The Brett Kavanaugh congressional hearings have stunned TV audiences globally while casting a new light on the American judicial appointments system. But what if a senior judge in this country had skeletons in his or her closet that made them an unsuitable candidate for our own Supreme Court? The truth is we would probably never ever hear about it.
The selection of judges in the United Kingdom remains a closely controlled process conducted behind closed doors.
Serious complaints of sexual offences are investigated by the Judicial Conducts Investigation Office. But an allegation of an incident that took place during a judge's schooldays would fall outside its jurisdiction. Instead, it is up to a selection panel, appointed by the Lord Chancellor, to discover whether there is anything in a judge's past that makes them unsuitable to be appointed to the Supreme Court of the United Kingdom.
A Kavanaugh-style complaint would probably never see the light of day for the simple reason we don't know the names of the judges who apply – or are asked to apply – to join the Supreme Court. It is only when the final decision has been made that the public is told the identity of the winning candidate. So it would be almost impossible for someone in Christine Blasey Ford's position to ever discharge her “civic duty” by making known an allegation about the behaviour of a judge seeking election to the Supreme Court of the United Kingdom. It would be too late, as the judge would have already taken his or her place in the chamber.
Of course, our unwritten constitution is not the same as the American one. Our top judges are not political appointments, although the Lord Chancellor does have a limited power to veto appointments. But the advantage of the US confirmation system of appointing judges is that the judiciary is directly accountable to Congress. The Congressional hearings also allow the public to witness the character, demeanour and temperament of the judge, which helps give the public confidence in the people who pass judgment on their lives.
It’s time we used a similar system to confirm the appointment of senior judges in this country.
In other parts of government, we already have confirmation hearings for those seeking public office. The Greater London Assembly holds confirmation sittings when the Mayor proposes to make an appointment to a number of senior offices, including the chair or deputy chair of Transport for London or the head of a Mayoral Development Corporation, such as the London Legacy Development Corporation. The Assembly, like Congress, can request that a candidate attends the Assembly to answer questions relating to the appointment before making a recommendation.
And it was the Labour Government, who brought the Supreme Court into being, who first raised the prospect of confirmation hearings for judges. Such a proposal was seriously considered during the passage of the Constitutional Reform Act 2005 when the now-defunct Department for Constitutional Affairs mooted the idea of “enhancing the status of the members of the [new Supreme] Court by establishing confirmation hearings before one or other of the Houses of Parliament”.
This could, it argued, help to ensure that Parliament had confidence in the judiciary. The idea was even supported by Sir Thomas Legg, former Permanent Secretary in the Lord Chancellor’s Department and Professor Robert Hazell, founder and director of the Constitution Unit at University College London, a think tank specialising in constitutional reform.
But by 2009 the government had got cold feet and the proposal was firmly rejected.
Now is the time to revive it. And such scrutiny need not descend into the partisan farce that has characterised the Kavanaugh hearings in the US. Parliament does not behave like Congress and select committees have a strong track record of working outside party loyalties.
Parliamentary scrutiny would also open up the secretive “tap on the shoulder” selection that still has a part to play in the British appointments system.
A long-standing problem in this country has been the perception that our judges are out of touch. Parliamentary confirmation hearings would allow judges to show the human face beneath the wig.
Our senior judiciary comes from an overwhelmingly narrow social group. Recent studies show that almost three-quarters are privately educated. Only three of the current 12 Supreme Court justices are women, and none are from an ethnic minority background.
By subjecting them to select committee scrutiny whose membership is more reflective of Britain's communities, the public would gain a greater trust in the justice system. It might also make for interesting TV.
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