Tuesday, 30 August 2011


"Time to take stock"? Shouldn't it have been titled "Time to commit treason" instead?

Dependency or Sovereignty?
Time to take stock
With the kind sponsorship of
Sir Philip Bailhache
William Bailhache,
Deputy Bailiff of Jersey
Michael St. J Birt, Bailiff of Jersey
Sir de Vic Carey
The Rt Hon Lord Falconer
of Thoroton, PC QC
HE Sverrir Gunnlaugsson
The Rt Hon Lord Hoffman, PCn
Professor Jeffrey Jowell, QC
Michael J Lagopoulos
Richard McMahon, QC,
HM Comptroller, Guernsey
HSH Prince Nikolaus of Liechtenstein
Colin Powell, CBE
Sir David Simmons, KA BCH
Dame Heather Steel, DBE
Professor Alastair Sutton
Sir Andrew Wood GCMG
Sir Philip Bailhache
Sir Philip is founding Editor of the Jersey and Guernsey Law Review. He has served successively as Solicitor General, Attorney General, Deputy Bailiff and most recently Bailiff of Jersey (1995-2009). He is Chairman
of the Institute of Law and sits as a Commissioner in Jersey and judge of the Court of Appeal.
William Bailhache,
Deputy Bailiff of Jersey
William was admitted to the English Bar in 1975
and to the Jersey Bar in 1976. He became a Crown Advocate in 1989 and was appointed HM Attorney General for Jersey in 2000. He became a QC in 2000. He was sworn in as Deputy Bailiff of Jersey in 2009.
Michael St J. Birt, Bailiff of Jersey
Michael was called to the English Bar in 1970, qualified as a Jersey Advocate in 1977 and was appointed a Crown Advocate in 1987. He was sworn in as Attorney General for Jersey in 1994 and appointed a QC in 1995. He became Deputy Bailiff of Jersey in February 2000 and Bailiff in 2009.
Sir de Vic Carey
Sir de Vic Carey was Bailiff of Guernsey and ex officio President of the Guernsey Court of Appeal between 1999 and 2005. After retirement from the office of Bailiff he was re-appointed as an ordinary judge of the Guernsey Court of Appeal and continues to
sit as a Lieutenant Bailiff in Guernsey.
The Rt Hon Lord Falconer
of Thoroton, PC QC
Lord Falconer was Lord Chancellor from 2003-2007. He was a minister in Tony Blair’s government for all of its ten year life and as Secretary of State for Constitutional Affairs, had the Channel Islands under his governmental remit.
HE Sverrir Gunnlaugsson
Sverrir has held numerous senior positions in the Icelandic Diplomatic Service. In 1985 he was appointed as Ambassador, and in 1999 Permanent Secretary
of State. From 2003 to 2009 he was Ambassador to the Court of St James. Since 2009 he has been the Icelandic representative on the College of the EFTA Surveillance Authority.
The Rt Hon Lord Hoffmann, PC
Lord Hoffmann served as Lord of Appeal in Ordinary from 1995 to 2009. Prior to that he was a member of the Court of Appeal and a High Court Judge in the Chancery Division. Since 1998 he has been a non-permanent
judge of the Court of Final Appeal of Hong Kong. Between 1980 and 1985 he was a judge of the
Courts of Appeal of Jersey and Guernsey.
Professor Jeffrey Jowell, QC
Jeffrey is Professor of Law at University College London and a practising barrister at Blackstone Chambers. He has advised and been involved in the drafting of new constitutions for the Cayman Islands, Serbia, Bosnia, the Maldives, the British Virgin Islands and Luxembourg.
Michael J Lagopoulos
Mike is CEO and Head of RBC Wealth Management London, International. He is responsible for the strategic direction, overall operating and financial results of the international private client businesses. He holds a Bachelor of Commerce degree and is a Chartered Accountant.
Richard McMahon, QC,
HM Comptroller, Guernsey
Richard was admitted to the Guernsey Bar in 1998.
He became a Crown Advocate and Director of Civil Litigation in 2000, External Relations Policy and Legal Adviser in 2008 and HM Comptroller (Solicitor General) and HM Deputy Receiver General for Guernsey in 2009.
HSH Prince Nikolaus
of Liechtenstein
HSH Prince Nikolaus is Ambassador of the Principality of Liechtenstein to the Kingdom of Belgium and the EU as well as non-resident Ambassador to the Holy See in Rome. He was Head of the Liechtenstein delegation for negotiations on the European Economic Area Agreement from 1990 to 1995.
Colin Powell, CBE
Colin was Economic Adviser and subsequently
Chief Adviser to the States of Jersey between 1969 and 1999. He retired as Chairman of the JFSC in 2009 and continues to advise the States on international affairs. He has been the Chairman of the Offshore Group of Banking Supervisors since 1981.
Sir David Simmons, KA BCH
Sir David was appointed a QC in 1984 and served in the Parliament of Barbados from 1970 to 2001. He served as Attorney-General of Barbados from 1985 to 1986 and 1994 to 2001. He assumed office as the 12th Chief Justice of Barbados in 2002, retiring earlier this year.
Dame Heather Steel, DBE
Dame Heather was called to the Bar in 1963 and practised on the Northern Circuit. In 1986 she became a circuit judge before being appointed a judge of the High Court of Justice (Queen’s Bench) in 1993. She is
a Judge of Appeal in Jersey and Guernsey.
Professor Alastair Sutton
Alistair is a partner in White and Case LLP, based
in Brussels, and has extensive experience working in the European Commission and in private practice.
A graduate of the University of Aberdeen, he taught international law and European Law before moving to Brussels. He is Visiting Professor at University College, London.
Sir Andrew Wood, GCMG
Sir Andrew served as British Ambassador to Yugoslavia from 1985-1989. From 1995-2000 he served as British Ambassador to Russia and Moldova before retiring from diplomatic service. He currently advises a number of multinationals at the CEO and board level.
Participants Profiles
The Jersey and Guernsey Law Review is delighted to bring some of the world’s leading figures together
to debate the future constitutional position of the Channel Islands in an objective and measured way.
It is increasingly important that our international interests, including our economic interests are protected.
The time has come to take stock and to weigh up the advantages and disadvantages of our current constitutional status. This is not necessarily to advocate independence but to argue that we should
be prepared to look in earnest at all the options available to the Channel Islands.
This is a unique opportunity to hear from an exceptional group of participants who are prepared to share their expertise and experience, and to debate the future with an audience of interested Channel Islanders.
Delegate numbers are limited so book early to avoid disappointment.
8.30am Registration
9.00am Welcome & Introduction
Sir Philip Bailhache
Editor of the Jersey and Guernsey Law Review
9.20am Session One:
The Economic Aspects of Sovereignty
Chairman: Sir de Vic Carey
Speakers: Michael J Lagopoulos
Colin Powell, CBE
Followed by a 20 minute panel discussion
10.30am Break
10.50am Session Two:
Framing of a Constitution
Chairman: Dame Heather Steel, DBE
Speakers: William Bailhache,
Deputy Bailiff of Jersey
Professor Jeffrey Jowell QC
Richard McMahon QC,
HM Comptroller, Guernsey
Followed by a 20 minute panel discussion
12.20pm Lunch
1.30pm Session Three:
Small States’ Experience of Sovereignty
Chairman: Michael St J Birt,
Bailiff of Jersey
Speakers: HE Sverrir H Gunnlaugsson
HSH Prince Nikolaus of Liechtenstein
Sir David Simmons, KA BCH
Followed by a 20 minute panel discussion
2.50pm Break
3.10pm Session Four:
Global Relations
Chairman: The Rt Hon Lord Hoffmann, PC
Speakers: The Rt Hon Lord Falconer
of Thoroton, PC QC
Professor Alastair Sutton
Sir Andrew Wood, GCMG
Followed by a 20 minute panel discussion
4.30pm Closing Remarks
Sir Philip Bailhache
Editor of the Jersey and Guernsey Law Review
4.45pm Conference Close
A certificate of 6 hours attendance will be provided which may count towards
CPD requirements.

Early booking deadline: Tuesday 17th August
Final booking deadline: Friday 3rd September
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Zoompad said...

Outrage as Langham is freed early after child porn shameBy MICHAEL SEAMARK and LUCY BALLINGER
Last updated at 08:48 15 November 2007

Comments (0) Add to My Stories Still proclaiming his innocence, actor Chris Langham walked free from jail yesterday to the fury of child protection campaigners.

The Bafta-winning TV star won a four-month cut in his sentence for downloading depraved child pornography.
He declared: "My life has been ruined, but my conscience is clear."
The Appeal Court decided his original sentence had been too harsh, claiming it was not for the court to reject his explanation for his motivation for looking at the material. Langham had maintained he was researching his writing.
Last night, the decision was described as pathetic by children's charity Kidscape.
"I would have thought the appeal court would increase his sentence - not diminish it," said its director Michele Elliott.
"What kind of message does this send out? That downloading child pornography is not that serious so therefore we can release him early? He would have got a longer sentence for driving too fast."
Police say the sordid images found on the actor's computer were some of the most shocking they had seen.
Diana Sutton of the NSPCC said last night: "We must never forget that Chris Langham committed a very serious offence.
"The number of pictures on the internet showing children being sexually abused is growing at a phenomenal rate. Anyone viewing these images fuels demand so more children get abused."
Father- of-five Langham, 58, posed for photographers outside Elmley Prison in Kent before being driven home last night.

Zoompad said...

In his statement he claimed the trial judge had accepted he wasn't a paedophile, "then sent me to prison for ten months as if I was".
"To set the record straight, I never paid to look at the material," he insisted. "I saw a tiny number of images of child abuse which I have always said were distressing, sickening and atrocious.
"My own abuse as a child made it important for me to attempt to address this subject in my writing.
I was wrong to do so but I believe the price I have been asked to pay is out of all proportion."
He was jailed for ten months in September after being found guilty of 15 charges of accessing childabuse images and would have had to serve five months behind bars, less the 43 days he had already spent in custody.
Yesterday's sentence reduction meant he could be freed immediately - but he remains on the sex offenders' register for ten years.
During his trial at Maidstone Crown Court, the jury were spared having to view the pictures he downloaded in their entirety, but those they did see reduced one woman juror to tears.
Langham from Golford, near Cranbrook, Kent, claimed he was researching his role as a psychiatrist in the BBC2 series Help, in which he starred with comedian Paul Whitehouse. However, his cowriter failed to support his claim.
He was arrested in November 2005 as part of Operation Ore, which led to the arrest of high-profile figures including Who guitarist Pete Townshend.
Days after Langham was jailed his wife Christine Cartwright - mother of Emily, 13, and Harry, ten - claimed he had been tormented and bullied in prison - and insisted he was not a paedophile.
The choreographer and actress said: "My husband's crime was of stupidity, arrogance and ghoulish curiosity, believing that he might be beyond the law and not considering the implications."
Langham has three grown-up sons from a previous marriage, Siencyn, 30, Dafydd, 24, and Glyn, 21.
Last month, a judge rejected a written application for permission for Langham to appeal against his sentence.
But in court yesterday his barrister David Whitehouse QC argued that the ten-month sentence was "very tough" and "quite wrong in principle". He told the three judges that Langham was not looking at the images for erotic reasons, but "because he was writing about child abuse with admirable motives".
Announcing the Appeal Court decision, Dame Heather Steel said she and her fellow judges had considered the trial judge's sentencing remarks that there was "nothing in the papers before me to indicate that you are a sexual predator in the sense that it is ordinarily used'.
Dame Heather said it was not entirely clear what that meant.
She said the Appeal Court regarded Langham's claim that he viewed the child porn for research as "highly improbable" but added: "We do not consider that this court should take the robust step of rejecting the applicant's explanation for his motivation."
The judge said those who download child pornography encourage 'despicable acts' and a custodial sentence had been inevitable.
But because of mitigation by Langham's barrister the court decided to allow his appeal to the "limited extent" of imposing a new sentence of six months.
Langham arrived at his home in Golford at 6.30pm last night. Asked what the first thing he would do now, he said: "Look

Zoompad said...

If Chris Langham really was looking at those pictures in order to expose and prevent child abuse, why didn't he go to the police with what he found out? Or at least why didnt he start some sort of protest group about it, something, anything?

Does anyone know if Chris Langham has ever written anything or done anything to try to stop child abuse? Because I haven't come accross anything.

This just reminds me of the sleepwalking excuse that murderers are getting away with. Its a load of nonsece. They had some sleep artist on the BBC news yesterday, this chap had his eyes open, doing really amazing drawings in the night, I dont cann that sleepdrawing, I call it waking up in the night with an idea and drawing it while it is still fresh in your memory.

Sick of all this monsence.

Zoompad said...

That conference, what a funny choice of people it is for such a conference.

I would love to be able to hear what they discussed at this conference. Seeing it is of such an important subject does anyone know how to obtain a copy of the minuites?

Zoompad said...

The Blog of Doom has posted this:

"The man you are sharing the platform with is a Knight of the Realm having been bestowed this position by the Queen, you have on your blog attacked this man with no respect for his position or the fact he has served the jersey public for decades. Do you feel you are a better person than him to represent us in government.?"


Zoompad said...

And if any of you political prostitutes come onto my blog to leave any more nasty comments about why should someone from Staffordshire be getting involkved in the Jersey politica, I will remind you that not only was I one of the Staffordshire Pindown victims and some of us West Midlanders were sent to Haut de la Garenne, but also I am a British subject, the Queen of Jersey is the Queen of England, and I do not like to see treason committed, it is againsty God's law as well as the law of the UK.

Zoompad said...

The Queen was crowned before man and God on June 2nd 1953, it was the first coronation ever to go on television.

She has tried her best to be a good queen. She probably didnt even want to be Queen but she has done the job as well as she could.

She is an old lady now, but she still tries to do what she thinks is her duty.

But she appears to be surrounded by some truly dispicable people/

I don't know whose idea it was for Bellyache to get a knighthood, but I doubt very much if it was the Queen's, and if she knew the man properly she probably would have been tempted to do something else with the sword other than a tap on each shoulder.

Zoompad said...

Leonard Hubert "Lenny" Hoffmann, Baron Hoffmann, PC (Chinese: 賀輔明, born 8 May 1934 in Cape Town, South Africa) is a retired senior British judge. He served as a Lord of Appeal in Ordinary from 1995 to 2009. Well known for his lively decisions and willingness to break with convention, he has had an especially large impact on shareholder actions in UK company law, in restricting tort liability for public authorities, human rights and on intellectual property law, in particular patents . He is also a non-permanent judge of Hong Kong SAR Court of Final Appeal.

Born in Cape Town, Lord Hoffmann was the son of a well-known solicitor. He was educated at the University of Cape Town and then attended The Queen's College, Oxford, as a Rhodes scholar, where he studied for the BCL and won the Vinerian Scholarship. After being called to the Bar, Gray’s Inn in 1964, he became one of the most sought after and highly-priced barristers of his generation and was quickly made a judge, having been made QC in 1977.

He was a Judge in the Courts of Appeal of Jersey and Guernsey from 1980 to 1985 and a Judge of the High Court of Justice, Chancery Division from 1985 to 1992. He was subsequently a Lord Justice of Appeal from 1992 to 1995. In 1995[1] Hoffmann was appointed a Lord of Appeal in Ordinary and thereby created a life peer by the title of Baron Hoffmann, of Chedworth in the County of Gloucestershire.

Zoompad said...

Twinsectra v Yardley (trust law) and MacNiven v Westmoreland (tax law) are prominent examples of Lord Hoffmann's judicial positions. Both cases led to differences of view between him and Lord Millett.

His failure to declare his links with Amnesty International before ruling on whether General Augusto Pinochet was immune from prosecution led to the unprecedented setting aside of a House of Lords judgment. He later went on to comment "The fact is I'm not biased. I am a lawyer. I do things as a judge. The fact that my wife works as a secretary for Amnesty International is, as far as I am concerned, neither here nor there," he told the Daily Telegraph newspaper..

He retired as a Law Lord on 20 April 2009.[2

Zoompad said...

Lord Hoffmann was involved in three important judgments of the House of Lords concerning terrorism: Secretary of State for the Home Department v Rehman [2001] UKHL 47; A v Secretary of State for the Home Department [2004] UKHL 56; and A v. Secretary of State for the Home Department [2005] UKHL 71. In Rehman, at para 62, he wrote

Postscript. I wrote this speech some three months before the recent events in New York and Washington. They are a reminder that in matters of national security, the cost of failure can be high. This seems to me to underline the need for the judicial arm of government to respect the decisions of ministers of the Crown on the question of whether support for terrorist activities in a foreign country constitutes a threat to national security. It is not only that the executive has access to special information and expertise in these matters. It is also that such decisions, with serious potential results for the community, require a legitimacy which can be conferred only by entrusting them to persons responsible to the community through the democratic process. If the people are to accept the consequences of such decisions, they must be made by persons whom the people have elected and whom they can remove.

It appeared that he was willing to defer to the executive in matters concerning national security in the fairly long tradition of English judges deferring to the executive in such matters, including Lord Denning in ex-parte Hosenball. However in 2004 Lord Hoffmann took a robust stand (joining the majority of judges in the decision) against the executive in the Belmarsh case, A v. SSHD [2004] UKHL 56. In this case Lord Hoffmann wrote at para 97 that,

The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these. That is the true measure of what terrorism may achieve. It is for Parliament to decide whether to give the terrorists such a victory.

Zoompad said...

In A v. Secretary of State for the Home Department [2005] UKHL 71, Lord Hoffmann said,

The use of torture is dishonourable. It corrupts and degrades the state which uses it and the legal system which accepts it.

[edit] Selected list of cases decidedRe Augustus Barnett & Son Ltd [1986] BCLC 170
Re D'Jan of London Ltd
William Sindall plc v Cambridgeshire County Council [1994] 1 WLR 1016
O'Neill v Phillips
Re Saul D Harrison & Sons plc [1995] 1 BCLC 14, [1994] BCC 475,
Bruton v London & Quadrant Housing Trust [2000] 1 A.C. 406
Standard Chartered Bank v Pakistan National Shipping Corp (No 2) [2003] 1 AC 959.
Co-operative Insurance Society Ltd. v Argyll Stores [1997] UKHL 17.

Zoompad said...

Secretary of State for the Home Department v. Rehman [2001] UKHL 47
A v. Secretary of State for the Home Department [2004] UKHL 56
A v. Secretary of State for the Home Department [2005] UKHL 71
OBG Ltd v Allan [2007] UKHL 21
Transfield Shipping Inc v Mercator Shipping Inc or The Achilleas [2008] UKHL 48
[edit] Notes1.^ BBC News — Lord Hoffmann: A conservative liberal
2.^ Appointment of two Lords of Appeal in Ordinary, Wednesday 8 April 2009
[edit] External linksUniversality of Human Rights, Hoffmann's lecture, 2009
Order of precedence
Anthony Mason
Non-Permanent Judge of the Court of Final Appeal Hong Kong order of precedence
Non-Permanent Judge of the Court of Final Appeal Succeeded by
Gerard Brennan
Non-Permanent Judge of the Court of Final Appeal
[hide]v · d · eLords of Appeal

Lords of Appeal: Baroness Clark of Calton · Lord Cullen of Whitekirk · Lord Hardie · Lord Irvine of Lairg · Lord Mackay of Drumadoon

Lords of Appeal:
(suspended from the House pending
their retirement from the bench) Lord Phillips of Worth Matravers · Lord Hope of Craighead · Lord Walker of Gestingthorpe · Baroness Hale of Richmond · Lord Brown of Eaton-under-Heywood · Lord Mance · Lord Neuberger of Abbotsbury · Lord Collins of Mapesbury · Lord Kerr of Tonaghmore

Retired Senior Lords of Appeal
in Ordinary: Lord Goff of Chieveley · Lord Browne-Wilkinson

Lords of Appeal
in Ordinary: Lord Griffiths · Lord Hutton · Lord Lloyd of Berwick · Lord Mackay of Clashfern · Lord Millett · Lord Mustill · Lord Nicholls of Birkenhead · Lord Steyn · Lord Templeman · Lord Woolf · Lord Hoffmann · Lord Carswell · Lord Scott of Foscote · Lord Saville of Newdigate

Lords of Appeal: Lord Cameron of Lochbroom · Lord McCluskey

Name Hoffmann, Leonard
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Zoompad said...

It sounds like Hoffman is one of the good guys.

Zoompad said...

A new politics: The search for principlesThe notion of sovereignty seems to transfer to parliament the habits of the medieval monarch. Reform must make clear what public office is for

reddit this Comments (8)
Jeffrey Jowell guardian.co.uk, Wednesday 3 June 2009 18.50 BST Article historyConstitutional reform needs to be coherent and lasting. Even in an atmosphere of urgency, it needs first to identify a nation's fundamental values. Among the current constitutional frenzy there has been no talk about the principles that should ­govern a new constitutional settlement. This debate is necessary because much of the detail of a constitution flows naturally from them.

It is generally accepted that the sovereignty of parliament is our prime constitutional principle. It signifies the passing of power from a despotic monarch to a parliament elected by the people. Unlike most other constitutional democracies, it forbids even the highest courts to strike down legislation. Yet the very notion of sovereignty seems to transfer to parliament some of the habits of the medieval monarch and encourages a resentment of competing sources of authority, not only from the judiciary but also from local government, or other forms of popular decision-making.

Some of the defects of parliamentary sovereignty can be reformed by ensuring that parliament is more representative of the people (for example by reform of electoral laws that fail in practice fairly to represent significant minority views; or by Lords reform). However, beware that such reforms will encourage a newly ­legitimised parliament to arrogate even more power to itself and to act with impunity or contrary to the popular will.

The process of constitutional reform must begin with a search for principles, and a consideration of how they should interact with each other. These include the very British values of the presumption of freedom and liberty; fairness and equal respect for each individual; the rule of law; and the need for checks and balances against centralised power. Elevating the constitutional status of any or all of these would in itself promote necessary change, and would at the least make it clear that public office is not intended for "sovereign" rule, but for public service.

Zoompad said...


Judicial Appointments:
Balancing Independence,
Accountability and Legitimacy
Every possible effort has been made by the authors to ensure
that the information contained in this book is accurate. The
views expressed are the personal views of the authors alone and
do not represent the views of any organisation.
This collection of essays had its genesis in a seminar organised
by the Judicial Appointments Commission at the Canadian
High Commission and attended by a range of commentators
from United Kingdom jurisdictions.
Copyright 2010 individual authors.
All rights reserved.

Zoompad said...

Gratitude is owed to all the contributors for finding the
time in their busy lives to contribute these essays.
A special mention must be made of Sally Cowlam
for all her help.
Lord Judge, Lord Chief Justice
The Growing International Consensus in Favour of 1
Independent Judicial Appointment Commissions
Professor Jeffrey Jowell QC
Selection of Judges Prior to the Establishment of the 11
Judicial Appointments Commission in 2006
Lord Mackay Of Clashfern KT with David Staff
The Constitutional Reform Act 2005 31
Jonathan Sumption OBE QC
Translating Aspirations into Reality: 43
Establishing the Judicial Appointments Commission
Baroness Prashar CBE
What Makes a Good Judge? 55
Mr Justice Hickinbottom
The Judiciary: Why Diversity and Merit Matter 67
Shami Chakrabarti CBE
Encouraging and Supporting Those Aspiring to be 77
Her Honour Judge Frances Kirkham
How the Judiciary is Changing 89
Lady Justice Hallett DBE
The Politics of Judicial Appointments in Canada 99
Graham Gee

Zoompad said...

This is an informative and stimulating, indeed a wonderful
book. In effect it is a series of readable essays which
provides a comprehensive analysis of the recent history
of our judicial appointments system as well as offering careful
reflections on the impact of the Constitutional Reform Act 2005
on these arrangements.
In the context of judicial appointments, words like ‘merit’ and
‘independence’ and ‘diversity’ are frequently used in discussion
or in argument. We are, of course, all sure that our judiciary
should be independent and as diverse as possible, and appointed
on merit. However, the words themselves convey different meanings
to different individuals and sometimes embrace differences
of approach to these concepts. The essays in this book address
such sensitive and difficult issues, as the writers discuss them in
language which is clear, unequivocal, and does not obscure what
the writer means.
As I read the book I became increasingly aware that it would
stand as a fine tribute to the leadership of Usha Prashar, as the
first Chairman of the Judicial Appointments Commission,
established following the implementation of the Constitutional
Reform Act 2005. From the first moment when she accepted the
onerous responsibility until her period in office came to an end,
she stood resolutely for the principle that every single candidate
for judicial appointment, whoever he or she was, whatever his
or her background, and gender, education, racial origin, faith
or sexual orientation, should be treated equally and identically
throughout every stage in the process, that the task of the
Commission was to identify the best candidate or candidates for
the particular appointment under consideration, and that the
process should be transparent, and that the Commission should
be accountable for every decision: nothing more and certainly
never anything less. Her steady adherence to these principles
required great natural independence of spirit. Time and time
again her belief in the independence of the judiciary, and the
independence of the Judicial Appointments Commission itself
was demonstrated. Her endeavours have commanded the respect
and admiration of all who have had to deal with her.
These principles she espoused, as the essays show, are constant.
It would, as the essay from Graham Gee, The Politics of
Judicial Appointments in Canada—a different country with a
different history—serves to underline, be unwise ever to take
them for granted.
I should further record my gratitude, and I have no doubt,
too, the gratitude of all who read this book to the legal professions,
The Bar Council, The Law Society, and ILEX, for agreeing
to support it.
Lord Judge
Lord Chief Justice of England and Wales

Zoompad said...

The Growing International Consensus
in Favour of Independent Judicial
Appointment Commissions
Professor Jeffrey Jowell QC
Jeffrey Jowell is Professor of Law at University College London, a
practising member of Blackstone Chambers and the UK’s member
on the Council of Europe’s Commission for Democracy Through
Law (‘The Venice Commission’). He is the Director-designate of
the new Bingham Centre for the Rule of Law.
In April 2010, the first appointment was made to the UK’s
new Supreme Court. The interest of the press in the event
was as scant as the coverage it gave to the retirement of the
eminent judge whom the new appointee replaced. At about the
same time, in the United States, the resignation of a long-standing
Supreme Court justice evoked a torrent of press comment on his
judicial life and philosophy, accompanied by lively speculation
on the identity and character of his likely successor.
The legal correspondent of The Guardian noted these events1
and wondered whether our change in procedures of judicial
appointment in 2005 to a system of the independent Judicial
Appointments Commission was worthwhile since it had not
caused any greater interest in our top judges.
By contrast, the leading legal correspondent of the New York
Times asked whether the time had not come to move away
1 Afua Hirsh “What’s the verdict on our new Supreme Court”, The Guardian
April 11, 2010.
Judicial Appointments: Balancing Independence, Accountability and Legitimacy
from the US Supreme Court’s ‘cult of celebrity’, where judicial
appointments had become the sites of political battle2.
In the UK, prior to the Constitutional Reform Act 2005,
judges were appointed by a politician, the Lord Chancellor, after
‘secret soundings’ had taken place within the legal community,
without any opportunity for wider assessment of a candidate’s
record or predilections. Nowadays a much more open procedure
exists (as is described in the other chapters)—yet it is not
as open as the system in the United States, where the President
nominates a candidate whom the Senate then scrutinises in a
process which invites the application of party political preference
in the judicial appointments process.
Are all or any of these systems of appointment permissible
in a democracy properly so-called? Or are some systems more
democratic than others? Is the rule of law enhanced by one system
or another? Which system better furthers judicial independence?
Is there a body of international (particularly European)
guidance to point us in one direction or another?
Three models of judicial appointment
There are basically three models of judicial appointment procedures,
each with its own benefits and defects. Each model of
course has its own variants, but let’s set them out now, and then
consider to what extent European standards endorse one or
other of them:
Executive appointment
This model entails appointment by the executive (normally
the equivalent of a minister of justice, or head of government)
without parliamentary involvement or the involvement of a
judicial appointments commission. It is normally conducted
2 Linda Greenhouse “American (Judicial) Idol” New York Times, April 24,
2010. Citing C. Lerner and N.Lund, “Judicial Duty and the Supreme Court’s
Cult of Celebrity”, George Mason University Law and Economics Research
Paper Series 09-61.

Zoompad said...

The Growing International Consensus in Favour of Independent
Judicial Appointment Commissions
by means of discreet professional soundings from within the
legal establishment, especially from judges before whom the
candidate has appeared.
When conducted within a culture of integrity, this model
has the advantage of providing reliable information about
the technical legal quality of candidates. However, it can too
easily perpetuate existing social biases and ignore applicants
from non-conventional backgrounds or from a career which
involved few court appearances. It may also be unsuitable for
a judiciary which decides matters which verge on the political,
as is the case when judging bills of rights. Such judgments, it
is argued, require qualities such as social sensitivity or political
sagacity—qualities which are not best assessed by the legal
establishment alone. This closed system also makes no effort
to elicit the support for the appointments of members of the
legislature, whose laws the appointee will eventually review.
The principal disadvantage of this model is that, however
impartial the appointees are in practice, a perception of bias
is raised by the fact that the appointment is made by a government
minister in the absence of open and transparent
procedures. Ultimately, therefore, the process of executive
appointment offends the principle of separation of powers
and the perception of judicial independence.
Legislative approval
This model involves the approval of a candidate by a legislative
body, such as the Senate in the USA (for appointments to
the Supreme Court) or either House of the Federal Parliament
in Germany (for appointments to the German Constitutional

Zoompad said...

In the USA, the candidate is nominated by the
President, while in Germany the nomination is made by
political parties. In the USA a bare majority of the Senate is
required for confirmation, while in Germany a two-thirds
majority is required.
Judicial Appointments: Balancing Independence, Accountability and Legitimacy
This model seeks to legitimise the judicial appointments
process, particularly by enlisting the support of the legislature,
whose laws the judge will have the power to review or
strike down. However, in the USA the role of political actors
in the nomination and approval system has politicised the
appointments process to the extent that judges rarely oppose
outcomes that are philosophically in accordance with the
party which nominated and confirmed them. In Germany,
any perception of bias induced by the involvement of political
parties in the nomination process is somewhat diluted by the
fact that a two-thirds majority is required for the approval of
a candidate. The need therefore for a strong degree of consensus
about the candidate provides an incentive to make less
‘ideological’ appointments.
Nevertheless, the process as a whole retains the perception
that judges, to be approved, will feel bound, in future
judgments, to satisfy their political appointers of their ideological
Judicial appointment commissions
The advantage of a commission model in terms of perceived
independence of the judiciary is clear, particularly where the
commission’s composition is dominated by non-politicians
(as is the case in the UK but not, for example, in South Africa,
where the Judicial Services Commission is composed of 15
politicians and only eight lawyers). In addition, the commission
can be charged with positively seeking to enhance the
legitimacy of the judiciary, for example by taking steps to
widen the pool of potential appointees (as in South Africa,
where s.174 of the Constitution of 1996 provides the “need
for the judiciary to reflect broadly the racial and gender composition
of South Africa”).
Although the ultimate appointment under this model is
almost universally made by the executive, there is limited
discretion to depart from the list provided by the commission.
The commission is therefore wholly (as in the UK) or
The Growing International Consensus in Favour of Independent
Judicial Appointment Commissions
relatively (as in South Africa) independent of the executive
and parliament. The requirements of the separation of powers
and judicial independence at the appointments stage are
thus met to a greater extent than under the first two models.

Zoompad said...

International guidance
The structures of democracy have been under sharp scrutiny
recently as so many countries have shed their tyrannical pasts
and have had to engage in the exercise of defining the extent
to which democratic absolutes exist. International norms on
human rights have existed since the UN Universal Declaration
of Human Rights in 1948, followed by the International
Covenant of Civil and Political Rights 1966 and the European
Convention on Human Rights 1950. The absolute features of
democracy include universal franchise, equality, free speech, the
right to life and other accepted civil and political rights, some of
which may be limited, for example, so as to counter terrorism.
Yet there are other features which may be regarded as optional
or contingent, depending upon the particular country’s history,
culture and traditions. In that category fall the role of the
head of state (presidential or prime-ministerial), voting systems
(first-past-the-post or proportional representation) and rights
such as environmental rights, the right to administrative justice
and socio-economic rights.
Judicial independence is clearly a core and non-negotiable
feature of any proper democracy. Yet the mechanisms of such
independence, particularly through the appointments process,
have not until recently received sufficient attention. By and large,
the issue has been subsumed under the very general provisions
of Article 10 of the Universal Declaration of Human Rights:
“Everyone is entitled in full equality to a fair, and public
hearing by an independent and impartial tribunal, in the
determination of his rights and obligations and of any
criminal charge against him”.

Zoompad said...
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