Who should appoint our top judges?
6 June 2011
Updated | Recently, I have become a collector of visceral reactions by politicians to judgments. The Prime Minister David Cameron is leading the field, having been “uneasy“, “appalled” and even feeling “physically sick” over recent rulings. And this week the Scottish First Minister has appointed a panel of experts to see whether the UK’s Supreme Court’s “aggressive” interference with Scottish law can be stopped. But where is this criticism leading?
Leaving aside the political posturing and blame-shifting which unhelpfully characterises this debate, one interesting question which has emerged has been whether the current system of Supreme Court judicial appointments is fit for purpose.
The basis of the current system for Supreme Court appointments is section 23 of the Constitutional Reform Act 2005, which provides there are to be 12 judges. Part 3 sets out the procedure: Judges (strictly known as “justices”, save for the President and Deputy President) are appointed by the Queen and recommended by the Prime Minister. If there is a vacancy, the Lord Chancellor (currently Ken Clarke) is to form a selection commission. The commission must consult senior judges and politicians and “selection must be on merit”. But save for those requirements, the Commission has a free hand to choose who it wants.
That is how the two newest justices – Lord Justice Wilson and barrister Jonathan Sumption – were appointed. But they may be the last to be appointed under the current system: As Joshua Rozenberg writes the House of Lords Constitution Committee has just launched an Inquiry into the Judicial Appointment Process. The inquiry aims, amongst other things, to investigate how to achieving “greater diversity of those selected” and ensure “appropriate accountability and transparency“.
Both of these questions are important and reflect public concerns. On diversity, at present the court is composed of 12 justices, 11 of whom are white men. The only female justice, Baroness Hale, has said that she is “quite embarrassed to be the only Justice to tick a lot of the diversity boxes”. On attracting more women, she said the “barrier is very much still within the legal profession itself”. A recent post on the Law Think blog questioned whether it might be time to start thinking about positive discrimination in appointments; that is, quotas.
Whether you agree with that proposal depends on to what extent you believe that judges’ views are coloured by their personal background. Whilst it would be nice to believe that our judges are incorruptible and objective beyond the ability of ordinary humans, this does seem unlikely. Judges may be significantly cleverer (at least regarding law) than the average person, but their views are, like everyone’s, influenced by any number of personal life experiences. Whilst quotas are unlikely, it may beneficial to the justice system to propel more women and judges from minority backgrounds into the senior judiciary. How this will be achieved is a work in progress.
Another concern on judicial appointments goes deeper into our somewhat murky constitutional system: namely, if supreme court judges are making more controversial decisions which conflict with those of elected officials, whether they should be more democratically accountable.
An excellent and detailed article in Prospect Magazine by James Grant examines this issue, and concludes that given the increasingly controversial and activist decisions of the Supreme Court it is time for the system to change: for “public accountability is more important than the justices’ fear of politicisation“.
The article contains some interesting comments from the supreme court justices themselves, who Grant argues “do have pronounced political leanings, albeit ones that are less publicised than those of their US counterparts“. For
If you spend time talking to the British justices and analysing the history of their judgments, as I have done, the picture that emerges is one of a court split by the tension between liberal and conservative views.
Grant argues that the “liberal view“, which tends to side with the interests of the individual over the government, is “gradually prevailing“.
This runs contrary to the view of the court’s head Lord Phillips that justices “deliberately tend to suppress [their] own value judgments.” But Baroness Hale (as is often the case) thinks differently, admitting that decisions are based “not only by the judge’s own view of what is right and just, but also by his or her personal philosophy of judging“.
The “politicisation” trend, if it exists, is thought to have accelerated following the coming into force of the Human Rights Act in 2000, which gave the court the explicit task of ensuring that the decisions of public authorities comply with universal human rights.
Grant’s view, which accords with many in power, is that the increasing activism of the new Supreme Court has led to a gap in democratic accountability. The argument runs that if the judges’ appointments were more keenly scrutinised by Parliament, then they, and by extension the electorate, could keep a closer eye the political views of judges.
However, this argument rests on two presumptions, both of which are open to challenge. First, whether the supreme court has indeed become more activist. Whilst Grant claims to have analysed decisions to reach his view, his otherwise detailed article provides no statistical evidence of the direction of rulings, but rather relies on anecdotal reports of decisions. Until such evidence is available, as it is in the United States, where judicial appointments are fiercely contested on Congressional hearings, it is not possible to argue that a democratic gap has opened up in recent times. Perhaps the gap always existed, but the court has become more high-profile since moving out of the House of Lords. But we do not know for sure either way, and the debate over appointments is therefore fairly ill-informed.
The second problem with Grant and others’ argument is that it remains to be seen whether appointing judges through a Parliamentary committee in fact makes them more accountable to the electorate. In the United States judges’ appointment hearings generate much heat but little light, and once judges are appointed they sometimes fail to do what the President who nominated them wanted them to do anyway. Since the appointments are for life (as they are likely to be here), there is no second chance if a judge does something unexpected.
There is also the spectre of political pressure on judges, which can arise externally (from politicians) or internally (from the judge’s understanding of how he is ‘expected’ to vote). However, I expect that our robust judiciary will be able to resist this.
Whatever happens with judicial appointments, it is unlikely to put a stop to politicians’ criticising judges’ decisions. European judges, whose appointments are far more democratic than our own, are still fiercely criticised by our politicians. Much of the more serious criticism amounts to shooting the messenger, and this will continue as long as judges keep criticising the government. And whether or not this is an increasing trend, given how often decisions are judicially reviewed or challenged under the Human Rights Act, it is a trend which is likely to continue, however judges are selected.
Update – For an excellent analysis of the background to the judicial appointments debate, see Alexander Horne’s excellent paper The Changing Constitution: A Case for Judicial Confirmation Hearings?
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[…] Adam Wagner asked Who should appoint our top judges? yesterday, with an analysis of the Supreme Court Justices’ appointment system. 07 June 2011 […]
As I understand it, the majority of the Scottish legal profession are perfectly content with the devolution jurisdiction.
The number of justices was fixed at 12 (though it can be changed). It is also possible to use “Acting Judges” (s.38 of the Constitutional Reform Act 2005) and maybe more use could be made of this provision. If nothing else, it would widen the pool of legal expertise available to the court.
Having said this, appointment must remain on merit and any appointments process must be independent. There is a need to have justices from each of the countries forming the UK. Diversity should be a consideration but not a trump card.
One of the least transparent elements in the existing process is the right of the Lord Chancellor to ask the Appointments Commission to reconsider. Whether this should remain is a difficult point. Ideally, the Commission would nominate the person directly to Her Majesty. However, I have no doubt that the politicians will wish to retain some influence over the process. In that event, there ought to be reconsideration of the rather secretive process surrounding the right to ask for “reconsideration.”
Most cases reaching any Supreme Court will be controversial. This is true of any Supreme Court. It is unavoidable and the Human Rights Act 1998 has widened the grounds on which decisions may be challenged.
Has the court become more “activist?” Probably this is more an appearance than reality. The old House of Lords was hidden away in a committee room: the Supreme Court is in its own building. The tendency to argue “human rights” also adds to this appearance since it can look as if judges are creating law and, in some instances, it is arguable that they are – e.g. the details of the “privacy law” is not in any statute though the judges were given the power to develop the law via the HRA 98. Nevertheless, the old House of Lords was, at times, remarkably radical and many examples could be given.
I would not wish to see any form of election for judges. Parliament is free to amend anything the judges do. We do not need judges who have politicians sitting on their shoulders.
The lion is a powerful beast but the judges must remain lions under the throne.
AH, whose paper I would also commend, having drawn upon it myself in several posts, writes about “the type of court [the Supreme Court] wishes to become (as defined by the type of cases that it is hearing).”
I have blogged about this here: http://www.halsburyslawexchange.co.uk/what-sort-of-cases-should-the-supreme-court-hear/
In short, I think it would be wrong for the Supreme Court not to continue as a general appellant court, and in particular it should not eschew “big money shipping cases” to use a phrase attributed to Baroness Hale.
Secondly, one point I didn’t mention at the time was whether the SC actually has the power to do this. I haven’t checked, but I doubt there is anything in its founding statute limiting the right of appeal by subject matter. That being so, on what basis can or should the justices refashion themselves as a “constitutional court”?
Of course they could do so in practice by refusing permission to appeal for any “non-constitutional” cases, but it seems to me that this would be contrary to their statutory duty as an appeal court, as well as potentially breach a litigant’s right of access to justice …
I too must report feeling “uneasy“, “appalled” and even on occasion feeling “physically sick”. However these feelings are brought about by some of the policies led by David Cameron’s government and by many of the ill considered statements of Mr Cameron and other politicians when addressing the media. Judges are of course not given to public rebuttals using such language, although I guess some Judges must experience feelings of unease at such intemperate comments by the prime minister. The separation of powers is vital to the functioning of a democracy. I am not a member of the legal profession but do have regular contact with the Courts and have a far, far greater respect for the impartiality and fairness of the Judges than I do of politicians. The Judiciary gives comprehensive and finely worded Judgements in difficult cases; the appeals procedures provide formidable safeguards for errors, where they exist, to be corrected. Most recently the use of Parliamentary Privilege to overturn a court ruling indicates, to myself at least, that politicians need to set their own house in order before they enact legislation to gain a greater degree of control over the Judicary.
Bit of a mine field subject to say the least. How can we gain democratic accountability for judges? Simple it has to be through an electoral system whereby judges are elected to position. This in turn requires the politicising of the judiciary, which raises all manner of alarming problems specifically to do with judicial independece and objectivity.
The holy grail of democratic accountability to me is a bit of a con. It is a good idea in principle, but with regards to the public it is just not something that apparently happens in practical reality. For example, when were politicians ever held accountable for issues including the massive 10 x overspend on the Scottish Parliament (different jurisdiction I know but the principle is the same), the millenium dome, the continually spiraling costs on pointless super aircraft carriers; current access to justice cutbacks which will disenfranchise the vast majority of the public from obtaining legal help when they need it; rtc etc, the list goes on. The idea that politicians can be held to account democratically is nonsense. Even if they do pay for their problems at a general election, 5 years may have gone by in which much damage can be made without continual accountability. The principle of accountability should be to maintain control, remedy faults and remove wrong doers, not to retroactively punish years down the line when it may be too late to undo damage, it needs to be a continual and ever present capability of the electorate to crack the whip when necessary.
However with regard to judges the situation is different. We require them to interpret and apply the common and statute law without fear or favour, and therefore in my view free from the (imaginary) constraints and actual temptations that the democratic system brings. If they were elected and tied to an electorate in terms of accountability, then winning votes, gaining office and avoiding the democratic consequences of upsetting the electorate or parliament could unduly influence the judicial decision making process, as it is clearly influencing Mr Cameron in his current rhetoric against our Judges. Decisions could become based on politics and not law. IMO therefore I believe that the judiciary should be appointed, not elected.
I personally prefer the American system, always have, regardless of its flaws, it has a far superior theoretical method of inter departmental control and accountability than our system has in which Parliament and the executive have far too much power. I have no problem with judges being appointed by the prime minister, queen, committee etc, but in return as with the American system they should be able to exert some measure of control over the executive far beyond the current judicial review and Human rights act limits; and of course this would require a proper written and state binding constitution for them to interpret and apply. However while it suits our Parliament not to have a written constitution which would expose them to all manner of true accountability issues, this is a pipe dream.
As I noted in my paper The Changing Constitution: A Case for Confirmation Hearings (http://www.spg.org.uk/spg-paper-1.pdf), which you kindly posted on the site last week, the question is not only whether the court is activist, but also the type of court it wishes to become (as defined by the type of cases that it is hearing).
Poole and Shah published an interesting study in Public Law (entitled ‘The Impact of the Human Rights Act on the House of Lords’  Public Law 347) showing that there had been a substantial increase in human rights claims before the court and that the then Law Lords seemed keen to hear human rights cases.
If the Supreme Court focuses on these types of cases and is seen very much as a ‘Constitutional Court’ – as Baroness Hale has suggested in the past – it is likely that this change will stimulate much greater interest in who the judges are and how they came to be appointed.
Alexander – apologies for missing your excellent paper in the post, I have updated it now.
Thanks Adam. For another interesting judicial view on the issue of how personal/moral values may impact upon judicial decision making, see Lord Justice Etherton’s excellent article ‘Liberty, the archetype and diversity: a philosophy of judging’,  Public Law 727.
He states, amongst other things, that “In every period, but especially as a result of the HRA, the personal outlook and judicial philosophy of each judge plays a critical role in the outcome of hard cases and the defining of our society’s values.”
I have written in support of Parliamentary involvement in the selection process, but only as a final vetting by a cross-party committee, not some sort of equivalent of Borking in the US Supreme Court. The most important point I think is that the process should be to appoint the most competent candidates, not those whom the incumbent government hopes might be on message.
Daniel Finkelstein in the Times said that Parliament should adopt a US style process. He offered the example of privacy law in support. He thinks judges have created privacy laws off their own bat and therefore need to be democractically appointed if they are going to do that sort of thing again.
The answer is that if Parliament does not like judicially developed privacy law then it should legislate to change it, not appoint judges who it hopes will have different views. The latter course would be impracticable in any event, since Parliament might find candidates with whom it agrees on privacy law but disagrees on other important issues. It would also be inefficient: since only one or two vacancies tend to arise at the same time, it could be years before the majority of the bench is reconstituted according to Parliament’s sympathies (and years more before a case is appealed on any particular issue to the Supreme Court). During that time a new government might be elected which thinks the opposite to its predecessor. Would the “democratic legitimacy” of the court then be undermined? Moreover, judges might change their views after being appointed, as indeed American Supreme Court justices have been known to do (as you mention in the post).
On diversity, the House of Lords inquiry could take a look at the much-maligned European Court of Human Rights, where practical steps to improve its gender-balance have had a big impact – not quotas, exactly, but a heavy nudge in that direction: since 2004, at least one of the three candidates put forward by a government for election to the post of judge on the Court must be from “the under-represented sex” (exceptions to this rule are now possible, but have so far never been granted).
The result? Well over a third of the 47-strong Court is currently made up of women judges, a fairly dramatic increase in a short time.
It is interesting to note that this clear stand of principle was pushed through – initially against quite a lot of resistance from Europe’s governments – by the body of European parliamentarians who elect the judges, the Council of Europe’s Parliamentary Assembly: it simply refused to accept all-male lists of candidates. Perhaps there is a further lesson there for the UK about the positive impact of involving parliamentarians in selecting judges?
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