Monday 29 March 2010


Been doing a bit of digging around how you appoint the P of the Fam D.

First the JAC makes a selection:

70 Selection process
(1) On receiving a request the Commission must appoint a selection panel.
(2) The panel must—
(a) determine the selection process to be applied,
(b) apply the selection process, and
(c) make a selection accordingly.
(3) One person only must be selected for each recommendation to which a request
(4) Subsection (3) applies to selection under this section and to selection under
section 75.
(5) If practicable the panel must consult, about the exercise of its functions under
this section, the current holder of the office for which a selection is to be made.
(6) A selection panel is a committee of the Commission.

Then they send a report to Mr Straw and he can ask for further information

72 Report
(1) After complying with section 70(2) the selection panel must submit a report to
the Lord Chancellor.
(2) The report must—
(a) state who has been selected;
(b) contain any other information required by the Lord Chancellor.
(3) The report must be in a form approved by the Lord Chancellor.
(4) After submitting the report the panel must provide any further information the
Lord Chancellor may require.

Then there are three stages: Section 73

Stage 1: where a person has been selected under section 70
Stage 2: where a person has been selected following a rejection or
reconsideration at stage 1
Stage 3: where a person has been selected following a rejection or
reconsideration at stage 2.

This is what Mr Straw can do at each stage:

(2) At stage 1 the Lord Chancellor must do one of the following—
(a) accept the selection;
(b) reject the selection;
(c) require the selection panel to reconsider the selection.
(3) At stage 2 the Lord Chancellor must do one of the following—
(a) accept the selection;
(b) reject the selection, but only if it was made following a reconsideration
at stage 1;
(c) require the selection panel to reconsider the selection, but only if it was
made following a rejection at stage 1.
(4) At stage 3 the Lord Chancellor must accept the selection, unless subsection (5)
applies and he accepts a selection under it.
(5) If a person whose selection the Lord Chancellor required to be reconsidered at
stage 1 or 2 was not selected again at the next stage, the Lord Chancellor may,
at stage 3, accept the selection made at that earlier stage.

That makes it sound like the JAC can win in the end - but they can't:

75 Selection following rejection or requirement to reconsider

(1) If under section 73 the Lord Chancellor rejects or requires reconsideration of a
selection at stage 1 or 2, the selection panel must select a person in accordance
with this section.
(2) If the Lord Chancellor rejects a selection, the selection panel—
(a) may not select the person rejected, and
(b) where the rejection is following reconsideration of a selection, may not
select the person (if different) whose selection it reconsidered.
(3) If the Lord Chancellor requires a selection to be reconsidered, the selection
(a) may select the same person or a different person, but
(b) where the requirement is following a rejection, may not select the
person rejected.
(4) The selection panel must inform the Lord Chancellor of the person selected
following a rejection or a requirement to reconsider.
(5) Subsections (2) and (3) do not prevent a person being selected on a subsequent
request under section 69.

To recap -

STAGE 1 - STRAW ASKS FOR RECONSIDERATION OF WALL LJ [presumably where we are now]

Straw cannot reject or ask for reconsideration on any grounds:

74 Exercise of powers to reject or require reconsideration
(1) The power of the Lord Chancellor under section 73 to reject a selection at stage
1 or 2 is exercisable only on the grounds that, in the Lord Chancellor’s opinion,
the person selected is not suitable for the office concerned.
(2) The power of the Lord Chancellor under section 73 to require the selection
panel to reconsider a selection at stage 1 or 2 is exercisable only on the grounds
that, in the Lord Chancellor’s opinion—
(a) there is not enough evidence that the person is suitable for the office
concerned, or
(b) there is evidence that the person is not the best candidate on merit.
(3) The Lord Chancellor must give the selection panel reasons in writing for
rejecting or requiring reconsideration of a selection.

So at the moment Straw thinks that there is not enough evidence that Wall LJ is suitable or there is evidence that he is not the best candidate on merit.  We will have to see if the JAC re-select Wall LJ and if Straw goes on to find that he is not suitable and rejects him.  The JAC should then select somebody even more outspoken  than Wall LJ - Sedley LJ for P Fam D I say!!! That could then force Straw to go back and re-select Wall LJ.

Wall LJ gave evidence to the Home Affairs Select Committee in Jan 2008.  I can see why Straw does not want this sound judge sending him letters about under-resourcing and the non-availability of legal aid.  I particularly liked this:

 Lord Justice Wall: In my experience very few contact cases are about children; they are an ongoing power battle between parents. I utterly endorse what District Judge Mornington has said. At first instance I would like to say to people in front of me, "Look, you are in the wrong place." One of the great advantages of the Family Law Act 1996, which has been abandoned, is that before entering into divorce proceedings parties had to go to meetings at which they were given information about what they were letting themselves in for. Most parents simply do not realise that post-separation parenting is fantastically difficult. They think it is easy because they believe that when they separate it will solve the problem; it does not. I would like to see a programme whereby any couple, married or not—it does not matter, because most of the couples I deal with are not—before entering the legal process go to meetings and are given information about what they are letting themselves in for and the damage they are doing to their children.

Sunday 28 March 2010

What is going on? 'This whole procedure is a disgrace.'

What is Jack Straw up to now?  Why has appointing judges become controversial and political after the introduction of an apolitical appointments system?

I like the Earl of Onslow.  Pity Lord Woolf was stopped by the clock.

High Court: Appointment


2.59 pm
Asked By Baroness Deech
    To ask Her Majesty's Government when they will announce the successor to the President of the Family Division of the High Court, who retires on 31 March.
Lord Tunnicliffe: My Lords, the appointment will be announced as soon as possible.

23 Mar 2010 : Column 845
Baroness Deech: My Lords, I shall not thank the Minister for that Answer. However, what will he do to dispel the perception that senior judicial appointments are taking longer than ever to make and are more politicised than ever, even though the Supreme Court has been established and the Judicial Appointments Commission has been set up to promote the separation of powers?
Lord Tunnicliffe: My Lords, it may be true that senior appointments are taking longer to make than they did when they were within the sole discretion of the Lord Chancellor. Indeed, in his evidence to the Select Committee on the Constitution, the Lord Chancellor admitted that the new process is somewhat clunky. The process was decided by this House and the Lord Chancellor has an appropriate role in it. In the evidence to the same committee, it is interesting to note the extent to which the Lord Chancellor set out his two roles: the typical role of a Secretary of State and a special role as Lord Chancellor, principally related to the judiciary and the maintenance of its independence. In that special role, for which he takes a particular oath under the Constitutional Reform Act, he is involved, as Parliament expected, in the process of senior appointments.
Lord Henley: My Lords, this matter has been sitting on the Lord Chancellor's desk-somewhat clunkily, as the noble Lord puts it-for some three months. Does he think that a three-month delay, with its attendant uncertainty, is good for the Family Division?
Lord Tunnicliffe: My Lords, the Lord Chancellor's policy is to maintain strict confidentiality in relation to individual appointments. The appointment will be announced after the Queen has approved it. That policy has been adopted and adhered to by successive Lord Chancellors. Therefore, I shall not comment on how long it has been on anyone's desk. As far as we are concerned, the beginning of the process is in the public domain and it will end when the appointment is made. Other recent senior appointments, such as the President of the Supreme Court, Lord Chief Justice, President of the Queen's Bench and others, have taken between three and eight months. Today we announced the appointment of Lord Justice Dyson, as a justice of the Supreme Court and that process took seven and a half months.
Lord Thomas of Gresford: My Lords, the Lord Chancellor rejected the recommendation of the Judicial Appointments Commission in the appointment of Sir Nicholas Wall to the post of president. He is regarded as a most thorough and compassionate judge in the legal profession. Was that because, last November, he told the Association of Lawyers for Children that it was the duty of judges to come off the Bench and speak out about government changes to the law that were damaging the service to children and families, or because he warned that, without proper legal aid funding, the justice system would implode and that children would suffer the most? Was not the Lord Chancellor's decision entirely political?

23 Mar 2010 : Column 846
Lord Tunnicliffe: My Lords, I have said that it is this Lord Chancellor's policy, as it has been the policy of Lord Chancellors since time recorded, not to comment on individual appointments, and I certainly do not now.
Baroness Butler-Sloss: My Lords, I declare an interest as a former President of the Family Division. Does the Minister appreciate the importance of the outgoing president properly helping the incoming president to understand what is going on? That is absolutely crucial. I spent three months in effect training my successor. The president will be leaving on 31 March and will have no one to hand over to. Does the Minister also recognise the dismay of the family judges and the family Bar and solicitors at the situation?
Lord Tunnicliffe: My Lords, I am sure that the new president, when he is appointed, will be at pains to learn all he can from his predecessor. I can add nothing to that except to say that the process was started at a time when we hoped it would be complete. It is not complete and I will not be making further comments on the process.
The Earl of Onslow: My Lords, does the Minister's reply not show that the Constitutional Reform Act has made the administration of justice slower and much more expensive? For some reason, the Minister cannot explain what is going on without looking at his papers and mumbling. This whole procedure is a disgrace.
Lord Tunnicliffe: My Lords, the noble Earl can have his view of mumbling. I am making it very clear how we appoint people to virtually every job in the public or private sector, and I am insisting on that definition. As for the speed with which these appointments are made, I will again quote the Lord Chancellor, using reported speech as it will be quicker. In the processes below these senior judges, the new system is working efficiently and in a way that a Lord Chancellor could not do without considerable sub-processes. In the processes for the most senior appointments, I think he has said in passing that, looking at the Act, perhaps this part is "clunky".
Baroness Howarth of Breckland: My Lords, I declare an interest as the chair of the Children and Family Court Advisory and Support Service. I have a very simple question. What will happen in terms of the continuity of the programmes that the present president has in place, and can we commend the work of Mark Potter for ensuring that the work of guardians and family court judges has continued at a time of unprecedented pressure?
Lord Tunnicliffe: My Lords, I am afraid that my brief is not to that level of detail.
Lord Pannick: Does the Minister accept that the high quality of the judiciary in this country is in part due to the willingness of the Lord Chancellor's predecessors, the noble and learned Lords, Lord Mackay 

23 Mar 2010 : Column 847
of Clashfern, Lord Irvine of Lairg and Lord Falconer of Thoroton, to appoint to high judicial office persons with whose views they did not necessarily agree?
Lord Tunnicliffe: My Lords, the present Lord Chancellor's praise of previous Lord Chancellors, and the way they executed their duty, is unreserved. He says in his evidence that he thinks they all did a good job under the old system. I am sure that he is committed to ensuring that the present process does an equally good job.
Lord Woolf: My Lords-
Lord Hunt of Kings Heath: My Lords, we have reached thirty minutes. We must move on.

Combined Court and Tribunal Service

This is an interesting development.  All you need to know is that it was announced in the Budget by the Chancellor of the Exchequer - for all Jack Straw's fine sentiments in his MoJ statement - there is only one reason for this - saving money.  Combined Court & Tribunal services will be a nightmare and resources will be tighter than ever.  Magistrates, Circuit Judges, Crown Courts, Employment Tribunals, County Courts and Social Security Appeal Tribunals (now the First Tier Tribunal) together with tax tribunals, care tribunals, school tribunals and the rest will all share staff, court/hearing rooms and the same budget.

I like this extract from Jack's statement:

The new structure will preserve the unique and distinctive features of both systems while taking advantage of the benefits to users, judges and staff from closer working. We will ensure that the statutory responsibilities of both the Lord Chief Justice for the courts and the Senior President of Tribunals for the tribunals are respected and preserved. There are also a number of important differences between the two organisations which will need to be given careful consideration in planning for the new organisation. These include the different territorial coverage of HMCS and the Tribunals Service, their different governance arrangements and judicial structures and the different regional and jurisdictional structures currently in place.

Indeed - so different in fact that Tribunals and Courts needed and had separate administrative services - until of course we ran out of tax payers' money and they were forced together.  

I predict divorce within 5 years.  

In the meantime it is only justice that will suffer...............

Wednesday 24 March 2010

Sir John Dyson - not Lord Dyson?

The new Justice of the Supreme Court will not receive a peerage.  See earlier posts.  But will he receive some sort of title upgrade when he joins the other Lords and Ladies in the Supreme Court?  Scottish Senior Judges get a Lord or Lady upgrade but no peerage on promotion - the same could happen for Sir John?  Or will he be relegated to being merely Sir John (although always My Lord)?

Also see Rozenberg

Tuesday 23 March 2010



The Queen has been pleased to approve the appointment of The Right Honourable Sir John Anthony Dyson as a Justice of the Supreme Court with effect from 13 April 2010 following the appointment of The Right Honourable The Lord Neuberger of Abbotsbury as Master of the Rolls.

Biographical Note

Lord Justice John Anthony Dyson (66) was called to the Bar (Middle Temple) in 1968, and took Silk in 1982. He was appointed as a Recorder in 1986 and was made a Bencher in 1990. He was appointed to the High Court (Queen’s Bench Division) in 1993 and was Presiding Judge of the Technology and Construction Court from 1998 to 2001.  Sir John Dyson was appointed to the Court of Appeal in 2001 and was Deputy Head of Civil Justice from 2003 to 2006.
Lord Justice Dyson was knighted in 1993.

Monday 22 March 2010


Apparently a bit of the ECHR binding upon us in International Law but not incorporated by the Human Rights Act 1998 gives prisoners the right to vote.  So said the European Court of Human Rights on 6th October 2005 - see here. We were a bit French about the whole thing and ignored the judgment.  This had led to the Council of Europe getting a bit huffy with us and its Committee of Ministers' Deputies (Ambassadors) has issued the following condemnation of our behaviour (text below).  Apparently they want prisoners to have votes by the next general election.

The Deputies,

1. recalled that in the present judgment, delivered on 6 October 2005, the Court found that the general, automatic and indiscriminate restriction on the right of convicted prisoners in custody to vote, fell outside any acceptable margin of appreciation and was incompatible with Article 3 of Protocol No. 1 to the Convention;
2. recalled further that at the last DH meeting in December 2009, the Committee of Ministers adopted Interim Resolution CM/ResDH(2009)160, in which it expressed serious concern that the substantial delay in implementing the judgment has given rise to a significant risk that the next United Kingdom general election, which must take place by June 2010, will be performed in a way that fails to comply with the Convention, and urged the respondent state to rapidly adopt measures to implement the judgment;
3. noted that notwithstanding the Grand Chamber’s judgment in 2005, a declaration of incompatibility with the Convention under the Human Rights Act 1998 by the highest civil appeal court in Scotland1 and the large number of persons affected, the said automatic and indiscriminate restriction remains in force;
4. reiterated their serious concern that a failure to implement the Court’s judgment before the general election and the increasing number of persons potentially affected by the restriction could result in similar violations affecting a significant category of persons, giving rise to a substantial risk of repetitive applications to the European Court;
5. strongly urged the authorities to rapidly adopt measures, of even an interim nature, to ensure the execution of the Court’s judgment before the forthcoming general election;
6. decided to resume consideration of this item at their 1086th meeting (June 2010) (DH) in the light of further information to be provided by the authorities on general measures.

Fat Chance I would say.  This is what the Govt said in Jan 2009 (below) and the second stage of consultation ended on 29/9/09 without no further response in sight.  Doesn't the Council of Europe know that giving votes to prisoners will not actually win votes from law abiding citizens.  Still I suppose we can't take voting rights from these amusing lunatics (the video is hilarious - but why didn't the Police just drag them out given the obvious contempt in the face of the Court?)  - see The Magistrate Blog for more details.

The Government remains committed to taking appropriate steps in respect of the judgement in Hirst, and to carrying out a second, more detailed, public consultation that takes account of the findings of the first stage consultation. The Government acknowledges that there has been a delay to the timetable originally envisaged for the conduct of that second consultation. The current intention is that the results of the first consultation will be published together with a second stage consultation document. Since the judgment, the Government has kept the Committee of Ministers updated, including a detailed note in April of last year. A further brief update noting the Government’s position was submitted in October ahead of the December meeting of the Committee of Ministers’ Deputies. We will continue to keep the Committee of Ministers updated on our progress on this case, and have undertaken to submit further information in due course on the form and timing of a further consultation. In implementing the judgment, the Government will need to take account of the wide spectrum of opinion on the issue, as well as the practical implications for the courts, for prison authorities and for the conduct of elections. The solution that we reach must respect the Court’s judgment, and must also respect the traditions and context of the United Kingdom. As noted in the April update, the Government will consider the outcome of the consultation and will bring forward legislation to implement its final approach as soon as Parliamentary time allows.

Monday 8 March 2010

The political parties will breath a sigh of relief - especially with an election in the offing....

The High Court has held that Election Courts cannot make orders for costs against third parties (like political parties or constituency associations) where it sets aside an election because a candidate is guilty of fraud.  Mr Election Commissioner Richard Mawrey QC (of Banana Republic fame) found terrible election fraud in local elections in Slough:

He found that Mr Khan and his agents had caused the names of non-existent people to be entered on the electoral register for the ward, and had then applied for postal votes in their names. In doing so they had been guilty of corrupt and illegal practices, including the corrupt practice of impersonation. These practices could reasonably be supposed to have affected the result of the election, and he therefore declared Mr Khan's election void. He ordered Mr Khan to pay Ms Simmons' costs of the petition, which were to be assessed on an indemnity basis unless otherwise agreed.

Mr Khan did not pay the costs (£215,775.95):

Attempts to enforce payment were unsuccessful, and in due course Mr Khan was adjudged bankrupt on a petition presented by Ms Simmons as a result of this debt. The Official Receiver was eventually to say that there was no apparent prospect of the distribution of funds to creditors. 

So the winner decided to seek her costs against those who funded the action:

Accordingly, Ms Simmons decided to investigate how Mr Khan's defence of the election petition had been funded with a view to making an application for costs against, among others, the Conservative Party or the Slough Conservative Association, even though they had not been parties to the petition.

It turned out that the Conservatives had arranged some legal expenses insurance and Mr EC R. Mawrey QC made an order for disclosure of the policy and in so doing said this:

    "… it would probably come as somewhat of a surprise to the general public that, where an official candidate of a national political party is the petitioner or the respondent to an election petition, that political party does not automatically assume responsibility for the costs of its own candidate in promoting or defending the petition and responsibility for the costs of the other side in the event of defeat. Given that the political party stands to gain or lose by the result of the petition, some degree of responsibility might be expected. This was especially the case in Slough where the success of Eshaq Khan in the 2007 election meant that the Conservatives had a small but controlling majority on Slough Council and his removal from office would (at least pending the by-election) return the authority into being a 'hung council'.
    Having received no submissions and having carried out no research on the subject, I simply express interest in the question whether courts in the past have considered the extent to which an officially adopted candidate might expose the political party who adopted him to a degree of vicarious liability for any misdeeds on his part in the course of seeking election. It is not to be thought that I am necessarily encouraging Ms Simmons to attempt to mine a new lode of jurisprudence but, given the nature of the submissions on her behalf by Mr Millar QC, the question might arise in some form were this matter to be taken further."
    An application for costs from the Conservatives then came before Keith J.   It failed (see judgment)  - essentially the ancient election petition legislation has no provision for making third party costs orders save in very special circumstances -  Keith J:
Finally, I return to the mischief which Mr Millar says should be avoided. The election petition is the only real weapon to combat electoral fraud in general, and registration and postal voting fraud in particular. Yet electors and unsuccessful candidates may be discouraged from bringing meritorious petitions if they know that, in the event of an order for costs in their favour not being met by an unsuccessful respondent, they will not be able to recover their costs from, say, a person or body which funded the unsuccessful defence to the petition, however unmeritorious that defence may have been. But it would be unwise to take that too far. Where the unsuccessful candidate is the official candidate of one of the major political parties, their petition will invariably be funded by the political party for whom they are standing. A major political party is less likely than an individual candidate to be put off funding an election petition simply because it may not be able to recover its costs later on. All the more so if there is a convention – which Mr Millar told me the Labour Party had hitherto thought there was – that if the defence of an unsuccessful respondent to an election petition has been funded by a political party, the political party will pay the costs of the successful petitioner. In any event, though, if it is thought that a political party which funds the costs of the defence of an unsuccessful respondent should pay the costs of the successful petitioner, that cannot be achieved by the courts grafting such a power on the Act when the language of the Act prevents that from being done. It is a matter for Parliament to legislate on, in the same way that if electoral fraud is to be combated, the real remedy, as Mr Mawrey said at the end of his judgment on the petition and in his report to the High Court, was to introduce proper measures which enables such frauds to be detected.


Wednesday 3 March 2010


Interesting news - The Legal Services Commission (successor to the Legal Aid Board) is being abolished and its functions brought within the Ministry of Justice - announcement here.

Is this good news or bad news?

I also wonder whether the Lord Chancellor can find parliamentary time for this before the election?

The government believes that this is the best option for the delivery of legal aid and has announced that a Bill will be brought forward as soon as Parliamentary time allows.