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.
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