Quis custodiet ipsos custodes? This is the central theme in Lord Falconer's consultation papers on a new supreme court and an independent judicial appointments commission, published in mid-July. In the past, the lord chancellor was chief guardian of everything, being simultaneously head of the judiciary, speaker of the House of Lords, and an increasingly powerful cabinet minister. He was a living contradiction of the separation of powers: an increasing embarrassment in Europe and the subject of growing criticism at home. The law lords strongly disliked his sitting with them as a judge, and a successful Human Rights Act challenge from one of the lawyers appearing before them was not far away.
The creation of Lord Falconer's new department for constitutional affairs offers a springboard for a relaunch of Labour's constitutional reform programme. Constitutional reform was the biggest achievement of Blair's first term, but curiously undersold. Its significance has not been grasped. The over-centralised "elective dictatorship" conferred by our winner-takes-all system has been transformed into a polity with far more checks and balances, and greater separation of powers. The full significance of changes like devolution and the Human Rights Act has not sunk in because they are still working their way through. In their train they bring others, like this new supreme court, and the enforced separation of powers upon the Lord Chancellor.
No one should shed any tears for the lost roles of the lord chancellor. It was high time to drop his separate hats as a judge and speaker in the House of Lords, and to focus on his central role as minister for justice and constitutional affairs. But as with other recent reforms, the botched manner of the reshuffle swamped discussion of the substantive reform. Lord Falconer's consultation papers should now help to rectify that.
He has been able to publish so promptly because one consultation paper has already been written under his predecessor, Lord Irvine. Since 1997, Irvine has transformed judicial appointments from taps on the shoulder and secret soundings to a much more open and transparent process. Vacancies are advertised and candidates are now interviewed by three-member panels. There is feedback for disappointed candidates, who can complain to a commission for judicial appointments which scrutinises the whole process.
The new judicial appointments commission will go one step further and take on responsibility for recruiting and selecting judges. The main issue is whether it should be an advisory commission, leaving the final decision with ministers (as now), or whether it should itself appoint the judges. The latter might seem an attractive refuge to judges increasingly battered by David Blunkett's onslaughts and worried by his attitude to the rule of law. But it would run counter to all British and common law practice. The Scottish judicial appointments commission leaves the final decision with ministers, as will the Northern Ireland commission when it is set up. It is the same in Canada and New Zealand. Only in some European countries, with their different tradition of a career judiciary, does one find judicial self-governing bodies.
These judicial councils illustrate the risks of leaving the judiciary to choose its own. Berlusconi can accuse the Italian magistracy of being a communist cabal because it is self-selecting. Blunkett has far less excuse to attack a judiciary which has been selected by his and previous governments. For the judges to retain the confidence of the executive branch of government, they should continue to be selected by the executive branch. But to keep an eye on the executive, and for additional legitimacy, their appointment should be scrutinised (but not subject to veto) by the legislative branch. The treasury select committee already examines new members of the monetary policy committee of the Bank of England. Similar scrutiny hearings for senior judges could be held either by the constitution committee in the Lords or the new lord chancellor's select committee in the Commons. Such scrutiny would apply only to senior judges, who now have to arbitrate on political disputes under the Human Rights Act and the devolution legislation.
Again, it was high time to bring the 12 law lords, the most senior judges, out of the Lords and to establish them in an independent supreme court. It is something for which the senior law lord, Lord Bingham, has discreetly campaigned, in the face of fierce opposition from Lord Irvine. In the Ditchley lecture this year Lord Bingham summarised the case this way: "first, that institutional structures should reflect constitutional realities; and second, that the serving law lords are judges, not legislators. This latter fact is evidenced by their much reduced participation in debate." In fact some senior judges, like Lord Woolf, lord chief justice, like to use the Lords as an additional political platform, while others have taken a Trappist vow of silence.
Our new supreme court will be like those in Canada and Australia. But public debate on constitutional matters seems to have only one point of reference: the US. One thing definitely not on the agenda is a US-style supreme court. Unlike their US counterparts, the law lords will not have power to strike down legislation. Nor will they be selected as "liberals"or "conservatives" in the way that US presidents pack the supreme court. To guard against this, candidates could be screened by the new judicial appointments commission. But it is more likely that, at this level and for the court of appeal, the commission will be bypassed. So the law lords will still be selected by Lord Falconer from the best of the judges in the court of appeal, and formally appointed by the Queen as they are now.
Ideally, a new supreme court should merge the appellate committee of the House of Lords with the judicial committee of the privy council, where the law lords spend an equal amount of their time. This court is little known because it is mainly an overseas court. Most of its work consists of appeals from 17 Commonwealth countries, British overseas territories (including Bermuda and Gibraltar), the Channel Islands and the Isle of Man. The law lords would love to lose their overseas jurisdiction, especially the death row cases from the Caribbean, which are a big part of the caseload, but the independent states which now appeal to the privy council would have to agree. New Zealand is planning to drop out, but the long mooted Caribbean court is as far off as ever. It is bizarre that 40 years after decolonisation our most senior judges spend half their time providing an imperial court of appeal, but it is a jurisdiction which Britain cannot unilaterally relinquish.
So the plan for now is to establish the law lords as a court in their own right, renamed and rehoused, but with the same powers and with the privy council continuing alongside. One home for the new supreme court could be Somerset House, close to the law courts in the Strand. The law lords will undoubtedly gain from a move to better accommodation. So should litigants, who will gain from a better resourced supreme court. The main loss is to the House of Lords, which has benefited from the legal expertise of the law lords in debates, and in the work of its committees. But retired law lords can still speak in the Lords, so their wisdom will not be wholly lost.
