Richard Harwood OBE QC is a former Conservative councillor and Parliamentary candidate who specialises in planning, environmental and public law at 39 Essex Chambers.
Does it matter who the judges are? The figure of justice, standing atop of the Old Bailey, is metaphorically (although not in reality) blindfolded, not in wilful ignorance of the facts, but so she can act ‘without fear or favour, affection or ill-will’.
Those are the words of the judicial oath and British judges, along with others across the world, seek to make a decision on the facts, the law and the merits of the case without regard to irrelevant characteristics of the parties or their own personal preferences.
Almost invariably they will succeed in reaching the result they consider to be just and in accordance with the law. That does not mean that every judge will reach the same conclusion.
The proof is that parties do argue their cases in court. In every contested hearing there are at least two litigants, each of whom consider that their prospects of success are sufficiently good in the circumstances to take their chances in front a judge.
Even where the facts are essentially agreed and there are no witnesses giving oral evidence, as is the case in many civil cases and almost all appeals, cases are argued because a judge might go one way or another. The words in a council committee report will be in black and white, but how they would have been understood, whether they adequately addressed the issues and a view on what the law is, is for the judge.
Each of us is shaped by our thoughts, beliefs and experiences. In deciding a question now, we are affected by what we learnt in the past. And we are all fallible. To put two reasonable but competing positions before a judge is to invite a risk of a wrong answer, or the judge’s mind moving between both or another answer.
So it does matter who our judges are. Should it then alter how judicial appointments are made and scrutinised, as Henry Hill discussed?
The debate over President Trump’s US Supreme Court nomination, as well as fond memories of The West Wing, might suggest there is merit in special advisers pouring over old articles by nominees or Parliament holding confirmation hearings.
But what realistically would political scrutiny add? Senior judges are almost invariably bright, experienced, fair, courteous and efficient. Only a handful of High Court appointments over the years can be seen as mistakes.
Of course, the intention is to have judges with the best chance of getting it right and at the highest levels there are administrative and leadership responsibilities. However what criteria would a political process introduce, and what are lay politicians capable of contributing?
In an individual case is does help to know what a judge’s professional background is, what they know of that area of law and to try to understand how they might approach the issues. Even that is more about how to handle the court, rather than which way they will go. The ‘Europhile’ ratings produced by one newspaper on the Supreme Court Justices in the Article 50 Brexit case provided no guide to who would agree with the Government.
All barristers and many solicitors will have acted for a variety of different sides in their careers. That they might have often acted for trade union funded personal injury claimants, or for the Government, or for developers, should not alter the fairness of their decisions or whether they should be appointed.
The danger of more political scrutiny of individuals is that matters which should be and are ultimately irrelevant are seen as being factors for or against an appointment.
Henry Hill’s point was a more subtle one: that there should be public scrutiny of “how individual judges understand their own role, and the attitudes and philosophies which underpin their approach to interpreting legislation”.
However, in the UK courts there is neither the judicial power nor the doctrinal divide seen in the United States. There are not ‘liberal’ or ‘conservative’ judges, or disputes between originalism and a living constitution (depending upon whether the meaning of the US Constitution changes with time).
Judges, like lawyers generally, make decisions within the legislation and the common law (which does evolve), constrained by precedent. The most influential judgments are often those which point out what Parliament had decided.
If judges choose to move the law themselves it is by a nudge rather than a shove. Judgments on European and human rights law can produce real shifts, but have tended to smooth off the rough edges of domestic legislation rather than change the direction of the law.
Even in such cases, it is difficult to divine a philosophical divide amongst UK judges. In interpreting legislation, all judges will say they are taking the same approach. That they might reach different conclusions in a particular case is down to their own assessment of the statute, not legal theory.
Most judges do not emulate Rumpole of the Bailey in applying a torn-off page of the Criminal Law Review to an electric fire to light a small cigar, but citing a legal theory in court is a good way to lose the point. Probing judicial philosophies in appointments risks creating a divide and then making it a reason to decide who should be a judge.
Ultimately if judges interpret legislation in a way that Parliament or the Government did not intend, then politicians can and do change the statute. Where the common law is seen to take the wrong approach, then an Act of Parliament can put the courts on a different tack. Indeed, quite often legislation is introduced to reverse the law as found in a particular judgment.
On leaving the European Union, Parliamentary supremacy will be reasserted, and how legislation is interpreted following Brexit will change. In particular the European approach of looking at the purpose of the legislation and being able to depart further from the words used is unlikely to survive in UK courts in anything like its current form.
The way in which we construe those parts of UK law which will be a hangover from European legislation is an important post-Brexit issue. That though can be separated from the scrutiny of individual judicial appointments.
The House of Lords Select Committee on the Constitution garnered a variety views on Parliamentary roles in judicial selection (even from judges themselves) when it considered judicial appointments in 2012. However it rightly concluded that pre-appointment ‘hearings could not have any meaningful impact without undermining the independence of those subsequently appointed or appearing to pre-judge their future decisions.
In the United Kingdom, judges’ legitimacy depends on their independent status and appointment on merit, not on any democratic mandate.