Parliament’s role in hiring and firing judges

I mentioned, quite a while ago now, when I posted about the report advocating parliament having an increased role in public appointments that there was another report out soon examining parliament’s role in hiring and firing judges in England and Wales (Scotland determines its own arrangements in the Scottish Parliament).

Well that report (Judicial Appointments) is now out – it’s by the House of Lords Select Committee on the Constitution chaired by Lady Jay of Paddington, a former Leader of the House of Lords and daughter of the late former prime minister Lord (James) Callaghan of Cardiff.

How does it work now?

Judges in England and Wales are appointed by the Queen on the recommendation of the prime minister on the advice of the Lord Chancellor on the proposal of the Judicial Appointments Commission. So that’s clear.

It’s a little more complex than that actually: the Judicial Appointments Commission, a mixture of judges, barristers, solicitors and lay-people, advertises for any senior judicial roles (High Court and above) that are going and all applicants have to go through a fairly rigorous process of mock trials, essay-writing and interviews. This will all take months – that’s one of the complaints against the system. Once a proposal for the post is decided on by vote of the commission, the Lord Chancellor and Secretary of State for Justice has to either approve the choice of the commission or veto it if he (and it has only ever been a he) thinks the candidate isn’t suitable or to ask the commission to reconsider if he thinks there’s not enough evidence for, or there is evidence against, the candidate. If the Lord Chancellor uses the veto, he must write to the Commission publicly stating his reasons why and the commission must select someone else. If he asks them to reconsider, the commission can select whoever they want so long as they haven’t already been rejected. The Queen and prime minister’s role in all this is strictly formal.

It’s also slightly different for the Supreme Court. A specially convened Appointments Commission is appointed comprised of the president and deputy president of the Supreme Court and the chairs of the judicial appointment commissions/board in England and Wales, Scotland, and Northern Ireland. The Lord Chancellor still has the opportunity to veto or ask for reconsideration, but ultimately the Lord Chancellor never gets a look-in in recommending a putative Justice of the Supreme Court – that formality falls to the prime minister.

There is no pre-appointment hearing by parliament and it’s a rare day that judges meet with parliamentarians, the main occasions being with the Commons’ Justice Committee and the Lords’ Constitution Committee.

Judges can only be removed from office by an Address (the capital A is important I’m told) presented to Her Majesty by both Houses of Parliament.

What’s the history?

Understandably, this is a rather arcane subject, but in essence: The Sovereign is the fount of all justice. Back in the days after the Norman invasion, the King’s Courts of Justice operated out of the Curia Regis, or the King’s Council. The King himself originally handed down judgments but that was delegated to appointed judges in the 12th century. Needless to say, there was no fair merit-based selection procedure! They were rather literally judges serving at His Majesty’s pleasure. In the 13th century, the Lord Chancellor became in effect, the most senior judge apart from the King himself.

As the King’s Council and the House of Lords became distinct from each other in the 14th and 15th  centuries, it remained technically the highest court in the land and asserted itself as such in ensuing centuries. Peerages, and judgeships, were still entirely in the gift of the Crown although peers could not be removed from parliament for reaching an adverse judgment like judges could.

The Act of Settlement of 1701 was the turning point for the firing of judges – after that point, judges could only be removed from office by a joint Address of both Houses. A succession of uninterested King Georges led to a First Lord of the Treasury taking over the role traditionally played by the King in relation to hiring judges even if the Lord Chancellor had the day-to-day role as the head of the judiciary in appointing them.

By 1876, the lack of peers with judicial experience led to the Appellate Jurisdiction Act and the appointing of judges to the House of Lords as what were termed law lords, or more formally Lords of Appeal in Ordinary*. These were often abused by governments who had free reign to give peerages and many judges at this time and before were ex-politicians. As late as the 1950’s, it was within the gift of the prime minister to give a retiring MP a judgeship. By this point, only law lords voted on judicial decisions in the House of Lords.

This changed, though the specific reasons why elude me, and since the 1950’s the judiciary has become highly professional and independent. During this time, all judgeships were given by the Lord Chancellor who used what were termed ‘secret soundings’ which was essentially sounding out various senior judges as to whom they thought was appropriate to be promoted. The Lord Chancellor would then give the proverbial ‘tap on the shoulder’ and in those days it was simply not done to refuse.

In 2005 it all changed. The creation of the Judicial Appointments Commission via the Constitutional Reform Act was mostly heralded as a good step forward, though many had and still have reservations about speed, cost and diversity. The House of Lords lost its judicial capacity which was given to a new Supreme Court and the law lords moved across Parliament Square to their new Supreme Court.

What do they do elsewhere?

The United States has many and varied ways of appointing judges. In some states such as Nevada judges are elected, though without a party identifier; other like Texas have a partisan election for judges. In others, such as California, they are appointed by the Governor and confirmed by the state congress. Others still select them based on merit like Florida and are subject to ‘retention elections’ to stay in office after each term of appointment. Federally, all judges are appointed by the President but all selections are confirmed by the Senate. As with all Senate confirmations, partisan politics plays a big role and it’s all too easy for procedural manoeuvres to block nominations, leading to a massive backlog and a judicial system in crisis. Reasonably often, nominations that have been blocked go through later on with no opposition.

In Scotland, judges are appointed by the first minister on the recommendation of the non-statutory Judicial Appointments Board after consultation with the head of the Scottish Judiciary, the Lord President of the Court of Session. The board has been criticised for not following standards for appointment to public bodies. There is no parliamentary input into appointing judges.

Judges in Japan are selected by the Supreme Court from the ranks of the career judiciary. To get into the judiciary, you need to pass an open competition amongst law graduates. More uniquely, the Japanese Supreme Court is only a third judges and the rest are practising legal professionals and a professor and it is solely appointed by the Emperor on the advice of the Cabinet. The members of the Supreme Court are confirmed at ten-yearly intervals at the general elections. The Diet does not appear to have a role in this.

Hungary’s President of the Supreme Court is elected by two-thirds of parliament on recommendation of the President of the Republic. The National Council of Judges appoints presiding judges of all courts and then the presiding judges interview candidates for their own courts, all officially appointed by the President. All judges have a three-year probationary period before being indefinitely appointed by the presiding judge.

Indian judges are, similarly to the situation in the UK pre-2005, effectively self-selected by the judiciary and approved by the government. It’s also similar to the UK in that there is no career judiciary and appointment is until retirement. To remove judges, the President must receive a petition from both Houses with the support of two-thirds of the members in each. However, the power to move judges is in the government’s power, as is a degree of influence in the final choice of judges to be promoted. Parliament has no role.

Spanish judges are a mix of career judges and legal professionals; there is an open competition for law graduates to get appointed to the bench and it’s very rigorous: 360 subjects divided into seven groups of materials. The appointment of judges is done by a selection committee of various judicial figures from different areas and sides of the process alongside a government representative. Judges are appointed until retirement and government can’t move or fire them; that’s the job of the General Council of the Judiciary. The General Courts (parliament) don’t really have a say.

South Africa, as a common law country, appoints its judges solely from the ranks of legal professionals. There is a Judicial Services Commission which has control over selection of the judiciary comprised of judges, lawyers, an academic, some government nominees and just under half is composed of parliamentary nominees! Finally, a role for parliament. This commission appoints judges autonomously below the Supreme and Constitutional Courts where the President appoints them after consulting this commission. Judges serve a non-renewable twelve year term, though there’s some flexibility in that to bring it down to ten and up to fifteen. Removing judges requires the President to have a two-thirds vote in parliament in favour of removal and a recommendation of dismissal from the Judicial Services Commission.

The senior Canadian judiciary is appointed by the Governor General on behalf of the Queen by recommendation of the cabinet based on a proposal given by the Minister of Justice or prime minister (for chief justices) based on an advisory list from one of many judicial advisory committees currently composed of three government MPs and two opposition ones. Can you tell it’s a Commonwealth Realm? An ad-hoc committee in the House of Commons holds hearings for Supreme Court candidates as a sort-of ‘getting to know you’ exercise for the nation but the proceedings can be less than dignified at times. Judges are appointed from the legal professions.

Australian senior judges are appointed by the Governor-General-in-Council with a degree of consultation with state attorney-generals. The process is highly centralised – the Minister of Justice’s own assistants do the preparatory work to find the judges which should be appointed. Judges are again appointed from the legal professions. There’s no parliamentary input into the process at all.

What’s the government think?

They want the Lord Chief Justice to take over the role of appointing judges below the High Court (with a veto), but above the High Court they want the Lord Chancellor to be consulted on all appointments.

At the very top, they want the Lord Chancellor to be on the judicial appointments commission for the Lord Chief Justice and President of the Supreme Court while losing his veto in the process. These panels would then be chaired by the chair of the judicial appointments commission of either England and Wales (for the Lord Chief Justice) or a lay member of one of the commissions (for the president of the supreme court).

They want the creation of odd-numbered selection panels to do away with the casting vote,  and the Lord Chief Justice to chair selection panels for the heads of division.

They aim to reduce the number of justices of the supreme court on the supreme court selection panel and replace one with a senior judge from the territorial jurisdictions of England and Wales, Northern Ireland and Scotland.

They also want to cut out the prime minister entirely from the appointments process, with the Lord Chancellor recommending an appointment to the Queen directly.

What do the committee propose?

They propose that the  Lord Chief Justice takes over appointing judges from below the High Court with a review over whether High Court appointments should be transferred too in three-to-five years.

They reject shortlists, instead saying that one name should be provided for appointment for the Lord Chancellor to accept, reject or ask for reconsideration.

They are against pre-appointment or post-appointment hearings as dangerous to judicial independence, and similarly against parliamentarians or the Lord Chancellor sitting on the judicial appointments commission for any appointments, instead expressing confidence in the mixture of lay- and judicial members.They encourage parliamentarians to exercise oversight over the process as a whole rather than individual judge appointments.

They agree that the chair of the judicial appointments commission should chair the appointments commission for the Lord Chief Justice and that the President and Deputy President of the Supreme Court, and that the President and Deputy President should not be required to sit on the commission appointing their successors.

They do not wish the Lord Chancellor to have the power to issue directions to the judicial appointments commission and wish to leave the door open to make the commission responsible to parliament rather than the Lord Chancellor should the independence of the judiciary be threatened.

In terms of other changes to the judicial appointments commission, they seek to ensure the commission is always an odd number so that a casting vote can be abolished, ensure that senior members of the judiciary (including two supreme court justices and the Lord Chief Justice of England and Wales) should be on the commission for supreme court justices, as should the chairs of the three judicial appointments commissions of the three judicial jurisdictions, the number of commissioners should be reduced and set in statute with an appropriate divide between judicial and lay members, the commission should take over appointing deputy high court judges, and that any non-legally qualified tribunal members appointed outside the commission should still have standards set by the commission.

They want greater emphasis to be put on a judicial career with a formal appraisal system, a  higher retirement age (75) for Court of Appeal judges and above than for the rest (70) to ensure talent isn’t thrown away at the top while it’s still useful.

How would it be done?

Much of this would require primary legislation, and there is meant to be a bill in the next Queen’s Speech in May about this and unless the government accepts quite a lot of the committee’s recommendations about judicial independence there may be a bit of a fight over it. Some of the details will likely be done by secondary legislation to be approved by parliament.

*Here, the ‘in ordinary’ part actually means they were paid for their work as opposed to them just being a volunteer. That would have perhaps been a tad demeaning to the country’s top judges…
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