The Foundations of Public Law

Principles and Problems of Power in the British Constitution

by Keith Syrett

Update for Chapter 5: The judiciary

This update was compiled in January 2013

p.178, paragraph 1 The House of Lords Select Committee on the Constitution has rejected any role for Parliament in the judicial appointments process. It has also recommended that the power to reject or request reconsideration of nominations for appointments below the level of High Court should be transferred to the Lord Chief Justice: Select Committee on the Constitution, Judicial Appointments, HL 272 (2010-12). The latter recommendation has been accepted by the Government: see Ministry of Justice, Appointments and Diversity Response to public consultation(2012).

p.178, paragraph 1 A controversial instance of the Lord Chancellor’s role in respect of judicial appointments occurred in 2010, when the nomination of Sir Nicholas Wall as President of the Family Division by the Judicial Appointments Commission was referred for reconsideration by the then Lord Chancellor, Jack Straw, resulting in considerable delay in filling the vacancy. It was suggested that political considerations had been at play in this case, as Wall had been critical of government policy, although Straw denied this. The appointment was eventually confirmed.

p.180, paragraph 2 The House of Lords Constitution Committee considers that ‘despite concerns raised over the last few decades, the proportion of women judges, black, Asian and minority ethnic judges and others from under-represented groups has increased too slowly’: Select Committee on the Constitution, Judicial Appointments, HL 272 (2010-12), [68]. The Government has accepted that the composition of the judiciary, especially at High Court level and above, does not reflect wider society. It has therefore indicated that it will facilitate part-time working for senior judges and utilise the provisions of the Equality Act 2010 to allow positive action to promote diversity when two candidates are of equal merit: see Ministry of Justice, Appointments and Diversity Response to public consultation (2012).

p.184, paragraph 2 11,200 applications for permission to bring a claim for judicial review were filed in 2011: Ministry of Justice, Judicial and Court Statistics 2011(2012), 11.

p.187, paragraph 3 In late 2012, the Ministry of Justice announced a review of the judicial review process. It argued that the growth in judicial review was placing ‘burdens… on stretched public services’, that it could ‘lead to unnecessary costs and lengthy delays’ and that it ‘may in some cases stifle innovation and frustrate much needed reforms, including those aimed at stimulating growth and promoting economic recovery’. Views were to be sought on a package of measures, including shortening time limits in some cases, restricting opportunities for oral reconsideration of the application for permission and introducing new fees: Ministry of Justice, Written Ministerial Statement, 19 November 2012.

p.188, paragraph 2 The Law Commission has proposed that an award of damages should be an ancillary remedy to be claimed alongside the prerogative orders. However, this proposal met with significant opposition, including from government, on the basis that it would add to delays in court proceedings and would risk over-emphasising the rights of individual claimants to the detriment of society as a whole. In view of this, the Commission accepted that the proposal would not be taken forward: Law Commission, Administrative Redress: Public Bodies and the Citizen, Law Com No.322 (Summary) (2010), [1.14]-[1.28].

p.223, n.190 As at September 2011, 19 of 27 declarations of incompatibility issued had been made final.

p.236, n.242 The Commission on a Bill of Rights reported in December 2012. It was unable to reach a unanimous conclusion as to whether a UK Bill of Rights should replace the existing Human Rights Act. A majority were in favour of such a course of action, on the basis that there was a ‘lack of ownership’ by the public of the existing Human Rights Act and the European Convention on Human Rights. However, a minority was unconvinced of the need for reform and was concerned that any change might lead to a diminution of rights and to ‘decoupling’ of the UK from the Convention. See Commission on a Bill of Rights, A Bill of Rights? The Choice Before Us, Volume 1 (2012) [78]-[88].