Supreme Court appointments again

Published in Halsbury's Law Exchange here.

Last month I wrote about the controversy concerning the appointment of Jonathan Sumption QC to the Supreme Court. Since then Daniel Finkelstein in the Times has argued that the appointments process needs a fundamental alteration. He argues that since judges now inevitably involve themselves in political law making, they need greater democratic legitimacy. He advocates a version of the United States’ confirmation hearings, under which candidates nominated by the President undergo a searching examination in front of the Senate to elicit their political and personal opinions.

No one in modern times buys the old line about judges applying but never making law. Jonathan Swift did not even buy it in 1726. It is inevitable that judges are in the business of making and shaping the rules which govern us, as they have always and inevitably done.

Of course, they do not have an entirely free hand; the more outlandish claims of the "realist" school of jurisprudence are just as unrealistic as the old formalist myth about the law always being predetermined.

What has changed in recent times (that is, since the Second World War) is the extent to which the courts have been supervising the executive (administrative law) and, particularly since the Human Rights Act 1998 came into force, the extent to which they will entertain new causes of action against the state. That greater involvement in the business of government seems to underpin most calls for more democratic legitimacy for the bench.

In response I would argue that it is still not correct to say that the judges have assumed the role of unelected politicians. Even where a case raises questions of policy, the court is not in a position of a political party attempting to implement a manifesto, but rather assessing the particular policy against the legal parameters of Wednesbury review and the European Convention, taking account of its own case law and that of Strasbourg.

Finkelstein gives the example of privacy laws. These, he observes, have largely been developed by the judges and therefore Sumption should be examined to elicit his views on them. It is not clear why this should be so. If Parliament does not like judicially developed privacy law then it should legislate to change it, not appoint judges who it hopes will have different views. The latter course would be impracticable in any event, since Parliament might find candidates with whom it agrees on privacy law but disagrees on other important issues. It would also be inefficient: since only one or two vacancies tend to arise at the same time, it could be years before the majority of the bench is reconstituted according to Parliament’s sympathies (and years more before a case is appealed on any particular issue to the Supreme Court). During that time a new government might be elected which thinks the opposite to its predecessor. Would the “democratic legitimacy” of the court then be undermined? Moreover, judges might change their views after being appointed, as indeed American Supreme Court justices have been known to do.

One other problem with the US model is that the expectation about political leanings occasionally detracts from the court’s appearance of objectivity. The most striking example in recent times was when the court had to decide issues concerning the outcome of the Presidential election in 2000, and it did so by a decision split precisely on party lines.

All that said, I would not argue that Parliament should have no involvement whatever in the appointments process. The appearance of legitimacy needs to be preserved. Or, to put it another way, justice needs to be seen to be done. The old system of secret soundings followed by the Lord Chancellor’s announcement was the antithesis of public justice, however well it actually worked in practice. The leg work for choosing suitable candidates should be that of the profession and the executive, but the last say between those candidates should be that of Parliament.

Rather than “Borking” Supreme Court candidates in the American style to elicit their views on contentious political and moral issues, the preferable system would be for a cross-party committee (CPC), chaired by the Lord Chancellor, to approve candidates nominated by the judicial appointments committee. The CPC should include the opposition spokesperson on justice, with perhaps the balance to be nominated on a proportionate basis by all represented parties. It might include non-lawyers, provided some legal experts were guaranteed to be present. It would be entitled to interview candidates and its discretion would not be fettered, though in practice one would not expect probing of personal philosophies in the manner of the US.

As the candidates would already have gone through a rigorous selection process one might expect that the CPC would rarely expose any as being unsuitable. The process would however be a worthwhile means of protecting the court’s independence and legitimacy. Parliament would be seen as having the final say over appointments, but the non-partisan composition of the committee would preclude any appointee being seen as a governmental lackey.

The process advocated above bears some similarity to that followed recently in Canada with respect to Marshall Rothstein. It is also broadly similar to that suggested by Alexander Horne in a paper of much greater length than this post. I would recommend the paper and its bibliography as the appropriate starting point for further reading on the subject.