UK Constitutional Law Association

affiliated to the International Association of Constitutional Law

Kate Malleson: Judicial views on the selection process for senior judges

The President of the Supreme Court, Lord Phillips, gave evidence to the House of Lords Constitution Committee¹s inquiry into the judicial appointments process last week. He argued against the introduction of any form of parliamentary hearings for Justices of the Supreme Court or the Lord Chief Justice. In this view, he is joined by most, if not all, the other members of the Supreme Court and senior judiciary who remain to be convinced that there is any role for Parliament in the appointment process of individual judges. More surprising, was Lord Phillips’ view about potential reforms to the role of the Lord Chancellor in the process. He argued that he would like the Lord Chancellor to be on the selection commission for Supreme Court appointments, believing that this would be preferable to the LC having a veto late in the process. Even more unexpectedly, Lord Phillips strongly objected to the requirement that he must sit on the panel to choose his successor – he said that he had tried to argue that one can interpret the provision to excuse the President when the next President is to be selected but that he had not been successful in persuading others that his interpretation is tenable. Although this is the first time (as far as I am aware) that Lord Phillips has expressed this view publicly, he is not alone amongst the judges in accepting that the current process, whereby the President and Deputy President both sit on the Supreme Court ad hoc selection committee is problematic. There has been a strong groundswell of opinion outside the judiciary that this arrangement is likely to promote self-replication and is inconsistent with all other senior appointments processes in either the public or private sector. It appears from the evidence taken by the Committee that some of the senior judges share this concern. This therefore looks like an area in which the Committee is likely to recommend reform.  The last surprise from Lord Lord Phillips was his decision to produce a draft of a provision that might replace the ‘merit’ provision in the Constitutional Reform Act 2005. His amendment read that: “The Commission must select that candidate who will best meet the needs of the Court having regard to the judicial qualities required of a Supreme Court Justice and the current composition of the Court”. Having produced the draft provision Lord Phillips made clear that he  himself would object to such a change and would argue against it. What the Committee will make of that position, is hard to know.

This post originally appeared in  the Constitution Unit’s Blog as part of a project on judicial independence.

Kate Malleson is Professor of Law at Queen Mary University of London.

One comment on “Kate Malleson: Judicial views on the selection process for senior judges

  1. alrich
    November 2, 2011

    Baroness Hale and Baroness Neuberger deal with the ‘replication’ issue in the seventh hearing on judicial appointments, reported here http://wp.me/pfo1I-6U – with Lady Hale being quite forthright about the Supreme Court’s ‘bunch of stars’ failing to act like a collective and failing to be open to diverse views when making judgments. It is quite a brave critique

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

Information

This entry was posted on October 27, 2011 by in Judiciary and tagged , , .
%d bloggers like this: