The issue of whether the UK should have judicial confirmation hearings has been debated for a number of years.  The case in favour has been powerfully restated by Alexander Horne in an interesting and thought provoking paper just published by “The Study of Parliament Group“.

Entitled “The Changing Constitution: A Case for Judicial Confirmation Hearings?” the paper begins with a historical survey of the increase in the political element in the work of the courts resulting from the growth in judicial review and the operation of the Human Rights Act.   Alexand Horne accepts that the judges are, increasingly, having to adjudicate on political issues.  However, in contrast to a number of commentators from both the left and the right, he suggests that the way to deal with this is not for such issues to be removed from the courts but, rather, “to allow more political involvement in the initial appointment process, to give the judiciary greater legitimacy”.   He looks at the well known problems relating to the lack of judicial diversity and the changes brought about by the Constitutional Reform Act 2005.

This Act effectively took the appointment of judges away from the politicians and entrusted it to the Judicial Appointments Commission (“the JAC”).  In his Foreword to the paper, Sir Ross Cranston, refers to his own (pre-judicial) contributions to the debates on this legislation where he had complained of what he called the “cult of the non-political” – the delusion that politics can be taken out of important decisions by entrusting them to quangos and had suggested that judicial appointments were too important to be left to the judges and the real dangers of the judges being perceived as a self-appointing oligarchy.  The question is whether this can be overcome by having a greater degree of political involvement in the judicial appointments process by means of some kind of “confirmation hearings”.

Alexander Horne points out that, when considering the Constitutional Reform Bill, the House of Commons Constitutional Affairs Select Committe concluded that it had “heard no convincing evidence to indicate that confirmation hearings would improve the process of appointing senior judges” Report, HC48-I, para 87).  The issue was briefly looked at by the House of Lords Constitution Committee – in its report on “Relations between the executive, judiciary and Parliament” – it noted some interesting recent developments but expressed no concluded view (paras 132-135).  Alexander Horne looks at the German, American and Canadian models for “judicial confirmation”.   The former is seen as demonstrating that political involvement in appointments does not lead to political influence on decision making.

The paper concludes that

While the increse in the ‘small p’ political aspect in judging has been recognised by most fair minded commentators, the idea that the answer to this issue is to ‘isolate the judges from political pressures’ is sadly flawed as it is incompatible with the increasing role that they play in our society, adjudicating on administrative, constitutional and human rights law.

While seeing practical difficulties with confirmation hearings under the present arrangements, he suggests that an ad hoc committee drawn from both Commons and Lords could consider the appointment of, at very least, justices to the Supreme Court.  This would, it is suggested

mean that, once confirmed, it would be somewhat more difficult to criticise individual judges, and would also ensure that candidates enjoyed the confidence of Parliament

There is considerable force in a number of Alexand Horne’s arguments.   While no one would wish to replicate the (recently) partisan approach of the US Senate Judiciary Committee, judicial confirmation hearings do not have to take this form.  The paper draws attention to alternative models.  The present system of appointment by the Judicial Appointments Commission – although insulated from executive influence – lacks democratic accountability.  In an important recent lecture on judicial selection and appointment, “Selecting Judges: Merit, Moral Courage, Judgment and Diversity”, Lord Clarke says that accountability is provided as a result of the JAC having to provide an annual report to the Lord Chancellor and it is subject to judicial review and to the Judicial Appointments and Conduct Ombudsman.   This is, on any view a weak form of accountability. 

Judicial confirmation hearings would help to make up what Kate Malleson has rightly called the “democratic deficit” in the present system  (see Kate Malleson “The effect of the Constitutional Reform Act 2005 on the relationship between the Judiciary, the Executive and Parliament”, App 3 to the HL Constitution Committee Report).  Nevertheless, the proposal has been strongly opposed by past and present judges.  In his lecture, Lord Clarke sets out the counter-arguments:

“Such accountability, through confirmation hearings in a Westminster-style system would however, effectively and overwhelmingly place the appointment process in the hands of the executive, as it forms the dominant part of the legislature.  Such a development would almost inevitably and detrimentally politicise the appointments process and the judiciary, one of whose great strengths has been its apolitical nature.  It would almost inevitably transform accountability into unacceptable influence and thereby undermine judicial independence”.

But neither of these results are inevitable.  First, Select Committees are increasingly independent of the governing party.  A “Judiciary Committee” could be composed of senior back benchers, with legal backgrounds, and would be likely to be as independent of the executive as, say, the Joint Committee on Human Rights.  The JCHR does not split on party lines and there is no reason to suppose a Judiciary Committee would do either.  Second, and in event, hearings in relation to other types of appointment have not made these “party political”.  There is no reason to assume that judicial hearings would take this form.  Until recently the executive had complete control over judicial appointments but, by common consent, did not use them to try and influence the political composition of the judiciary.  There is no reason to suppose that the position would be any different if the executive’s influence was indirect, via confirmation hearings.   Thirdly, it is difficult to see why “confirmation” hearings should “politicise” the judiciary.  It is perfectly possible to have “ground rules” which mean that questioning cannot stray into areas of personal political preferences but can concentrate instead on questions as to “principles” and “judicial philosophy”.  Questions as to party political allegiance and voting at elections would be impermissible – as would questions as to how a nominee would decide a controversial issue which was actually or potentially before the courts.   This leaves a large area.

Alexander Horne’s paper is part of a “tide” running in favour of confirmation hearings for public appointments.  In the Green Paper The Governance of Britain indicated the government’s intention to introduce pre-appointment or post-appointment committee hearings for certain key public posts.  This has been partly implemented.  In relation to judicial appointments it says the following: 

“The Government is willing to look at the future of its role in judicial appointments: to consider going further than the present arrangement, including conceivably a role for Parliament itself, after consultation with the judiciary, Parliament and the public, if it is felt there is a need”.

It might be objected that such a process would, in practice, achieve nothing.  The Judiciary Committee would simply be considering names advanced by the JAC or the Supreme Court Appointments Committee and, at best, it would be rubber stamping the decisions of the unelected and unaccountable appointments body.  At worst, if there was a dispute about a particular candidate, it could introduce political contention and dispute into an area in which it has, so far, been largely avoided.  Neither result would add any significant democratic accountability.

There are perhaps three responses to these concerns.  First, the fact that candidates might have to appear in public before a “Judiciary Committee” could change the approach of the appointing bodies, possibily leading to a new focus on “judicial philosophy” and approach.  It is could lead to candidates being assessed in a different way – with the potential of democratic scrutiny in mind.  Second, it might of itself assist in improving “communications skills” and “political sensitivity” of the judiciary.  Judges who know that they are going to have to articulate their judicial philosophy in a public democratic forum might think more about these issues and different types of candidates, might put themselves forward.  Third, in the modern constitution the process of democratic accountability is a good in itself: the position of the judiciary would be strengthened by this process.

These are constitutional issues, particularly after the establishment of the Supreme Court.  It is, as Sir Ross Cranston says in his Foreword, an “unfinished part” of the business of constitutional reform.  Alexander Horne’s paper is a valuable contribution to the continuing debate.