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On 24 January, the UKSC Blog posted a ‘review’ of my Study of Parliament Group Paper, “The Changing Constitution: A Case for Judicial Confirmation Hearings?” The paper argued that given that judges were unavoidably being drawn into making decisions on quasi-political issues (following a marked increase in public law claims and the introduction of the Human Rights Act) there should be some move towards a confirmation process for the most senior judicial appointments to address the accountability gap that has developed.

This post will not seek to revisit the arguments raised in that paper, but will instead consider some of the potential hurdles which would have to be overcome if one wished to move towards a system of confirmation hearings (or indeed other methods of increasing political accountability) for appointments to the Supreme Court.
 

The most obvious of these, as Hugh Tomlinson QC has noted, is the view of the judiciary itself. The senior judiciary has not been quick to embrace the idea of change – Lord Clarke recently expressed particular concerns about the potential for politicisation and “unacceptable influence”. Such qualms are understandable, and may form the focus of much political and academic debate; however, there are also more practical issues that have to be addressed.

The first of these is the devolution settlement. This was an issue which the SPG Paper skirted around somewhat hesitantly, but nonetheless it needs to be considered. Assuming that one starts with the position of establishing an ad hoc confirmation committee of some sort, with representation from both the House of Lords and the Commons, (as suggested in the SPG paper) the matter could possibly be resolved by the inclusion of MPs from relevant Scottish or Northern Irish constituencies, or Peers who originate from those areas. This ‘simple’ solution would be unlikely to address the concerns of those involved.

There are likely to be particular issues in Scotland and Northern Ireland where many justice issues are likely to be devolved and where MSPs and MLAs may well feel that they should have some involvement in the process of appointment. Moreover, should the Welsh form the view that their increasing political autonomy makes it necessary to have separate Welsh representation on the bench, further tensions could arise over the involvement of Welsh Assembly Members. The issue is further complicated if one wishes to ensure some level of legal expertise in relation to the questioning of the non-English judges. While the SPG paper fixed upon the Lords Constitution Committee as the font of the ad hoc committee’s legal knowledge, it is not clear that the committee would always have senior Scottish and Northern Irish lawyers as members. If that was not the case, others might have to be drafted in to ensure credible questioning. This is not necessary an insoluble problem – the Standards and Privileges Committee has previously accepted the idea of ‘lay’ members sitting as part of that committee (although it is worth noting the concerns expressed by the Clerk of the House “that the direct participation of lay persons in the taking of decisions by a committee of the House may not be covered by privilege”). The Canadian experience suggests that there could be a place for senior academics, possibly as specialist advisors. Finally, there arises the issue of which parties should be represented on the committee – where nationalist parties are involved, representations could be made that all relevant parties should be included.  This is notwithstanding the fact that reform of the House of Lords hovers ominously in the background and could seriously change the nature of persons elected or appointed in the Upper House. All of this goes to show that a great deal of thought would have to go into the composition of any committee to examine candidates for appointment.

A second problem is the enthusiasm (or not) of MPs for undertaking confirmation hearings. It cannot simply be assumed that MPs would feel that they would bring something new to the picture, or that they would be enthusiastic about the idea of holding such hearings. When it looked at this issue previously, the (then) Commons’ Constitutional Affairs Committee was resistant to the idea of introducing confirmation hearings. The committee has also previously opposed the idea of a joint parliamentary committee for judiciary-related matters (see for example:  Constitutional Reform Bill [Lords]: the Government’s Proposals, para 83). The Lords’ Constitution Committee has hardly been more enthusiastic, embracing the assurances from the Government that such hearings would not be introduced.

The reporting of such hearings would also be an issue. While they would probably garner much academic interest, press reporting is a different matter. With the much mourned passing of specialist legal reporters, one wonders whether the news reports would be conducted mainly by political correspondents. The accuracy of legal reporting has been commented on in this blog and would be particularly relevant. A fear would be that the media (and blogosphere) would focus on intrigue, gossip or political ephemera rather than legal principles and the judicial philosophy of the candidates. While credible legal reporters remain, their work is often relegated to the ‘legal pages’ of the press, or specialist legal publications. Yet the manner in which such occasions are reported to the public would be exceedingly important.

Supporters of the idea of hearings would have to clarify what would happen if the committee did not express confidence in a candidate at a pre-appointment hearing. Would the candidate still be appointed? Alternatively, if the Justice was already appointed, and doubts were expressed in a post-appointment hearing, the process could lead to the new Justice’s authority and legitimacy being undermined. This would have to be thought through with some care.

Finally, there is the issue of combining transparency with accountability. Clear tensions exist here. Put simply, in general terms, the more political accountability that occurs in public, there more disquiet is expressed that the judiciary will become politicised. The three models described in the SPG paper (Germany, Canada and the United States) encompassed the broad gamut of approaches towards this issue. In Germany the question of accountability was addressed by having a very small group of leading members of political parties (both of the Bundestag and of the second chamber, the Bundesrat) selecting the judges of the Federal Constitutional Court. However, in order to allow for the input of more than one political party in the process, the system was criticised by some commentators for a complete lack of transparency. Hence there are no confirmation hearings and there appears to be no public involvement in the process.

The recent Canadian approach to hearings appeared far more transparent, but in circumstances where questions to the candidates were restrained and did not stray into the question of personal political preference, there remains a fear that the process will not substantially increase the level of accountability. Finally, we have the much criticised American approach. Almost all UK commentators have expressed a disinclination to follow this route, due to the clear political partisanship demonstrated on some occasions. Nonetheless, it is at least worth posing the question as to whether this partisanship is caused by the fact of the senate hearing and the nature of the questioning, or because the nomination is made by the President (rather than a nomination panel, which has considered the candidates qualification for the post)?

None of these hurdles should be insurmountable, but they provide plenty of food for thought for those of us who believe that further reform of the appointments process is desirable.

Alexander Horne is an employed barrister at the Home Affairs Research Section in the House of Commons, where he has been the senior legal researcher on issues relating to public law, human rights and counter terrorism since 2006. Previously, he spent 3 years as legal adviser to the (then) Constitutional Affairs Select Committee (during the passage of the Constitutional Reform Act 2005). The views expressed in this post are the author’s own and do not represent the views of the Study of Parliament Group or any other organisation.