Changing
the Constitution: the Executive, the Judiciary and the John Adams Problem
80 Club Lecture
by
Lord Justice Keene
23
June 2004
10. That is what led me to the title of this lecture. The reference to John Adams may have puzzled some who read it. There will be those here tonight who remember the former head of Civil Appeals, who subsequently became a Circuit Judge. It is not that John Adams of whom I was thinking!
Rather, it was the 2nd President of the United States who came to mind when I was reflecting on this topic. Although he was himself a lawyer, John Adams in the last days of his Presidency in 1801 appointed 42 Justices of the Peace from his own Federalist party – the so called “midnight appointments”, made when Adams knew he was on his way out. The incoming Secretary of State, James Madison, a Republican under the new President, Thomas Jefferson, found the warrants for these appointments on his desk, and in a number of cases refused to deliver the warrants. One of those who consequently could not take up his post was William Marbury, appointed as a Justice for the District of Columbia. He applied to the Supreme Court for a writ of mandamus, relying on section 13 of the Judiciary Act of 1789. However, he lost. The case is famous in American constitutional law, because the judgment, delivered by Chief Justice Marshall, held that section 13 was unconstitutional and that it was “the province and duty of the judicial department to say what the law is”. Thus it established the Supreme Court as the interpreter of the constitution and established judicial supremacy in the United States. Ironically, although Jefferson and Madison disliked that principle, perhaps unsurprisingly, neither could do anything about it legally or politically, since the case had been decided in their favour!
11. However, I cite Marbury –v- Madison not so much for the constitutional principle, though I shall return to that towards the end, but rather because it is a vivid illustration of two things: First, how even in a regime formally wedded to the notion of the separation of powers, those in the executive felt no compunction about appointing judges on party political grounds – or indeed, refusing to appoint them on such grounds. Secondly, Madison’s reaction to the midnight appointments shows the unhappy situation created by appointing judges in such a fashion – simply because an incoming administration will understandably treat them as partisan appointments. During the last year I have heard it said that the government in this country should have a say in the appointment of the topmost judges, especially the Lord Chief Justice, because he (or she) has to work closely with the government. There is certainly a need for a good working relationship between the Lord Chief Justice and the government of the day. But I doubt the force of the argument: governments change in our democracy and a Lord Chief Justice appointed by one government may still have to work with its successor, which may be of a very different political hue. When Margaret Thatcher was Prime Minister, she had a conversation with one of her backbenchers, who told her that the then Lord Chief Justice, Geoffrey Lane, had said something critical of government policy. Her response, as I have been told by the backbencher in question, was “What, my Lord Chief Justice?” That is emphatically not how the system should be.
12. Before I leave the American example too far behind, it is worth noting how the Supreme Court there has been able to boast of a number of very remarkable justices – some of whom have shown considerable longevity. Oliver Wendell Holmes, for example, who fought and was wounded in the Civil War in the 1860’s was still a member of the Supreme Court in the early 1930’s having held that office for 30 years, retiring at the age of 91. It is said that, when he was in his late 80’s, he was walking along a street in Washington with a colleague when they saw two attractive young women walking towards them. Holmes sighed deeply and said: “Ah, don’t you sometimes wish you were 70 again!”
13. Back to my theme, which is of the dangers of the involvement of a government minister in the appointment or promotion of judges. When the Constitutional Reform Bill was published, it largely recognised these dangers. It reflected discussions which had taken place between the senior judiciary and the Secretary of State/Lord Chancellor, discussions which had resulted in a wide measure of agreement. That has been referred to as a concordat. As a result, the proposal is that for most posts, the new Judicial Appointments Commission should submit to the Secretary of State (no longer the Lord Chancellor) simply one name for any particular judicial vacancy. The Secretary of State will have the power to reject that name, but he would have to give his reasons for so doing, and it seems likely that this power would only be used in the most rare and exceptional circumstances. This was the mechanism proposed for all appointments up to and including the Court of Appeal, though with variations in the composition of the recommending body.
14. However, when the Bill was first published, a very different mechanism was proposed by clause 21 for appointments to our new Supreme Court, the replacement of the House of Lords’ Judicial Committee. What was proposed was that a separate Commission should provide a list of names to the Secretary of State whenever a vacancy occurred, a list with a minimum of 2 and a maximum of 5 names, allowing the Secretary of State to choose between them. The only criteria specified in the Bill was that he should choose “the most suitable,” and then that name would go to the Prime Minister and the Queen. You can see the scope for a touch of the John Adams here! It would be very tempting to choose the candidate thought to be “one of us” or at least more pliable. At the very least, there would always be the suspicion that the appointment made had been influenced by such considerations, and even if untrue, that would be very demeaning for the successful candidate.
15. The justification put forward for this arrangement was that these were appointments to the highest court in the land. That never seemed to be at all convincing as an argument, and the proposal was criticised by some distinguished voices. As a result, during the consideration of the Bill by the Select Committee the government has shown that it has had second thoughts. Lord Falconer has said that he intends to propose amendments to the Bill so that only one name will be recommended by the new Supreme Court Appointments Commission to the Secretary of State. I am delighted that the government has responded to the concerns expressed on this topic. But it does demonstrate the need for vigilance, because governments do not automatically begin from the premise that politicians should not have an influence over judicial appointments.
16. The future therefore seems likely to be that the Head of the Judiciary in England and Wales will be the Lord Chief Justice, once the Lord Chancellor has gone, and that the new Secretary of State will normally act as no more than a conduit between the appointing commission and the Queen. Inevitably there are many questions which remain unanswered at the present time, such as how the new Judicial Appointments Commission will approach its task. I hope that it will bear in mind that an interview process is of somewhat limited value in selecting someone for the bench or for promotion as a judge. Some people are good at interviews but would not perform well on the bench, and the converse is also true. My plea would be for the Commissioners and the other recommending bodies to consult closely and in good time with the existing judiciary about the candidates, because judges do actually see them in a working environment. In the course of a day’s argument in the Court of Appeal for example, one gets a thorough appreciation of the intellectual qualities, the clarity of expression, and the manner in which a person conducts himself or herself. If it is a question of promotion of an existing judge, then certainly the senior judiciary will have seen a lot of that judge’s work through the appeal process.
17. None of this is intended to suggest that a fresh look at the appointments process is not merited. I am very conscious that there is a risk that, if only existing judges are involved, they may tend to select individuals from the same mould as themselves. The criticism has been made that the judiciary, certainly at High Court level and above, is dominated by middle-aged white men – “pale, male and stale”, as the expression goes. All recent Lord Chancellors have sought to increase the number of appointments of women and those from an ethnic minority, so as to obtain a more diverse judiciary. But there are some very intractable problems in the way of achieving this, as one can see from the limited number of women in the higher reaches of the Bar. That is not because Lord Chancellors have discriminated against women in appointments to silk, for example. In most years, a higher percentage of women were appointed as Q.C.’s than had applied for such appointment. I have concluded that there are problems in the structure of the legal professions which make it difficult for many women to achieve sufficient success for their activities to be recognised.
18. How do we overcome this? Lord Falconer has suggested that we might try experimenting with a small percentage of judges coming in at a younger age in junior positions and working their way up in a conventional career pattern. This would be, to that limited extent, a career judiciary, similar to that which exists in France and a number of other Continental countries. Young graduates, after a few years in practice, would become junior judges, but with the prospect of advancement through the profession. I believe that there is merit in this idea. I do not want to see the bulk of our judiciary appointed in this way, but an element of this kind within the total mix could be useful in enabling more women and more individuals from ethnic minorities to attain the bench, and to do so at a younger age. It could help to lower the average age of the judiciary. One word of warning, however. Those who were appointed in this way would, in their early years on the bench, lack the depth of experience which under our existing system has been obtained by candidates for the bench. They will not have had the years of legal practice behind them. That means that they would require significantly more training, and more intensive training, than we currently provide to new and existing judges.
19. This is something of which I, as Chairman of the Judicial Studies Board, am very conscious. The JSB has extended its training courses very markedly during the last few years and our role is still expanding. But our training has been directed towards people who have had many years of legal experience, and indeed life, to assist them. It would be a new and very different enterprise to have to train much younger people, without that experience, for a judicial role. It can be done, but it would need the appropriate resources. I note that in Spain, where they have a largely career judiciary, there is actually a residential college devoted to judicial training. That is a very different state of affairs from our present methods, where we rent a conference centre for a 3 or 4 day course. I cannot pretend that I expect to see a judicial training college in this country during my time as Chairman of the JSB, but it may come in due course.
20. My other concern about the composition of the judiciary relates to its social background, which inevitably reflects that of the Bar. My generation were very fortunate. We came out of University normally without a heavy burden of debt. We did not have to pay for a further year’s training before we were called to the Bar. Once called, although work was not that plentiful, one could survive the early years without the necessity for private means. Now most Bar students have large outstanding debts from their University and BVC days and their prospects in some parts of the Bar in their early years are far from bright. The criminal bar gives rise to real anxiety. Young barristers going out to prosecute in the Crown Court in a case which is adjourned because the defendant does not turn up may get £46 before deducting their travel expenses, paying their clerk and paying tax, all for something which may occupy over half a day. A one day trial in the magistrates court will produce £75, before expenses, clerk’s fees and tax. Many of these youngsters will be doing well to earn £200 a week, net before tax, or about £10,000 a year. That is well below the average manual worker’s wage. You can survive that level of Criminal Legal Aid fees if you have wealthy parents who can support you or you have other private means. But the danger is that this level of fees is going to restrict the social composition of much of the Bar, and that in turn will narrow the composition of the judiciary.
21. I said earlier that, so far as possible, the judiciary should be independent even of the legislature. I realise that this raises difficult issues where one is dealing with a democratic constitution and especially with one where the concept of Parliamentary sovereignty holds sway. In the United Kingdom we have had since the end of our civil wars in the 17th century the doctrine of the sovereignty of the King or Queen in Parliament, a doctrine which was in reality derived from a political compromise, but none the worse for that. It has endured. On the face of it, we do not have a situation of judicial supremacy comparable to that in the United States as established in Marbury –v- Madison. We do not have a written constitution for the judges to interpret, even though statute law has to some extent begun to provide one. The courts must respect the proper province of Parliament.
22. But this does not mean that the courts do not have their own province, their own function, to be respected by the legislature as well as the executive. Classically the role of the courts has been to protect the rights of the individual citizen, sometimes against the majority. A modern liberal democracy is not only based upon the concept of government according to the wishes of the majority. It is also based on certain fundamental human rights, which are not automatically protected by majority rule. As John Stuart Mill said 150 years ago in his introduction to “On Liberty”, there is a risk that one can get the tyranny of the majority:
“The people may desire to oppress a part of their number
and precautions are as much needed against this as against any other abuse of
power. The limitation therefore of the
power of government over individuals loses none of its importance when the
holders of power are regularly accountable to the community.”
This country has long subscribed to that, which is why we
played a major part in the drafting of the ECHR.
23 One
of the fundamental rights of the citizen, basic indeed to his ability to assert
his other rights, is access to the courts, now of course strengthened by
Article 6 of the ECHR. We nearly hit a
constitutional crisis earlier this year when the government was proposing to
oust the jurisdiction of the courts in immigration and asylum matters, save in
such limited instances as bad faith on the part of the Immigration Appeal
Tribunal. The version of the Asylum and
Immigration Bill which had completed its stages in the Commons prevented any
judicial review by the courts of a decision of the Immigration Appeal Tribunal,
even on grounds of lack of jurisdiction, error of law or breach of natural
justice. That proposal was condemned by
Lord Steyn as an attempt “to immunise manifest illegality” and as contrary to
the rule of law. Fortunately the
government gave way in the Lords and the ouster clause was watered down.
24. But I refer
to this episode because it led Lord Steyn to ask fundamental questions about
the principle of the supremacy of Parliament.
He concluded that:
“it is strongly arguable that the judges created the principle. If that is so, the House of Lords may have to consider whether judicial review is a constitutional fundamental which even a sovereign Parliament cannot abolish.” (Speech at launch of “Human Rights Law and Practice 2nd edition, Lester and Pannick, 3 March 2004.)
The great constitutional lawyer, Sir William Wade, in his 1980 Hamlyn lecture, had pointed out that the rule that the courts obey Acts of Parliament was a rule of common law and that this “judicial loyalty”, as he put it, was the foundation of the legal system. But he went on to say:
“I have never suggested that no shift in judicial loyalty
is possible”,
and he noted that great lawyers in the past, such as Coke and Holt, had held that Acts of Parliament might be void if contrary to common right and reason or the principles of natural justice. (Hamlyn Lecture 1980 “Constitutional Fundamentals”, by HWR Wade, lecture 3.) Bill Wade gave examples of a possible abuse of Parliament power, such as if Parliament were to legislate to establish one party government or a dictatorship or in some other way to attack the fundamentals of democracy.
25. This is all revolutionary stuff, and such issues are no longer topical. I refer to them merely because all this emphasises the role and importance of the judiciary as an entity distinct from the legislature and with its own legitimate area of responsibility. A democracy such as ours works best when the legislature and the judiciary are in harmony, and I for my part have no wish, or indeed expectation, to see any conflict between the two. But that happy state of affairs is most readily achieved by each respecting the proper responsibility of the other. Fortunately, that has normally been the situation in this country. You will remember that in the well known Anisminic case (1969 2 A.C. 147.) the House of Lords held that a determination of the Foreign Compensation Commission could be challenged in the courts, despite an “ouster clause” in the Foreign Compensation Act 1950, which provided that such a determination
“shall not be called into question in any court of law.”
Entertainingly enough, the Anisminic
decision as reported in the W.L.R. has on the front cover the delightful
description of the case: “Tribunal – Justice for victims of Suez”! There was initially a hostile reaction in
some quarters to the Anisminic decision, with Lord Devlin saying:
“The British have no more wish to be governed by judges
than they have to be judged by administrators.”
And there was initial hostility in
Whitehall too. But in the end, Parliament
accepted the force of the point being made by the Law Lords and made provision
in the 1969 Foreign Compensation Act both for judicial review and for a right
of appeal from determinations of the Commission. So the right of access to the courts was upheld
and harmony was restored.