Baroness Helena Kennedy has argued that judges have a tendency to clone themselves when choosing successors. It is hard to avoid that impression in the Supreme Court, which kept its white male first eleven in place yesterday by appointing three new justices: Lord Justice Hughes, Lord Justice Toulson and Lord Hodge. The sole woman amongst 12 justices of our highest appeal court remains Lady Hale. There are no black or Asian judges, not have there ever been.
How did this happen? The answer is we don’t know and won’t ever find out. Around two thirds of the Supreme Court’s case load are public law and human rights, decisions which affect millions of people. Yet appointments are made by an opaque commission consisting of senior judges.
The stark fact is that the public has more say over the appointment of X-Factor judges than over those who sit on country’s highest court. The only Parliamentary “scrutiny” of is through private consultation with the Lord Chancellor, currently Chris Grayling, who has a veto but has never exercised it as far as we know. There are no public committee hearings nor can we read the minutes of selection commissions meetings.
On this appointment round there have been rumours, reported by journalist Joshua Rozenberg, that the Government told the commission to think again when it suggested three men for the jobs. The court denied that this had led to a delay. We are unlikely to find out the truth.
The best justification for the current system is that by excluding outside forces such as Parliament and the public it maintains judicial independence. Indeed, one of the key skirmishes surrounding the Constitutional Reform Act 2005 was the influence of the Lord Chancellor, a role which was to be combined for the first time with the Secretary of State for Justice, over Supreme Court appointments. But as Lady Hale says in her excellent recent speech, the upshot of the almost total removal of political influence (the Lord Chancellor retains a veto) was the withdrawal of the politically accountable Parliamentarians from the selection process.
The current system is bad for two reasons. First, even if judicial appointments are in reality made on merit, the selection process gives the strong impression of a smoke-filled rooms at an old boy’s club. This must discourage some candidates and risks alienating the court from large sections of the public.
And as Lady Hale points out, we are currently languishing at bottom for the proportion of women in the highest courts of the 34 countries in the OECD. Lord Sumption, one of the current justices, has mused that “it would be foolish to pretend that [judges] were not occasionally influenced by unconscious stereotyping and by perceptions of ability moulded by their own personal experiences”. Lady Hale responds, witheringly, that she would “drop the occasionally“. And she would know.
As Professor Alan Patterson observed in his fascinating 2012 Centre Forum paper Guarding the Guardians:
It is in no way disrespectful to the judges themselves to recognise that it is deeply problematic in a democracy for one branch of state to have anything like a decisive voice in choosing their own colleagues and successors.
There are important debates to be had over positive discrimination and the relative importance of different backgrounds. But as the [Lady] Neuberger Advisory Panel on Judicial Diversity concluded that in a democratic society the judiciary should reflect the diversity of society. We must ask whether a small clique of senior judges is best placed to build that future.
The second reason the system is bad is that in a closed appointment process, the public is given no insight into the personality, background or politics of the 12 most important judges. It is a convenient fiction that the UK’s judges have no personal politics. The reality is that judges are human beings with the ordinary range of prejudices, although it would be hoped with a greater than average capacity to put them aside when making decisions. A less opaque appointments process, perhaps even with committee hearings transmitted live on the internet, would provide the public a way of getting to know not just the candidates but also those making the final decisions. Greater scrutiny would in my view lead to better appointments decisions.
I was struck yesterday by how few media outlets reported that a quarter of our Supreme Court had been replaced in one day. Understandably, many lawyers (and I imagine judges) are happier with a judiciary which is shielded by shadows to one which is in the fierce gaze of the public such as the politically skewed US Supreme Court. But there must be a middle ground. The Supreme Court has done more than any other domestic court to bring its hearings to the public in innovative ways, through live transmission, judgment summaries Twitter and YouTube. That court is now looking increasingly like a constitutional court, however it presents itself. In light of this, public tolerance for the current appointments system, and the continuous cloning of the senior judiciary, may run out sooner than many think.
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