Commentary – Vacancies at the Supreme Court

Sophie Turenne – Dr Sophie Turenne is the Neil Allam/Clifford Chance University Lecturer at the Cambridge Faculty of Law and a fellow of Murray Edwards College, Cambridge.

“A judiciary is only as good as the people appointed to its most senior positions”. With these words, a Judicial Appointments Process Inquiry was launched on 13 May 2011 by the House of Lords Constitution Committee, a few weeks after the appointment of two new Justices at the Supreme Court, Jonathan Sumption QC and Lord Justice Wilson. The Committee expressly refers to the increased role of the judiciary, notably because of the Human Rights Act 1998, and the need to evaluate the changes in the judicial appointments process introduced by the Constitutional Reform Act 2005 (hereafter “CRA”). One may remember that the CRA transferred judicial selection to an independent Commission (the Judicial Appointments Commission for England and Wales, hereafter “JAC”), in order to ensure a non-executive bias in the selection process. It also aimed to increase diversity within the judiciary, on the ground that the merit criterion can be properly satisfied through encouraging diversity. The question remains how we should understand “merit” as being the principal selection criterion, and who is best placed to determine merit?

I. The Composition of the Highest Court in the Land

While merit has been the “touchstone for appointability”(1) since the 1860s, its interpretation did not exclude improper political considerations until the Lord Chancellorships of Lords Lore- burn and Haldane.(2) By the second half of the 20th century, however, high standards in (non-political) appointments to the House of Lords were achieved through the practice of “secret soundings”, following consultations with existing judges and the Bar, based on evidence supplied by peers as to the candidate’s abilities and qualities.(3) Candidates would be encouraged to apply by a “tap on a shoulder” from the Lord Chancellor. But with secret soundings, no one can assess whether a rigorous definition of merit has been applied in one or in all appointments. Besides, although the consultation process was praised for appointing individuals on merit, it was nonetheless also perceived as encouraging self-replication, with judges being “overwhelmingly white, male, and from a narrow social and educational background”.(4) Indeed, a 2003 analysis still applies to the Court, if one excludes only Lady Hale, the first woman appointed at the House of Lords in 2004: “the Law Lords could not claim to represent or know about a wide section of the population, and most of them came from similar backgrounds to forty years ago”.(5) There is still no member of an

• 1. A. Clarke, “How Should Judges Be Selected”, The Honourable Society of the Middle Temple,Pan-African Legal Conference Mauritius 2009.
• 2. R. Stevens, The English Judges: Their Role in the Changing Constitution (Oxford 2002), at pp. 12-21.
• 3. See A. Clarke, op.cit. The statutory maximum number of judges was gradually increased to 12 (S.I. 1994/3217), but the number of law lords at any one time between 1982 and 2010 varied between eight and 11. See M. Beloff, “The End of the Twentieth Century: The House of Lords 1982–2000” in L.Blom-Cooper, B. Dickson and G. Drewry (eds.), The Judicial House of Lords (Oxford 2009), at p. 232.
• 4. Department for Constitutional Affairs Consultation Paper CP 10/03, Constitutional Reform: A New Way of Appointing Judges, at [27].
• 5. A. Sampson, Who runs this place: The Anatomy of Britain in the 21st Century (London 2005), at p. 183, cited by M. Beloff, op.cit., at p. 233.

ethnic minority in the highest court of the Land. Such lack of a fair reflection of society has be- come the judiciary’s Achilles’ heel,(6) as it appears to be the main thing that lay persons know about our judges.

II. The Appointment Process

While greater transparency and clear criteria for appointments were progressively introduced from 1997 onwards, the appointment system introduced by the CRA constitutes a significant constitutional change. It has become unacceptable for judicial appointments to be perceived to be entirely in the hands of the Lord Chancellor,(7) and the selection process today is formally autonomous, although the Lord Chancellor retains a residual role in approving recommendations for appointments.(8) But it is for the JAC to make those recommendations and this largely removes the perceived ‘patronage’ element, bringing greater transparency and professionalism in the appointment method.(9)

The appointment process for the Supreme Court of the United Kingdom, however, designed by Lord Bingham in consultation with Lord Falconer, relies specifically upon an ad hoc Commission of five members, created for each round of appointment (Sch. 8 CRA). It is chaired by the President of the Court and includes the Deputy President, with three other members drawn from the JAC in each of the three UK jurisdictions.10 Supreme Court appointments remain distinctly subject to some consultation, this time as a statutory requirement under the CRA (s.27). Senior judges are consulted by the Commission, creating potential conflicts of interests since they might themselves have applied for those posts.(11) The Lord Chancellor, the First Minister in Scotland and the First Minister for Wales, the Secretary of State for Northern Ireland, are also to be consulted (s. 27 CRA) and again the appointment needs to be approved by the Lord Chancellor.

III. The Sumption Saga

In early 2009, when the Judicial committee to the House of Lords (soon to be rebranded and rehoused as a Supreme Court, after 1st October 2009) sought a replacement to Lord Scott, that appointment system introduced by the CRA 2005 did not yet apply to them. The appointment was thus still in the hands of the Lord Chancellor. Jonathan Sumption QC was privately told that he would be the next appointee. His intellect is praised both at the Bar and on the bench. But as an old Etonian and a former Oxford don, his appointment, which would have been made far from public debate or scrutiny, without even anyone else being given the opportunity to apply, would have given the impression that the spirit of the old regime lived on. It might be mentioned that Sumption later recognised that the defects of the outdated consultation process had become more apparent to the public than its pragmatic merits.(12)

• 6. K. Malleson, in K. Malleson and P. Russell (eds.), Appointing Judges in an Age of Judicial Power: Critical Perspectives from around the World (Toronto 2005), at p. 42.
• 7. See Department of Constitutional Affairs, op.cit., Foreword.
• 8. The Lord Chancellor receives a report and a single recommendation, which he can accept, reject or invite reconsideration of, CRA s. 26(3), 70, 71, 73 and 90. See the then Lord Chancellor Jack Straw asking for reconsideration of the panel’s recommendation, leading to the delayed appointment of Sir Nicholas Wall as Head of Family Division, Fr. Gibbs, “Sir Nicholas Wall: a doughty fighter for family justice who will speak up”, Times, 8 April 2010.
• 9. J. Bell, Judiciaries within Europe (Cambridge 2006), at p. 313. 10 CRA s. 27.
• 10. CRA Schedule 8.
• 11. J. Sumption, “The Constitutional Reform Act 2005” in Judicial Appointments: Balancing Independence, Accountability and Legitimacy (2010), at p. 42.

But embarrassingly, the prospect of Sumption’s appointment was turned into a “judicial bunfight”.(13) Lord Mance argued that, although the new arrangements were not in force yet, the then Lord Chancellor (Jack Straw) could opt to delegate his appointment powers to a panel (which would mimic the panel which would soon be given the power to make recommendations), but only for the new law lords. The Lord Chancellor acceded to this and requested a process of recommendation and appointment. Sumption applied, this time in an open competition. However he failed to be shortlisted and in due course Lord Clarke was appointed instead.

This was the result, it seems, of some senior judges’ views that Sumption lacked the appellate court experience which was a traditional milestone of the Law Lords’ career (with the exception of Lords Reid and Lord Radcliffe who served between 1948-1976 and 1949-1964 respectively, without having previously been judges). Nonetheless, Jonathan Sumption reapplied at the next round of appointment, was recommended by the five member panel, and appointed in May 2011, together with Lord Justice Wilson. The new appointment process, then, led to exactly the same result as that which would have resulted from the old regime. Since Sumption had not gained extra significant judicial experience between the two applications, is his appointment a suggestion of old wine in new bottles,(14) albeit in this case with an unplanned delay in transport? What also does it say of the consistency of the five member panels, that he should not have been shortlisted in 2009 but recommended for appointment in 2011?

Sumption’s appointment demonstrates that the weight given to academic and intellectual ability might depend upon the judicial role that is being sought. With respect to selection for the Supreme Court, this is particularly weighty on account of its relevance to the development of general principles. Further, on that basis, a legal academic or law commissioner, unused to litigation and the conduct of trials, could be appointed to the appellate bench more easily than to a first instance bench.(15) At first instance, trial management is much the order of the day and the academic-turned judge may find that the application of the principles with which he is familiar becomes unexpectedly messy in litigation where the alleged facts are often changing during the process of the trial. Opening the pool to those without such full-time judicial experience, but with some exceptional legal ability, follows Parliament’s intention to widen the selection criteria at all levels, with the aim of increasing diversity within the judiciary.(16) Sumption’s appointment, then, makes the point that merit is contextually determined:(17) certain criteria can be given greater weight depending on the judicial function exercised, provided that they are publicly known and accepted as proper criteria for selection.

IV. What Role Should Parliament Have in the Appointment of Judges?

The Sumption saga will give renewed impetus to those who believe that the process of Supreme Court appointments should be reconsidered. While the Supreme Court appointment system enhances the protection from partisan politics, it falls short of constituting a corporate process of appointments. It has been described as the ‘least accountable’ system in the common law world because of the lack of elected politicians in the commission’s membership, and the lack of devices

• 13. Frances Gibbs, “Supreme Ambition, Jealousy and Outrage”, Times, 4 February 2010.
• 14. A. Paterson, “The Scottish Judicial Appointments Board: New Wine in Old Bottles?” in K. Malleson and P. Russell (eds.), op.cit., at p. 13.
• 15. See note 1 above.
• 16. S. 61-62, sch. 12-13 CRA. The JAC took over responsibility for judicial appointments in April 2006. See the criteria for appointment in CRA s. 63-64: merit (s. 63(2)) and good character (s. 63(3)), with “regard to the need to encourage diversity in the range of persons available for selection for appointments” (s. 64).
• 17. A. Paterson, in K. Malleson and P. Russell (eds.), op.cit., at p. 14-15; K. Malleson, “Rethinking the Merit Principle in Judicial Selection” (2006) 33 Journal of Law and Society 126.

to enhance transparency.(18) It is arguable that some form of parliamentary involvement in the appointment process of Supreme Court Justices would generate a greater political legitimacy of the Supreme Court. This would appear desirable in a context of expanded review of executive and legislative action.

But confirmation hearings have been rejected by the Joint Select Committee in 2008,(19) on the basis that the balance achieved under the 2005 CRA made further reforms of the appointment process premature,(20) Concerns were expressed about the risk of politicising the judicial appointments process. It has also been argued that “the involvement of Parliament would add little, if any, value to the process, be a drain on, or subject to, parliamentary time and resources, and be liable to delay the overall appointments process”.

One might also question the gains obtained by confirmation hearings. Consider the American President’s power to select Supreme Court justices, which is exercised with the “advice and consent” of the Senate. In the summer of 2010, for four days, Sonia Sotomayor answered questions from the Senate Judiciary Committee, before her nomination was subjected to a vote in the Senate. The New York Times thus commented “Despite 583 questions from senators amid wall-to wall news media coverage, her hearing may prove to be as notable for what the country did not learn about her as much as for what it did”.(22) This would support the view that her appointment had been secured during the consultation that must have preceded the candidate’s nomination, in a way which may not be too dissimilar to the consultation process for appointments to the highest court of the UK. There is one key difference between the two processes, though, which is that the American legislature is part of the consultation process. It might then be argued that, in our con- text, the Westminster system would place the confirmation hearings in the hands of the executive, as it forms the dominant part of the legislature.(23)

However, the public understanding of the appointment process would still be improved, and the public may indeed become more interested in learning of the powers of the Supreme Court. That would give the media an extra opportunity to educate the public about issues of legal policy, such as judges’ approaches to the scope of review under the HRA, which might be thought to act as a sort of counterbalance to the continual feeding of inaccurate information from some tabloid newspapers.

An alternative way to engage the public in the Justices’ appointment while acknowledging the dangers of politicisation of confirmation hearings might be to introduce some parliamentary select committee holding post-appointment hearings of the judicial appointees.(24) Similarly, Parliament’s Treasury Select Committee has held post-appointmenthearings with the newly selected members of the Bank of England’s Monetary Policy Committee since 1997.

• 18. P. Russell, “Conclusion” in K. Malleson and P. Russell (eds.), op. cit., at pp. 430–431.
• 19. Constitutional Affairs Committee, Judicial Appointments and a Supreme Court, 2004, at pp. 27-28.
• 20. See the Joint Committee on the Draft Constitutional Renewal Bill, The Draft Constitutional Renewal Bill, Report, Vol. 1 (2008), at [164].
• 21. Ministry of Justice, The Governance of Britain: Analysis of Consultations (2008), Cm 7342-III, at at [175]. The deterrent effect of appointment hearings on potential candidates was also considered.
• 22. Cited by R. Smith, “Judging the Judges” (2009) 159 (7382) New Law Journal 1154.
• 23. A. Clarke, op.cit.
• 24. Ministry of Justice, Consultation Paper CP 25/07, The Governance of Britain: Judicial Appointments(2007) Cm. 7210, at p. 48; see also the House of Lords Select Committee on the Constitutional Reform Bill, Minutes of Evidence given by Robert Hazell (6 April 2004).

V. Conclusions

Whatever mechanism might be chosen, the challenge lies in not only developing a consistent view of “merit” but of communicating it to the public, whilst minimizing opportunities for political interference. We should await the outcome of the House of Lords’ Judicial Appointments Process Inquiry with interest.