The Starmer ministry plans to ‘…deepen our democracy by reforming Parliament…’, but missing from its proposals is any reconsideration of whether Parliament should adopt a role in judicial appointments somewhat analogous to that of the US Senate in federal judicial appointments (US Constitution, Art II, s 2). Debate about such a proposal has recurred from time to time (for example, in the wake of the Miller II judgment in 2019), but has invariably been rejected for reasons well encapsulated by the House of Lords Constitution Committee:

We are against any proposal to introduce pre-appointment hearings for senior members of the judiciary. However limited the questioning, such hearings could not have any meaningful impact without undermining the independence of those subsequently appointed or appearing to pre-judge their future decisions. In the UK, judges’ legitimacy depends on their independent status and appointment on merit, not on any democratic mandate.

With all due respect to the Constitution Committee, this risk-reward analysis of democratisation versus politicisation is flawed. First, it falsely equates competence with legitimacy to exercise judicial office. In a representative democracy, the latter should depend on some democratic mandate, because individuals are bound by judicial interpretation of statutes and judges have the power to develop the common law through the creation of precedent (see Prof KD Ewing, ‘A Theory of Democratic Adjudication: Towards a Representative Accountable and Independent Judiciary’ [2000] 38(3) Alberta LR 708-733, pp 711-713). Therefore, the people through their representatives should have a say in judicial appointments so that the law is, and is seen to be, interpreted and developed consistently with the reasons for its enactment.

Secondly, the above risk-reward analysis presents a false dichotomy between parliamentary involvement in judicial appointments and judicial independence. The Comptroller General of the Receipt and Issue of His Majesty’s Exchequer and Auditor General of Public Accounts (‘C&AG’) is a public office – responsible for auditing and authorising public expenditure on behalf of Parliament – which reconciles legislative involvement in its appointment with, as Gay writes, a:

…relationship with Parliament [which] is often used as a benchmark of independence and accountability to be applied to the creation of new constitutional watchdogs.

In this blog post, I will compare the C&AG with the UK Supreme Court and outline the main arguments from my recent article ‘A Role for Parliament in Independent Judicial Appointments: Insights from the Comptroller and Auditor General’ (Denning Law Journal 2024 Vol 33 pp 79-114). These are: that the C&AG and UKSC are equivalent institutions; that there is a democratic deficit in the appointive model for UKSC Justices (‘the UKSC Model’); and that this problem could be solved, while preserving judicial independence, by adopting the appointive model for the C&AG (‘the C&AG Model’).

The C&AG Model

The C&AG Model is governed by a combination of statute, Standing Orders and precedent. The C&AG is recruited by a panel of four chaired by the Chair of the Committee of Public Accounts (‘PAC’) – who must be an Opposition Member of Parliament – and consists of the Permanent Secretary to HM Treasury, the Chair of the National Audit Office and an observer. Vacancies are openly advertised and shortlisted candidates are assessed and interviewed. Once the preferred C&AG-designate has been approved by the PM, the PAC convenes for a pre-appointment hearing which is chaired by the Deputy PAC Chair – the PAC Chair will recuse themself from the session. The C&AG-designate is robustly, but professionally, questioned about their motivation and competence for the role, per the Liaison Committee’s Guidelines. The PAC’s recommendation is influential, despite being non-binding, because the appointment of the C&AG-designate by the Crown is exercisable on an address of the House of Commons which must be moved by the PM and seconded by the PAC Chair. The House has also divided on the appointment of a C&AG. Altogether, the appointment of a C&AG typically requires a degree of bipartisan support, to the extent that the PAC Chair’s views are consistent with those of the Official Opposition.

The UKSC Model

The UKSC Model is governed by a combination of primary and secondary legislation. When a vacancy arises or is due to arise on the UKSC, the Lord Chancellor convenes a selection commission (‘UKSCSC’) and the position is openly advertised. For a puisne vacancy, the UKSCSC is chaired by the UKSC President and consists of another judge, from another court than the UKSC, who is chosen by the UKSC President; a Judicial Appointments Commissioner; a Northern Ireland Judicial Appointments Commissioner; and a member of the Judicial Appointments Board for Scotland. For a UKSC Presidential vacancy, the previous procedure is repeated except for the substitution of the UKSC President with its Deputy.

The UKSCSC shortlists and interviews candidates on merit, in consultation with the LC, the First Ministers of Scotland and Wales, NIJAC and senior judges. The LC may, in consultation with the senior judge of the UKSC and after approval from both Houses of Parliament, issue compulsory guidance to the UKSCSC as to what matters it should take into account. Candidates must have held high judicial office for a period of at least two years, have practised law for at least 15 years or have satisfied the judicial appointment eligibility condition (by other legal experience like academia (Tribunals, Courts and Enforcement Act 2007, ss 50-52)) on a 15-year basis. The UKSCSC then reports its preferred candidate to the LC, who may accept, reject or require the reconsideration of their recommendation. The PM communicates acceptance of the nominee to the Crown, who formally appoints the Justice.

Auditor and Judicial Independence

I disagree with the Constitution Committee’s conclusion that:

…the relationship between Parliament and the judiciary is a unique one… Judges must be independent of both the executive and Parliament…

The relationship between Parliament and the judiciary is not unique, because the C&AG too must be able to conduct its work visibly free from prejudice or improper influence from both the Government and Parliament. Parliament and the public must be able to trust the C&AG’s audits and HM Government must be able to trust the C&AG to objectively report its accounts. Comparably, the Government and Parliament (inter alia) may appear before the UKSC as litigants, and its Justices must judge and be seen to judge ‘…without fear or favour, affection or ill-will…’ (Promissory Oaths Act 1868, s 4). The independence of the C&AG and UKSC are each protected by common institutional designs, namely: tenure during good behaviour, subject to removal from office by the Crown on an address by both Houses of Parliament; immunity from prosecution and civil liability; remuneration divorced from performance and paid out of the Consolidated Fund; separation of powers; and a prohibition on merits-based analysis of the policies of their reviewees (National Audit Act 1983, s 6).

Control, Audit and Judicial Review

The control of the receipt and issue of public money and judicial review can directly affect public policy. The C&AG may withhold monies from HM Treasury, where not legally granted by Parliament from HM Exchequer (AV Dicey, Introduction to the Study of the Law of the Constitution (8^th edn, Liberty Fund 1982) p 205), and the UKSC may quash acts of public authorities if they are ultra vires. Furthermore, audits of public accounts and judicial review can indirectly affect public policy. The C&AG reports expenditure which is dubiously legal or lacking value-for-money to Parliament, and the UKSC has the power to declare UK Acts of Parliament incompatible with the European Convention on Human Rights (Human Rights Act 1998, s 4). In both instances, the final outcome in response when these mechanisms are used is determined by Parliament.

The key difference between these offices is that the C&AG is a proactive office whereas the UKSC is a reactive one. Generally, the C&AG possesses the initiative and discretion to audit public bodies. Conversely, UKSC Justices cannot exercise their jurisdiction without a claim being brought before them – often as a result of appellate litigation. Another important difference is that the C&AG is a corporation sole, whereas the UKSC is a collegiate institution, so the former’s powers are more concentrated than the latter. A third difference is that the C&AG has less strictly defined qualifications than its counterparts on the UKSC. However, these institutional differences lean in favour of the C&AG Model’s translatability onto the UKSC Model. The former maintains impartiality despite that office holder having more discretion and its appointers having more discretion in their choice thereof, than in relation to UKSC judges.

Democratic Deficit of the UKSC Model

As previously discussed on this blog by Robert Hazell and Kate Malleson, the UKSC Model is undemocratic, since UKSCSCs have a tenuous link to the people but are effectively electoral colleges. The LC – who may be a member of the House of Lords – is accountable to Parliament (one House of which is accountable to the electorate) and appoints most UKSCSC panel members from the JAC, the NIJAC (whom the LC also appoints) and JABS members (who are appointed by a Scottish minister who is a member of and accountable to the Scottish Parliament, which is in turn accountable to the Scottish electorate). The remaining two UKSCSC panel members have a more tenuous link to voters, because they ordinarily consist of the ex officio UKSC President and another judge, from another court, chosen by the UKSC President. These judges are themselves products of the UKSC Model and its jurisdictional counterparts. The LC has neither rejected nor required the reconsideration of a candidate for the UKSC, nor does it appear that they have ever issued selection guidance to a UKSCSC under s.27B of the CRA 2005. Furthermore, as Profs Ekins and Gee conclude, the consultation between the UK’s many judicial appointments commissions and the LC on the former’s shortlist of candidates usually ‘…has little real effect on how a selection process is run or the candidates that are ultimately shortlisted’. If the fundamental objective of a judicial appointments commission is to make recommendations free from political interference, then it is difficult for an LC to guide it or refuse their recommendation – as illustrated by one episode. In 2010, the LC required the analogous JAC to reconsider its recommendation for President of the Family Division of the High Court, with a view to selecting another candidate. The JAC insisted on its original recommendation and the LC relented, considering that ‘…if he pushed back a second time, it might create a real rupture between the LC and the judges…’. The UKSCSC also recommends a single candidate, so the LC has a Hobson’s choice as to the UKSC Justice-nominate and the democratic accountability of the UKSC Model is nominal.

Conversely, the C&AG Model confers democratic legitimacy upon the C&AG, since there are numerous opportunities for elected representatives to influence the process. Those who nominate and scrutinise its appointment – the PM and PAC – are all chosen by, accountable to (albeit by different ways) and members of the House of Commons. The appointment of the C&AG is approved by the whole House, all members of which are up for re-election by the electorate every fifth year, at most.

Conclusion

The crux of the debate about the proper extent of parliamentary involvement in judicial appointments is the interpretation of judicial independence. A narrow interpretation is merely the visible absence of prejudice or improper influences on adjudication, because that is required for a judge to decide and to be seen to decide a matter solely based on the evidence before it. Alternatively, a broad interpretation of judicial independence prohibits substantial political involvement in judicial appointments, insofar as that would inherently expose judges to improper influence and permit judges to have likeminded prejudices to their appointers. The democratic deficit of the UKSC Model is a product of this latter interpretation, because UKSCSCs are divorced from ministers; the parliamentarians to whom they are accountable; and the voters to whom those parliamentarians are themselves accountable. The C&AG Model demonstrates that a bipartisan appointment process with substantial ministerial and parliamentary cooperation (and thus popular accountability) can deliver, rather than compromise, institutional independence. Given that the C&AG and UKSC perform similar roles and under comparable circumstances, the C&AG Model could be reasonably expected to reproduce its outcomes if translated onto the UKSC Model. In the full article, I have set out a proposal for such a translation and assessed the efficacy thereof. Fundamentally, the reconciliation of parliamentary involvement in judicial appointments with judicial independence is desirable, since it would empower individuals – through their representatives – to determine the composition of the Court which provides the final interpretation of the laws passed on their behalf.

Maximilian Taylor is a barrister of the Inner Temple and a paralegal at Flex Legal. He is grateful to Prof Michael Gordon, Prof Se-shauna Wheatle and Dr Paul Scott for their helpful review of the article before the drafting of this summary.

The article, ‘A Role for Parliament in Independent Judicial Appointments: Insights from the Comptroller and Auditor General’ (Denning Law Journal 2024 Vol 33 pp 79-114), is available at: https://www.ubplj.org/index.php/dlj/index.

(Suggested citation: M. Taylor, ‘A Role for Parliament in Independent Judicial Appointments: A Comparison with the Comptroller and Auditor General’, U.K. Const. L. Blog (19th February 2025) (available at https://ukconstitutionallaw.org/))