Chapter 5: Supreme Court selection
commissions
The overall composition of selection
commissions
144. UK Supreme Court selection commissions currently
consist of five members: the President, the Deputy President and
a member from each of the JAC, the Judicial Appointments Board
for Scotland, and the Northern Ireland JAC, at least one of whom
must be a lay person.[249]
A selection commission is chaired by the President and the commission
submits a report with its final selection to the Lord Chancellor.
The Government's consultation paper proposes that only one serving
Justice of the Supreme Court should sit on these commissions,
with the second Justice being replaced with a judge from Scotland,
Northern Ireland or England and Wales.[250]
This limited proposed change, which follows a recommendation of
the Advisory Panel on Judicial Diversity,[251]
"is intended to reduce the risk that there is a perception
that the selection process results in the appointment of a candidate
that 'fits in' rather than whether they best meet the merit criteria."[252]
145. We accept the concern of the Advisory Panel
that a commission of five members, two of whom are serving Justices,
gives rise to criticism that the Court is appointing in its own
image. However, we consider that there should be a wider review
of Supreme Court selection commissions than what is currently
proposed by the Government. Such a review needs to proceed by
reference to constitutional principles. The principle of judicial
independence, as we have already stated, militates against politicians
being members of the selection commissions. The principle of appointment
on merit in our view necessitates the presence of some senior
members of the judiciary on selection commissions. The principle
of accountability justifies the retention by the Lord Chancellor
of his right either to reject candidates or to ask the commission
to reconsider its choice. The need to promote diversity requires
commissions to include lay people and to be sufficiently large
to enable members to have between them a range of different backgrounds
and experiences to bring to bear on the task of selecting a judge.
146. Our witnesses identified a number of concerns
with the current composition of the commissions, notably in relation
to their size and the proportion of judicial to lay members. These
concerns are based on the argument, with which we agree,[253]
that the judiciary should not be solely responsible for appointing
themselves. The commissions may, at present, contain up to four
judicial members out of five:[254]
there is a strong case for an increased lay presence.[255]
We also welcome the recommendation of the Advisory Panel that
the commissions should be gender and, wherever possible, ethnically
balanced.[256] In terms
of lay membership, we received evidence in favour of individuals
with no legal experience who could evaluate the candidates "from
different angles",[257]
and in favour of legal practitioners and academic lawyers who
would be able to assess the candidates' earlier judgments.[258]
147. Having considered all the suggestions and
arguments, and recognising that further consultation may be required
on the detail of our proposal, we consider that selection commissions
for the UK Supreme Court should consist of a lay chair and six
other members. An odd number of members would avoid any need for
a casting vote (which gives more weight to the views of one individual).
A body of seven is the optimum size to balance the need to promote
diversity with the need for efficient and effective decision-making.
Chairing the selection commissions
148. The first detailed consideration is who
should chair the selection commissions. At present this is done
by the President whose views would, in any case, no doubt carry
great weight with the rest of the panel. Chairing an appointments
panel requires particular skills which the President may not necessarily
possess. The Chair of the JAC does possess these skills and, as
a lay person, would assist in preventing the perception of the
court appointing in its own image. The Chair is also independent
of the executive and Parliament. The Government have proposed
that a non-judicial member of the JAC, the Judicial Appointments
Board for Scotland or the Northern Ireland JAC, as someone who
"commands the confidence of the judiciary, the executive
and the public",[259]
should chair selection commissions for the President of the Supreme
Court.[260] The arguments
in favour of a lay chair who commands widespread confidence are
just as applicable to all Supreme Court selection commissions.
149. The Supreme Court is a UK body and whoever
chairs the commissions must act accordingly. The Chair of the
JAC has experience of the courts and tribunals of England and
Wales only, but it needs to be borne in mind that only a minority
of appointments to the Supreme Court will involve consideration
of the requirements of the Court to have expertise in Scots or
Northern Irish law. The President of the Supreme Court, who currently
chairs the commissions, may well have a background in the English
and Welsh legal system, but this has not been suggested as a reason
to replace him or her as chair. The Chair of the JAC, if chairing
a selection commission, should be capable of considering the needs
of the Court as a whole without special experience of the Scottish
or Northern Ireland legal systems, just as members from the Judicial
Appointments Board for Scotland and the Northern Ireland JAC are
expected to take part in decision-making about the selection of
judges from England and Wales. Designating the Chair of the JAC
as chair of every selection commission would also have the virtue
of providing consistency in leadership across several different
selection exercises, which in our view is likely to be helpful
in upholding the principles of appointment on merit and the promotion
of diversity.
150. We consider that the lay Chair of the
JAC should chair all selection commissions for UK Supreme Court
appointments.
Judicial representation on the
selection commissions
151. Most appointments to the Supreme Court are
likely to continue to be drawn from the ranks of existing judges
and judges are best placed to make the fine-grained assessments
of the quality of judgment writing from a field of exceptional
candidates. In our view, there should be three senior judges
on each selection commission in order to ensure that the selection
process has due regard to proven judicial merit.
152. Our witnesses supported there being at least
one serving Justice of the Supreme Court on each commission as
they best understand the needs of the court and the skills and
abilities required to serve.[261]
However, serving Justices would be influential and we are concerned
that having only one Justice could lead to that individual having
too much influence by reason of being seen as representing the
institutional voice of the Court. Nor do we accept the argument
that all serving Justices have the same view of what is required
or who should be appointed. Replacing a Justice of the Supreme
Court with a senior judge from a different court would not necessarily
avoid the perception of a small group of individuals appointing
in their own self image. The way to avoid excessive influence
is to ensure that the judicial members constitute less than half
the members of a selection commission. Two of the judges should
be Justices of the Supreme Court.
153. There are two main ways of defining who
the Justices should be. One method is according to seniority.
Where the selection is to fill a vacancy of the President or Deputy
President of the Court, the CRA could state that two most senior
ordinary Justices of the Court who have not applied for the posts
should be the members. Where the selection commission is for
an ordinary Justice of the Court we do not see any constitutional
objection to the President and Deputy President being the members.
An alternative method would be for the CRA to provide that a selection
commission should include two members of the Supreme Court and
leave it to the Court to decide which two members should serve
on the commission. We can see advantages and disadvantages in
both methods. If our proposal is accepted, the Government should
consult members of the Supreme Court before introducing legislation
to amend the CRA.
154. Defining the identity of the third judicial
member of selection commissions is not straightforward. One suggestion
made by our witnesses was that the Lord Chief Justice, as a senior
member of the judiciary with relevant knowledge and experience,
should sit on the commissions (if not a candidate).[262]
The Lord Chief Justice is head of by far the largest of the three
UK jurisdictions and the Supreme Court's caseload is dominated
by appeals from the courts of England and Wales. Specifying the
Lord Chief Justice as a member of selection commissions also has
the virtue of simplicity, which is important in helping public
understanding of the appointments process.
155. An alternative to designating the Lord Chief
Justice as the third judicial member of selection commissions
would be to have a more flexible arrangement, enabling the Lord
President (the head of the judiciary in Scotland) or the Lord
Chief Justice of Northern Ireland (the head of the judiciary in
that jurisdiction) sometimes to serve on selection commissions
in place of the Lord Chief Justice. The CRA requires selection
commissions to "ensure that between them the judges [of the
Supreme Court] will have knowledge of, and experience of practice
in, the law of each part of the United Kingdom."[263]
If, as at present, a member from the Scottish Judicial Appointments
Board and the Northern Ireland JAC are always to be on selection
commissions, this is, we believe, sufficient to ensure knowledge
about those jurisdictions is brought to bear on the work of the
selection commission. The senior judiciary in Scotland and Northern
Ireland are required to be consulted both by the selection commission
and at a later stage by the Lord Chancellor, so they participate
in this way in the appointments process even if not members of
the selection commission. Moreover, if instead of the seniority
principle, there is a more flexible method of defining which of
the Justices of the Supreme Court serves on a selection commission,
it would be possible for one of those judges to bring expertise
in Scots or Northern Irish law to the selection commission.
We accept the idea that the Lord Chief Justice of England and
Wales should be the third member of the selection commission.
156. An added practical complication in relation
to the third judicial member arises from the fact that that the
holders of the offices of Lord Chief Justice of England and Wales,
the Lord President and the Lord Chief Justice of Northern Ireland
are each likely, at some point, themselves to be prime candidates
for appointment to the Supreme Court. Where this is so, the CRA
would need to specify that another senior judge who is not in
the competition serves on the selection commission.
Lay representation on the selection
commissions
157. The three remaining places on a selection
commission ought, as at present, to be occupied by a member from
each of the JAC, the Judicial Appointments Board for Scotland
and the Northern Ireland JAC, nominated by the Lord Chancellor.
To ensure that judges do not dominate the appointments process,
no judicial members of the appointments commissions ought to be
eligible for nomination to a Supreme Court selection commission.
The CRA currently requires that at least one of the three "must
be non-legally qualified": we recommend keeping this rule
to ensure that there is a minimum of two lay people (including
the chair) on every selection commission. We see no constitutional
objection to a member of a territorial appointments body who is
a legal practitioner being a member of a selection commission.
249 Constitutional Reform Act 2005, Schedule 8. Back
250
Appointments and Diversity: A Judiciary for the 21st Century,
op. cit., question 6. Back
251
Recommendation 43. Back
252
Appointments and Diversity: A Judiciary for the 21st Century,
op. cit., para 60. Back
253
See para 67 above. Back
254
See HC Deb 2 February 2011 col 797W for information concerning
the membership of recent selection commissions. Back
255
QQ 16 and 19 (Professor Cheryl Thomas), Q 346 (Professor Dame
Hazel Genn), written evidence by Lord Mance, paras 18-19. Back
256
Recommendation 43. Back
257
Written evidence by Lord Mance, para 18; see also Q 16 (Professor
Cheryl Thomas). Back
258
Q 16 (Professor Alan Paterson), Q 19 (Professor Cheryl Thomas),
Q 302 (Lord Woolf). Back
259
Appointments and Diversity: A Judiciary for the 21st Century,
op. cit., para 74. Back
260
Appointments and Diversity: A Judiciary for the 21st Century,
op. cit., para 75. Back
261
Q 53 (Lord Kerr), QQ 166 and 178 (Lord Phillips), Q 300 (Lord
Carswell). Back
262
Q 14 (Professor Cheryl Thomas), Q 179 (Lord Judge CJ). Back
263
Constitutional Reform Act 2005, section 27(8). Back
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