Yesterday in parliament
Judicial independence and why it matters
The lord chancellor has taken an oath to “defend the independence of the judiciary”, an obligation that that Shabana Mahmood fully respected when answering MPs questions yesterday. But is the shadow lord chancellor under an equal and opposite duty to undermine the independence of the judiciary? Judging by his remarks yesterday, that’s what Robert Jenrick seems to believe.
Robert Jenrick
The Conservative front-bencher said this:
Greg Ó Ceallaigh is a serving immigration judge who decides asylum and deportation appeals. It took nothing more than a basic Google search to uncover his past comments that the Conservative party should be treated the same way as Nazis and cancer.
As a sitting judge, he has publicly supported Labour’s plans to scrap the Rwanda scheme and for illegal entry into the United Kingdom to be decriminalised. Does the lord chancellor believe this is compatible with judicial impartiality? If not, what does she intend to do about it?
There are two things wrong with this statement:
Ó Ceallaigh is a deputy judge of the Upper Tribunal immigration and asylum chamber. That means he sits part-time. As his chambers website makes clear, his main occupation is his practice as a barrister, recently promoted to KC. He has served as a fee-paid tribunal judge for less than a year.
MPs are not meant to make spontaneous personal attacks on judges in parliament. Erskine May, the handbook of parliamentary procedure, says that
unless the discussion is based upon a substantive motion, drawn in proper terms, reflections must not be cast in debate upon… judges of the superior courts of the United Kingdom (including persons holding the position of a judge, such as circuit judges and their deputies, as well as recorders).
The Commons speaker gave Jenrick a reminder of this rule — “admonishment” was Mahmood’s preferred term — after he had breached it. So Jenrick then elided his campaign against the judiciary into criticism of the appointments system:
Mr Speaker, it is important that judges and the manner in which they are appointed are properly scrutinised in this house, and I will not shy away from doing so.
Helen Pitcher was forced to resign in disgrace as the chair of the Criminal Cases Review Commission after a formal panel found that she had failed in her duties during one of the worst miscarriages of justice in recent memory. But she is still in charge of judicial appointments, despite judges appearing in the media every week for their activism.
Her commission has failed to conduct the most basic checks on potential judges, either out of sheer incompetence, or out of sympathy with their hard-left views on open borders. The commission is broken and is bringing the independence of the judiciary into disrepute.
How much longer will it take for the justice secretary to act and remove the chair of this commission from her position and defend the independence and reputation of the judiciary?
Mahmood clearly has no intention of doing so. But Jenrick is arguing that if the appointments commission had made "basic checks” on Ó Ceallaigh’s social media accounts then he would not have been appointed a deputy tribunal judge. The shadow justice secretary is also claiming that Pitcher is responsible for this supposed failure.
The first point to make is that the Judicial Appointments Commission processed nearly 7,000 applications during the last year for which figures are available, making more than 500 tribunal appointments:
Pitcher, as chair, rightly concentrates on the most important vacancies, such as those in the higher courts.
The next point to make is that prior political comments, however unwise, do not disqualify a candidate from judicial appointment.
Whether or not part-time judges should continue to take a public position on controversial issues post-appointment is another matter. Recent guidance says they should not. Writing about this last November, I quoted a fee-judge who argued that sitting for a few days a year should not come with a requirement of judicial neutrality.
I’m not so sure. On the one hand, sitting part-time is a route into the judiciary and we do not want to deter good candidates, On the other hand, it can be very difficult to maintain public confidence if judges take controversial public positions. A magistrate was recently given formal advice for misconduct after he had posted a number of politically sensitive posts on his social media account in support of the Palestinian cause.
Whatever the answer, allegations of judicial misconduct are not for parliament to judge. As Mahmood told Jenrick yesterday, his complaint should have been directed at the Judicial Conduct Investigation Office, which supports the lady chief justice and the lord chancellor in their statutory duties.
And if Jenrick was going to quote Ó Ceallaigh’s comments as reported in The Times nearly two weeks ago, he should also have noted that, as the newspaper itself reported, Ó Ceallaigh has subsequently taken down his social media accounts.
Tulip Siddiq
Reports from Dhaka say that Bangladesh is now actively seeking the extradition of the Labour MP and former Treasury minister Tulip Siddiq and her aunt, the former Bangladeshi prime minister Sheikh Hasina.
Hafiz Ahsan Farid, a member of the Bangladeshi anti-corruption commission, told reporters yesterday:
We have sent documents from here to the Ministry of Home Affairs. This is called a mutual legal assistance request. Through the Ministry of Foreign Affairs, it will be forwarded to the foreign embassy, and then to the Bangladesh embassy abroad. We have started that work. The anti-corruption commission has initiated the process to bring them back.
On 18 March, Siddiq’s London solicitors Stephenson Harwood sent a seven-page letter to the anti-corruption commission (ACC). It said:
At no point have any allegations against Ms Siddiq been put to her fairly, properly and transparently, or indeed at all, by the ACC, or anyone else with proper authority on behalf of the Bangladesh government. Instead, the media has been used repeatedly as a vehicle to publish allegations against Ms Siddiq that have no truth…
Any government agency that is genuinely interested in investigating corruption uses proper processes, procedures, and practices for investigating and establishing facts. These do not include the methods that the ACC, the chief adviser and others on behalf of the Bangladesh government have adopted, as illustrated above.
These methods are not consistent with a genuine desire to investigate and establish the truth but instead appear to be designed to harm Ms Siddiq’s reputation and interfere with her public service in the UK…
There is no case for Ms Siddiq to answer, let alone one that requires her to come to Bangladesh and assist with investigations in person.
No response was received and Stephenson Harwood wrote again on 15 April. They complained that the anti-corruption commission had “failed to provide a single piece of documentary evidence” against Siddiq.
Their letter continued:
We further understand from stories appearing in the British press, which have plainly been instigated by the ACC, that at a hearing on Sunday 13 April in Dhaka the court issued an arrest warrant against our client with which she is expected to comply by 27 April.
You have also told the British press that, if Ms Siddiq does not appear on or before that day, the ACC will request that Interpol issues a red notice in the absence of a formal extradition treaty between Bangladesh and the United Kingdom.
It is extraordinary and wholly inconsistent with due process and a fair procedure for the ACC to lay charges before the Bangladeshi court, obtain an arrest warrant, threaten to request a red notice from Interpol and brief the media about all these things without making any contact at all with Ms Siddiq or her lawyers.
Such behaviour is a clear breach of international norms and indicative of the way that Ms Siddiq is going to be treated by the ACC and the Bangladesh authorities. It is a fundamental right of every person to know what case is brought against them so that they can take legal advice and respond to the case.
The ACC, its investigation officer, the prosecutor and the courts in Bangladesh are each failing in their legal obligations to ensure Ms Siddiq’s fundamental right to justice. The ACC should stop hiding behind the media, stop “shying away” from confronting Ms Siddiq directly and deal with her fairly and openly.
It’s understood there has been no response to this letter either.
Asked yesterday whether a red alert had been issued through Interpol to facilitate Sheikh Hasina’s repatriation, Farid said: “I have no idea about the red alert. It has not been discussed in the commission yet.”
Pressed for details, he added: “It will be discussed in the next commission meeting. If not this week, it will be next week.”
Unlike some countries, the UK permits extradition of its own nationals. Under the Extradition Act 2003, Bangladesh is classified as a category 2, type B, country.
Type A countries are not required to provide the UK with prima facie evidence in support of their requests for extradition whilst those in type B are still required to do so.
Supreme Court
MPs spent nearly an hour-and-a-half yesterday debating the Supreme Court’s finding last week that when parliament used the terms “man” and “woman” in the Equality Act 2010 it was referring to biological sex, not acquired gender.
There was no suggestion from the equalities minister Bridget Phillipson that the government intends to amend the ruling by legislation and the debate generated more heat than light:
Sentencing guidelines
MPs did not begin their second reading debate on the Sentencing Guidelines (Pre-sentence Reports) Bill — the main business of the day — until after 8pm. Introducing her bill, the justice secretary made a dignified and measured speech, stressing the divide between matters of policy and issues for the judiciary.
At one point Mahmood said this:
As I told the house a few weeks ago, I had several discussions with the Sentencing Council in the time leading up to 1 April, when the updated guidelines were due to come into force. I reiterate my gratitude to the council’s chair, Lord Justice William Davis, for engaging with me on this issue and for ultimately making the right call by pausing the guidelines while parliament has its say.
I should say again that I have no doubt whatsoever about the noble intentions behind the proposed changes, because I understand the problem that the Sentencing Council was attempting to address. Racial inequalities exist in our justice system and are evident in the sentencing disparities between offenders from different backgrounds but, as the Sentencing Council acknowledges, the reasons for this are unclear.
Addressing inequalities in the justice system is something that this government take very seriously and we are determined to increase confidence in its outcomes, which is why we are working with the judiciary to make the system more representative of the public it serves.
Mahmood referred to Jenrick’s attack on the judiciary earlier in the day and reminded him of the oath I mentioned at the beginning of this piece. She suggested he had become a “Marxist — but one of the Groucho variety. ‘These are my principles,’ he says, and if you do not like them, he has others.”
While the Liberal Democrats questioned the need for legislation, Jenrick confirmed that the Conservatives would not vote against the bill. It was given an unopposed second reading shortly before 10pm.
In what looks to me like a constitutional novelty, the justice minister Sir Nicholas Dakin announced “a drop-in for MPs on Monday about the next stages of the bill, at which members can have any questions answered and can feed into the process before committee stage next week”.
Sounds fascinating.
Update 24 April: Sir Bob Neil KC (hon), former chair of the Commons justice committee, has criticised Jenrick in today’s Times for his personal attacks on members of the Sentencing Council.
As noted before, Jenrick simply does not care. He is looking across the ocean and deciding that trying to be a caricature of MAGA is the only thing that will help his leadership bid. If damaging the judiciary is the easiest way of doing so, then so be it. He knows it will play well to parts of the press and parts of his party and parts of Reform (which he remains concerned about).
His attack on Pitcher is amusing as it is part of Badenoch's "we're not responsible for anything that Sunak, Truss or Johnson did" approach to leadership given she was appointed by the Conservative party even though there were concerns about her holding both roles.
That said, I agree with you that there needs to be some sensible rules on what part-time judges can say. What I would not want, however, is the kind of retrospective forensic analysis of past social media posts that we see for some appointments. There is a difference between someone saying something n years previously as a student, solicitor or barrister and someone saying something while serving as a member of the magistracy or judiciary. Once they have accepted judicial office (even part-time) then they should be careful what they post.
Would Robert Jenrick like to be a judge? Perhaps he could be jury and executioner too, whilst we're at it.