. 31
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boy network™ which had resulted in some ˜terrible mistakes™ (The Times,
8 October 1987, p 7). A President of the Law Society warned of the risk that the
system might discriminate ˜in favour of those who ¬t the present mould of the
existing judiciary™ ((1990) 140 NLJ 1594). In response to such misgivings
JUSTICE (the British Section of the International Commission of Jurists) pro-
posed the establishment of a Judicial Commission, including lawyers and judges
but with a majority of lay members, which would make recommendations on
judicial appointments to the Lord Chancellor (The Judiciary in England and
122 British Government and the Constitution

Wales, A Report by JUSTICE (1992), ch 6). Successive Lord Chancellors
declined to adopt proposals of this kind, but in 1997 Lord Irvine of Lairg
decided on more limited reforms of the system of appointment. He announced
that appointments to the High Court would no longer be by invitation only and
that applications would be solicited from all eligible members of the pro-
fessions. An annual report would be presented to Parliament on the operation
of the judicial appointments system. Following an independent scrutiny of
appointment procedures carried out by Sir Leonard Peach at the request of
the Lord Chancellor, a Commission for Judicial Appointments was established,
not to advise on appointments but to provide an independent oversight of
the system.
The Constitutional Reform Act 2005 placed the system of judicial appoint-
ments on a modern footing. The role of the Lord Chancellor remains important,
in advising the Queen on appointments to high judicial o¬ces and in himself
appointing many judicial o¬ce-holders, for instance Assistant Recorders,
deputy District Judges, justices of the peace, and chairmen and members of
a great number of tribunals. His role is, however, complemented by sections
63“107 of the Act, which established a new Judicial Appointments Commission
of ¬fteen members: a lay person as chairman; ¬ve judicial members; two
members from the legal professions; ¬ve lay members; a tribunal chairman,
tribunal member or arbitrator; and a justice of the peace. Commissioners are
appointed by the Queen on the recommendation of the Lord Chancellor who
acts in accordance with procedures, set out in Schedule 12 to the Act, which are
designed, through the involvement of the Judges™ Council or an independent
panel, to exclude partisan considerations from appointments.
The Judicial Appointments Commission has a critical role in the appoint-
ment of the Lord Chief Justice, other Heads of Division, Lords Justices of
Appeal, High Court Judges and other judicial o¬ce-holders. When an appoint-
ment is to be made, the Commission (in the case of a High Court Judge or listed
o¬ce-holder) or a selection panel appointed by it (in the case of the Lord Chief
Justice, Head of Division or Lord Justice of Appeal) decides upon the selection
process to be applied and proceeds to apply it. Its selection of one person is
presented in a report to the Lord Chancellor. (What follows is described here in
summary form: for the full details see sections 67“96 of the Constitutional
Reform Act.)
On receiving the report (stage 1) the Lord Chancellor has three options: (a) to
accept the selection; (b) to reject it; (c) to require the Commission or panel
to reconsider the selection. Following a rejection or requirement to reconsider,
the Commission or panel must again make a selection. The Lord Chancellor
has then (stage 2) the same three options: to accept, reject or require reconsid-
eration; but he may reject the selection only if it was made following a recon-
sideration at stage 1, and may require reconsideration of the selection only if it
was made following a rejection at stage 1. Following a further selection after
rejection or reconsideration at stage 2, the Lord Chancellor must, at stage 3,
123 The ideas of the constitution

accept the selection. If the Lord Chancellor rejects or requires reconsideration
of a selection at stages 1 or 2, the Commission or panel in proceeding to
a further selection may not select the person rejected, but following a reconsid-
eration may select the person reconsidered. Selection by the Commission or
a selection panel ˜must be solely on merit™; subject to this the Commission must
in performing its functions ˜have regard to the need to encourage diversity in
the range of persons available for selection for appointments™ (sections 63“64
of the Act).
The Judicial Appointments Annual Reports published by the Department for
Constitutional A¬airs are a useful source of information and can be found at
www.dca.gov.uk. For judicial appointments in Scotland, see the Judicial
Appointments Board for Scotland (www.judicialappointmentsscotland.
gov.uk) and the Scottish Executive Consultation Paper, Strengthening Judicial
Independence in a Modern Scotland (2006); for Northern Ireland, see the
Justice (Northern Ireland) Act 2002 and the Northern Ireland Judicial
Appointments Commission.
The independence of the judiciary may be put in contention when judges
become involved in issues of acute political controversy. It is at such times that
the greatest circumspection is called for from all those concerned in the judicial
process, as well as particular restraint from politicians and members of the
government. There were lapses in these respects during the miners™ strike of
1984“85 (see Oliver, ˜The independence of the judiciary™ (1986) 39 Current
Legal Problems 237 and ˜Politicians and the courts™ (1988) 41 Parliamentary
A¬airs 13) and a singular lack of governmental restraint in the 1990s is chron-
icled by Loveland, ˜The war against the judges™ (1997) 68 Political Quarterly 162.
This ˜war™ was not succeeded by a permanent peace and Lord Irvine, as Lord
Chancellor, made it known that he had many times had to argue in government
˜in ways that ensure that the independence of the judiciary is upheld™
(Committee on the Lord Chancellor™s Department, Evidence, HC 611-I of
2002“03, Q 29). Lord Irvine added that:

In all governments some ministers have spoken out against decisions that they do not
like and I have to say that I disapprove of that. I think that it undermines the rule of law
and . . . that when you get court decisions you favour, you do not clap and when you get
a court decision which is against you, you do not boo.

Lord Irvine™s disquiet had been provoked by some ill-judged responses by
ministers to judicial decisions that displeased them, for instance a decision by
Collins J in 2003 that the Home Secretary had acted unfairly in denying support
to destitute asylum-seekers. (The Home Secretary™s appeal against this decision
was dismissed by the Court of Appeal: R (Q) v Secretary of State for the Home
Department [2003] EWCA Civ 364, [2004] QB 36. On this episode see Bradley
[2003] PL 397; and see generally Stevens, ˜A loss of innocence?: Judicial
independence and the separation of powers™ (1999) 19 OJLS 365.)
124 British Government and the Constitution

One circumstance that has provoked considerable disquiet in recent years
about the independence of the judiciary from the executive is the government™s
use of senior judges to chair politically sensitive public inquiries. Several such
inquiries have been chaired by judges, although not all are. Examples include
the Scott Inquiry into ˜arms to Iraq™ in the 1990s, the Phillips Inquiry into BSE
(˜mad cow disease™), the Hutton Inquiry into the death of Dr David Kelly and the
Saville Inquiry into ˜Bloody Sunday™ (on which see, respectively, A Tomkins,
The Constitution after Scott: Government Unwrapped (1998), www.bseinquiry.
gov.uk, www.the-hutton-inquiry.org.uk and www.bloody-sunday-inquiry.org).
The Butler Inquiry into the state and use of secret intelligence on Iraqi weapons
of mass destruction (see www.butlerreview.org.uk) is an example of such an
inquiry being chaired by someone other than a judge, Lord Butler being a former
Cabinet Secretary. The House of Commons Public Administration Select
Committee investigated the use of judges to chair such inquiries and recom-
mended as follows (Government by Inquiry, HC 51 of 2004“05, paras 57“8):

We recognise the value of using senior judges to chair some inquiries. Their training and
experience give them important transferable skills, and they provide reassurance that an
inquiry will be independent and fair. Their use is most appropriate in fact-finding inquiries
which are at a distance from government. Inquiries into issues at the centre of government
are, however, politically contentious, as well as requiring an understanding of how govern-
ment works. Criticism of their reports in such cases may undermine the impact of the inquiry
and the judiciary as an institution, as well as being detrimental to the reputation of the indi-
vidual judges. With developments in public law, Human Rights Act considerations about
impartiality and the . . . establishment of a Supreme Court, which involves the institutional
separation of the judges from the House of Lords, care needs to be exercised in the future
use of judges for such work, particularly those from the highest court, and especially in rela-
tion to politically sensitive cases. We . . . recommend that decisions about the appointment
of judges to undertake inquiries should be taken co-equally by the government and the Lord
Chief Justice or senior law lord.

The Government rejected the committee™s recommendation, but section 10
of the Inquiries Act 2005 now provides that if a minister proposes to appoint
a judge to be a member of an inquiry, he must ¬rst consult either the senior law
lord or the Lord Chief Justice. Whether this provision will be su¬cient to allay
concerns about judicial independence and the chairing of sensitive public
inquiries remains to be seen. (For further consideration, see Beatson, ˜Should
judges conduct public inquiries?™ (2005) 121 LQR 221.)

(d) The courts and Parliament
When we turn to the separation of judiciary and legislature “ the courts and
Parliament “ we are at once struck by the presence, until our own time, of judges
in the Upper House of Parliament. The Law Lords (Lords of Appeal in
125 The ideas of the constitution

Ordinary), appointed under the Appellate Jurisdiction Act 1876, sat as the ¬nal
court of appeal for England, Wales, Northern Ireland and (in civil cases)
Scotland. Besides sitting as judges in the Appellate Committee of the House of
Lords, the Law Lords might also “ and frequently did “ take part in debates and
in the legislative functions of the Upper House.
The decision of the European Court of Human Rights in McGonnell v United
Kingdom (2000) 30 EHRR 289 (above) also had implications for the dual role
of the Law Lords as both judges and legislators. In 2000 the Law Lords adopted
a Statement of Principles for their guidance in participating in the business of
the House so that they should not be disquali¬ed from adjudicating on issues
that might come before them in their judicial capacity. The statement embod-
ied two broad principles (HL Deb vol 614, col 419, 22 June 2000):

As full members of the House of Lords the Lords of Appeal in Ordinary have a right to
participate in the business of the House. However, mindful of their judicial role they consider
themselves bound by two general principles when deciding whether to participate in a
particular matter, or to vote: first, the Lords of Appeal in Ordinary do not think it appropriate
to engage in matters where there is a strong element of party political controversy; and
secondly the Lords of Appeal in Ordinary bear in mind that they might render themselves
ineligible to sit judicially if they were to express an opinion on a matter which might later
be relevant to an appeal to the House.

This act of self-denial was thought by some to provide a su¬cient assurance of
the independence and impartiality of the Law Lords in adjudicating any case
that came before them. But while, on the one hand, it restricted their ability
to make a useful contribution to the work of the Upper House, it did not
eliminate all possibility of confusion “ at least in public perception “ of the
legislative and judicial roles of the Law Lords. The Government concluded that
the continuance of the Law Lords in their existing roles could not be reconciled
with Article 6 of the European Convention on Human Rights, which demands
of judges that they should be manifestly independent and impartial “ should be
so in fact and should present an objective appearance of being so. In the
Government™s view it was in any event desirable in principle that the ¬nal court
of appeal should be clearly separated from Parliament, saying that it was
not ˜appropriate in a twenty-¬rst century democracy for the highest appellate
court to be part of the legislature™ (Judicial Appointments and a Supreme Court,
Cm 6150/2004, para 11).
The Constitutional Reform Act 2005 accordingly provided for the Lords of
Appeal in Ordinary to be removed from the Upper House of Parliament and for
the creation of a new Supreme Court as a ¬nal court of appeal for the United
Kingdom. This reform is currently scheduled to come into force in 2009. The
Supreme Court will assume the jurisdiction of the former Appellate Committee
of the House of Lords and also the devolution jurisdiction (see chapter 4) of the
Judicial Committee of the Privy Council. The existing Lords of Appeal in
126 British Government and the Constitution

Ordinary will become the ¬rst Justices of the Supreme Court. Succeeding
Supreme Court judges are to be appointed by the Queen on the recommenda-
tion of the Prime Minister, after a process of selection in which an independent
selection commission, convened by the Lord Chancellor, has a decisive role. The
selection procedures are similar to those established by the Constitutional
Reform Act for other judicial appointments as described above.
(See further Carnwath, ˜Do we need a Supreme Court?™ (2004) 75 Political
Quarterly 249; Hale, ˜A Supreme Court for the United Kingdom?™ (2004) 24 LS
36; Masterman, ˜A Supreme Court for the United Kingdom™ [2004] PL 48;
Webber, ˜Supreme Courts, independence and democratic agency™ (2004) 24 LS
55; Woodhouse, ˜The constitutional and political implications of a United
Kingdom Supreme Court™ (2004) 24 LS 134; Ryan, ˜The House of Lords and the
shaping of the Supreme Court™ (2005) 56 NILQ 135.)
If it could be said without quali¬cation that ˜Parliament makes the laws, the
courts enforce them™, there would be a complete separation of functions
between the legislature and the judiciary. In reality the common law has been
made by the courts, which continue to have a law-making role in the modern
constitution, as we have seen. It is, however, a subordinate role, not to be
extended so as to usurp the primary legislative power of Parliament. In Duport
Steels Ltd v Sirs, the separation of powers was invoked as de¬ning the relation
of the courts to Parliament. In this case the House of Lords reversed the decision
of the Court of Appeal in which an unwarrantably restrictive interpretation had
been placed on section 13(1) of the Trade Union and Labour Relations Act 1974
(as amended in 1976), which conferred immunity from liability in tort for an
act done by a person ˜in contemplation or furtherance of a trade dispute™.

Duport Steels Ltd v Sirs [1980] 1 WLR 142 (HL)
Lord Diplock: . . . My Lords, at a time when more and more cases involve the application of
legislation which gives effect to policies that are the subject of bitter public and parliamen-
tary controversy, it cannot be too strongly emphasised that the British constitution, though
largely unwritten, is firmly based upon the separation of powers; Parliament makes the laws,
the judiciary interpret them. When Parliament legislates to remedy what the majority of its
members at the time perceive to be a defect or a lacuna in the existing law (whether it be
the written law enacted by existing statutes or the unwritten common law as it has been
expounded by the judges in decided cases), the role of the judiciary is confined to
ascertaining from the words that Parliament has approved as expressing its intention what
that intention was, and to giving effect to it. Where the meaning of the statutory words is
plain and unambiguous it is not for the judges to invent fancied ambiguities as an excuse
for failing to give effect to its plain meaning because they themselves consider that the con-
sequences of doing so would be inexpedient, or even unjust or immoral. In controversial
matters such as are involved in industrial relations there is room for differences of opinion
as to what is expedient, what is just and what is morally justifiable. Under our constitution
it is Parliament™s opinion on these matters that is paramount.
127 The ideas of the constitution

A statute passed to remedy what is perceived by Parliament to be a defect in the existing
law may in actual operation turn out to have injurious consequences that Parliament did not
anticipate at the time the statute was passed; if it had, it would have made some provision
in the Act in order to prevent them. It is at least possible that Parliament when the Acts of
1974 and 1976 were passed did not anticipate that so widespread and crippling use as has
in fact occurred would be made of sympathetic withdrawals of labour and of secondary
blacking and picketing in support of sectional interests able to exercise ˜industrial muscle™.
But if this be the case it is for Parliament, not for the judiciary, to decide whether any
changes should be made to the law as stated in the Acts, and, if so, what are the precise
limits that ought to be imposed upon the immunity from liability for torts committed
in the course of taking industrial action. These are matters on which there is a wide
legislative choice the exercise of which is likely to be influenced by the political complex-
ion of the government and the state of public opinion at the time amending legislation is
under consideration.
It endangers continued public confidence in the political impartiality of the judiciary, which
is essential to the continuance of the rule of law, if judges, under the guise of interpretation,
provide their own preferred amendments to statutes which experience of their operation has
shown to have had consequences that members of the court before whom the matter comes
consider to be injurious to the public interest.

Lord Scarman: . . . My basic criticism of all three judgments in the Court of Appeal is that in
their desire to do justice the court failed to do justice according to law. When one is consid-
ering law in the hands of the judges, law means the body of rules and guidelines within
which society requires its judges to administer justice. Legal systems differ in the width of
the discretionary power granted to judges: but in developed societies limits are invariably


. 31
( 155 .)