Procedure for Appointing Judges

[Mr Virendra Sharma in the Chair]

I beg to move,

That this House has considered the procedure for appointing judges.

It is a pleasure to serve under your chairmanship, Mr Sharma. I look forward to a positive and perhaps consensual debate on the procedure for appointing judges and the importance of those procedures being consistent with the independence of the judiciary, the separation of powers and the rule of law.

I sought this debate because I was concerned about certain headlines that appeared in the press in the days following the Supreme Court judgment in the Cherry and Miller cases. I pay tribute to my hon. and learned Friend the Member for Edinburgh South West (Joanna Cherry) for her work on the Cherry case, as well as the legal team, which did such great work. I was pleased to be one of the MPs party to that case. The headlines I was concerned about came in response to a decision that the Government did not particularly like. They were perfectly entitled not to like the decision, but they were not entitled to consider changing the system for appointing the Supreme Court judges.

For example, a headline in the Daily Mail read:

“Geoffrey Cox suggests UK could move to US-style political vetting of judge appointments in the wake of the Supreme Court’s prorogation ruling”.

The Daily Telegraph ran the headline:

“Supreme Court justices could be appointed by MPs in wake of Brexit ruling, Geoffrey Cox says”.

In a slightly more understated fashion, The Law Society Gazette headed its report with certain exchanges in the Commons Chamber with the headline:

“Supreme Court appointments may need MPs’ approval—attorney general”.

In fairness to the Attorney General, it took a degree of journalistic licence to get from what he said in the Chamber to what was reported. Those headlines arose from exchanges in the Chamber during an urgent question tabled by my hon. and learned Friend the Member for Edinburgh South West.

Does the hon. Gentleman agree that the independence of our judiciary and the way in which we appoint them is admired right across the world, and that that fits in with our role in the Council of Europe, which is there to uphold the rule of law?

I agree with the hon. Gentleman wholeheartedly. I will return to that point later. The exchanges that sparked those headlines came when the Attorney General was asked by one of his Back Benchers whether it was time for MPs to get involved in approving appointments at the Supreme Court level. The Attorney General responded:

“I do think that we are going to have to look again at our constitutional arrangements…there may very well need to be parliamentary scrutiny of judicial appointments in some manner.”—[Official Report, 25 September 2019; Vol. 664, c. 666.]

As I said, I think the subsequent headlines required considerable journalistic licence. It would be useful if the same headline writers would publish the subsequent remarks that the Attorney General made during Attorney General’s questions last week, when he said that

“certainly US-style hearings—would be a regrettable step for us in our constitutional arrangements.”—[Official Report, 3 October 2019; Vol. 664, c. 1360.]

Similarly, I welcome the Lord Chancellor’s words this morning at Justice questions in defence of judicial independence and against any notion of political appointments.

With impeccable timing, as soon as I received notification that I had secured this debate, I received a written answer from the Minister—I welcome him to his place—confirming that there were no plans to change the judicial appointments processes. The answer continued:

“Our judges are selected following a rigorous, independent, merit based process which is key to maintaining the quality, integrity and independence of our world class judiciary.”

I congratulate the hon. Gentleman on securing this important debate, and I join him in congratulating the hon. and learned Member for Edinburgh South West (Joanna Cherry) on the stunning cases that she brought over the past two weeks. Regarding diversity, the old system required the Lord Chancellor to make all the appointments of the judiciary on the advice of civil servants. Does the hon. Gentleman think that the new system, with the Judicial Appointments Commission, has gone far enough in reflecting the diversity of the community at large? Obviously, gender diversity has increased, because we have a woman President of the Supreme Court, but what about ethnic minority diversity?

I do not have a ready answer to that. The numbers show that it may not have gone far enough. I agree that there is more to be done to ensure that we have a bench that reflects the society that it serves, but I am not sure what the means and mechanisms for that should be.

My key point is that we should never consider or undertake the politicisation of the appointments processes, because the arguments that have been put forward in support of political interference in the appointments process are flimsy and, I would say, misguided. There is an assertion that because judges have suddenly got involved in matters that are deemed to be political, their political judgment should be open to scrutiny by parliamentarians before they are allowed to sit, but to take that view is to misunderstand the role of judges completely. Although what they decide has important political consequences, the decisions they make are not political, but legal. Therefore, a candidate’s legal abilities alone need to be assessed and compared to those of their peers.

I congratulate the hon. Gentleman on securing the debate, and I agree with much of what he has said. I support the separation of powers and the independence of the judiciary. Many judges—particularly those with academic backgrounds—may, although they were appointed through an independent process, have expressed views in the past that could be considered political; in some cases, those may be historical political views. That may lead some people to be concerned about the politicising of the judiciary and the potential for judges’ views to influence their decisions. How would the hon. Gentleman address the perceived concerns of political bias on the part of some judges because of views they have expressed in the past as academic lecturers or in other forums?

I welcome that intervention, and the hon. Gentleman raises an interesting question. There are a couple of things I would say. First, we will never have a judicial bench that does not have political opinions. Just because we do not necessarily know what those opinions are does not mean that members of the judiciary are not normal human beings who have political views. Secondly, all we can do is to ensure that candidates are assessed, like all others, by an independent judicial appointments board to ensure that appointments are made on the basis of their ability to do the job as independent judges. It may be that certain individuals have expressed views such that that is called into question, but we have independent panels in place that are designed to filter out any suggestion that candidates are making decisions for political reasons, rather than simply on the merits of a particular case.

As Sir David Edward, a former judge in both the European Court of Justice and the Court of Session, put it in a recent Scottish Legal News article:

“Many judicial decisions have political consequences but it is a quite different thing to say judges have made decisions for political reasons.”

He argued that if there is a lesson to be learned from America, it is the

“malign effect of a system dependent on political or doctrinaire allegiance”.

There is nothing new about judges making decisions that have political implications or cause political controversy—although given some of the recent commentary, people might think otherwise.

It is worth noting that one of the key reasons why judges’ decisions frequently have significant political implications is precisely because this Parliament has required that of them. The Human Rights Act 1998, for example, requires judges to look at whether Acts of Parliament are compatible with the European convention on human rights. Acts of the Scottish Parliament can be literally struck down, not just under the Human Rights Act, but if the Scottish Parliament is found to have strayed beyond its competence under the Scotland Act 1998. The acts of Ministers here and in devolved Administrations are subject to judicial scrutiny. European Union law has also been a ground for challenges. That links with the growth in the use of secondary legislation—legislation that in my view is often not scrutinised particularly well here—which at least has the fallback and safeguard of judicial review.

It is a pleasure to serve under your chairmanship, Mr Sharma.

I warmly congratulate the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald) on securing this debate. I agreed with virtually every word he said, and I hope we can establish a consensus in Westminster Hall. Like him, I was heartened to hear the very clear statement of the Government’s position from the Lord Chancellor in Justice questions today. The hon. Gentleman is right to say that were we to embark on an American-style system of political selection for our Supreme Court or any other court, we would indeed be the poorer for it. Anyone who has seen the farrago that passes for confirmation hearings before the Senate in the United States—a process that diminishes the quality of law and, frankly, if anything, undermines the integrity of its judiciary—would never wish to see that in the United Kingdom. I think the debate is useful, because it perhaps enables us to put a hare that has been set running by one or two people firmly to rest, where it belongs and where it should stay.

Would my hon. Friend make a distinction between the sort of confirmation hearings that we hold as members of the Select Committee on Justice and those in the United States? The ones we hold are very much part of the establishment and are a way of looking at the process, rather than being a way of generating political attacks on the individual.

My hon. Friend is right. There are two misnomers in this sense. Confirmation, in the strict sense of the word, is not really what we are doing. We are scrutinising the integrity of the appointments process, which is an altogether different matter and entirely consistent with our tradition. In the same way, I wonder, were the legislation for the Supreme Court being drafted now, would we call it a Supreme Court, as opposed to a Court of Final Appeal? That has rather unfortunate implications, but that is really what it is. It is not quite like the Supreme Court in the United States, and the name sometimes gives people the wrong idea about its function.

The hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East is absolutely right to say that in the recent cases that have attracted press attention, the courts—both at first instance the High Court or the Court of Session and then the Supreme Court—were asked to answer legal questions, and they gave legal answers. It is as simple as that. The judges did their job as lawyers. The attacks on our senior judiciary by some of the press are an outright disgrace and a shame upon this country. They should be called out for what they are: gutter journalism. Would to God that we had a press in this country that had anything like the quality and integrity of our judiciary. We would be the better place for it.

We are fortunate in the quality of our judiciary in all parts of the United Kingdom. We have a rigorous selection process. I am particularly aware of the work of the Judicial Appointments Commission in England and Wales, but I am cognisant of the like work that is done in Scotland and Northern Ireland by their appointments boards. I pay tribute to the work of Lord Kakkar and his colleagues on the Judicial Appointments Commission for England and Wales. The Justice Committee has had the opportunity to observe and scrutinise its work, and it is accountable to us and to Parliament for the process it engages in. Recently it published its report for the year just gone; it is a substantial document that clearly sets out the methodology by which it works and the consequences.

I am most grateful to the Chair of the Select Committee for giving way. May I declare my interest, which I forgot to do earlier, as a non-practising barrister? My wife is a part-time judge. I put this to the hon. Gentleman: with the system we have now—as opposed to the old system, where the Lord Chancellor made the decision himself, and it was only men who were Lord Chancellor in those days—what does he think about laypersons being able to appoint judges to the highest judicial offices when they themselves are not legally qualified? I think the system is working well, apart from the diversity angle, but what does he think, not only as Chair of the Committee but as a lawyer, about people who are not legally qualified being able to opine on giving posts to those who are the most legally qualified?

The right hon. Gentleman reminds me to refer Members to my entries in the Register of Members’ Financial Interests. I think I would approach the matter he raises in this way: for transparency and because the judiciary needs the confidence not only of the profession but of the wider population and the society it serves, there is a proper role for a lay element in the selection process. The set-up we have in England and Wales with the Judicial Appointments Commission, which has lay members together with experienced practitioners and members of the judiciary, is probably a pretty fair balance as far as that is concerned.

I am most grateful to the hon. Gentleman for giving way for a second time and enabling me to tempt him a little further. The cut-off age has deprived us of some pretty distinguished judges. Does he think we should go that step further and raise the limit from 70 to 75? Can I tempt him down that road?

The right hon. Gentleman tempts me and I fall into the trap willingly: I entirely agree with him. It is a great shame that we have seen the retirement recently of very distinguished and able judges simply by effluxion of time. Lord Thomas of Cwmgiedd, Sir Brian Leveson, Lady Hallett—I was delighted to see her gain a peerage—and others still have much to offer the bench. When we have real difficulty with the recruitment and retention of the highest quality judges, it seems absurd to me to set 70, which most of us would regard as the new 50—certainly those of us who are getting nearer to it—as the limit. We are cutting people off at the height of their professional powers. They have much more to offer and, interestingly, will very often be found, perfectly legitimately and properly, exercising their skills as arbitrators or mediators in commercial jurisdictions, when they would be very happy to continue exercising those skills in high public office as members of the judiciary.

I earnestly hope that one message the Minister takes back to the Lord Chancellor, who I know is apprised of the matter, is that if we have a legislative opportunity in the new Session, we should tack on a clause to increase the judicial retirement age to 75. That would be warmly welcomed. There is more that we need to do at the other end in terms of diversity. There have been improvements, but the right hon. Member for Leicester East (Keith Vaz) is right that we need in particular to improve black, Asian and minority ethnic representation in the judiciary. There are signs of improvement, but there is much more to do.

We have made improvements in relation to gender diversity, but ethnic diversity is something that we still need to work on, as well as perhaps social background more generally. As a member of the Bar, I recognise the potential value of recruiting solicitor judges in broadening the social background base of the profession. There are now some very good and able solicitor judges, and I hope that we can encourage that too.

It is a pleasure to serve under your chairpersonship, Mr Sharma. I congratulate my hon. Friend the Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald) on securing this important debate. What a pleasure it is to speak after the Chair of the Justice Committee, the hon. Member for Bromley and Chislehurst (Robert Neill).

I will begin by declaring a few interests. Not surprisingly, most of us speaking in the debate are lawyers, and I am a non-practising member of the Scottish Bar. I am also vice-chair of the all-party parliamentary group on the rule of law and, as has been kindly mentioned by others today, I was the lead petitioner in the case that came to be known as the Cherry case, because that is my surname, which went to the Supreme Court. I am also involved in litigation currently proceeding in Scotland under the name of Dale Vince. I declare my interest, having been supported by the Good Law Project and the generosity of Mr Vince, who is a green energy entrepreneur.

Today’s debate has come about because of comments prompted by ill-informed fallout from the decision of the Supreme Court on Prorogation. My hon. Friend the Member for Cumbernauld, Kilsyth and Kirkintilloch East laid out the circumstances in which that happened. It is a particular matter of regret that on 11 September Downing Street sources briefed The Sun that

“legal activists choose the Scottish courts for a reason”.

Well, I chose the Scottish courts because I live in Scotland. The implication that the Scottish courts are somehow politicised is offensive as well as ignorant. There is, however, a tradition in Scotland going back to the declaration of Arbroath and the claim of right that neither the monarch nor the Government are above the law. I was very proud to see that tradition followed by the Scottish courts.