Essential Merit

'Lady Hale argues persuasively that diversity in its widest sense should be regarded as essential for appointments to the Supreme Court'

Joshua Rozenberg

There seems every chance that 2012 will be remembered as the year that the UK began to change its system of judicial appointments. I make this prediction on the strength of two developments next year: the appointment of a new Supreme Court president and the forthcoming report of the House of Lords Constitution Committee on judicial appointments.

The Supreme Court has never had a full complement of 12 judges since it opened. And the saga of Jonathan Sumption hardly inspires confidence. The leading QC was rejected in 2009, apparently because he had no full-time judicial experience, only to be appointed in 2011 — despite telling the selection panel that he would not be free to start before 2012.

The appointment of Lord Phillips’s successor as president is likely to be equally opaque. I would expect the job to go to Lord Neuberger, currently Master of the Rolls, if he wants it. His present job, running the civil division of the Court of Appeal, is more congenial and still, perhaps, more influential. But he may come under pressure to apply from those who want to stop the job going to Lady Hale, probably the strongest internal candidate. Though likeable and approachable, Hale clearly managed to irritate her fellow judges something rotten as the sole dissenting voice in the McDonald case, decided by the Supreme Court in July.

The panel that will choose Phillips’s successor will be chaired by Phillips himself. It will include his deputy, Lord Hope, and three members of the judicial appointments bodies covering the UK. They will be looking for a “good leader”, Phillips told the Lords Constitution Committee in October. He was then asked by the former Lord Chancellor, Lord Irvine, whether his role in choosing his successor gave the appearance that the appointment was being made by a “self-perpetuating clerisy”. It did indeed, Phillips replied, “and not merely because it gives that appearance”. It was undesirable as a matter of substance, although he felt the incumbent should be consulted.

Calling for a change in the statute that required him to sit on the appointments panel, Phillips revealed that he had even attempted to get out of it. “I tried to persuade others that one could actually interpret the statute in a way that would relieve me of this responsibility,” he told peers. It is hard to see how this provision in the Constitutional Reform Act 2005 can itself escape amendment in the future.

How, then, might the system be reformed? In written evidence to the committee, two leading academics argued that parliament should have a greater role “to act as a check and balance on both executive and judiciary and to hold the ring when there are tensions between them”.

Professors Robert Hazell and Kate Malleson suggested that the Judicial Appointments Commission should present the government with a shortlist of three, ranked in order, for all appointments to the High Court and above. That would allow ministers to form a different view from the commission of the balance of skills required. Tellingly, the two academics cited Irvine’s appointment of Lord Bingham as senior law lord in 2000. In reality, this is a disguised but welcome call for the return of the Lord Chancellor’s discretion. Bingham was one of three judges promoted at the same time, an inspired matching of skills to vacancies that has become impossible under our current linear system.

The biggest reform of all that the committee seems likely to propose is a redefinition of the concept of “merit”. This past summer, the Judicial Appointments Commission quietly amended one of its merit criteria to include “an awareness of the diversity of the communities which the courts and tribunals serve and an understanding of differing needs”. That was code for saying there should be more women and minorities appointed. Nobody would countenance appointing anyone other than the best person to a judicial post. But once you begin to grasp “merit” as a level that all successful candidates must attain, you can begin to accept the legitimacy of choosing the most appropriate candidate from among all who reach that level.

This is what Hale is arguing, entirely persuasively in my view. She says that diversity in its widest sense should be regarded as an essential criterion in appointments to the Supreme Court. In her view, it would include specialist legal expertise (the court is short of Chancery lawyers) and professional expertise (the only former solicitor had to retire after two years because of an unnecessarily rigid age limit) as well as personal background and experience (more women and minorities).

Hale told peers: “I should not stick out like a bad tooth, as I do at present.” It is because the analogy is so apt that she may not be given the supreme opportunity to put her views into effect.

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