Monthly Archives: June 2012

Lord Pannick opposes plan for Lord Chancellor to sit on judicial appointments panels

Lord Pannick has introduced an amendment to the Crime and Courts Bill that would remove a new requirement that the Lord Chancellor (Secretary of State for Justice, currently Kenneth Clarke) sit on the panel to appoint the President of the Supreme Court and Lord Chief Justice.

Lord Pannick told the House of Lords on 27 June: My Lords, in moving Amendment 117, I shall also speak to Amendments 118, 131 and 132, which address an issue of constitutional concern. The Bill would allow the Lord Chancellor to sit as a member of the appointments commission for the posts of Lord Chief Justice and president of the Supreme Court. The amendments would deny the Lord Chancellor such a role …

At present the Lord Chancellor can ask the appointments commission to think again about a proposed appointee, but the Lord Chancellor is not a member of the commission. The Constitutional Reform Act 2005 rightly recognised the need for a clearer separation of powers between the Executive and the judiciary. The change proposed by the Government would regrettably go back on that and it would have substantial disadvantages. First, it would increase the danger of political partiality in the appointment of a senior judge. I recognise, as I am sure will all noble Lords, that the present Lord Chancellor would not contemplate acting in such a manner, but even Mr Kenneth Clarke cannot continue in political life for ever. He is already above the retirement age for judges – a matter that we will be discussing later this afternoon. It would be highly undesirable to give a future Lord Chancellor the power so actively to influence the appointment of the senior judiciary.

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R (KM) v Cambridgeshire: care and confusion

Some frenzied activity in the media over the last couple of weeks has pointed to how significant adult social care is becoming as an economic, political and legal issue.

Let’s start with the UK Supreme Court case of KM (R (KM) v Cambridgeshire County Council) where confusion has reigned to the extent that, in a remarkable step, the court had to intervene to put right misleading reporting of the case.

KM is “a profoundly disabled man” of 26 who lives with his mother and siblings. He challenged Cambridgeshire County Council’s determination that £85,000 a year from the council would cover his needs to the extent of discharging the council’s duties under section 2(1) of the Chronically Sick and Disabled Persons Act 1970.

As a result of the grounds on which the Supreme Court had granted leave to appeal, the belief had grown among disablement and care charities that the case would put right a bad judgment in R v Gloucestershire County Council ex parte Barry (1997).

Put simply Barry was a case about whether, and at what point, a local authority could take account of its resources when  considering the social care needs of a disabled individual. The judgment of the majority seemed to suggest resources could be taken into account when deciding which of someone’s “presenting needs” should be met – ie deciding “eligible needs”. The judgment is not a model of clarity, however, and has caused confusion ever since. Part of the problem is the post-code lottery of some authorities being willing to meet a broader range of needs than others.

What the charities want is the maximalist position – that needs must be assessed (at stage one of the process) without looking at resources and then that those needs must be met.

But Barry and KM were looking at two different issues since KM had in fact passed stage one and stage two: The council had assessed his needs and agreed on his eligible needs. The crucial question in KM was not connected with resources; it concerned identifying the reasonable cost of providing the services. Continue reading

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Can Pepper v Hart save Julian Assange?

The UK Supreme Court Julian Assange European Arrest Warrant case has been delayed for two weeks for new legal arguments to be put regarding the meaning of the UK legislation that enacted the EAW system. Those arguments may draw on the minority pro-Assange judgment of Lord Mance who made interesting use of the principle in Pepper v Hart [1992] UKHL 3 (summarised below) – that judges may consult speeches in Parliament to establish the purpose or meaning of statutes.

The issue at stake is whether “judicial authority” (the words used in the 2003 Extradition Act) for the purpose of issuing the arrest warrants can include mere prosecuting authorities, as is the practice in some European countries.

Sweden’s prosecutors are seeking Assange’s arrest to question him on allegations of sexual offences. If UK law requires a court or judge to issue the warrants, then Sweden cannot have him. It is a question of how the words “judicial authority” are interpreted, and Mance cited parliamentary debate on the Extradition Bill in Hansard to suggest that MPs were clear in their minds that they were voting for judges and courts, not for prosecutors. Continue reading

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