Politicians from both opposition and government should be involved in appointing the most senior judges, Lady Hale has proposed.
Lady Hale, who takes over the role of president of Supreme Court from Lord Neuberger in the autumn, said the move would introduce “an element of democratic involvement while preserving party political neutrality”.
She also suggested that, to improve judicial diversity, “traditional assumptions” about which type of lawyers get which sort of judicial job needed to be cast aside.
In a speech to the Constitutional Law Summer School in Belfast, she said some judges “think we have gone too far” in excluding “virtually all political involvement” from the selection process.
“Many, perhaps most, members of the judiciary would be very uncomfortable with increasing the involvement of politicians, whether by way of reintroducing an element of ministerial selection or by way of confirmation hearings in parliament.
“Does the country really want the minister’s political advisers trawling through the judgments of the recommended candidates so as to select the one with whom they are most comfortable? Are we really so consistent or predictable that that would be a profitable exercise?”
Lady Hale went on: “My own humble suggestion is that, for the Supreme Court, the Lord Chief Justice and other Heads of Division, the appointments commission could be enlarged by a senior politician from the government and a senior politician from Her Majesty’s loyal opposition, thus introducing an element of democratic involvement while preserving party political neutrality.”
Lady Hale referred to criticisms of the current system by two well-known journalists back in October 2015.
Charles Moore, former editor of the Daily Telegraph, argued in an article for the newspaper that if judges were going to “apply slippery concepts like ‘proportionality’ rather than sticking to strictly legal issues, we need to know their politics”.
Lady Hale responded that ‘strictly legal issues’ had always required “an element of judgement, some of it moral or political with a small ‘p’”.
Jeremy Paxman also argued that “we need to know more about precisely who our judges are” in an article for the Financial Times.Lady Hale said Mr Paxman accepted that in the UK, unlike the USA, the Supreme Court “is not supreme” and parliament “can always trump the judiciary by passing a new law”.
On diversity, Lady Hale said the UK had “tended to lag behind” other common law jurisdictions, such as Canada, especially in the more senior appointments.
“It is not really a cause for congratulation that now, nearly 100 years after the Sex Disqualification (Removal) Act 1919, one fifth of the High Court and Court of Appeal in England and Wales, and one sixth of the UK Supreme Court, are women.
“But we celebrate because it is such an improvement on the position 10 years ago when the [Judicial Appointments Commission] was starting work.”
Lady Hale said the UK lagged behind other countries because of a combination of two factors – a profession divided into solicitors and barristers, and “four ranks of the judiciary, with direct entry to each and only limited promotion between them, coupled with traditional assumptions about what sort of lawyer gets what sort of job”.
She described how “very successful QCs” were appointed to the High Court bench; “less successful” QCs, other senior barristers and some solicitors to the circuit bench: solicitors and a few barristers to the district bench and a “wide variety of lawyers, barristers, solicitors and academics” to the tribunals.
Lady Hale said the move from ‘tap on the shoulder’ appointments to independent selection may not always have helped since “politicians by and large understand the case for diversity better than some at least of the serving judiciary”.
She went on: “I do not suggest that we should abandon our divided legal profession, which has much to commend it in terms of efficiency and access to justice.
“But I do suggest that we should abandon our traditional assumptions about who gets which sort of judicial job and look for the best wherever it may be found.”
Lady Hale said that although things were “definitely improving” in the area of judicial diversity, there were “clouds on the horizon”.
“It is feared that the traditional high-flyers will be deterred from seeking judicial appointment because of the recent changes to the judicial pension scheme, stagnating judicial salaries and an ever-increasing workload.
“At the same time, it is feared that the enormous cost of qualifying, especially for the Bar, coupled with the diminution in public funded legal work will put off many able young people, especially perhaps from less advantaged backgrounds, from pursuing a legal career, so that there will be fewer high flyers in future.
“And there is a niggling nervousness in some quarters that diversity and merit are indeed competing rather than complementary values. We must prove them wrong.”