A ROLE FOR PARLIAMENT IN THE APPOINTMENT OF JUDGES

This submission seeks to encourage Parliament to take more interest in the appointment of judges. The debate has become polarised between the judiciary and the executive, with the judiciary wanting the appointment of judges to be wholly removed from the hands of the executive. This is to misunderstand the British constitution, which rests not on formal separation of powers, but on a delicate 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 judiciary alone, or to a Judicial Appointments Commission. The judges would be perceived to be a self-appointing oligarchy, especially if the Commission was chaired by a senior judicial figure. Ministers should continue to be involved; so should the legislature, 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 EXECUTIVE SHOULD HAVE THE FINAL SAY IN APPOINTING JUDGES

We support the proposals for a Judicial Appointments Commission. These are a logical next step from the significant steps already taken to make the process of judicial appointments fairer, more open and more transparent. In order to retain the trust and confidence of ministers in the judiciary, we believe the Executive should continue to have the final say in judicial appointments. That is the system in other common law countries. But the Executive's discretion would in future be significantly fettered by the Commission, which would run the appointments exercise, shortlist, interview and rank the candidates.

For appointments to the High Court and above, the Commission should recommend a short list of names to the Secretary of State. It is very important for the Executive to retain a role in senior judicial appointments, in order for the government to retain trust and confidence in the judges. If there were simply an appointing commission, the government would be excluded from the process, and would be less inclined to respect the judiciary or defend them when they came under attack.

THE EXECUTIVE SHOULD BE GIVEN A CHOICE

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 Judicial Appointments Commission 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 (as implicitly Lord Irvine did when appointing Lord Bingham to be senior law lord, rather than one of the existing law lords). That is essentially a policy decision, and it is right that policy decisions should ultimately be made by ministers.

MINISTER'S CHOICES SHOULD BE SUBJECT TO SCRUTINY BY PARLIAMENT

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 Constitutional Affairs Select Committee. 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 (as, for example, the Select Committee recently did with Dame Brenda Hale).

The arguments for parliamentary involvement are as follows:

—  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 once the law lords have departed. There is value in a formal presentation of the senior judges to Parliament, to foster continuing dialogue.

—  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 not on merit, and blatantly 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 (see below for the precedent of the Treasury Select Committee).

The committee conducting the scrutiny hearings could be the Constitutional Affairs 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 dissmissing judges, I would favour a joint session of both committees.

There are two precedents for such a proposal. The first is the scrutiny hearings conducted by the Treasury Select Committee with newly appointed members of the Monetary Policy Committee of the Bank of England. The candidates have been appointed, and the committee cannot undo their appointment. The questioning is confined to their views on economic and monetary policy. Initially the Treasury was uncomfortable about these scrutiny hearings, but it has since come to accept that they help to underpin the legitimacy and accountability of the Monetary Policy Committee.

The wider precedent for involving all three branches of government in judicial appointments is the delicate constitutional balance which supports the working of the new Human Rights Act. That requires ministers, the courts and Parliament each to play their part in upholding human rights, and in keeping the other branches of government up to the mark. It requires a constant dialogue between all three branches of government, a dialogue in which the Joint Committee on Human Rights has played a central role. The committee provides a forum in which the judges can explain their views and their concerns on human rights issues, and ministers can explain theirs. No other body can facilitate a three-way dialogue in this fashion. It illustrates what I mean by Parliament "holding the ring" between the judiciary and the executive, especially when there are tensions between them.

WOULD PARLIAMENT AND THE JUDGES HAVE THE CONFIDENCE TO DO THIS?

The Select Committee's inquiry will conclude with a report responding to the Government's proposals. Unlike most of the rest of the report, the question raised in this submission is a matter for Parliament. It need not feature in the Government's forthcoming bill, nor does it require amendment of the bill to make it happen. It merely requires political will on the part of Parliament to make use of existing powers which Parliament already has.

I hope the committee will have the confidence to issue an invitation to newly appointed senior judges to appear before it; and I hope the judges will have the confidence to accept the invitation. Both sides stand to gain from better dialogue between the judiciary and the legislature. For government to work properly requires trust and confidence between all three branches of government. That requires a three way conversation, in which Parliament must play its part.

Robert Hazell
The Constitution Unit

December 2003