Senior judge backs role for politicians in judicial appointments

A senior judge, Lord Justice Etherton, has told the House of Lords constitution committee that politicians should be involved in appointing judges to the UK Supreme Court with a consequent reduction in the influence of the court’s president and deputy president on the appointments panel.

The Court of Appeal judge said the composition of the judiciary “must be such that it commands respect” and hence needs to be more diverse. He told the hearing of the constitution committee into judicial appointments that political involvement was more likely to bring about greater diversity than the present system.

He pointed out that UK Supreme Court judges were nominated by a panel of five made up of judges and lay people including the president and deputy president of the court. [See comment below for explanation of the system.] Judges could also be among the other three members of the panel depending on whether Scotland and Northern Ireland sent judges to represent them. “Judges have a conclusive role in making those appointments. They do have that say because of their influence and standing in the [appointment] committee.”

He favoured increasing the membership of the appointments panel with more lay members, including politicians and academics, to get a better balance. He opposed US-style confirmation hearings in which potential judges might be questioned by parliamentarians.

The idea of separation of powers [that the judiciary should be independent from parliament or the government] was important, he said, “but it can’t be an absolute because judges can’t be a partly self-appointed body”.

A selection commission [for Supreme court Judges] consists of the following members:
(a) the President of the Supreme Court;
(b) the Deputy President of the Supreme Court;
(c) one member of each of the following bodies—
(i) the Judicial Appointments Commission;
(ii) the Judicial Appointments Board for Scotland;
(iii) the Northern Ireland Judicial Appointments Commission.
Schedule 8 to the Constitutional Reform Act 2005

The need for political input had increased as the Supreme Court, and to an extent the Court of Appeal, had become “primarily a policy-making body” thanks to the increase in public law cases and cases requiring interpretation of the European Convention on Human Rights but also owing to court decisions on government regulations and EU directives.

“This has changed the relationship between the two courts and Parliament.” Since the judges were, rightly, not accountable regarding their judgments, there needed to be accountability in appointments for the sake of enhancing judicial legitimacy. Diversity was also part of this.

“If you are to have confidence in the judiciary there’s an expectation that it is capable of dealing with the experiences of people and reflecting them,” he said. It was quite clear that background affected judgments. In other areas of work it had been shown that “diversity feeds in and you get a better result”. This principle should be applied to the judiciary too.

He cited the systems in Canada, South Africa and Israel in which politicians were involved in appointments. “In those cases diversity is much greater and the evidence seems to be that the politicians are the ones who primarily drive that diversity.”

Kerr dissenting

Lord Kerr, Supreme Court justice, also giving evidence, said he “disagreed profoundly” with Etherton’s view and said it was “very much a minority view” among judges. “The vast majority of judges would greet the prospect of political interference with the system with dismay.”

He did not accept the Supreme Court was preoccupied with policy. While it did make judgments on policy issues “we aren’t creating law but applying the law”. Parliament was not obliged to accept the judgments [since it can pass new legislation reversing them].

It was of the greatest importance that independence of the judiciary be maintained and the Judicial Appointments Commission (JAC) had been set up to take the decision away from the lord chancellor’s department. This extended to the process of appointment [for judges at most levels]. “The system itself must be free of external influence.” He added that it should also be free of unfairness with judicial jobs open to all who met their exacting demands and appointments operated openly and transparently.

On the issue of accountability of judges he said: “On one view we are far more accountable than anyone. They have to give reasons for their decisions; they do it in public; there is a complaints system; they are subject to appeal … judgments are available to the press; there is televising of the supreme court. There is every opportunity for an interested consumer to assess how well we are doing our work.” He added: “We are exposed to the public as much as politicians. The public can complain if what has been done is inappropriate.”

Kerr agreed that there could be a better balance on the appointment panel and there was an issue of diversity. However he rejected the view that there was a quick political fix and felt it was more fruitful to dismantle the disincentives, for example, to women becoming judges. These included working hours and lack of part time appointments. This had to be tackled in a long term way.

Note: This is the second Lords constitution committee hearing on judicial appointments and occurred on July 13 2001. A report on the previous week’s hearing can be found here

Alrich comments on issues raised in the constitution committee hearings:

Jack Straw v Lord Falconer: battle of the Titans

Judicial appointments, diversity and merit, an unsquared circle

Judicial appointments and politicisation

The Jonathan Sumption debacle