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To keep Irvine out of the loop in relation to such an important change because he might oppose it (one excuse given) was “a bizarre negation of Cabinet government”. Another (characteristically Blairite) pretext for the absence of consultation was the risk of leaks.

As a result of this shambles, the government found it impossible after all to somersault the Lord Chancellorship backwards out of existence. Instead, Falconer oversaw the dismantling of the constitutional settlement around his position, as well as (crucially) the link between the judiciary and the centre of executive and legislative power. The result was what Baroness Kennedy has called “a dog’s breakfast”, which stemmed from Blair and Blunkett having “got tired of hearing the judiciary being defended by Lord Irvine”. As she said: “The strength of the traditional role was that it was filled by a very experienced lawyer with hinterland who had no further ambition and would therefore fearlessly defend the rule of law and independence of lawyers and judges against bullying authoritarian Cabinet colleagues.”

This result is enshrined in the 2005 Act, one of the more dismal pieces of legislation from the Blair years. By section 3, the Lord Chancellor now shares the duty to uphold the independence of the judiciary with “other ministers of the Crown and all with responsibility for matters relating to the judiciary” (although it is true that Section 3(6) identifies certain matters to which the Lord Chancellor alone must “have regard”, and Section 17 provides the terms of the office-holder’s oath, which include swearing to defend the independence of the judiciary). It is just as well that the Lord Chancellor shares responsibility with others, because the vapid criteria contained in Section 2 provide that the Prime Minister can appoint as Lord Chancellor anyone he or she wants, as long as they are “qualified by experience”, including experience as an MP or minister, or by “other experience that the Prime Minister considers relevant”.

The job of representing the judges to government has now devolved upon the Lord Chief Justice. As a serving judge, he may not take his seat or speak in the House of Lords; if he wishes to listen to a debate, he may, like any Privy Councillor, sit on the steps of the throne. He thus has to make himself heard in Westminster from the Royal Courts of Justice in the Strand. The Act makes him responsible for representing the views of the judiciary to Parliament, to the Lord Chancellor and to ministers. It entitles him “to lay before Parliament written representations on matters that appear to him to be matters of importance relating to the judiciary”. He can, in other words, write a letter. It is no criticism of the present Chief, Lord Thomas of Cwmgiedd, to observe that he is inevitably less effective in standing up for the judges (for all his efforts) than if he were opposite the PM in Cabinet, or addressing Parliament.

It is hard for the eyes not to water when one considers Falconer’s comments on the appointment of the current (and currently notorious) Lord Chancellor, Liz Truss, a non-lawyer, in July 2016. Although Falconer’s website currently proclaims as one of his achievements the “work[ing] out [of] a detailed new relationship between the judiciary and the executive, embodied in” the 2005 Act, he is most unhappy with the way it is operating. Even before the Article 50 brouhaha, he expressed “strong concern that [Theresa May] had failed to comply with her constitutional obligation to appoint . . . someone who appeared qualified to defend the rule of law”.

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BAH
December 20th, 2016
2:12 PM
Paul Leslie's posting is wholly inappropriate. His complaints arise from matters nothing to do with what Jonathan Gaisman has so pertinently written about and he does not begin to justify his comment that "most of this article is utter nonsense and even dishonest in parts". That is unsurprising: the article is on the ball and palpably honest.

Paul Leslie
December 15th, 2016
2:12 PM
Unlike most Standpoint articles this piece is not only utter nonsense but also dishonest in parts. "Society axiomatically benefits from a judiciary in good fettle, vigilantly defending our rights and freedoms, even — particularly — when there is violent disagreement over what those rights are" - what vigorous defence? With the full complicity of many senior and more junior judges - sometimes even without recourse to legislation which tramples the rights of the accused - more and more cases are coming to court where there is no proof even that a crime has been committed Especially since the deplorably one-sided report by Robin Auld, the only defence for the unjustly accused against prosecution is not the lack of solid evidence but a belief by the DPP that there is not a more than 50% possibility of conviction. As far as victims of miscarriages of justice are concerned they have to jump through expensive hoops and demonstrate their innocence "beyond reasonable doubt". Even when, as in the case of Victor Nealon, this can be conclusively demonstrated - including by invoking the proof (I am aware that absence of evidence is not always proof of innocence, but not in this case) that his DNA was completely absent, whether on the victim's clothing or elsewhere at the scene of the crime - there are any number of highly placed judicial functionaries to bring forward specious arguments to deny justice to the wrongfully convicted. See http://thejusticegap.com/2016/04/without-recompense-wrongfully-convicted... and other relevant articles.

Paul Leslie
December 15th, 2016
2:12 PM
Unusually for a Standpoint article most of this article is utter nonsense and even dishonest in parts. "Society axiomatically benefits from a judiciary in good fettle, vigilantly defending our rights and freedoms, even — particularly — when there is violent disagreement over what those rights are." - and the complicity of so many senior and more junior judges in the serious erosion of the fundamental principle of the presumption of innocence and the contemptible curtailing of compensation for the wrongly convicted? The wrongly convicted have to jump through expensive hoops to have a chance of being compensated and to demonstrate that they are innocent "beyond reasonable doubt". Take, for example, the case of Victor Nealon case where the absence of his DNA at the scene of the crime demonstrates conclusively that he could not have been guilty the high ranking judicial functionaries involved found a way to deny him any form of retroactive justice (I am aware that absence of evidence is not always a proof of innocence, but not in the case of this poor man who served seventeen years in prison following a deplorable miscarriage of justice). In a country where the judiciary is attached to the right of a fair trial someone who is acquitted or wrongly convicted and only belatedly let out of prison should not pay for justice to be properly served.

Angela Brown
November 25th, 2016
7:11 PM
The selection process for judges seems to be built around a framework of desirable competencies and behaviours, as frequently used by HR professionals. A much better indicator of capability and potential is performance in relevant current and previous roles, when available, which it surely is in the case of recruitment to the judiciary.

SGM
November 23rd, 2016
2:11 PM
I entirely agree and particularly enjoyed the excoriation of Falconer. It seems a shame to bring the Article 50 case into it though. However unfair some of the press criticism may be it is not a case of the courts stepping in to restrain a tyrannical legislative majority or overbearing executive, but of the courts being exploited by a disaffected minority to try to frustrate the result of a referendum. Perhaps it was the right decision from a legal point of view but lawyers should not be surprised that non-lawyers look askance at the outcome.

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