16.12.2004

The Blair-Falconer reform of the judiciary

The government’s Constitutional Reform Bill is gradually making its way through the House of Lords. It aims to do three things. The first is to separate the functions of the lord chancellor as a government minister from his current role as head of the judiciary, which is to be given to the lord chief justice (who is currently head of the criminal side of the court of appeal). The second is to create a supreme court, separating the court of final appeals from the House of Lords. The third is to reform judicial appointments by creating a new quango, the Judicial Appointments Commission, to take over much (but not all) of the role of the lord chancellor.

This may all sound very trivial and not of interest to communists or the workers’ movement more generally. In fact, the point is, by ‘modernising’ the judiciary, to enhance its political legitimacy as a bulwark of the right of private property against political democracy. Along the way the legal independence of the judiciary is to be enhanced. Communists, as radical democrats, should oppose both a separate supreme court, and the Judicial Appointments Commission quango.
The reforms to the office of lord chancellor are a relatively trivial part of the same game. But the barristers and the House of Lords have made this the focus of a campaign of mystification round the ‘ancient constitution’ and ‘historical continuity’ - a campaign which deserves to be exposed as the nonsense it is.

1,400 years of history?
The Constitutional Reform Bill began in June 2003 with a proposal, announced together with a cabinet reshuffle, to abolish the office of lord chancellor and pass many of its functions to a new secretary of state for constitutional affairs. The proposal to abolish the office was abandoned in July 2004 after defeat in the House of Lords. The bill in the form in which it is currently on the House of Lords website still uses the form, ‘secretary of state for constitutional affairs’, and contains in its schedules over 100 pages of miscellaneous amendments of existing statutes to replace ‘lord chancellor’ with ‘secretary of state ...’ But Lord Falconer, the current lord chancellor, has conceded defeat on this front. Earlier this month the Lords inflicted defeat on him in two related matters: they insisted that the lord chancellor must sit in the House of Lords, and that he must be a senior lawyer.

Around the proposed abolition of the office it has now become commonplace to assert that the government sought to ‘sweep aside 1,400 years of history’. The government has not made any serious effort to rebut this nonsense, probably because it served the Blairites’ turn to be seen as ‘modernisers’ getting rid of an ancient office. The name of the office is indeed fairly ancient. In fact, however, the political function the lawyers and the House of Lords are defending - that the lord chancellor ‘defends the independence of the judiciary’ - dates at the earliest to the 1945 Labour government and even since then has not been consistently applied under Tory governments.

One thousand, four hundred years would take us back to 604AD. Wikipedia, following 19th century legal antiquarians, claims there was a lord chancellor in 605. What of it? At the time, England was divided into multiple petty kingdoms - Kent, Wessex, Mercia, Northumbria and so on. The most any modern historian has been willing to claim is that there might have been a chancery - a royal office for writing and issuing documents - in the reign of Ethelred the Unready (978-1016). Even this claim is sharply disputed. The predominant view is that the Normans brought the idea of a chancellor with them from France in 1066.

The early chancellor was in charge of the king’s writing office and of ‘great seal’, which was used for authenticating documents. In modern terms, we might call him the head of the typing pool. But this job was more important then than now, and the chancellor was an important member of the government. By the 1200s, because so many documents relating to lawsuits went out under the great seal, the chancellor was beginning to be seen as having some sort of responsibility for the functioning of the judicial system. In the mid-1300s he acquired, as a result, a role as the person who dealt with individual petitions complaining about the functioning of the common law system.

In the 1400s, this role developed into a regular court headed by the lord chancellor: the court of chancery. The theoretical basis of this court was that it was an appeal from the laws to the ‘absolute power’ of the king, to the idea that the king was above the law. Unsurprisingly, this role was politically controversial: there were complaints in parliament about it in 1415, 1529 and 1545, and a violent outburst in 1616 involved the king sacking lord chief justice Coke for questioning the legality of the lord chancellor’s actions.

The revolutionary parliamentary regime faced a contradiction. On the one hand, its political ideology of the sanctity of the ancient common law would imply abolishing the chancery. On the other, many features of the common law were obstacles to commerce and the land market, so that the interests of capital required either radical reform and codification of the common law, or the retention of the chancery. In a series of political struggles in the 1650s the radical reformers lost, because their ideas were too closely associated with democracy and ‘levelling’. However, from 1642 the regime appointed not a chancellor but a committee, the Commissioners of the Great Seal, to perform the chancellor’s role.

The restoration of 1660 brought back the individual lord chancellor. He remained intimately associated with the royal power over the laws. Lord Clarendon, lord chancellor from 1660 to 1667, was impeached - among other things for undermining the laws. Orlando Bridgman, Lord Keeper of the Great Seal (the post given to a ‘lord chancellor’ who was not a peer) 1667-72, was sacked for refusing to fix the great seal to an illegal royal decree. The Earl of Shaftesbury, chancellor 1672-73, was similarly sacked for political opposition to Charles II’s policy. Lord Nottingham, chancellor 1673-82, and Lord Guilford, keeper 1682-85, were successively condemned by their successors for failing to use the chancellor’s powers vigorously enough against the opposition, though both survived to be forced out of office by ill health. The culmination was Jeffreys, as lord chief justice the butcher of the western rebels of 1685, and as chancellor 1685-88 the principal agent of James II’s pro-catholic policy and in 1688 the scapegoat for it.

After the restoration chancellors, it is not surprising that the Orangist regime created in the revolution of 1688 at first adopted the same policy as the parliamentary regime and appointed Commissioners of the Great Seal. In 1693, however, the policy was reversed, and John Somers, a Whig politician who had qualified as a lawyer but not practised much, was appointed. Unusually for a change of this sort, we know why, from a letter Somers wrote to William III. William had agreed that it was necessary to have a single senior politician in charge of judicial and legal appointments in order to control the political behaviour of the lawyers by dangling before them the carrot of jobs.

Between 1693 and 1945 this - political management of judicial and legal appointments in the interests of the government of the day - was the fundamental role of the lord chancellor. After the 19th century extensions of the franchise and reform of local government, this role became less important in fixing elections and constructing a parliamentary majority. As a result, lord chancellors after Lord Eldon (1801-06 and 1807-27) were less central to the politics of governments. But the role remained important, because conventionally governments were entitled to use judicial appointments in the interests of their party.

The 1945 Labour government ‘reformed’ judicial appointments in the interest of ‘increasing the independence of the judiciary’. In place of the more or less open exercise of party patronage, the lord chancellor was now to take ‘soundings’ among the existing judiciary as to who was a fit and proper person for appointment. This is, broadly, the system which has prevailed from then till the 1990s.

Alongside this change, the role of the lord chancellor began to shift. Labour chancellors - Jowitt (1945-51), Gardiner (1964-70), Elwyn-Jones (1974-79) and most recently Irvine (1997-2003) and Falconer - have become primarily professional lawyers rather than heavyweight political figures. The change has been slower among Tory chancellors: Lord Hailsham, chancellor 1970-74 and 1979-87, was, like his Tory predecessors, unambiguously a professional politician (and some of his judicial appointments were attacked during his tenure of office as expressing Hailsham’s political bias). His successors, Havers (1987) and Mackay (1987-97), were more specialist lawyer figures, like Labour chancellors.

It is this very recent practice which the lawyers and the House of Lords now seek to entrench in the Constitutional Reform Bill, and which Falconer has conceded: the lord chancellor is to be the guardian in the government of the ‘rule of law’ and is to be a non- or at most semi-political figure. The idea that they are defending 1,400 years of history is ludicrous. What they are defending is the privileges of the barristers as a profession and the closed-circuit ‘apolitical’ character of judicial appointments since 1945.

Judicial appointments
As we have already seen, before 1945 the system of judicial appointments was basically a ‘spoils system’: the government of the day could make appointments in its own interest, and progressing from MP to judge was not an uncommon career path. As long as the Tory and Liberal parties alternated in political office (as they did through much of the 19th century) and judges were not subject to compulsory retiring ages (which were introduced in 1959) the result was that the judicial bench tended to contain a mix of the two parties. Under the 1945 Labour government this was ‘reformed’ to a system in which the lord chancellor took ‘soundings’ among the judiciary. In effect, the judges became a self-selecting group.

Since, between 1931 and 1945, there had been a variety of ‘national governments’ dominated by the Tories, the result was in effect to preserve Tory domination of the judicial bench even under Labour governments. Judges have been ‘dries’ or ‘wets’ in the terminology of the Thatcher era, but the political culture of the judiciary has been strikingly narrow and considerably narrower than it was in the 19th and early 20th centuries.

More generally, the post-1945 system of judicial appointments tended to preserve in aspic the class, gender and racial make-up of the judiciary as it existed before the war - though the make-up of the society, and even of the legal profession, has changed. Criticism from within, as well as beyond, the legal profession became increasingly sharp, and in 1993 Lord Mackay took the first step towards a new process with the introduction of open advertising of posts, job descriptions, and a limited element of lay involvement in consultations. Lord Irvine took further steps in the same direction. However, senior judicial appointments - to the court of appeal and House of Lords - have remained subject to the old process.

The Constitutional Reform Bill creates a new and fairly complicated statutory system for judicial appointments. There is to be a Judicial Appointments Commission (JAC), composed of a lay (non-lawyer) chair, five judges, two barristers or solicitors, five lay members, one holder of one of a long list of quasi-judicial offices (usually held part-time by barristers or solicitors) and one lay justice of the peace. The division of membership is thus on its face eight to seven in favour of the legal profession. For the actual selection of the senior judges (supreme court, court of appeal, and the heads of courts (lord chief justice and so on), specific panels are designed, consisting of two senior judges and two lay members of the JAC; for the more junior judges, the JAC is left to design procedures. For the senior posts there is an explicit duty to consult the existing judges. There is then an elaborate procedure under which the lord chancellor can reject the panel’s recommendation on the ground that “in the [lord chancellor’s] opinion the person selected is not suitable for the office concerned” or refer it back on broader grounds.

Once the elaborate bureaucratic structure is stripped down to its essential content, it becomes clear that it is in substance a codification of the existing position. In appointments to junior judicial office, there is a bureaucratic-professional selection process of the sort widely used in both the public and the private sector. But this was already in place after the 1993 reforms. In appointments to senior judicial office, as now, a quasi version of such a process is to be introduced. But the machinery gives effective vetoes to both the lord chancellor and the existing senior judges. The senior judiciary are to continue to be a self-selecting body with a limited ability of the lord chancellor to make slight political shifts, more likely to be exercisable under Tory governments. There is no attempt to introduce the sort of public scrutiny of senior judicial appointments which applies, for example, to the US supreme court. On the contrary, the level of transparency is to continue as low as possible.

Supreme court
Part two of the Constitutional Reform Bill plans the creation of a Supreme Court of the United Kingdom to replace the existing appeal jurisdiction of the House of Lords. It is to be composed of 12 members, initially the current professional ‘law lords’, thereafter appointed by a variant on the new judicial appointments procedure. It is to have the existing appeal jurisdiction of the House of Lords, together with the jurisdiction in devolution disputes initially conferred by the 1998 devolution legislation on the judicial committee of the privy council (actually usually the same people wearing different hats).

On its face this change is purely symbolic. The proposal has been marked by an unedifying row between the government and the current law lords about whether the government is prepared for the new supreme court to have a nice enough building - equally symbolic, and hardly the stuff of serious constitutional controversy. But symbols can in this context have deeper implications.

To simplify considerably: if I am convicted of a serious crime, or lose a civil lawsuit, I can apply for my case to go before the court of appeal (criminal or civil division, as the case may be). If I lose in the court of appeal, I can - with leave either of the court of appeal or of the House of Lords - appeal to the House of Lords. In criminal cases there must in addition be a “point of law of general public importance” involved; in civil cases the existence or otherwise of such a point is a reason for granting or refusing leave to appeal.

The point of these procedures is not that it is unjust or unfair for my fate to be decided after one trial. If anything, the appeal procedures are commonly seen as unfair: in criminal cases the victims have no say in the appeal, and people are seen to ‘get off on a technicality’, and in civil cases the right of appeal tends to favour the party with the deepest pockets. The point of appeal systems is, rather, the same as legislation: to create, as far as possible, certainty in the law.

They also assert central state control of local courts and judges. But this need not be by appeal systems. Thus in medieval France, the kings developed their power by asserting the right of their central courts to hear appeals from the provinces. In medieval England, in contrast, the same result was achieved by sending out the judges of the king’s central courts to ride circuits through the country and handle cases in competition with local courts.

Appeal machinery in English law in its modern form started with the House of Lords and with parliament’s struggle with the kings over the court of chancery. From 1621 the House of Lords began to assert that it could hear appeals from the court of chancery. In principle this would replace the basis of the court in the absolute royal power, with the parliamentary power. The short and occasional parliaments between 1621 and 1640 provided little scope for the idea to develop, but between 1640 and the abolition of the House of Lords in 1649 appeals became common, and after 1660, in more frequent and longer-lasting parliaments, the revived House of Lords reasserted the practice. At the same period, they began to develop appeals from the common law courts on points of law, in the form of ‘writs of error’. After 1688 both became a routine element of the judicial system.

Until the mid-18th century it was normal for all the peers to vote in judicial appeals. The losing side would sometimes enter a ‘protest’ condemning the decision, and from this it can be seen that appeals not infrequently became party matters.

A court from which there is no appeal is sovereign in the legal system: it is necessarily above the law. Placing the sovereignty in the legal system in the House of Lords thus put it in the hands of parliament: there was no great likelihood that the members of the House of Lords who (to give an unreal example) in 1732 voted for the passage of an Act of Parliament would in 1735 vote to overrule it as unconstitutional. The old court of chancery, in contrast, had overruled statutes, or more exactly said that they would not apply where the result was ‘inequitable’. And the common law courts as late as 1686 ruled that a statute could not take away the ‘inseparable’ right of the king to dispense with laws. The creation of the appeal jurisdiction of the House of Lords was thus an indispensable element of the process of overthrowing the feudal-absolutist monarchy and replacing it with the parliamentary regime.

At some point in the mid to later 18th or early 19th century, for reasons as yet unknown, most of the peers stopped bothering to turn up and vote in the judicial appeals. These were left to the lawyers and in particular the lord chancellor. But in the early 19th century this came to seem both dodgy and a waste of time: I appeal from the lord chancellor to the House of Lords, which turns out to be ... the lord chancellor; I appeal from the 12 judges of the common law courts to the House of Lords, which turns out to be the lord chancellor, who will call on ... the 12 judges to give him advice.

In the House of Lords, law lords began to be created to reinforce the lord chancellor, and by 1844 it was said to be improper for non-lawyers to vote. In 1876 the modern system, in which there is a set quota of salaried professional law lords, and only these can vote, was created. But the increase of appeal business led to the creation of a separate court of appeal in chancery (1851), and in 1875 this formed the model of the general court of appeal. The result is the modern hierarchical structure wholly controlled by the lawyers.

The convention persists that the House of Lords cannot overrule statutes as unconstitutional. However, this is subject to three limits. The first and most important is that the law lords have the last word on what statutes actually mean. The results can be extremely strange. The second is that since Britain joined the European Union in 1972, statutes inconsistent with EU law can be overruled. The third is that the Human Rights Act 1998 gives the judges a limited power to overrule pre-1998 statutes and a broader power to make declarations that later legislation is ‘incompatible’ with that act.

The law has therefore already moved in the direction of a power in the judges to overrule statutes passed by parliament. In this context the symbolism of a new supreme court may turn out to be the tipping point which shifts this into a full-blown power. The US supreme court does not have the power under the constitution to overrule statutes passed by Congress, and, given the historical background, it is unlikely that one was intended. But in Marbury v Madison (1803) chief justice Marshall drew on the legitimacy of the Supreme Court to simply take such a power - as an instrument against his political opponents, who had just won control of the Congress. The name of the House of Lords as an appeal court reduces its political legitimacy if it came into conflict with the elected House of Commons. A supreme court will have more legitimacy. A British Marbury v Madison may not be that far off.

‘Independence of the judiciary’
The liberal theorists and New Labourites hail all these developments as a great advance in the independence of the judiciary; the lawyers and House of Lords want to retain the lord chancellor in defence of the independence of the judiciary. But why should we want the judiciary - an unaccountable and largely self-selecting group of lawyers - to be independent?

The answer we are given by the lawyers and liberals is that an independent judiciary protects liberty and democracy. But to a considerable extent this is merely an article of faith. The 20th century has seen a great many coups d’etat of one sort and another. Courts have stopped none of them. Most of them courts have not even attempted to stop. Instead, they have found reasons to support the new dictatorship. Pakistan and Rhodesia-Zimbabwe provide examples within the common law system. It is frankly unlikely that the Ukrainian supreme court would have ordered a rerun of the presidential elections without the masses on the streets.

Britain in the 20th and early 21st century has seen a gradual erosion of civil liberties earlier taken for granted. Far from protecting the citizen against this, courts have overwhelmingly supported it. A very recent example is R (Laporte) v Chief Constable of Gloucestershire, December 8 (http://www.courtse-rvice.gov.uk/View.do?id=2970), in which the court of appeal decided that the police were entitled to stop coaches headed for a demonstration at Fairford air force base. Even the highly ‘constitutionalist’ courts of the United States have upheld suspensions of habeas corpus and various other forms of repressive legislation.

What courts and hence an independent judiciary protect is not political ‘liberty and democracy’. It is economic liberty - ie, the right of private property - against democracy. Courts can be relied on most of the time to insist that laws imposing taxation, giving compulsory purchase powers or imposing planning restrictions are interpreted in the interests of the property-owner. They can be relied on to protect employers against trade unions, and (usually) businesses and property owners against political campaigns. It is not surprising. Law itself and the form of adjudication is in the last analysis about the protection of private property rights.

What alternative?
Communists do not support Labour’s judicial ‘reforms’. But neither do we support the backwoodsmen who want to cling to the ancient office of lord chancellor, the secretive conventions about judicial appointments, or the appeal jurisdiction of the House of Lords. What is our alternative approach to the problem of the judicial system?

As communists, we aim in the long term to go beyond private property and with it beyond the forms of adjudication and law. But we are not Maoists, who imagine that this can be accomplished in a single leap of a revolutionary transformation of the subjective. We do not stand for the immediate abolition of law. Regrettable as it may seem, this means that we also cannot propose the immediate abolition of lawyers or professional judges. Without lawyers and professional judges, there is no law.

Our immediate starting point is the struggle for extreme political democracy, for the extension of democracy into every sphere of life. What does this mean for judicial systems?

In the first place, we must stand for the defence of trial by jury; for its extension to more criminal cases; and for its return to civil cases. Trial by jury is not only a safeguard against state or judicial oppression. It is also a democratic instrument, by which citizens gain knowledge of what the lawyers are up to and an increasing ability to control it. The withering away of trial by jury has been accompanied by increasing lay ignorance of the law and increasing lawyer control of the content of the law.

Secondly, we must stand for the creation of written civil and criminal codes. Codes do not overcome the problems of understanding the law, because the lawyers will inevitably interpret them. But codes are more democratic than the alternative: a law which exists, at the end of the day, only in the heads of the lawyers.

Thirdly, we must stand for a democratic judiciary. Our draft programme (http://www.cpgb.org.uk/documents/cpgb/prog_demands.html#3_15) already calls for election and recall of all judges and magistrates. Having law unavoidably means that some level of legal training would be necessary for candidates. But election is indispensable to real transparency and democracy.
But the judiciary also needs to be democratic in its internal structure. Instead of the hierarchy of judges - with circuit judges at the base, high court judges above them, lord justices of appeal above them, and law lords (or supreme court judges) above them - there should be one rank of judges who rotate between trying cases and hearing appeals.

Finally, we stand for the abolition of the House of Lords altogether. It is, as the Commons said in February 1649, “useless and dangerous”. However, the early role of the appeal jurisdiction of the House of Lords has an important lesson. This is that the role of judging final appeals on what the law means is inseparable from the role of making laws. Supreme courts, however much theoretically separate from the elected legislature, actually act in practice as legislators.

The drafters of the French codes attempted to overcome this problem by prohibiting judges from citing prior cases. The solution failed: instead, academic lawyers write up the ‘jurisprudence’ of the courts, and lawyers then cite the academic lawyers. A more democratic approach would be to arrange that the rulings of the court of final appeal have final effect to decide the dispute between the parties, but as rulings for the future are subject to approval by the elected parliament or whatever equivalent.

None of these ideas are inconsistent with the continued existence of capitalism. They are democratic demands, which would as such increase the power of the working class. They are therefore the true negation of the anti-democratic proposals both of Falconer’s Constitutional Reform Bill, and of the anti-democratic ideology of its backwoods opponents.