Creating a legacy

RIGHTS AND WRONGS

ROGER SMITH CALLS FOR JUDICIAL INDEPENDENCE TO BE ENSHRINED IN THE CONSTITUTIONAL REFORM BILL

The Constitutional Reform Bill should have been a wonderful display of the government's commitment to human rights.

Here was reform to further the right to 'a fair and public hearing...

by an independent and impartial tribunal'.

Good-bye to the constitutional ambiguities of the judicial committee of the House of Lords and the ancient office of Lord Chancellor; and glad good morning to a modern judicial appointments board and a supreme court.

The reform slipped out as the apparent by-product of a cabinet reshuffle.

It appeared that no one realised that the office of Lord Chancellor could not be abolished simply by Lord Falconer's fiat.

No one even seemed to have had the courtesy, let alone the tact, to inform in reasonable time the Scots, the Queen or much of the higher judiciary.

Particular attention was given to riling potential allies such as the Lord Chief Justice.

Some of the terms of a belatedly agreed concordat with him were blatantly breached in the subsequently published Bill.

The result was an unnecessary crisis that was compounded by a refusal to accept the recommendation of the Parliamentary Constitutional Affairs' Committee for pre-legislative scrutiny.

As a final wind-up to a discontented House of Lords, Peter Hain led news stories on the day of the second reading by threatening to remove the Bill from the Lords and pass it first in the Commons.

It would then have to be forced through the upper house by the Parliament Act.

This was more than their Lordships could bear, bringing to the fore all their other gripes against the government.

After the ill-starred precedent of a Bill on hare-coursing in the 1970s, the Lords referred the Bill to a select committee - widely seen as the long grass.

At this point, mercifully, someone showed some sense.

Mr Hain's bluff was called.

Shadowy 'usual channels' flowed, in the circumstances, with a wisdom hitherto lacking.

The select committee was packed with politicians of some standing and sense.

A deal was done.

The committee will report to the House by 24 June and has called for evidence by 23 April, with oral hearings beginning earlier.

We are now where we might sensibly have begun.

We can take a long look at the resources necessary to make this reform work.

Lord Falconer says 6 million to 32 million for a supreme court; Lord Woolf says 50 million.

This is the sort of disparity that would give cause for consideration if this were a business decision.

The government may take the view that it is not that bothered - it intends to add the cost on to court fees.

We need to look at how that impacts, in particular, on small claims litigants.

Furthermore, the government has now revealed, presumably to save money, that the judicial appointments commission will be based in the department's own premises.

Is that acceptable?

Most importantly, we can take time to puzzle through how to rebalance the constitution.

As the Constitutional Affairs Committee observed: 'There is a radical difference between...

a Lord Chancellor, who as a judge is bound by a judicial oath, who has a special constitutional importance enjoyed by no other member of the cabinet...

[and] a minister who is a full-time politician.' The issue is what arrangements we need to replace the practically workable, if theoretically flawed, model of the Lord Chancellor, a judge within the cabinet who is a member of the parliamentary upper house.

The role was often referred to as a 'hinge' between judiciary and executive.

At least four responses are required.

First, the office of the Lord Chief Justice has to be expanded, so that the office-holder has the duty to speak out on judicial independence and to handle judicial discipline.

This will unavoidably take additional resources.

Second, there should be a parliamentary joint committee to whom the Lord Chief Justice can report on independence and other matters relating to the judiciary.

This will provide a public stage with the legislature that will be missing once the office does not automatically come with membership of the upper house.

Third, the new secretary of state needs to be under a rather more robust duty than that proposed in clause 1(4) of the Bill to 'have regard to...

the need to defend [judicial] independence'.

Finally, all ministers need to do a little more to secure such independence than the proposed duty in clause 1(3) 'not [to] seek to influence particular judicial decisions through any special access to the judiciary'.

It may suit the political purposes of certain home secretaries such as David Blunkett and his predecessor Michael Howard, from time to time, to blame their woes on recalcitrant judges.

However, it does no good to public respect for the constitution.

If they do not like an asylum judgment, they should appeal or shut up.

In the event, the Bill now has a chance of providing a legacy of which the government will be proud - a judiciary that is equally independent and competent as now but formed by a commission with the drive to make it more diverse.

The government's presentation has yielded lessons that it would do well to learn.

Roger Smith is the director of the law reform and human rights organisation, Justice