The merits of the judicial appointment process to the European Court of Human Rights

malleson-photo-2010  Patrick Obrien

The selection process for the next UK judges on the European Court of Human Rights is underway. In this post Kate Malleson and Patrick O’Brien discuss the process and argue that elements of it should be adopted for the selection of the senior judiciary in the UK.

The process of selecting the next UK judges on the European Court of Human Rights (ECtHR) has begun. The vacancy has arisen because the incumbent, Judge Paul Mahoney, is due to retire in September 2016, when he will reach the court’s retirement age of 70.

The selection exercise for Judge Mahoney’s replacement involves a two-stage process: a UK stage and a European one. The UK stage, currently in train, involves a selection exercise to produce a shortlist of three candidates. This shortlist will be submitted to the Parliamentary Assembly of the Council of Europe (PACE). At this second, European, stage, a sub-committee of PACE will interview the shortlisted candidates and make a recommendation on which should be appointed. Following this, in June 2016, one candidate will be selected for election to the ECtHR by majority vote of PACE.

Our primary focus here is on the UK stage of the appointment process. The Lord Chancellor is running the process on behalf of the Ministry of Justice (MoJ) and the Foreign and Commonwealth Office (FCO), and the process is being administered by the Judicial Appointments Commission (JAC). The Lord Chancellor has convened a seven-member panel, which includes a chair, two judicial members, three lay members and a legal member.

The chair is Dame Rosalyn Higgins (former President of the International Court of Justice) and the two judicial members are Lord Reid of the UK Supreme Court and Lord Dyson, the Master of the Rolls. The three lay members are Baroness Onora O’Neill (Chair of the Equality and Human Rights Commission), Professor Graham Gee (University of Sheffield) and Richard Heaton (Permanent Secretary at the MoJ). The legal member is Iain Macleod, a legal adviser at the FCO. The panel will consult senior figures and conduct interviews and ultimately produce a long-list of up to ten candidates to the Lord Chancellor. From this list, the Lord Chancellor will recommend a shortlist of three candidates to Strasbourg. Two of the members appear to be on the panel as nominees of the two government departments involved. It is sensible to include government viewpoints and expertise on a panel of this kind, but given that the panel is reporting to the Lord Chancellor, the ministerial head of the MoJ, and that there will be consultation with ministers on long-listed candidates before any interviews take place, it might have been better had the MoJ nominee been a less central figure than the Ministry’s Permanent Secretary.

The JAC Information Pack notes that ‘[a]t a suitable point before the PACE election, the UK’s Delegation to PACE will wish to meet the three shortlisted candidates in London.’ PACE is an assembly of national parliamentarians drawn from Council of Europe member states, and the UK delegation comprises MPs and peers drawn from the UK parliament. A similar private meeting took place as part of the last UK selection process (which led to the appointment of Judge Mahoney) in 2012. The Guardian reported that judges and senior lawyers in England and Wales objected to Judge Mahoney’s appointment on the grounds that he was not the favourite candidate for the position. Judge Mahoney won out over the perceived favourite on the shortlist, Ben Emmerson QC, and it was suggested by the Guardian that Conservative members of the PACE lobbied for Judge Mahoney’s appointment because of Mr. Emmerson’s credentials as a human rights lawyer with an activist approach to the European Convention on Human Rights. Ironically, The Daily Mail was just as critical as The Guardian of the result of the 2012 process, claiming that ‘horrified Tory MPs likened Mahoney’s appointment to “putting the fox in charge of the chicken coop”.’ For the same judicial appointment to be too right-wing for The Guardian and too left-wing for The Daily Mail might be regarded as an indicator of success.

Judges and lawyers tend to be especially hostile to the suggestion that there might be any political involvement in judicial appointments. National governments and delegations are known to engage in politicking within the PACE process, but this is not necessarily problematic so long all the candidates involved are credible and appointable. Judge Mahoney was well-qualified and there has been no suggestion that he has not been a highly competent and effective judge. Nonetheless, the private meeting held with parliamentarians on the UK’s PACE delegation appears to have created an impression of backroom dealing. This time around, the UK delegation would do well – and would enhance the democratic legitimacy of the process – to hold their meeting with the shortlisted candidates in public (as was suggested by Adam Wagner in 2012).

Indeed, we would argue that the injection of an element of political choice into the process is no bad thing. The strength of opinion expressed highlights the fact that the values and perspectives of judges in the ECtHR matter a great deal. These judges are reaching decisions which, though legal in nature, can have a significant social and political impact across Europe. All members of PACE are national parliamentarians and it enhances the democratic legitimacy of the court for them to have some say in the selection of its judges and some ownership of the process. The process also has the advantage of creating a mechanism for promoting gender equity in judicial appointments without the need to resort to quotas. The rules on short-listing provide that the three candidates should normally contain at least one candidate of each sex. This provision has been responsible for reducing the over-representation of men on the Court to just over 60 per cent so that gender equality on the court is likely to be achieved in the near future in stark contrast to the position in many national court systems, including those of the UK.

We argue that the two-stage ECtHR process – of creating a shortlist of three highly qualified and appointable candidates from which politicians can make an appointment – is a model which should be applied in the selection of the senior judiciary in the UK. The election of judges by parliament is unlikely ever to find favour in the context of the UK’s judicial systems, but it would involve only a modest change to the appointments process to require a shortlist of three candidates for appointment to the High Court and Court of Appeal in England and Wales and the UK Supreme Court to be provided to the Lord Chancellor. As in the ECtHR selection process the shortlist would be subject to a gender equity requirement in order to promote and then maintain a gender balance in the judiciary. Ideally, the Lord Chancellor’s selection would be confirmed after a hearing before a joint parliamentary select committee in line with the increasing use of such hearings for other senior public appointments (and similar to the meeting with the PACE delegation).

As we have argued elsewhere the introduction of a shortlist system would promote judicial competence, democratic legitimacy and diversity. The almost complete removal of any political accountability in the judicial appointments process in recent years as a result of the demotion of the role of the Lord Chancellor in the system, combined with the glacially slow progress on diversity in the composition of the senior judiciary, now make a strong case for the adoption of a system closer to that of the ECtHR.

Kate Malleson and Patrick O’Brien are joint authors of The Politics of Judicial Independence in the UK’s Changing Constitution (Cambridge University Press, 2015), together with Graham Gee and Robert Hazell. The views expressed here are their own.

About the authors

Kate Malleson is Professor of Law at Queen Mary University of London and a Constitution Unit Fellow.

Dr Patrick O’Brien is a Fellow in the Department of Law at the London School of Economics.

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