Baroness Hale will be a formidable President of the Supreme Court but she is playing with fire offering politicians a role in judicial appointments

23 Aug 2017 at 08:33

Baroness Hale is the new President of the Supreme Court. She is an excellent jurist, a first class judge and a deservedly popular figure throughout the legal profession. But she should know better than to cosy up to politicians. Because they will eat her alive. Of course, her intentions are honourable. She wants politicians to understand the independence of our judiciary. She wants them to understand that they are not an elite cosy club. She wants them to understand that they not aloof, out of touch pillars of the establishment. And she wants to avoid another political row prompted by the sinister ‘Enemies Of The People’, headline in that great organ of truth, diversity and compassion, the Daily Mail. Mind you, the Daily Telegraph wasn’t that much better.

I don’t intend to replay the whole sorry saga, but I will embark on a thumbnail sketch. The headlines, basically attacking judges for their ‘pro’ Eu views caused the lower pond life of politics and the press to slither from their fetid swamp and go on manoeuvres. Submarine May dived out of sight and it was left to the hapless Secretary of State for Justice, Liz Truss, to discharge her constitutional duty to protect the judiciary. Needless to say she was about as much use as a cat flap in the May submersible. Paralysed by the fear of the press and her own right wing, her disgraceful inaction left judges feeling under threat. And then there were calls for Parliamentary scrutiny of the appointment of judges which would have cheered Senator McCarthy on his long vacation in the fires of hades. Eventually the voices of common sense prevailed and a new Secretary of State, the splendid David Liddington, was appointed. His first act was to phone the Lord Chief Justice and offer his one hundred per cent support. So apart from the Lederhosen wing of the Conservatives and the Venezuelan branch of Labour, which is most of the Shadow Cabinet, political input on the selection of judges was thrown into the long grass. Until yesterday.

Baroness Hale made a measured and sensible speech in Belfast. But there were a few paragraphs which will send shockwaves and cause anger throughout the judiciary and hope in the authoritarian wings of our political parties. Let me give you a taster.
“We have gone too far……in excluding virtually all political involvement in the process of selecting individuals especially for the most senior (judicial) appointments.”
She also quoted Charles Moore, “if judges are to decree what is right and apply slippery concepts like proportionality rather than sticking to the strictly legal issues, we need to know their politics”.

Do we really want to go down the slippery slope of the USA where Federal and Supreme Court judges are appointed by a politician and vetted by others? Where judges at a county level are elected and pander to their voters? If you do, forget about the independence of the judiciary. And forget about fair trials.

That is not what Baroness Hale is suggesting. If I understand her correctly she is merely putting the case for politicians to be part of the process of selection. This is a mistake and let me explain why.

In 2005 Tony Blair introduced the Constitutional Reform Act which rightly stripped the Lord Chancellor of archaic practices like sitting as a judge in the House of Lords. He was formally shut out of judicial selection but would expected to be consulted on the most senior judicial appointments. The Judicial Appointments Commission, with not a politician in sight, appoints judges. Their statutory duty is clear:
To select candidates on merit.
To select only people of good character.
To have regard to the need to encourage diversity in the range of persons available for judicial selection.

Call me old fashioned, but this seems eminently sensible and wise. An independent judiciary is the final safeguard of our rights which an over powerful executive may want to take away. They will always have an excuse, of course. “We are in a state of emergency and we must give the forces of law and order a free reign to keep you safe.” Was is our democratically elected tribunes who saved those three men in the Super gun trial who would have been sent to prison on charges which were deeply suspect? Of course not. It was the judges.

All governments have a fractious relationship with the judges. They want to get on and govern. They don’t like being told that they had no legal power to act in a certain way. But that is what judges are for. To interpret the law freely and fairly. I don’t give a damn what their private political views are so long as they remain private. I just want them to be fair and not be put under any political pressure.

This is what we have at the moment. It is as necessary as it is noble. Let’s keep the politicians at arms length from judicial appointments. I can see where Baroness Hale is coming from. Her proposal in theory is sensible and reasonable. But it will just be the start. Feeding politicians is like feeding sharks. Once they smell blood they will go in for the kill. Now you may find this hard to believe, but you can’t always trust a politician.