Selecting the Senior Judiciary

Updated 27th March:

The think-tank Centreforum has issued a report - "Guarding the Guardians:  Towards an independent, accountable and diverse senior judiciary" - (PDF, 78 pages - Executive Summary and 7 Chapters).  See also Centreforum's announcement of the report.  The report is by Alan Paterson - Professor of Law and Director of the Centre for Professional Legal Studies at Strathclyde University and Chris Paterson who joined CentreForum as a researcher in April 2011 from city law firm Slaughter and May.

This report argues that senior judicial appointments including those to the Supreme Court are in need of significant reform.  The emergence of a more powerful judicial branch of government provides an important check on executive power but this must be buttressed by a constitutionally appropriate appointments system.  The report sees the present system as being unfit for purpose with the potential to produce a self-perpetuating oligarchy.  It is argued that the appointments system ought to contain a better balance
between judges, laypersons and politicians.  The present "appointments commission" system for the Supreme Court is certainly very lawyer dominated.  Furthermore, Diversity, as a basic component of the Supreme Court’s ability to deliver justice in modern society, must be integral to this.

The report is a useful contribution to this important issue.  It is probably entirely fair to say that very few people consider the appointments process for the Supreme Court to be satisfactory.

See also The Guardian 26th March - Joshua Rozenberg - Current judicial appointments system is 'not fit for purpose', says Report

The House of Lords Constitution Committee has been examining the appointments process and a report is due and is awaited with considerable interest - see Judicial Appointments.    The committee has taken evidence from associations representing women and ethnic minority lawyers; the Bar Council Law Society and Justice and also from Lord Judge (Lord Chief Justice) and Lord Phillips (President of the Supreme Court).  The committee notes that there appears to be a consensus that all judicial appointments should be made on merit and that the process should respect the constitutional principle of the independence of the judiciary.  The idea of appointments on merit differs from the view taken by the Centreforum report which calls for a reconsideration of the approach to the concept of individual merit’ in relation to appointments to the highest courts.

Centreforum argue that the prevailing understanding of merit is inappropriate for appointments to the Supreme Court (as it would be for any collective court or body). Instead, the collective competence of the Court should play a central role in appointments to it, allowing for the correction of any corporate deficiencies such as the absence of particular legal specialisms or an imbalance in the membership of the court in terms of diversity of experience. With this, a candidate will – importantly – only be appointed if they are the best candidate. They will be the best candidate because they best reflect what would be most beneficial to the Court and, as a result, the society it serves.

A further point relating to the Supreme Court is that there is a legal and practical requirement to have the various legal jurisdictions in the United Kingdom represented.  Thus, the court has justices with a background in the legal systems of Scotland and Northern Ireland.  The appointing panel is required to make a selection ‘on merit’.  In doing so, it must ensure “that between them the Judges [of the Supreme Court] will have knowledge of, and experience of practice in, the law of each part of the United Kingdom" - see Constitutional Reform Act 2005 s.27(8).

As the legal system of Wales is now diverging in some important respects from that of England, it may become necessary to have a Welsh justice.

The Guardian 26th March - "We need to rethink how we define merit for supreme court appointments" - Alan Paterson and Chris Paterson

Update 27th March:

Having written the above on 26th April, The Guardian published Call for Welsh Representative on Supreme Court the next day (27th).   I do not claim that there is any link but it is an interesting coincidence.  Under devolution arrangements, there is no doubt that there is increasing divergence between the law in Wales and that in England.

also

Law Society Gazette 27th April - "Consultation opens on jurisdiction for Wales"

and Legal Week - "Judicial Appointments System suffers democratic deficit, says Think Tank"