Judiciously Choosing Judges

‘To protect the priceless asset of judicial independence, we need to take great care over the way we choose our judges’

Jurisprudence Justice

Apart from the monarchy, the judiciary is one of the few institutions in Britain that still commands some measure of respect. When something goes badly wrong, prime ministers know that the only reliable way of staunching public disquiet is to appoint a judge-led inquiry. Political leaders may then discover, to their cost, that the judge owes them no favours.

To protect this priceless asset of judicial independence, we need to take great care over the way we choose our judges. In the UK, they are selected rather than elected and there is no support from any quarter for changing this. What’s controversial at the moment is the extent to which the government of the day should have a say in the most senior appointments.

Until 2006, a cabinet minister had the entire say: all judges in England and Wales were chosen by the Lord Chancellor. Because successive holders of that unique post managed to keep their distance from other members of the government, the system worked surprisingly well; it was efficient, flexible and produced judges of high quality. 

The model of a government minister presiding over the House of Lords in both its legislative and its judicial roles became increasingly difficult to sustain once the Lord Chancellor became responsible for the huge legal aid budget. So although Tony Blair badly mishandled his attempt in 2003 to turn the Lord Chancellor into just another departmental minister, it had become inevitable by then that the Lord Chancellor’s responsibility for selecting judges would be transferred to a new Judicial Appointments Commission. 

The commission created by the Constitutional Reform Act 2005 was set up with insufficient thought. Ministers were never going to get the “diverse” judiciary they were looking for by simply having an Asian woman in the chair. The government’s attempt to put things right is to be found in part two of the Crime and Courts Bill, published in May.

The bill includes a few well-meaning but ultimately pointless reforms. If two candidates for a judicial post are “of equal merit”, selection panels are permitted to prefer one over the other “for the purpose of increasing diversity” within the judiciary. But it is very unlikely that any two candidates will be of equal merit in the real world.

Another provision in the bill would permit job-sharing in the senior judiciary by allowing for part-time appointments to the Supreme Court, the Court of Appeal and the High Court. This is presumably meant to make the posts more attractive to mothers with young children. Since High Court judges are normally aged 50 or more on appointment and appeal judges are usually in their sixties, I cannot see many new mothers taking advantage of it.

Selection arrangements for the president of the Supreme Court have been the subject of a complete U-turn. At present, he has to chair the panel that chooses his successor; in future, he will not even be allowed to sit on it. But the most controversial reform would allow the Lord Chancellor to sit as a member of the commission that will select candidates for the president’s job and for the most senior judicial position in England and Wales, the post of Lord Chief Justice. 

When this idea was put out to consultation, the government received 19 responses from individuals and organisations who were against allowing the Lord Chancellor to take part in choosing the Supreme Court president; and only 12 in favour. “Many saw it as a blurring of the lines between the executive and an independent judiciary, while some were concerned over the potential politicisation of the appointments process,” the government noted. Similar views were expressed against allowing the Lord Chancellor to sit on the selection panel for the appointment of the Lord Chief Justice. 

The Lords Constitution Committee was firmly against giving the Lord Chancellor a seat on either panel, adding that the change “risks politicising the process and would undermine the independence of the judiciary”.

But the government disagrees. “Given the significant influence in the administration of justice that these two senior judicial roles have, we believe that it is right that the executive has a direct and real role in the process, but that this role is properly balanced against judicial and lay input,” the Ministry of Justice said. “In the current system, the Lord Chancellor has a right of veto at the very end of the process. This is in practice very problematic to exercise without raising questions of politicisation.”

That, of course, is because the media is likely to find out that the veto has been used. Much better, in the government’s view, to have a quiet word before the die is cast.

I disagree. The Lord Chancellor is now a mere party politician. Politicians cannot be trusted to choose those who will sit in judgment on their decisions.