monitor and keep files on all aspects of judges’ lives. Second, there would be a proliferation of appeals in all departments of the court structure at the very time when there is such a concerted effort to reduce the backlog of appeals. The decision in Locabail leaves the question of profound jurisprudential importance: how far can judges judge in an entirely neutral and socially detached manner?
Locabail was decided before the HRA 1998 came into force, but the Court of Appeal soon had the opportunity to assess the rules in R v Gough against the requirements of the European Court’s approach to bias in relation to Art 6 of the ECHR. Director General of Fair Trading v Proprietary Association of Great Britain (re Medicaments and Related Classes of Goods (No 2)) (2001) related to a case before the Restrictive Practices Court. Six weeks into the trial, one of the lay members of the panel hearing the case, an economist, disclosed that, since the start of the case, she had applied for a job with one of the main witnesses employed by one of the parties to the case. On learning this, the respondents argued that such behaviour must imply bias on her part and that consequently, the whole panel should stand down, or at least the member in question should stand down. The Restrictive Practices Court rejected the argument. On appeal, the Court of Appeal took the opportunity to refine the common law test as established in R v Gough. Previously, the court determining the issue had itself decided whether there had been a real danger of bias in the inferior tribunal. Now, in line with the jurisprudence of the ECtHR, the test was whether a fair-minded observer would conclude that there was a real possibility of bias. In other words, the test moved from being a subjective test on the part of the court to an objective test from the perspective of the fair-minded observer. In the case in question, the Court of Appeal held that there was sufficient evidence for a fair-minded observer to conclude bias on the part of one member of the panel and that consequently, at the stage the trial had reached, her discussions would have contaminated the other two members, who should also have been stood down. The approach adopted by the Court of Appeal in re Medicaments and Related Classes of Goods (No 2)) was subsequently approved by the House of Lords in Porter v Magill (2001) and in the words of Lord Hope the test for bias is ‘whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased’.
Subsequently, in Lawal v Northern Spirit Ltd (2003), the House of Lords stated that ‘public perception of the possibility of unconscious bias is the key’ and while not finding it necessary to delve into the characteristics to be attributed to the fair-minded and informed observer, did suggest that such a person would adopt a balanced approach ‘neither complacent nor unduly sensitive or suspicious’.
Finally, in Meerabux v The Attorney General of Belize (2005), Lord Hope in delivering the report of the Privy Council raised the possibility that had the House of Lords been able to apply the refined version of the test for apparent bias, rather than the test set out in Gough, then it is unlikely that it would have found it necessary to find a solution to the problem that it was presented with by applying the automatic disqualification rule. Not a little ironically, Lord Hoffman himself was a member of this particular Privy Council panel.
Although not required to know the names of present incumbents, students should at least be aware of the various titles of judges and equally know which courts they operate in.
Lord Chancellor. The history of this particular office has been considered previously and it only remains to state that in its contemporary, reduced state, the office-holder is the current Justice Minister Kenneth Clarke MP.
Lord Chief Justice. The holder of this position is now President of the Courts of England and Wales and the most senior member of the judiciary. As President of the Courts of England and Wales, the Lord Chief Justice is responsible for representing the views of the judiciary of England and Wales to Parliament, the Minister (that is, the Secretary of State for Justice) and Ministers of the Crown generally. He is also to be responsible, within the resources made available by the Minister, for maintaining appropriate arrangements for the welfare, training and guidance of the judiciary of England and Wales, and for maintaining appropriate arrangements for the deployment of the judiciary of England and Wales and allocating work within courts. The Lord Chief Justice is the President of the Criminal Division of the Court of Appeal and is formally the senior judge in the Queen’s Bench Division of the High Court. The present Lord Chief Justice is the appropriately named Lord Judge.
President of the Supreme Court and Deputy President of the Supreme Court. The senior member of the new court and his deputy will fill these roles. They will sit on the appointment commission for any new members of the Supreme Court. Lord Phillips was the first president and his deputy is Lord Hope. In October 2011, Lord Phillips announced his intention to retire from the Supreme Court, effective from the summer of 2012.
Master of the Rolls. The holder of this office is regarded as second in judicial importance to the Lord Chief Justice. He is President of the Civil Division of the Court of Appeal and is responsible for the allocation and organisation of the work of the judges of the Division, as well as presiding in one of its courts. At present, this position is held by Lord Neuberger, who stood down from the House of Lords to take up this position.
President of the Family Division of the High Court of Justice. This person is the senior judge in the Family Division and is responsible for organising the operation of the Court. The current president is Sir Nicholas Wall.
President of the Queen’s Bench Division and Judge in Charge of the Administrative Court. This post was instituted by the Constitutional Reform Act 2005 and the functions of the holder are apparent in the title. The current incumbent is Sir Roger Thomas.
Chancellor of the High Court. This post was also created under the CRA 2005 and replaced the former office of Vice Chancellor of the Supreme Court. Although the Lord Chancellor is nominally the head of the Chancery Division of the High Court, the actual function of organising the Chancery Division falls to the Chancellor. The current incumbent is Sir Andrew Morritt.
Senior Presiding Judge for England and Wales. The Courts and Legal Services Act (CLSA) 1990 recognised the existing system and required that each of the six separate Crown Court circuits should operate under the administration of two presiding judges appointed from the High Court. In addition, a senior presiding judge is appointed from the Lords Justices of Appeal. The current office-holder is LJ Sir John Goldring.
9.3.1 JUDICIAL HIERARCHY
The foregoing are specific judicial offices. In addition, the various judges who function at the various levels within the judicial hierarchy are referred to in the following terms:
Justices of the Supreme Court. When all appointed, these 12 judges now constitute the highest court in the United Kingdom and have been considered in some detail previously. The qualifications and procedure for appointment will be considered below.
Lords of Appeal in Ordinary. These were the people normally referred to as the Law Lords for the simple reason that they were ennobled when they were appointed to their positions and sat in the House of Lords. Historically, they constituted the highest court in the United Kingdom and have been replaced by the Supreme Court as considered above.
Lords Justices of Appeal. This category, of which there are 37 incumbents, constitutes the majority of the judges in the Court of Appeal, although the other specific office-holders considered previously may also sit in that court, as may High Court judges specifically requested to do so. They all used to be known as Lord Justice, even if they were female. The first female member of the Court of Appeal, Elizabeth Butler-Sloss, had to be referred to by the male title because the Senior Courts Act 1981 had not considered the possibility of a woman holding such high judicial office. The rules were changed subsequently to allow female judges in the Court of Appeal to be referred to as Lady Justices, and whereas their male counterparts receive knighthoods on their elevation, the women become Dames.
High Court judges. These are sometimes referred to as ‘puisne’ (pronounced ‘pewnee’) judges, in reference to their junior status in relation to those of superior status in the Supreme Court. There are currently 108 such judges appointed. Judges are appointed to particular divisions depending on the amount of work needing to be conducted by that division, although they may be required to hear cases in different divisions and may be transferred from one division to another by the Lord Chancellor. Others, such as former High Court and Court of Appeal judges, or former circuit judges or recorders, may be requested to sit as judges in the High Court. High Court judges are referred to by their name followed by the initial ‘J’.
The Lord Chancellor may also appoint deputy judges of the High Court on a purely temporary basis, in order to speed up the hearing of cases and to reduce any backlog that may have built up. The Heilbron Report on the operation of the civil justice system was critical of the use of deputy judges and recommended that more permanent High Court judges should be appointed if necessary. The maximum numbers were subsequently increased to their present level, but the use of deputy judges has continued to provide grounds for criticism of the operation of the legal system, and has led to suggestions that the use of ‘second rate’ judges might eventually debase the whole judicial currency.
Circuit judges. Although there is only one Crown Court, it is divided into six distinct circuits, which are serviced, in the main, by circuit judges who also sit as county court judges to hear civil cases. There are currently 665 circuit judges, each being addressed as ‘Your Honour’.
Recorders are part-time judges appointed to assist circuit judges in their functions in relation to criminal and civil law cases. There are currently 1,221 recorders in post.
District judges. This category of judge, previously referred to as registrars, is appointed on a full-time and part-time basis to hear civil cases in the county court. There are currently 444 district judges, not counting those in the Family courts.
All judicial statistics are available on the Ministry of Justice website at http://webarchive.nationalarchives.gov.uk/+/http://www.justice.gov.uk/publications/judicialandcourtstatistics.htm
The situation of magistrates will be considered separately at 9.9 below and the situation of chairmen of tribunals and tribunal judges will be considered at 12.5.
9.3.2 LEGAL OFFICES
In addition to these judicial positions, there are three legal offices that should be noted:
• The Attorney General, like the Lord Chancellor, is a political appointee and a member of the executive, whose role is to act as the legal adviser to the government. For example, in March 2003, the former Attorney General, Lord Goldsmith, controversially advised the government that there was a legal basis for its use of military force against Iraq. Subsequently, in November 2006 Lord Goldsmith had to decide whether there were any grounds for pursuing criminal charges against individuals who had allegedly paid money to the Labour party in order to benefit from the awarding of honours such as peerages – inevitably once again ‘the cash-for-honours scandal’. The suggestion was that Goldsmith, as a political appointee was in no position to decide the fate of those who had appointed him to his office. He, however, insisted on his right to take the ultimate decision, although he offered the assurance that he did so on the basis of independent legal advice. The final cause célèbre to emerge in Goldsmith’s time as Attorney General emerged in December 2006 when he announced that a Serious Fraud Office investigation into alleged bribery, involving payments from the arms firm BAE to members of the Saudi Arabian royal family, would be stopped at the alleged instigation of the then Prime Minister Tony Blair.
The current holder of the office of Attorney General is the Conservative MP Dominic Grieve.
As to the functions carried out by the Attorney General he alone has the authority to prosecute in certain circumstances and appears for the Crown in important cases. As may be recalled from 6.5 above the Attorney General also has powers to appeal against points of law in relation to acquittals under the Criminal Justice Act (CJA) 1972 and can also appeal against unduly lenient sentences under the CJA 1988. The crucially important decision of the House of Lords that DNA evidence, acquired in regard to another investigation and which should have been destroyed under s 64 of the Police and Criminal Evidence Act (PACE) 1984, could nonetheless be used, was taken as the result of a reference by the Attorney General (Attorney General’s Reference (No 3 of 1999)).
• The Solicitor General is the Attorney General’s deputy and the office is currently held by the Conservative MP Edward Garnier.
• The Director of Public Prosecutions (DPP) is the head of the national independent Crown Prosecution Service (CPS) established under the Prosecution of Offences Act 1985 to oversee the prosecution of criminal offences. The decision of the DPP whether to prosecute or not in any particular case is subject to judicial review in the courts. In R v DPP ex p C (1994), it was stated that such powers should be used sparingly and only on grounds of unlawful policy, failure to act in accordance with policy and perversity. Nonetheless, successful actions have been taken against the DPP in relation to decisions not to prosecute in R v DPP ex p Jones (2000) and in R v DPP ex p Manning (2000) (see 8.2 for an examination of the CPS). The position is currently held by Kier Starmer QC.
The somewhat astonishing fact is that there are nearly 40,000 judicial office-holders in England and Wales if one includes judges, tribunal members and magistrates. This section of this book considers how such a number of people actually come to hold these judicial positions.
In the first of his Hamlyn Lectures of 1993, the then Lord Chancellor, Lord Mackay, stated that the pre-eminent qualities required by a judge are:
… good sound judgment based upon knowledge of the law, a willingness to study all sides of an argument with an acceptable degree of openness, and an ability to reach a firm conclusion and to articulate clearly the reasons for the conclusion.
Although the principal qualification for judicial office was experience of advocacy, Lord Mackay recognised that some people who have not practised advocacy may well have these necessary qualities to a great degree. This was reflected in the appointment of an academic and member of the Law Commission, Professor Brenda Hoggett, to the High Court in December 1993. Professor Hoggett, who sat as Mrs Justice Hale, was the first High Court judge not to have had a career as a practising barrister, although she qualified as a barrister in 1969 and was made a QC in 1989. As Dame Brenda Hale, she sat in the Court of Appeal; now as Lady Hale of Richmond, she is the first female member of the Law Lords.
The Courts and Legal Services Act (CLSA) 1990 introduced major changes into the qualifications required for filling the positions of judges. Judicial appointment is still essentially dependent upon the rights of audience in the higher courts, but at the same time as the CLSA 1990 effectively demolished the monopoly of the Bar to rights of audience in such courts, it opened up the possibility of achieving judicial office to legal practitioners other than barristers.
The Tribunals, Courts and Enforcement Act 2007 extended the possibility of holding judicial office to Fellows of the Institute of Legal Executives. This provision came into effect in November 2010.
The main qualifications for appointment are as follows (the CLSA 1990 is dealt with in detail at 13.6 below):
• Lord of Appeal in Ordinary
(a) the holding of high judicial office for two years; or
(b) possession of a 15-year Supreme Court qualification under the CLSA 1990.
The Constitutional Reform Bill retains the same qualifications for members of the new Justices of the Supreme Court. There is, however, a new statutory appointments procedure under the proposed legislation, which is considered below.
• Lord Justice of Appeal
(a) the holding of a post as a High Court Judge; or
(b) possession of a 10-year High Court qualification under the CLSA 1990.
• High Court judges
(a) the holding of a post as a circuit judge for two years;
(b) possession of a 10-year High Court qualification under the CLSA 1990.
• Deputy judges must be qualified in the same way as permanent High Court Judges.
• Circuit judges
(a) the holding of a post as a recorder;
(b) possession of either a 10-year Crown Court qualification or a 10-year county court qualification under the CLSA 1990;
(c) the holding of certain offices, such as district judge, Social Security Commissioner, chairman of an industrial tribunal, stipendiary magistrate for three years.
• Recorders must possess a 10-year Crown Court or county court qualification under the CLSA 1990.
• District judges require a seven-year general qualification under the CLSA 1990.
9.4.2 SELECTION OF JUDGES
So far, attention has concentrated on the specific requirements for those wishing to fulfil the role of judge, but it remains to consider the more general question relating to the general process whereby people are deemed suitable and selected for such office. Although the appointment procedure for judges has changed as a consequence of the Constitutional Reform Act 2005, with the establishment of the Judicial Appointments Commission, it is still necessary briefly to examine the former appointment procedure in order to explain the need for the reforms introduced by that Act.
Senior Judicial Positions
All judicial appointments remain, theoretically, at the hands of the Crown. Previously, however, the Crown was guided, if not actually dictated to, in regard to its appointment by the government of the day. Thus, as has been seen, the Lord Chancellor was a direct political appointment and the Prime Minister also advised the Crown on the appointment of other senior judicial office-holders such as the Law Lords and Appeal Court judges. Such apparent scope for patronage in the hands of the Prime Minister did not go without criticism.
Also under the previous system judges at the level of the High Court and Circuit Bench were appointed by the Crown on the advice of the Lord Chancellor, and the Lord Chancellor personally appointed district judges, lay magistrates and the members of some tribunals. This system did no go without challenge either, the question being raised as to how the Lord Chancellor actually reached his decision to recommend or appoint individuals to judicial offices.
High Court Bench
In the past, appointment to the High Court Bench was by way of invitation from the Lord Chancellor. However, in 1998, the LCD issued an advertisement inviting applicants to apply for such positions. However, the Lord Chancellor retained his right to invite individuals to become High Court judges. As regards the system of invitation, the question immediately raised was as to exactly how the Lord Chancellor selected the recipients of his favour. There being no system as such, there could be no transparency and without transparency there had to be doubts as to the fairness of the process. Even where a candidate applied for the post of High Court judge, the procedure was different from applications at a lower level, for the reason that the candidate was not interviewed after the usual consultation process with the senior judiciary and the candidate’s own referees. The Lord Chancellor simply decided whom to appoint on the basis of that consultation process. Thus doubts about the secretive nature of the consultancy procedure were compounded as regards applicants for the High Court Bench.
Former Lord Chancellor Irvine’s repeated insistence on the objectivity of the judicial appointments process did little to remove the suspicion that, because it relied on the sounding of the senior members of the judiciary and professions, it remained in the final analysis restrictive, conservative and unfair, especially to minority groups.