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This week the Times reported that Baroness Hale, the incoming President of the Supreme Court, has suggested that politicians should have a role in selecting candidates for the most senior judicial posts.

According to the outline she provided, one Government minister and one member of the Shadow Cabinet would join the panel that appoints Supreme Court judges, the Lord Chief Justice, and so on.

Lady Hale concedes that most judges would be very uncomfortable with this, but also claims that others are uncomfortable with how totally political oversight has been excised from the judicial appointments process since Tony Blair’s vandalising of the Lord Chancellor’s post in 2005.

Speaking in Belfast, she also cited Charles Moore’s concerns that if judges “are to decree what is ‘right’ and apply slippery concepts like proportionality rather than sticking to strictly legal issues, we need to know their politics”.

When politicians have previously floated Parliamentary oversight of judicial appointments on those grounds, legal commentators have responded with horror.

Furthermore, in my personal experience the favoured line is to insist that, unlike in America, our judges do not have important and different interpretive philosophies which might justify political, as opposed to technocratic, scrutiny. It will be interesting to see how those pushing that line respond to this attack from an unexpected quarter.

However, ministers and MPs should not get carried away. If political oversight were the straightforward means of restoring a degree of (small-c) judicial conservatism to the British constitution, it is very unlikely that Lady Hale would be advancing it.

Anybody giving serious thought to pursuing this approach must consider that the suggestion of ‘democratic legitimacy’ may in fact give the Supreme Court’s activist members freer rein. Ministers should be just as wary of giving judges a ‘mandate’ as peers, and for much the same reason: it will foul up their proper functioning as subordinate components of the constitution.

If the Government really wanted to tackle the creeping Americanisation of the British judicial process, a better method would be to restore day-to-day Parliamentary supremacy by withdrawing from the European Convention on Human Rights, which functions as a de facto codified constitution without democratic oversight. MPs might also sharpen up their legislative practice, eschewing the sloppiness which leaves Government policy so vulnerable to legal challenge.

But if they do decide to reintroduce a measure of political oversight to court appointments, they must make sure that they don’t end up lending more power to the elbow of judicial activism.

84 comments for: Politics has its place in appointing judges, but that must not excuse judicial activism

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