The judicial appointments hearings by the House of Lords Constitution Committee recommence this week so it’s worth a resume of where we are at given the importance of the issue – and the possibility that the press will start to recognise the fact.
The story so far: The Constitutional Reform Act of 2005 for the first time in Britain enshrined, at least in part, the principle of separation of powers in an aspect of the constitution, the position of the judiciary. So the Law Lords were removed from the House of Lords and set up in the Supreme Court, losing their right to sit in the Lords in political roles; appointment of the judiciary was taken out of the hands of the Lord Chancellor (a Cabinet post) and handed to an independent Judicial Appointments Committee; and the Lord Chancellor himself lost his judicial role – his former right to sit in legal cases as a judge.
Now all the talk is of throwing out the principle of separation of powers and establishing a new form of political input in the appointment of judges – perhaps an enhanced role for the Lord Chancellor, a role for Parliament or for some committee of Parliament, perhaps with US style confirmation hearings. There seems to be no front runner as yet.
Such calls are made on the right because of anger at the “unaccountable” judiciary with powers to balk the government, particularly on human rights issues; and on the liberal left because of the pressing need for a more diverse judiciary, achievable, it is believed, most quickly by political intervention – though one supporter of this view acknowledges that it depends whether that intervention is from, as it were, a Reagan (who put the cause of judicial diversity back, well, certainly eight years) or a Clinton, who made it one of his priorities.
The Lords Constitution Committee has been considering these matters and its first two hearings are reported here and here. The third brief hearing just as everyone was heading off on summer holiday, is a handy source for arguments against the idea of political input, with Lord Justice Goldring, senior presiding judge, making the case.
‘The interest of the media in creating tension sometimes, between judiciary and government, can lead to claims of lack of transparency in court proceedings’ Mrs Justice Macur
There is a view that because of the European Convention on Human Rights and the Human Rights Act 1998 plus a general increase in judicial review of administrative decisions,judges’ jobs have become more political and hence should be under some sort of political scrutiny. Lord Justice Goldring rejected this. “In the context of judicial review, the administration or the executive has to obey the law and the judges interpret and decide whether or not the executive has obeyed the law. I do not think constitutionally the fact there has been an increase in the number of such cases makes any difference.”
Such decisions are often commented upon by the media, he noted, and Mrs Justice Macur, Family Division judge, added: “The position of the court has changed in so far as the interest of the media in creating tension sometimes, between judiciary and government, can lead to claims of lack of transparency in court proceedings, particularly in the Family Court.”
The Family Court is perhaps a special case with many aggrieved parents enlisting the support of the press to pierce its secrecy, justified as being in the interests of the children. The wider press campaign against the judiciary, however, is considered here.
Lord Goldsmith, one of the panel questioning the witnesses, pursued the HRA point: “Some people say, in those circumstances with much greater power given to the judges … then it is right that somebody should know a bit more about what the judges believe in these areas and what their values are before they come on to the Bench in order to make those decisions.”
For Goldring this raised the nightmare of purely political appointments: “The moment you actually say, ‘What do we want to ask the judge?’ it becomes very difficult, because you assume, ‘Judge A said he had this opinion and Judge B said she had that opinion. We need to balance that opinion with this opinion.’ It is a very slippery slope.” It is better not to know too much of judge’s views gleaned from putative confirmation hearings. Otherwise the danger is that in any particular case litigants will consider the judge biased from the start.
‘It certainly came as a surprise to me to discover that the panel appointing the Supreme Court was so narrow, and so totally dominated, as already has been indicated, by the President and Vice-President’ Lord Crickhowell
“Let us take privacy as an example – if I were being asked about privacy as a potential judge and expressed a view, what happens when the first case involving privacy is in front of me? What will the litigants think if they look back at the interview that I gave and the newspaper says, ‘He expressed himself in favour, rather Article 8 [of the European Convention] sympathetic,’ for example?” No questions could be asked in such confirmation hearings that would not immediately raise issues about a particular candidate’s political bias.
Goldring was happy for a greater oversight role for the Lord Chancellor in Court of Appeal and Supreme Court appointments – where the full-on Judicial Appointments Committee process is not applied. Goldring noted: “The criticism is that it [Supreme Court appointment] involves the President and the Vice- President of the Supreme Court, and perhaps that is not entirely desirable.” Another questioner, Lord Crickhowell, added: “It certainly came as a surprise to me to discover that the panel appointing the Supreme Court was so narrow, and so totally dominated, as already has been indicated, by the President and Vice-President.”
Goldring acknowledged that the public must have faith in the appointments procedure, and that is a knotty problem that has not found any clear line of answers in the hearings. Everyone has been agreed that appointments should be made on merit but there has been little agreement on what merit means or how to ensure it. Concern has been expressed about how to ensure diversity and also how to ensure quality work from the judiciary after appointment. Goldring said that “apart from appeals looking at the substance of decisions – obviously if somebody generates many successful appeals, at least you can see that something is going wrong – there is no structured system for assessing the success of the appointments that have been made. There is no system, in other words, of appraisal.”
Macur suggested that appraisal should come at the early stages of a judicial career and progress up the ranks should only come with success. That speaks to another strand of thought that has come out of the hearings – the idea of a career judiciary. This goes rather counter to the recent trend of extending judicial roles beyond those with judicial experience – itself an attempt to increase diversity. The barrister Jonathan Sumption, straight to the Supreme Court despite only briefly having touched base with judicial experience years ago, is a beneficiary of the new thinking, though not many feel his appointment did much for diversity. A “professionalised” career judiciary is another thing altogether.
Goldring reckoned quality judges would not be attracted under such a system – by which he probably meant lawyers in many cases turned to the higher levels of the judiciary only after making their mark (and a comfortable cushion of wealth) as advocates. “Civil service” judges would be second-best – and more lacking in independence. He did, however, back movements between branches of the judiciary, drawing on tribunal chairs/judges, for example, for higher judicial posts.
A representative of the Judicial Appointments Committee will no doubt appear before the resumed hearings. In its written submission it has welcomed the idea of legislation to clarify the Constitutional Reform Act but “would be very wary of changes that would impact in any way on the principle of the separation of powers, independence in selection, both from the judiciary and the executive, and selection on merit alone”.
The JAC considers diversity in applicants for the posts under its control (below Court of Appeal) has increased (women and black and ethnic minority) but would oppose moves to expedite this long-term aim. A number of witnesses in the hearings have articulated a view that “diversity” should be counted on the list of matters of merit when considering an applicant, while others have talked rather of choosing on the basis of “diversity” only when candidates are otherwise equal.
The Judicial Appointments Committee submission notes: “Selections for judicial appointment are made in a unique environment where in the majority of cases the candidates are selected for positions where there is no probation period; no appraisal and almost no termination for poor performance. Selection on merit alone is therefore even more critical.”
Note: All the Lords hearings so far into judicial appointments have been reported on the Alrich Weblog. The second hearing is here
Some recent comment on judicial appointments:
UK Constitutional Law Group