The focus in the debate on judicial appointments has turned on the Supreme Court. Jack Straw, former Labour Lord Chancellor, has told the Lords Constitution Committee hearings into judicial appointments that the process for selecting the Supreme Court judges is not satisfactory (polite speak for totally out of order).
He told the fourth hearing: “Effectively we’ve ended up with a system where the president of the Supreme Court is selecting his successors, and that can’t be satisfactory. It defies every constitutional principle.” He said: “I do not believe the current system is a sustainable model and will have to be changed.”
There was also public concern, he said, about the Supreme Court “legislating in areas of social policy”. It was right to ask questions about this and perfectly legitimate for Parliament to have a role in appointing to the Supreme Court because of it.
Former Lord Chancellor Lord Falconer rejected the idea and insisted: “Do not mix politics with the appointment of the judiciary.”
Straw made clear that he believed there was a role for Parliament but not for the executive in appointments whereas the reverse was true for the Court of Appeal and below – a role for the Lord Chancellor but not for parliamentarians.
“There is plainly a lack of mutual confidence between the senior judiciary and this place [Parliament] in respect of the role of the senior judiciary and its broadening authority into areas that are inevitably political.”
If, as is likely whichever government is in power, there was a gradual detachment of our system of law from the European Court of Human Rights in Strasbourg that would make the UK Supreme Court “more powerful, not less”. Since it had the power under Section 4 of the Human Rights Act 1998 to declare laws incompatible with the European Convention on Human Rights “there’s an unexploded bomb in the middle of the minister’s room”. This justified a legitimate role for Parliament in appointments, not the “obscenity” of US-style public hearings but possibly representatives from the Lords Commission and the Commons Justice Committee.
‘If you bring in the politicians you are inevitably putting the politicians in the position where they will express a preference as to the type of person they want as a judge’ Lord Falconer
Straw insisted, citing the human rights cases, that there was declining public respect for the “social policy” Supreme Court judges appeared to be pursuing. “The Supreme Court has developed a social policy. I don’t blame them for this.” They were making decisions in areas they weren’t four years ago and there had been a shift in how they interpreted Section 2 of the Human Rights Act [on how UK judges assess ECtHR jurisprudence in coming to their decisions]. “When Lord Bingham was in the chair he had one view and now there is another lot who have a rather different and narrower view, which personally I welcome. It’s nothing to do with their politics.”
It was legitimate for parliament to ask how far the Supreme Court feels it should be legislating in areas of social policy.
For Lord Falconer this was the danger of political input. Parliamentarians would ask whether candidates took the “Bingham view” or the “Phillips view” (the view of Lord Phillips, current president). They would say, “if you take the Bingham view we would be very keen to support you and if you take the Phillips view we would not”.
He accepted that many decisions of the Supreme Court had been politically controversial (Belmarsh, sex register). “But it’s clear we want [a case] to be decided on a judicial basis not a political basis.” Thus: “If you bring in the politicians you are inevitably putting the politicians in the position where they will express a preference as to the type of person they want as a judge” – perhaps a Baroness Kennedy on the left or a Lord Campbell of Alloway on the right. The consequence would be that “the Lord Chancellor would be put under pressure as to whether he said no to particular appointments”.
The perception that the British judiciary was independent in appointment and in the job they did meant civil liberties were safe, the quality of judges was not diluted (in contrast with the US) and Britain attracted commercial parties from abroad willing to have their disputes in British courts. “Do not mix politics with the appointment of the judiciary.”
He accepted there was distrust among politicians and the public and suggested judges could come to meetings to explain their actions – but post-appointment, not before.
Mr Straw’s phrase “selecting his successors” is significant in the light of the suggestion floated by Joshua Rozenberg in his Guardian blog that Lord Neuberger, Master of the Rolls, would be a good replacement for Lord Phillips when he stands down. Lord Phillips would chair the appointment panel but it must be said the two mens’ approaches are rather different. Phillips has a somewhat romantic notion of the role of the Supreme Court in its relations with government. In the BBC4 series on the court he shone with a glow of righteousness as he explained its resistance to government oppression in holding terrorist suspects without trial (A v Home Secretary) – enraging the Labour Government and not encouraging much love from the Conservatives.
Neuberger takes a different view of the court which may or may not have caused him not to join it on its formation in 2009 and prefer the hard slog in the workhorse of the appellate system that is the Court of Appeal Civil Division.
Neuberger feared the Supreme Court would, with the might of the European Convention on Human Rights in its collective back pocket, become a constitutional court, rendering legislation passed by a democratically elected and nominally supreme Parliament nugatory if it failed to meet its exacting standards.
As Joshua Rozenberg points out in exchanges on his blogpost about this matter, such a view would not prevent him taking up the reins of the Supreme Court – not least since he would be able to put a stop to that sort of nonsense. It would, too, be an appointment devoutly to be wished by the Government and senior opposition figures such as Straw. Neuberger is a trusted pair of hands, a black letter man, not one to encourage “creative” judging or excessive deference for the European Convention. But as things stand, the Government cannot have its say, as Jack Straw pointed out at the Constitution Committee hearing.
And since Phillips is intending to retire sooner rather than later, the Constitution Committee will have to get a bit of a lick on, and the Government will have to have its reforming legislation on standby if they really want to put a halt to his dangerous social policy development for another generation.
A sketch of this “interesting and vigorous” (Lord Crickhowell) and “entertaining” (Lady Jay) fourth hearing with Jack Straw battling Lord Falconer is here
Note: All the Lords hearings so far into judicial appointments have been reported on the Alrich Weblog. The third hearing (with a round-up of earlier hearings) is discussed here