Robert Hazell and Kate Malleson: Increasing democratic accountability in the appointment of senior judges

The Lords Constitutional Committee’s inquiry into the judicial appointments process has asked what role should be played by the executive and Parliament in the appointments process of the senior judiciary. The case for enhancing the input of both branches of government is now very strong.

One consequence of the Constitutional Reform Act 2005 is that the appointment of judges has been almost wholly removed from the hands of the executive. This change was based on a  misunderstanding of the British constitution, which rests not on rigid separation of powers, but on a careful balance of powers between all three branches of government.

For the system of government to work properly there needs to be trust, confidence and mutual respect between all three branches of government: executive, legislature and judiciary. Appointments to the judiciary are too important to be left to the Judicial Appointments Commission alone. Because of its power to put forward a single name, and the extreme difficulty for the Lord Chancellor in rejecting that name, the JAC has become de facto an appointing body.  Ministers should have greater choice; and the legislature should be more strongly involved, in its classic scrutiny role. To act as a check and balance on both executive and judiciary, and to hold the ring when there are tensions between them, Parliament has an important role to play.

The creation of the JAC was a logical next step from the reforms already undertaken to make the process of judicial appointments fairer, more open and more transparent. But the Executive needs to have a meaningful final say in senior judicial appointments, which is the system in other common law countries.

The arguments advanced for giving a role to Parliament are strengthened if (as we believe should happen) Ministers are given an element of choice, by requiring the JAC to submit a short list rather than a single name. The Commission could submit the names ranked in their order of preference, with a commentary explaining the reasons for their preference. That would help to make explicit the criteria and reasoning applied by the Commission, and require ministers to be explicit about their own criteria if they decided not to follow the Commission’s rank order.

To present ministers with a single name assumes too simplistic a model of “merit“. Ministers may take a different view about the balance of skills and experience that are required when filling a vacancy.  They may feel that a public or constitutional lawyer is required to fill a gap on the Supreme Court, rather than another commercial lawyer; someone who can provide stronger leadership (as implicitly Lord Irvine did when appointing Lord Bingham to be senior law lord) or a candidate who can enhance the diversity of the Court. That is essentially a policy decision, and it is right that policy decisions should ultimately be made by ministers.

To guard against concerns that ministers might allow political bias to creep into their decisions, they should be subject to scrutiny by Parliament. Judicial appointments and the work of the Commission generally should be subject to scrutiny by the Commons Justice Committee and the Lords Constitution Committee (as evinced by the current inquiry). But very senior judicial appointees (Justices of the Supreme Court, and the four heads of division) should be invited by Parliament to present themselves for a scrutiny hearing. The committee would have no power of veto over the appointment. The main purpose of the hearing would be to introduce the new appointee to Parliament, and to give the committee the opportunity to develop a dialogue with the most senior judges on constitutional, legal and judicial policy.  Such dialogue is becoming increasingly frequent, with the judges having given evidence 19 times to the Commons Justice Committee in the last five years, four times to the Lords Constitution Committee, and once to the Joint Committee on Human Rights, the Commons Public Administration Committee, and the Public Accounts Committee.

Since 2008 Select Committees have been scrutinising appointments to the most important public bodies.  Pre-appointment scrutiny hearings for the top 60 public appointments were first introduced under Gordon Brown’s premiership.  Fears were expressed that this would undermine the integrity of the public appointments process; or that Select Committees would engage in inappropriate lines of questioning.  Research conducted by the Constitution Unit shows that neither concern has proved justified.

The arguments for parliamentary scrutiny of top judicial appointments also contain reasons which are specific to judges:

—  Parliament has the power to scrutinise all acts of the executive. Appointments of senior judges are an important exercise of ministerial discretion, and it is equally important that they should be subject to parliamentary scrutiny.

—  The judges fear that ministers may show political bias if they are given a choice. Parliamentary scrutiny can be a useful check against such bias.

—   Parliament nowadays has little contact with the judges. The senior judges are largely unknown to MPs. Supreme Court justices will be unknown to the Lords now that the law lords have departed. There is value in a formal presentation of the senior judges to Parliament, to foster continuing dialogue.

—    Through such dialogue political and judicial actors can better understand the constraints under which the other operates.  This understanding has been lacking in some aspects of the privacy debate

—  The judges should meet the body vested with the constitutional power to dismiss them. Senior judges can be removed only by resolution of both Houses of Parliament.

The main arguments advanced against such a proposal are as follows:

—  It would risk politicising judicial appointments, as they are in the United States. But the American constitution involves built-in conflict between President and Congress. Supreme Court appointments in the US are less on merit, and overtly partisan, in a manner quite foreign to the UK.

—  It would expose appointees to intrusive questioning about their personal and private lives. Even in the US, such questioning is the exception not the rule. In the UK, it is unknown: Select Committees have followed the Liaison Committee guidelines on proper lines of questioning.

The committee conducting the scrutiny hearings could be the Justice Committee in the Commons, the Constitution Committee in the Lords, or a joint sitting of both committees. Given the constitutional guardian function of the House of Lords, and the role of both Houses in dismissing judges, we would favour a joint session of both committees.

Robert Hazell is Director of Constitution Unit in the Department of Political Science, UCL. Kate Malleson is Professor of Law at Queen Mary, University of London.  They are leading an AHRC-funded project on the politics of judicial politics in Britain’s Changing Constitution.