House of Lords - Constitutional Reform Bill

Select Committee on Constitutional Reform Bill Written Evidence

Memorandum by Professor John Bell, QC (hon) FBA, University of Cambridge

CRITERIA FOR APPOINTMENT

Appointment should be based on merit, but merit should be conceived broadly. On the one hand, being a judge is a job, for which the priority criterion is professional expertise. On the other hand, a judge holds a public office, which carries responsibility as an organ of government. Now this requires different qualities for which should be identified by a range of non-professionals. The key to success in a judicial appointments system is the recognition of the relative importance of these two conceptions of the judicial role at different levels within the judicial hierarchy.

Even in assessing the "merits" of candidates for judging as a job, there is a clear role for the lay people. The work of the judge contains much routine. If we think of the work in the County Court, there is a regular flow of routine judicial business—divorces, bankruptcies, debt actions, possession actions. There is little of high policy, but a lot of work with great importance to the parties and those who depend on them. Deciding these matters, which are often uncontested, in a sensitive and professional manner is a demanding task. The main qualities required for the role would be expertise, sound judgment, and a good manner in dealing with the public. The idea of "merit" for appointment should go beyond mere technical legal expertise and assess these broader personality traits.

The function of the lay members is both to provide an assessment of these broader aspects of "merit" and to operate as an accountability mechanism whereby the professional lawyers have to justify explicitly their judgments about professional competence.

THE COMPOSITION OF THE JUDICIAL APPOINTMENTS COMMISSION

Based on study of different European Judicial Appointments Commissions, I would wish to argue (a) that lay members should be in a majority on the Commission, and (b) that their appointment should be linked firmly into the political process.

A New Way of Appointing Judges

In respect of every decision affecting the selection, recruitment, appointment, career progress or termination of office of a judge, the statute envisages the intervention of an authority independent of the executive and legislative powers within which at least one half of those who sit are judges elected by their peers following methods guaranteeing the widest representation of the judiciary.

This principle confuses judicial independence with judicial self-government. My analysis of "merit" makes it clear that lay people are just as competent as judges to assess many of the key features of merit. In addition, choices will be too conservative. Certainly, the evidence is that bodies which do have a substantial judicial presence tend to make appointments more frequently on the basis of seniority, than on strict merits. The Spanish Consejo del Poder Judicial has very few appointments which can be made on grounds other than seniority, and seniority is the principle consideration in French administrative and civil judicial appointments.

(b) In designing a judicial appointing body, there is a choice between having lay members as representatives of political society and having them as representatives of civil society. The Constitutional Reform Bill has taken the latter, more difficult route. Why do we want representatives of civil society, and what are the criteria and responsibilities of this role?

The lay members of most European judicial appointments commissions are nominated by Parliament or the Government. In Italy, they cannot be members of the Parliament, but must be law professors or advocates. In Spain, the lay members come directly from the Parliament, as in Germany and France. In Sweden, nomination to Tjänsteförslagsnämnden is by the Executive, as is appointment to the over-arching judicial agency, Domstolsväsendet. These bodies have operational independence of the politicians, but there is a clear line of legitimacy from the organs of political society. Our proposals have a route that really separates the appointing body from the political community, and without setting out any criteria for the qualifications required of the lay members. There is to be a procedure of public appointments by advertisement. But there are no criteria for appointment and no sense of where these people should come from. What exactly is this "civil society", which they are meant to represent? Whereas school governor nominations will come through political parties, there are no obvious routes of influence here. We have the sort of independent people who are governors of the BBC, but who, like them only have a reporting accountability to Parliament.

The notion of a public office brings with it a role in shaping the direction of society. This is "political" with a small "p". The way in which an individual would shape society ought to be held up to scrutiny, and those who have political responsibility are among those best placed to undertake such scrutiny. Most of the European judicial appointment institutions recognise this wider conception of politics.

The proposed role for the minister in the UK reflects a rather constrained place for politics. The minister exercises a veto, rather than a choice. This matches the German position, rather than the French, where it is the judicial appointments commission (Conseil supérieur de la magistrature) which exercises the veto power. All the same, there has first been a public list of eligibility which does determine who has potential to become a judge. Whether people are included on this list is something which can be (and is) challenged in the courts, and the choice of people for appointment from the list can equally be challenged. For instance, one French judge was able to challenge the appointment of a colleague to a particular regional court of appeal on the ground that the minister had failed to give sufficient weight to his interest in being closer to his family, which lived in that court of appeal area.[22] A German judge was able challenge (successfully) the nomination of a member of the Green party to the Bundesgerichtshof on the ground that he was better qualified (a view which was shared by the judges in the Bundesgerichtshof itself).[23] In my view, the availability of challenge to decisions either by the applicant or by disappointed colleagues is a sufficient safeguard against improper political decisions, rather than removing politicians altogether from the scene.

I think there is a too easy equation in the responses to the Consultation Paper of political considerations with dubious or improper motives. Concerns about systematic or individual pressure on judges by politicians are not hypothetical. At the same time, they do not preclude legitimate political questions about the direction in which a judge's exercise of power might take society. (Politics with a small "p".) In a divided society, there are different views about the way in which society should go. Having judges who are aware of these and even who reflect together a variety of tendencies in society may be one way in which judicial decisions can come to terms with the political dimensions of decisions. Most systems include politicians either as members of a judicial appointments commission, or as the nominators of members (and thus as ensuring some representation of different political tendencies).

European experience questions whether the exclusion of politicians from the judicial appointments commission really excludes political issues in appointments. Many legal systems have started off with a single judges' professional association, which represents all judges in discussions with government about terms and conditions of employment, as well as the work of the courts. But elections within the judiciary of members of a judicial appointments commission have caused divergences of viewpoint to surface within the judiciary. These are reflected in Italy by different "correnti" or currents of opinion, each of which succeeds in getting its members elected to the supreme judicial council.[24] In France and Spain, the single judges association has fragmented into several clearly political associations, which compete to obtain nominations.[25] On an election by proportional representation, the different judges' views are reflected. If there are underlying political questions about the role of judges in the direction of society, they will come out either directly by the involvement of politicians in scrutinising appointments or by the creation of "judicial politics". In brief, freedom from improper political interference in individual cases or in the career paths of particular judges does not necessarily justify banishing politicians from the whole process. Banishing politicians from the process does not banish political issues. They will surface in debate about reflecting different tendencies within the judiciary, and might be reflected in a role for associations of like-minded judges and lawyers who will seek to secure representation of their ideas in the judiciary through membership of the judicial appointments commission.

April 2004

22 See CE 6 August 2002, Ozoux, AJDA 2002, 1408 (quashing of a decision to transfer other judges from Metropolitan France to la Re«union in preference to the applicant, whose wife and children remained there). Back

23 OVG Schleswig, 15 October 2001. But the judge in the case, Wolfgang Neskovic, was successfully renominated and took his place in the Bundesgerichtshof: Hamburger Abendblatt, 1 August 2002. Back

24 For a list see Guarnieri and Pederzoli, The Power of Judges, table 1.3, p 56. (2004) 24 LS at 187. Back

25 In France, about 60 per cent of the ordinary judges belong to one of the judicial unions. Of these, about 60 per cent belong to the Union Syndicale de la Magistrature, 30 per cent belong to the left-wing Syndicat de la Magistrature and 9 per cent to the right-wing Association Professionnelle des Magistrats. In Spain, The "Juces para la Democracia" occupied a left-wing role, whilst the "Asociacio«n Francisco de Vitoria" represents a more centre-right tendency. The more right-wing "Foro Judicial Independiente" was formed later. Each has the right to nominate candidates to Parliament to be considered for membership of the CGPJ. Back