Britain’s constitution needs respect, not rewriting

‘Accountability is the antithesis of independence. Judges who hold their positions at the pleasure of the executive will be expected to please the executive. Which, of course, is the whole idea’

Matthew Scott

‘Accountability is the antithesis of independence. Judges who hold their positions at the pleasure of the executive will be expected to please the executive. Which, of course, is the whole idea’

omeone designing a constitution from scratch would not come up with our peculiar mix of common, statute and human rights law, Parliamentary precedent, written and unwritten conventions, direct and representative democracy, and heredity. Whatever you think of the outcome of the cases brought regarding the prorogation of Parliament, it demonstrates that the constitution can be opaque. Either the 11 justices of the Supreme Court, or those they overruled, who include the Lord Chief Justice, the Master of the Rolls and the President of the Queen’s Bench Division, got it wrong.

Such evident constitutional imperfections lead some to suggest that it should be fully written and codified in a single document. That is all perfectly rational but since there is no chance whatever of agreement being reached about what such a document should contain, irrelevant. The more practical calls, from the losing side in the recent case, are for more incremental reforms.

Some of these are extremely dangerous—as those promoting them used to know. Only last year Jacob Rees-Mogg, now the leader of the House of Commons, extolled the beauties of the English common law as, “a human system based on precedent and historic understanding” that “provides both continuity and flexibility” and “avoids arbitrary or bureaucratic rule”.

Yet when the Supreme Court demonstrated the flexibility of the common law, preventing arbitrary rule by, amongst others, himself and the Prime Minister, Rees-Mogg reportedly denounced its ruling as a “constitutional coup”. On the opening day of the Conservative Party conference, Boris Johnson supported calls for Supreme Court judges to be “made accountable”. A desire for “more accountability” sounds entirely reasonable, yet when it is applied to judges it is anything but.

Accountability is the antithesis of independence. Judges who hold their positions at the pleasure of the executive will be expected to please the executive. Which, of course, is the whole idea.

Some of the more populist rulers of central Europe have already travelled down this road. The Polish government, for example, in 2017 launched a state-funded publicity campaign accusing judges of being “a special caste”, and, according to a Council of Europe report, “portraying them as incompetent or indulging in unseemly or illegal behaviour, such as drunkenness, corruption, or petty theft”. Whether or not that was true, the subsequent reforms to the Supreme Court required nearly one third of the judiciary to retire—unless expressly permitted to remain in office by the president. Far from rooting out the political legacy of communist-era justice, it would have made judges curry favour with an elected politician. This brand of accountability was struck down by the European Court of Justice, but concerns about attacks on judicial independence in Poland and elsewhere persist.

Britain’s Supreme Court judges are appointed on the recommendation of a politically independent commission. Nobody is seriously suggesting that they should be elected, a method of appointment that has found favour almost nowhere in the world except the United States, and even there not for Federal judges. 

Instead, the suggestion has been floated that candidates should be “vetted” by Parliament at confirmatory hearings. In practice that would probably give a Government a veto over appointments. Even with safeguards, such as a requirement for a “super-majority” of MPs for rejecting a candidate, the precedent would have been set that judges could be chosen on political grounds. What other purpose could such hearings have except to politicise the Court? The prime minister is not arguing that the current system produces incompetent or morally defective Supreme Court judges. His objection is that they are interfering in politics, which is to say making judgments that he does not like.

Once Supreme Court judges have been selected (even partly) for their politics, governments will be tempted—as in the United States—to stuff the court with supposedly sympathetic appointees. The new mandatory judicial retirement age of 70 could make this easier. At least US Supreme Court Justices hold office for life. Having been selected at least partly on political grounds, judges will then feel much more justified in allowing their politics to influence their judgments. In short, Parliamentary vetting would supercharge the very problem it is ostensibly meant to address.

There would be other problems. Those hoping for promotion to the Supreme Court would be under subtle pressure not to offend the authorities. Selection for political affiliation (as vetting should be called) would soon be demanded for High Court judges too. After all, the vast majority of cases against government ministers—nearly all of which are “political” in nature to some degree—are decided in the Administrative Court or the Court of Appeal. And given that there is already an acute shortage of High Court judges, do we really want to further discourage the best applicants with the prospect of what supporters of the idea gleefully describe as grilling sessions?

“Judicial accountability” could all too easily find its way into a populist Conservative election manifesto; and there are certainly sections of the press who are all too happy to bash the judges. Those, like the Rees-Mogg of 2018, who support the courts’ power to constrain arbitrary rule should oppose it. It is politicians who should be accountable. Judges should be independent.

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