A more diverse judiciary would increase confidence in the justice system. That was the conclusion of the House of Lords Constitution Committee in a report published on 28 March 2012. It also said “we support the current appointments model and believe that no fundamental changes should be made”.
Yet it is clear that the current appointments model is not delivering a diverse judiciary, and nowhere is this most evident than in the highest court in the land, the Supreme Court.
The Constitutional Reform Act 2005 created the Supreme Court to replace the judicial role of the House of Lords as the United Kingdom’s highest and final appeal court. It also established Judicial Appointments Commissions (there are separate JACs for England and Wales, Scotland , and Northern Ireland) to appoint judges for all other courts.
Appointment is required to be solely on merit,while at the same time having regard to the need to encourage diversity. Yet the proportion of women and ethnic minorities in the judiciary in England and Wales falls far short of their proportion in the population as a whole. Only 5 of the 54 most senior judges are women and in the Supreme Court only one out of 12. None of the 54 is black. And the majority are privately and Oxbridge educated.
The Lords committee asserts that “merit must continue to be the sole criterion for appointment.” This may seem blindingly obvious, but it is a hopelessly inadequate guide. As Lord Goldsmith told the committee: “the problem with this whole debate is the assumption that we know what merit is”. A succession of distinguished witnesses failed to provide a definition. Lord Falconer said “merit is regarded as co-terminous with having been a junior and a QC at the Bar for 30 years”. Lord McNally said of merit “it is often deployed by people who, when you scratch the surface, are really talking about 'chaps like us’”.
Everything depends on the characteristics and pre-conceptions of the selectors. Lord Neuberger, Master of the Rolls, told the committee: “The main problem is the cast of mind. Most of us think of a judge as a white, probably public school man. We have all got that problem.”
The House of Lords report is disappointing in another respect. It fails to recognise the particular qualities required of those appointed to the Supreme Court, whose distinct constitutional role is increasingly emphasised by a number of recent developments, especially the pressure on the European Court of Human Rights to give greater latitude to national courts to decide how to apply the Human Rights Convention.
A practical reason for excluding the Supreme Court from the responsibility of the JAC is that the Supreme Court has jurisdiction over the whole United Kingdom. The 2005 Act provided instead for ad hoc commissions to be formed to carry out each separate selection of a Supreme Court judge. Appointed by the Lord Chancellor , the commissions must consult a long list of senior judges and others before recommending a candidate for appointment. Here too the Act requires selection to be “on merit.” Even more than for appointments at lower levels, lawyers are dominant in the selection process. The initial members of the Supreme Court were the former Lords of Appeal and thereafter eligibility is restricted to those who have already held high judicial office or have practised as barrister or solicitor for at least 15 years.
Diversity is especially important for the Supreme Court. Its broad constitutional responsibility for upholding the rule of law and ensuring that the government fulfils its legal obligations demands a broad understanding and acknowledgement of the court’s constitutional role, as well as diversity in background and experience..
The Supreme Court is a conscious replica of the Supreme Court of the United States. The rights protected by the European Convention and the Human Rights Act are very similar to those in the US constitution and the Supreme Court of the United Kingdom can declare legislation incompatible with those rights. In practice there is very little difference between that power and the more direct power of the US court to invalidate unconstitutional legislation.
The first new appointment to the UK Supreme Court , that of Jonathan Sumption QC, is controversial. Unusually, he comes direct from the Bar. He thus has limited judicial experience, though he has the advantage of having been a member of the JAC. As a wealthy white male educated at Eton and Oxford, he could hardly score lower on the diversity test. He is widely regarded as a man of outstanding intellectual ability and at the Bar was a pre-eminent advocate. He is also a very distinguished mediaeval historian, whose multi-volume work – still incomplete – on the Hundred Years War has been placed on the same scholarly pedestal as Steven Runciman’s celebrated History of the Crusades.
Beyond his professional and academic achievements, he has attracted media interest for two reasons which have fuelled the controversy over his appointment. The first is the high fees demanded for his services. In 2001 he admitted in a letter to the Guardian to earning £1.6 million in a single year – as much, it was said at the time, as six high court judges and 69 refuse workers put together. His justification was “that is what my services are worth to the people who pay for them, all of whom are hard-nosed professionals spending their own money”. This is unconvincing: his corporate and governmental clients were not spending their own money, they were spending the money of their shareholders or the taxpayer. In the same letter he put himself on a level with media stars such as Charlotte Church and Sean Connery and referred to his “puny 1.6 million” compared with the earnings of Bernie Ecclestone. Charging whatever clients are prepared to pay may be the norm in commerce but in a privileged profession some restraint is surely called for. It is also damaging to the public in general because it pushes up charging levels for all.
Unusually Lord Sumption failed to take up his seat on the Supreme Court until several months after his appointment. He had been briefed to appear for the Russian oligarch Roman Abramovitch in a High court action not due to be heard until November 2011. The press variously reported his fee to be between £3 million and £10 million. Before Sumption it was taken for granted that a judicial promotion meant promptly handing over outstanding work to others. There could have been no shortage of competent candidates to take his place.
High fees and affluence among senior barristers are par for the course. It would be hard to require diversity in wealth among judicial appointees even though the combination of wealth and a private education within the tradition of the English upper class has given our judicial system a culture and style remote from the lives of most of its clients or customers. Nevertheless, the detachment from the concerns of ordinary life which these factors create ought to be an element in the selection process.
The second source of concern in the appointment of Lord Sumption is, however, more substantial. It is his view of the role of the Supreme Court which he has expounded in his F.A.Mann lecture “Judicial and Political Decision-Making: the Uncertain Boundary” delivered on 9th November 2011, several months after his appointment but before he had occupied his seat on the court. In his lecture he considers “how far can judicial review go before it trespasses on the proper function of government and the legislature in a democracy?” It is an elegantly written and nuanced presentation but the essence of his argument is that judges have overstepped the boundary between the determination of legal questions and intrusion into the determination of policy issues, which are the preserve of a democratically elected government.
His views carry disturbing echoes of the conflict which has dogged the Supreme Court of the United States between the “conservative” judges generally appointed by Republican presidents and “liberal” judges appointed by Democrats. The divide is ostensibly between judicial activism and restraint. Lord Sumption places himself firmly in the latter camp. His lecture was a scarcely veiled attack on his soon to be judicial colleagues for interfering in politics.
It brought forth a prompt and trenchant rebuttal by the very experienced former judge Sir Stephen Sedley, who retired last year after 14 years of distinguished service on the High Court bench and in the Court of Appeal. Sumption had given a number of examples of cases where he claimed the courts had trespassed on matters of policy. Sir Stephen pointed out that Lord Sumption had made a fundamental error by conflating government and legislature. Whereas courts must be scrupulous to comply with the requirements of legislation, they have an equal duty to oversee and apply public law controls to the actions or failures of the executive.
In two of the cases cited by Lord Sumption in support of his claim of judicial meddling in policy matters, I happened to be the claimant’s solicitor. In the Pergau Dam case, the World Development Movement successfully challenged the use of development funds to finance a Malaysian project which did not satisfy the requirements of the statute under which the funds were to be expended. The project was supported –improperly in the view of the court – not as a genuine development scheme but as a quid pro quo for a weapons contract. The court was not subverting a valid policy decision, but striking down ultra vires action by the executive. By doing so it sought to restore to the development budget funds wrongly diverted from it.
In ex parte Witham, the court held that a regulation which denied the waiver of court fees to a litigant in person who could not afford to pay them exceeded the authority of the statute under which the regulation was made. The court removed the barrier to his access to justice.
Lord Sumption’s approach would allow such injustices to remain without remedy, in order to satisfy an abstract notion of democratic responsibility. One is reminded of Thomas Paine’s comment, when pointing out that Edmund Burke’s critique of the French Revolution contained no hint of concern for the wretched victims of the former regime: “he pities the plumage and forgets the dying bird.” The courts surely have an overriding duty to do justice in the case before them, unless legislation clearly prevents them.
Sir Stephen notes that someone in the audience at Lord Sumption’s lecture remarked afterwards: “At last we have our own Scalia”. Judge Antonin Scalia of the US Supreme Court is the high priest of judicial restraint. Justice Scalia and his conservative colleagues recently applied their abstentionist doctrine to defeat legislation controlling election expenses. They boosted the political power of the rich over the poor by allowing them to provide their favoured candidates with unlimited campaign funding.
Lord Sumption makes clear in his lecture that his concern about what he calls “a natural tension between democracy and some aspects of judicial review” only arises in a minority of public law cases. The views expressed in his lecture may have little or no impact on the decisions of the Supreme Court of which he is now a member.
Yet the controversy suggests that achieving diversity may require more work than is envisaged by the Lords Constitution Committee or the Ministry of Justice. In many countries there is much greater transparency and public involvement in the selection of the most senior judges. In the US and South Africa the candidates are rigorously interrogated in public hearings. The Lords committee rightly rejected the idea of parliamentary confirmation hearings. The US system is not a good model in this respect because the power of the President to nominate and of politicians to conduct the public hearings has resulted in a high level of political partisanship among those appointed.
Change cannot come quickly because access to the basic legal qualifications has been skewed for so long in favour of privileged groups. But public hearings conducted by a selection panel with adequate lay membership, rather than by politicians, would reveal the attitudes of candidates which they would bring to their role and would provide greater reassurance that the diversity agenda was being genuinely implemented.