Judicial Independence Across the World: Papua New Guinea

In a previous blog  we looked at judicial independence in Greece (where a judge has been appointed caretaker Prime Minister) and Hungary (where the ruling Fidesz have introduced constitutional reforms to place the management of the judiciary firmly in the hands of the executive).

We contrasted this with the stability of judicial independence in the United Kingdom. The debates in this country centre on some very abstruse technicalities, for example the changes to the composition of selection panels for Supreme Court judges proposed by the Crime & Courts Bill 2012. The constitutional position of the judiciary only very rarely enters the public consciousness – think of the recent Peter Hain case, although that was hardly a ‘stop the presses’ type story!

However, much as in Greece and Hungary, in many nations judicial independence is a ‘headline issue’. We are trying to avoid making value judgments on any of these particular cases, and we acknowledge that the judiciary aren’t always sacrosanct. Rather, this blog is just an observation on how judicial independence is a much more pressing political issue in some parts of the world.

We shall begin by looking at the recent, and very chaotic, events that have influenced judicial independence in Papua New Guinea. We hope that this is an appropriate starting point for blogs looking at global judicial independence – it is hard to think of a series of events that could violate the doctrines of the separation of powers more roundly!!!

Papua New Guinea: Two justices of the Papua New Guinean Supreme Court were recently arrested on charges of sedition. Chief Justice Sir Salamo Injia was apprehended by a police unit, led by the Deputy Prime Minister Belden Namah, which stormed into the Chief Justice’s court on 24th May 2012. Justice Nicholas Kirriwom was also detained and questioned by the authorities.

Mr Namah insisted that the Chief Justice was playing politics and was quoted as saying that “the Chief Justice is sick in his head”. The Chief Justice appealed to police and military personnel to abide by his ruling. “This country is being run by men who are happy to use force rather than the rule of law,” he said.

In late May 2012, the two judges had sat as part of a three man bench that ruled (for the second time) that Sir Michael Somare is the legitimate Prime Minister of Papua New Guinea, not Parliament’s choice, Peter O’Neill. Two other Supreme Court judges, Deputy Chief Justice Gibbs Salika & Bernard Sakora, had refused to hand down judgements, citing ethical reasons.  Justice Kirriwom was also accused of authoring an email (sent to other members of the judiciary) that referred to the O’Neill government as illegal.

In late 2011 Sir Michael, the long-time leader of Papua New Guinea, was out of the country receiving medical treatment. Parliament decided that (as Sir Michael had been absent for such a long time) the Prime Minister role was vacant. MP’s then elected Mr O’Neill as the new Prime Minister. In December 2011 the Supreme Court ruled that Sir Michael was the legitimate leader of Papua New Guinea, which briefly led to Sir Michael & Mr O’Neill being Prime Minister simultaneously!

Since then Mr O’Neill has been effectively running Papua New Guinea and it was his government that ordered the arrest of the judges.

Rather confusingly, the Deputy Speaker (Francis Marus) recently declared to Parliament that the court’s decisions would be accepted. However, Mr. Marus said that Sir Michael could not be reinstated as he had missed three sessions of Parliament since January. Nominations for a new Prime Minister were then thrown open.

This led to Mr O’Neill being elected (again) by Parliamentarians on 30th May 2012. The situation should become clearer after general elections in June 2012.

Greek politics and judicial independence

Panagiotis PikrammenosJudicial independence rarely comes to the forefront of contemporary European politics. Normally, the esoteric technicalities of how the judiciary interact with the other branches of government are not of interest to most people.

There are exceptions to this – a few months ago Viktor Orban’s ruling Fidesz party in Hungary was very publicly criticised by the Council of Europe’s Commission for Democracy through Law (the Venice Commission) for various constitutional reforms that placed powers for selecting, disciplining and allocating judges into the hands of the (politically appointed) president of the National Judicial Office, Tünde Handó. Mrs Handó’s appointment was even more controversial as she is married to József Szájer, a Fidesz founder and a current MEP for the party.

However, recent events in Greece have really put the politics back into judicial independence. A senior judge, Panagiotis Pikrammenos, has been appointed as caretaker Prime Minister. This has occurred in accordance with Article 37(3) of the Greek Constitution which holds that the Greek President, after giving various parties time to form coalitions (and then having a go at forming a cross-party coalition himself), can appoint the President of the Supreme Administrative Court of Greece (called the Council of State) to form a Cabinet in order to carry out elections and dissolve Parliament.

Mr Pikrammenos has recently appointed an interim Cabinet, mainly composed of diplomats, academics and former ministers. All sixteen members have agreed not to draw any salary for their work in the interim Cabinet.

Theoretically, the appointment of a judge as Prime Minister is a violation of major constitutional principles. It is more difficult, if not impossible, for the judiciary to be independent of the executive if a judge is in charge of the executive! The notion of the separation of powers is also ‘shot to pieces’ by the appointment of Mr Pikrammenos, especially when you consider that there is now no effective legislature from which the powers of the executive & judiciary should be separated.

However, on a more pragmatic level, there are several reasons why selecting Mr Pikrammenos’ was a relatively tidy solution to Greece’s constitutional problems. Firstly, the citizens of any democracy would, presumably, feel more comfortable with a judge in power. Control by the executive (the ‘machinery of state’) would smack too much of dictatorship, especially in Greece.

Secondly, the Greek Cabinet chose Mr Pikrammenos to become President of the Council of State in 2009 and so it could be argued that he has (very limited) democratic legitimacy.

Thirdly, Mr Pikrammenos is probably one of the most able candidates available. Mr Pikrammenos, an experienced administrative lawyer and judge, has knowledge of how government policy works in practice and how it impacts upon citizens.

Finally, it is important to remember that making a judge Prime Minister is a temporary solution and one that is only used in extremis. Greece is expecting to hold elections on 17th June.

Mr Pikrammenos’ name translates as ‘Mr Embittered’. It is likely that he will be after his month in office.

Recent Judicial Independence Seminars: ‘Law, Politics and the Future of Human Rights Act’ and ‘Judicial Independence and Judicial Appointments’

The Judicial Independence Project recently held two seminars for politicians, judges, lawyers and academics, run under the Chatham House Rule. The first, on ‘Law, Politics and the Future of the Human Rights Act’ on 2 February, was jointly organised with Prof Dawn Oliver and Middle Temple. The headline conclusion was that most speakers expected that the Coalition Government’s Commission on a British Bill of Rights would come to nothing, leaving the Human Rights Act (HRA) intact. The nature of Britain’s international human rights obligations – under the Convention but also increasingly, and much more directly, under EU law – entail that Britain cannot really take away from Convention rights but can only add to them. However, some thought that there was still a possibility that the HRA might be weakened after the current process.

Several speakers also argued that the UK courts are not obliged to follow the decisions of the European Court of Human Rights in Strasbourg in every circumstance, and that Lord Bingham’s argument to this effect in the Ullah case was wrong. The UK could make greater use of the margin of appreciation afforded by the Convention to member states. However, there was also positive reference to the dialogue that occurred between the UK Supreme Court in connection with the Al Khawaja and Horncastle cases.

Speakers also acknowledged the phenomenon of public discontent with the HRA. This discontent is based mainly on perception rather than substance and survey evidence reveals very high support for human rights but poor support for the HRA itself, and poor understanding of the Act. But politicians will not ignore this public discontent while it exists.

The second seminar was on ‘Judicial Independence and Judicial Appointments’. Speakers commented on the vulnerability of the Judicial Appointments Commission (JAC). The Commissionis a young organisation but has already been reviewed by the Ministry of Justice (in 2010; the result was positive) and included, and then excluded, from the Public Bodies Bill as part of a list of quangos that were potentially to be abolished. As one speaker put it ‘we’ve planted a daffodil and a number of times we’ve pulled the daffodil out of the ground to review whether or not it’s working’. The JAC needs time to develop and establish itself.

There was some discussion about the role of Parliament in appointments. Some participants (although not all) felt that judges currently have too much involvement in appointment and argued that judicial independence does not require the involvement of judges in the selected of their successors. One suggested that a greater role for the Lord Chancellor and Parliament in appointments would be of benefit to judges. By increasing the legitimacy of appointments and by getting politicians to invest in the process, judges would gain some protection from conflict with politicians. It was suggested that UK Supreme Court justices, in particular, should not be appointed without the approval of a select committee.

You can read short notes of both of these seminars on the Project website:

Law, Politics and the Future of the Human Rights Act

Judicial Independence and Judicial Appointments

Kate Malleson: Taking the politics out of judicial appointments?

[Posted on behalf of Kate Malleson. This post originally appeared on the UK Constitutional Law Group Blog.]

Seven years after the judicial appointments process was completely refashioned under the provisions of the Constitutional Reform Act 2005 (CRA), the system is being looked at again. In November, the Ministry of Justice issued a consultation paper on ‘Judicial Appointments and Diversity: A Judiciary for the 21st Century’ pre-empting the forthcoming report of the House of Lords Constitution Committee inquiry on the same topic. A key issue in both the consultation paper and much of the evidence submitted to the Lords inquiry is the role of the Lord Chancellor in the appointments process. The provisions of the CRA reducing the role of the Lord Chancellor to that of a limited veto over the decisions of the judicial appointments commission (JAC) have been subject to a range of criticisms. The aim of the consultation paper is to address these concerns by achieving ‘…the proper balance between executive, judicial and independent responsibilities’. To this end, it proposes transferring the Lord Chancellor’s powers to the Lord Chief Justice in relation to appointments below the High Court or Court of Appeal while at the same time ensuring that the Lord Chancellor plays a more ‘meaningful role’ in relation to the higher judicial ranks. This would be achieved by requiring the JAC  to consult the Lord Chancellor on potential candidates for the most senior appointments and by including the Lord Chancellor on the JAC  selection panel for the appointment of the Lord Chief Justice and for the appointment of the President of the UK Supreme Court by the ad hoc Supreme Court appointment commission. At the same time, the Lord Chancellor’s current power of veto would be removed.

At first blush, therefore, these proposals look like a sensible attempt to recognise the distinction between the lower and upper ranks of the judiciary, acknowledging what the Lord Chancellor, Kenneth Clarke, has described as the ‘ritual’ element of his involvement in appointments at the lower ranks, while recognising the need for greater political accountability in appointments to the senior judiciary. The consultation paper notes the potential for a democratic deficit if the executive is not involved in the process: ‘We consider that the complete removal of the Lord Chancellor from the entire process would result in an accountability gap and are of the view that this gap increases with the seniority of the appointment being made’.

The first element of the proposed change, the removal of the role of the Lord Chancellor in relation to positions below the High Court or Court of Appeal, has attracted considerable support from those who gave evidence to the Lords inquiry. The Lord Chancellor himself stated in evidence to the Committee that in relation to this aspect of his role he simply ‘goes through the motions’ of reviewing the candidates about whom he knows little or nothing. In contrast, the proposed removal of the Lord Chancellor’s current right of veto in relation to the upper judiciary is far more controversial and it is hard to see that this aspect of the proposed change represents the creation of a more ‘meaningful’ role for the executive. The reason why the JAC was set up as a recommending commission rather than an appointing body, with the Lord Chancellor retaining the final say in appointments, was to provide a potential check on the decision-making of the independent commission in the event of something going wrong in relation to an appointment (whether the error was committed in good faith or bad) and to maintain a meaningful degree of political accountability in the process. The first of these functions would be lost under the proposals and the second would be weakened. In addition, the proposed change is likely to undermine efforts to increase diversity in the judiciary. Experience in other jurisdictions, as well as the UK, has shown that diversity does not automatically improve as the composition of the legal profession changes but requires political will to drive forward proactive changes, some of which are not supported by the judiciary or the legal profession.

A better option for striking the correct balance between the branches of government would be to retain the Lord Chancellor’s veto and for the JAC (and the ad hoc commission in relation to Supreme Court appointments) to provide the Lord Chancellor with a short-list of three names of candidates to choose from for all senior appointments whom the commissions consider to be very well-qualified and appointable. This would allow for an appropriate degree of political input in the process and would open space for the Lord Chancellor to promote greater diversity though his choice of candidates while maintaining selection on merit. It would also maintain the important function of a back-stop in case of error or malpractice.

The Judicial Independence Project recently made a submission to the Ministry of Justice consultation on Judicial Appointments and Diversity. The submission can be read here

Appointments and Diversity: A Judiciary for the 21st Century

The Judicial Independence Project has submitted a response to the Ministry of Justice consultation on ‘Appointments and Diversity: A Judiciary for the 21st Century’, which closed yesterday.

Summary

  • There is a legitimate role for the executive in the appointment of judges. Not onlydoes executive involvement provide a check on the decision-making of the JAC, and the selection commissions responsible for the most senior appointments, it also supplies an important mechanism of political accountability. Above all, executive involvement is critical for fostering the executive’s trust and confidence in the judges. Similar considerations apply to Parliament. If the executive and Parliament are wholly or largely excluded from the appointment process, they might be less inclined to respect the role and independence of the judiciary.
  • The Consultation Paper envisages the reduced involvement of the Lord Chancellorin appointments at the lower ranks of the judiciary, but increased involvement at the higher ranks, through participating in the ad hoc selection panels for the most senior judicial appointments.
  • On appointments to the lower levels of the judiciary, our view is that the goal ofincreasing diversity requires the continued involvement of the Lord Chancellor. Theexperience in a number of overseas jurisdictions, as well as in the UK, demonstrates that improving diversity does not happen automatically as a result of changes in the composition of the legal profession. There is no convincing evidence of a “trickle up” effect. Rather, increasing judicial diversity requires political will to push for reforms, some of which might not be supported by the judiciary or legal profession. Removing the Lord Chancellor from the process of selection to the lower ranks of the judiciary removes the opportunity for the exercise of this political will.
  • On senior appointments, we welcome the impetus to give the Lord Chancellor agreater role. We disagree, however, with the suggested way of doing so. Rather than the Lord Chancellor participating in the ad hoc selection commissions, we favour the commissions providing the Lord Chancellor a short-list of three candidates to choose from, each candidate having been identified by the commission as well qualified and suitable for appointment. This allows for an appropriate degree of executive input by providing greater scope for the Lord Chancellor to promote judicial diversity, whilst also maintaining merit-based selection. It also maintains the Lord Chancellor’s role as a “back-stop” in case of error or malpractice.
  • There should be no serving Justices of the Supreme Court on the panel that selectsany of the Justices (including the President and Deputy President). It is inappropriate for any members of the court to be directly involved in the selection of the other members.
  • A consistent theme in our interviews is that the Constitutional Reform Act is rigidand overly prescriptive. Several interviewees have cited the stipulation of the number of Commissioners in Schedule 12 as an example of this, and hence we welcome the proposal for greater flexibility in determining the composition of the JAC. We agree with the suggested approached to delivering changes to the appointment process.
  • As indicated at paragraph 2, we believe that there are good reasons for involvingParliament in the appointment of senior judges (e.g. the Justices of the UK Supreme Court, the Lord Chief Justice and the Heads of Division). Statements of our views on the scope for parliamentary involvement in judicial appointments and on the dubious strength of some of the arguments made against such involvement can be found in the written evidence we supplied to the House of Lords Constitution Committee as part of its inquiry into the judicial appointment process.

Read the full submission »

Judicial Independence and Parliament

The Judicial Independence Project recently held its third seminar for professionals (judges, politicians, civil servants and journalists, amongst others) on the topic of ‘Judicial Independence and Accountability: The Role of Parliament’.

The discussion focused on the relationship between Parliament and the courts and reference was made to the idea of ‘comity’ as the basis for this relationship: mutual respect combined with distance. Some worried, however, that comity might freeze relations so that there is little communication between both sides. It was noted that there is no constitutional bar to political criticism of the judiciary. It was generally agreed that criticism (even unfair criticism) does not affect the independence of judges.

Several speakers emphasised also that the high profile breaches of super-injunctions and anonymised injunctions by parliamentarians in 2011 were not breaches of the sub judice rule but rather breaches of court orders which are not captured by that rule. Injunctions of this kind raise different issues to sub judice and a new rule may be required.

The seminar was run under Chatham House Rule, but we have prepared a short anonymised note of the discussion.

Read the seminar note

Courting a Liddle Contempt?

Following the publication of an article by Rod Liddle, the Spectator has been referred to the Attorney General, Dominic Grieve, for possible contempt of court.  Mr Justice Treacy, presiding over the trial of Gary Dobson and David Norris for the murder of Stephen Lawrence in 1993, also warned the press not to republish any part of the article.

The key issue is whether the article had the potential to prejudice the trial; if so, Liddle could face action and the Spectator could be fined. The Contempt of Court Act 1981 created a ‘strict liability rule’, which relates to ‘active’ court proceedings. Strict liability means that the publisher’s intention is completely irrelevant: the rule applies in cases where a publication creates ‘a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced.’

Grieve has certainly been more active than his predecessors in pursuing those newspapers who report irresponsibly: this July, The Sun and the Daily Mirror were fined £18,000 and £50,000 respectively for their coverage of the investigation of Joanna Yeates’ murder in Bristol, particularly in relation to the “vilification” of her landlord, Christopher Jeffries, who was arrested but released without charge shortly afterwards. In addition, Grieve has brought contempt proceedings against Sky (for allegedly breaching an injunction relating to the kidnapped couple Paul and Rachel Chandler), as well as the Daily Mail and Daily Mirror (for their reporting of Levi Bellfield’s murder of the schoolgirl Milly Dowler).

Having seen the article it is not easy to sympathise with either Rod Liddle or the Spectator. How such a hubristic article was allowed to be published is difficult to fathom. Given the Attorney General’s zeal for pursuing reckless newspapers, the Spectator will have to quickly locate its lawyers…

Judicial Independence 1, Irish Government 1: How not to run a referendum campaign

The voters of Ireland have been busy. On 27 October they elected a new President, Michael D Higgins (who was inaugurated last Friday – more on this election in a moment). They also voted in two constitutional referendums that dealt with the relationship between judges and politicians (the Twenty-Ninth and Thirtieth Amendment of the Constitution Bills respectively). The proposed Twenty-Ninth Amendment sought to introduce a rather complex mechanism by which the pay of judges could be reduced (as the pay of all other Irish public servants has been in recent years). The proposed Thirtieth Amendment sought to create a robust power of parliamentary inquiry.

The Irish electorate voted yes to the Twenty-Ninth Amendment (and by quite a margin – roughly 80%-20%). This proposal was the subject of a previous post of mine (which can be read here). In very brief summary, while I don’t think there can be a problem with the general principle that judges’ pay can be reduced in a crisis, the wording of the amendment is very vague and, for that reason, potentially a threat to judicial independence in future.

By contrast, the electorate voted no to the Thirtieth Amendment (by a narrower 53%-47%). This would have conferred a power to conduct inquiries into ‘any matter’ and allowed the Oireachtas to make findings of fact. It also included what could potentially have been an ‘ouster clause’ excluding these inquiries from the oversight of the courts.*

What explains the differing results? For some, the prospect of more robust parliamentary inquiries in general suggested a move towards a sort of neo-McCarthyism. This is perhaps a little unfair, but given that the government was proposing that one of the first subjects to be inquired into would be the Irish banking crisis (arising out of which criminal prosecutions are still expected) this was not so unlikely as to be dismissed as nonsense.

The results perhaps also disclose a general hostility to authority – particularly to the political and legal elite – in the midst of the current crisis. Whilst the electorate were happy to reduce the pay of the legal elite without bothering unduly about the niceties of constitutional law, they were hostile to the demands of the political elite for additional power in the midst of the crisis, for which politicians are widely perceived to bear the lion’s share of responsibility. As the inquiries amendment was framed, it appeared that this power came at the expense of the rights of the individual citizen.

A lot must be attributed to the nature of the campaign, however. The referendums ran alongside one of the most colourful and controversial presidential election campaigns Ireland has ever had, featuring no fewer than seven candidates. One candidate was repeatedly quizzed on letters of support he had written to an Israeli court on behalf of his former lover, who was convicted of the statutory rape of a teenage boy. One candidate suggested darkly that a minor car accident that turned out to be the result of an accidental tyre blow-out was in fact sabotage and part of a campaign against her. One candidate was Martin McGuinness. Against this lurid backdrop the referendum campaigns competed vainly for attention, and did not indeed get any until the dying days of the campaign. One lesson for future referendum campaigns, then, is to hold them by themselves.

The government’s case was not assisted by delaying publication of the text of the proposed referendums until the last possible moment, just weeks before voting day. It was also not helped by its combative attitude to criticism of the referendums. A late intervention by eight former Attorneys General emphasising the threat to the rights of the citizen and urging a no vote on both proposals was dismissed by the Minister for Justice as ‘nonsense’ spoken on behalf of vested interested in the Courts and the legal profession. Given that the concerns expressed were about the attitudes of the Government this did not inspire confidence.

This mixed result could have been avoided by making the amendment process more open. If members of the public (including lawyers and anyone else interested) had been allowed to participate in the formulation of the text of the amendments, rather than being presented with a badly written fait accompli at the eleventh hour, the resulting text of both amendments would likely have been better and the result for the Government and for the Irish Constitution more favourable. With any luck, these lessons will be taken on board for the Government’s promised, but still elusive, Constitutional Convention.

* This was proposed as a means of overruling a Supreme Court decision that restricted the power of the Oireachtas (parliament) to hold inquiries. In the Abbeylara decision (Maquire v. Ardagh [2002] IESC 21) the Supreme Court held that the Oireachtas has no inherent power to conduct inquiries that make adverse findings of fact against individuals, and can only do so where a specific power is conferred by statute or the Constitution.

The text of the potential ouster clause ran: ‘It shall be for the House or Houses concerned to determine with due regard to the principles of fair procedures, the appropriate balance between the rights of persons and the public interest for the purposes of ensuring an effective inquiry’.

When the supreme court won’t hear

Supreme court justices are caught up in a new age of accountability. In their judgments, they increasingly find themselves holding the government and other public bodies to account, as they decide more public law cases. On the other hand, they are often criticised as ‘unaccountable’ – an example being Michael Howard’s reaction to a court challenge to government cuts. In a similar vein, David Cameron said he was ‘appalled‘ by the court’s decision about the sex offenders register. The legitimacy of the court was also a factor in the Scottish government’s threat to withhold its funding after the decision overturning the verdict in a Scottish murder case.

Does this suggest that the supreme court has an accountability problem? In many ways, our top judges are more accountable than ever. True, they are not subject to ‘hard’ accountability. They do not have to answer for their decisions in front of political opponents, or lose their jobs if their decisions prove unpopular. They are subject instead to ‘soft’ or ‘narrative’ accountability that requires them to explain their judgments and the way the court conducts its business.

For our top judges, it has involved a big change, of practice and of culture. The law lords were tucked away inside the Palace of Westminster, with staff provided by parliament, no proper annual report or accounts, and a minimal website. The supreme court operates under the public gaze. Decisions are easily accessible on the court’s website, with summaries for those not legally qualified. The court is televised, with TV streaming hearings and judgments via the Sky News website. Criteria for appointment to the court include the ‘willingness to participate in the wider representational role of a justice’, by delivering lectures and talking to conferences. Some of the justices have featured in TV documentaries.

The chief executive’s annual report and accounts give an account to parliament and the public of its activities and how the court has spent its budget. ‘Soft’ accountability has fashioned a more transparent court that is much more energetic in giving an account of its judicial business and day-to-day operations, with 238,000 visitors to the court’s website last year.

But there are limits to the court’s quest for openness. The reasons for refusing permission to appeal to the court remain brief and formulaic. Yet leave to appeal matters, because two out of three applications are refused. Applications for leave are generally considered by a panel of three justices. Some practitioners have called for fuller reasons to be given since this could help avoid futile applications in future. True, the justices consider what information to convey to the parties when permission is refused, but this falls significantly short of the practice in some other top courts. In New Zealand, for example, there is a statutory requirement to give reasons for refusal to grant leave, with these reasons often running to over a page.

Another controversial issue is how the court determines the size and composition of the panels that hear cases. Composition matters, because a panel that decides a case by 3:2 might have come to a different result with a different set of justices. The court sits in panels of five, seven or nine justices. The factors determining how many hear particular cases are unclear (beyond the obvious concerns that panels have relevant expertise, as well as the need to ensure an even workload across the twelve justices). In its first year, the court sat in panels with more than five justices in 18 out of 68 cases (as compared with only three panels with five or more law lords in 2006-2009). As the trend is towards greater use of larger panels, the court needs to clarify the criteria used to determine the size and selection of panels.

The court’s decisions extend to many aspects of our lives. In the last two years, landmark decisions have touched on such matters as faith schools, bank charges, prenuptial agreements and control orders. These decisions have far-reaching policy implications, sometimes upsetting the policy preferences of elected politicians. True, parliament can legislate to reverse decisions of the court, and from time to time does so. But, in practice, the buck often stops with the justices. So it matters who they are and how they come to be appointed.

Only the most difficult and important legal questions fall to be decided by the court. There are often no clear-cut answers. Sometimes the law is unclear, and so the justices must choose between competing interpretations. Sometimes there is no law applicable, and the justices expound a new law. Because there are no clear-cut answers, and because different judges are influenced by different views on the judicial role, the identity of individual justices matters. Appointing one person rather than another influences the result of the questions decided by the court.

Under the new appointment arrangements in the Constitutional Reform Act 2005 the president and vice-president of the supreme court have an important say, since they are two out of five members on the body which selects new justices. Some have argued that while they should certainly be consulted, they should not be directly involved in selecting other members of the court, lest the court become a self-selecting oligarchy.

Others have suggested involving parliament, with appointees appearing before a parliamentary committee to explain their background and broad approach to judging. MPs are increasingly keen to scrutinise public appointments, with some 60 of the most important now subject to an appearance before the relevant select committee before the appointment is confirmed. But there seems less parliamentary interest in scrutinising the appointment of judges, and most candidates for judicial office recoil in horror at the prospect of a pre-appointment scrutiny hearing. Senior judges like the lord chief justice make regular appearances before select committees to explain the work of the courts, but parliamentary involvement in senior judicial appointments is still seen as a step too far.

This piece first appeared in the Guardian

Judicial Independence webpage

Judicial views on the selection process for senior judges

[Posted on behalf of Kate Malleson]

The President of the Supreme Court, Lord Phillips, gave evidence to the House of Lords Constitution Committee’s 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 now, therefore looks like an area in which the Committee is likely to recommend reform.

The last surprise from 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.