The president of the Supreme Court has offered an olive branch in the debate over judicial appointments with a call for the Lord Chancellor to join the court’s appointments panel – and for the president to lose his role in appointing his successor.
Lord Phillips told the Lords Constitution Committee that the current system allows the Lord Chancellor a veto of appointments but at a late stage in the process. “I would prefer him sitting on the commission [for appointments] so he can provide his input at that point.”
Phillips was asked whether he was uncomfortable in the role of being in charge of the panel choosing his successor, giving the impression of a self-perpetuating clerisy. Yes, he said: “I don’t think as a matter of substance that it is desirable to have the president of the Supreme Court presiding over the choice of his successor. I think it is desirable for him to be consulted … but not sit.” He would welcome a statutory change to that effect.
At present Supreme Court justices are appointed by a panel of five including the president and deputy president and potentially other judges, though lay members can be among the five. At the previous week’s hearing Jack Straw, former Labour Lord Chancellor, had declared the situation not sustainable and “contrary to every constitutional principle”.
Phillips told the fifth Lords Constitution Committee into judicial appointments procedure that he opposed confirmation hearings or interviews with parliamentarians for candidates, ideas suggested as a means of increasing accountability. But he recognised that if the government did not have confidence in the appointments there should be a mechanism to deal with that. The Lord Chancellor’s veto was less satisfactory than having him involved in the process of appointing Supreme Court judges. “On the assumption that we have the kind of Lord Chancellor we have had to date, who respects the rule of law and understands the importance of it, I would prefer to have him sitting on the commission as one member of the commission so that he can provide his input at that point.”
If he said person X would not be acceptable, that would have great weight within the Supreme Court selection panel. “To have the Lord Chancellor involved would be to guard against a particular candidate who was anathema to the government. But it is to appoint the best candidate.” Involvement from Parliament would make appointments political, but the presence of the Lord Chancellor would indicate a greater degree of democratic input than now.
Lord Chief Justice Lord Judge added: “That would be in exchange for the veto right he has at present.” He said such a role for the Lord Chancellor should be restricted to the appointment of senior judicial figures (heads of division and the Supreme Court and a role in appointing the Lord Chief Justice) and not extend to lower courts below the Court of Appeal, where candidates came from many parts of the system and the Lord Chancellor would have no idea of their qualities. The Lord Chancellor would instead have the role of ensuring the Judicial Appointments Commission (which conducts appointments to the lower courts) was running well.
‘To have the Lord Chancellor involved would be to guard against a particular candidate who was anathema to the government’ Lord Phillips
Phillips accepted that “the role of the judiciary has changed with the introduction of European law and the requirement to consider the legality of Acts of Parliament” rather than just the actions of the executive. This had led to an appearance of a more confrontational position between government and judiciary – “though I don’t regard it as confrontational at all”. But he rejected any idea that the wider role made the Supreme Court a constitutional court on the US or Canadian model (as has been argued by Lord Neuberger and others).
Lord Judge noted that the European dimension had made the judicial job more difficult but that Parliament remained supreme, at least as far as the European Convention on Human Rights was concerned. In contrast EU law “has to win” since UK law says it is binding (European Communities Act 1972). “I would like to suggest that maybe Strasbourg shouldn’t win and doesn’t need to win, that the court of Luxembourg has to win because the legislation says so.”
One of the committee panel, Lord Pannick, suggested that the changes were more significant than Lord Judge was suggesting since judges now had to assess the “proportionality” of civil justice measures. “Surely the nature of the reasoning process of the judge hearing a human rights case is a bit different from what judges are used to.” Lord Judge insisted, however, that the constitutional position had not changed as a result. Parliament remained supreme and could change judicial decisions it did not agree with.
Asked by Lord Crickhowell whether, as Jack Straw had suggested, the Supreme Court was making law, he said no. For example Parliament made law on abortion, not the Supreme Court (a reference to the US Supreme Court case of Roe v Wade which struck down many state laws restricting abortion in 1973). So in the “US and Canadian Supreme Courts, they do have a direct political function. We do not.”
He therefore rejected any idea of confirmation hearings. What would be the purpose of such a process? What would those questioning candidates be trying to discover? The private political views of the candidate or to establish whether he would appear to be a rather pleasant individual? Panel member Lord Irvine noted that there would be no way that you could restrain politicians asking such questions. “That would inevitably bring in the appearance of political preference coming in.” Their lordships concurred.
All the Lords hearings so far into judicial appointments have been reported on the Alrich Weblog. The fourth hearing with Jack Straw and Lords Falconer and Mackay is here
Alternatively a sketch of the “interesting and vigorous” (Lord Crickhowell) and “entertaining” (Lady Jay) fourth hearing with Straw et al is here
The issue of whether Lord Judge said: “Britain can ignore Europe on human rights” in this, the fifth, hearing is discussed here