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.
‘In relation to the role of the Lord Chancellor in the appointment process any closer involvement than currently exists risks politicising the process and would undermine the independence of the judiciary’ – Lord Pannick
The second disadvantage is that the Government’s proposal would undermine the appearance of political independence of the senior judiciary. There is a real danger that a new president of the Supreme Court or a new Lord Chief Justice would be undermined in the eyes of the public by being seen as the Lord Chancellor’s man or the Lord Chancellor’s woman. That would be most regrettable. Appearances matter in this context. There is a third disadvantage, which is that the Judicial Appointments Commission would inevitably find it more difficult to conduct an objective assessment of the rival candidates if it has the Lord Chancellor as one of its members. Indeed, the Bill implicitly recognises the dangers involved because it provides that the Lord Chancellor, if he does sit as a member of the appointments commission, may not chair it. It is unnecessary to give the Lord Chancellor the power to sit on the appointments commission with all of the dangers that I have identified.
The Lord Chancellor undoubtedly has a proper interest in the appointments process and needs to work with the Lord Chief Justice. The Lord Chancellor and the Government need to have confidence in the president of the Supreme Court. However, the Lord Chancellor’s and the Government’s interests are fully met by the ability of the Lord Chancellor to be a consultee during the appointment process and by the current position which gives him the right of veto.
Your Lordships’ Constitution Committee, of which I am a member, conducted an inquiry into judicial appointments, on which we reported in March. The conclusion we reached in that report has been repeated in our report on the Bill, which was published on 18 June. In each of those reports, we stated, in relation to the role of the Lord Chancellor in the appointment process that any closer involvement-that is, closer than currently exists, “risks politicising the process and would undermine the independence of the judiciary”.
Lord Pannick was supported by Baroness Prashar, Lord Woolf, Baroness Jay, Baroness Butler-Sloss, and Baroness Kennedy whose speeches and debate can be accessed here:
The amendments on appointments and judicial diversity are laid out in this Thinking Legally post