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Legal experts criticise justice secretary's new powers to select judges

Lady Neuberger, who said allowing Clarke to take part in selection meetings for senior judges would breach the constitutional division of powers between executive and judiciary. Photograph: Katherine RoseLegal experts criticise justice secretary's new powers to select judges

Lady Neuberger says Ken Clarke's involvement in selection of lord chief justice and supreme court president is a 'disgrace'

Owen Bowcott, legal affairs correspondent

The enhanced role of the justice secretary in the selection of England and Wales's most senior judges has come under fierce attack from a leading advocate for judicial reform.

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Lady Neuberger, who chaired the last government's advisory panel on judicial diversity, has described the inclusion on the panel of Ken Clarke, who is also the lord chancellor, as a "disgrace".

Allowing the lord chancellor to take part in selection meetings, as proposed by the government's crime and courts bill, would breach the constitutional division of powers between the political executive and the judiciary, Neuberger warned.

Addressing a lunch organised by the Chartered Institute of Legal Executives (CILEx), Neuberger, who is also a rabbi, praised most of the contents of the bill. But she highlighted changes in the lord chancellor's role that will involve him directly in the appointment of the lord chief justice and the president of the supreme court, two of the country's most senior judges.

"The government have put one thing [in the bill] that I think is a true disgrace," Neuberger said. "Against what the constitution committee in the House of Lords had to say, they have put in a provision for the lord chancellor to be a member of the selection panel for the most senior judges …

"We set up the Judicial Appointments Commission because it was important to separate powers. This is a constitutional issue. I think the lord chancellor is trying to fudge it.

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"If you have the lord chancellor as a member and not chairing it, how [is he] going to feel about that if they vote down [the lord chancellor's favourite]? So I feel very strongly. This is clearly wrong."

In the House of Lords, Lady Jay, who chairs the constitution committee, raised similar objections to the changes earlier this week. "In terms of constitutional principle," she said, "the most significant is the decision to allow the lord chancellor to sit as a member of the selection panels for the lord chief justice and president of the supreme court. I have two concerns about this …

"The inclusion of the lord chancellor on the selection panel risks the politicisation of the process, which would clearly run contrary to the principles behind it. Secondly, the government propose to balance the inclusion of the lord chancellor on these selection panels with the removal of his current power to reject the decision of those panels …

"However, it raises the prospect, at least in theory, of the lord chancellor being outvoted on the panel and thus finding himself faced with a lord chief justice or president of the supreme court with whom the executive did not feel able to work. The government may need to think again about this proposal."

Other changes in the bill will see the lord chancellor relinquish other powers over judicial appointments. His ability to select judges below the level of the high court is to be transferred to the lord chief justice.

CILEx is the professional association for those who enter the law without first becoming a solicitior or barrister. It supports opening up the judiciary to those from more diverse backgrounds.

A Ministry of Justice spokesman said: "The government is committed to upholding the independence of the judiciary and the selection decision for these two vital appointments will continue to be based solely on merit.

"The lord chancellor is responsible and held publicly accountable for ensuring an effective justice system. As part of this he already has the power to reject the selection panel's recommendation for president of the UK supreme court and lord chief justice for England and Wales.

"He will give this veto up if he becomes part of the selection panel. Senior members of the judiciary will also be represented on the panel and there will be an independent chair."

Source: The Guardian UK, 01 June 2012



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