In the crude calculus of who is up and who is down, judges are scoring better than MPs these days. Not surprisingly, MPs are resentful
In the crude calculus of who is up and who is down, judges are scoring better than MPs these days. Not surprisingly, MPs are resentful. The customarily robust assertion from the former home secretary Michael Howard that "the power of the judges, as opposed to the power of elected politicians, has increased, is increasing and ought to be diminished" resonates with all political parties. The judges' defence, that they do no more than interpret the law as parliament has made it, is true, though not the whole story. Politicians are wrong to moan that judicial decisions threaten the sovereignty of parliament, even when ? as the court of appeal did last Friday in the Shoesmith ruling ? upholding the rule of law checks governmental action. But it is also true that judges make choices, and unless MPs subsequently change the law, those choices determine what the law is.
The set of standoffs between the legislators and what used to be called the least-dangerous branch of government are triggering fresh attacks on the independence of judges, based on the argument that "political" law-making demands political accountability. This is particularly challenging for the supreme court, which briefly appeared on a list of redundant quangos last year. Relations between government and the judges are mostly mutually respectful, but it is not hard to see how they could erode. What might be done to prevent such a situation?
One way the legal profession could pre-empt sometimes justifiable public criticism is by greater transparency about who sits in the supreme court. Some MPs are calling for US-style hearings where the quality, legal thinking and broader sympathies of candidates can be tested. Confirmatory hearings of other senior public appointments, like the governor of the Bank of England, have proved valuable. But many who are demanding greater accountability for judges dream of a judiciary that reflects the moral bearings of the Daily Mail.
The problem is not that our judges are or should be partisan. Nor would anyone question the intellectual merit of the 12 supreme court justices. But in spite of some good intentions to diversify the bench, the 12 are all white, male (with the exception of Baroness Hale) and middle class. Some of this is hard to change, but this is a body that, in its own words, shapes our society and directly affects our lives, a body that unavoidably takes decisions that raise questions of social values. The court is in a weaker position than it could be to see off attempts to undermine its legitimacy. A broader approach to appointments would help do the job better.
It is common for judges to lament the supreme court's lack of diversity and at the same time to insist candidates can only be chosen from the ranks of the most senior judges. Yet it was disappointing that when, in March, an appointment was finally made from outside the appeal court for the first time, it went to Jonathan Sumption QC ? an undeniably brainy barrister, but as white, male and middle class as the rest, and thus hardly an inspiration to less orthodox candidates. From the bottom rung of the judiciary to the top, only a fifth of judges are women, and less than a 20th come from black and minority ethnic groups; in the high court and court of appeal ? the gene pool for the supreme court ? just 20 of 153 judges are women.
The judges are allowed to consider diversity when appointments are made. Yet they do not appear willing enough to rise to the challenge of venturing beyond the tried and tested. It should be possible, once the high standard of merit is passed, to find candidates from more diverse backgrounds. It would be desirable to set targets as milestones against which progress could be judged. Otherwise the senior courts risk fulfilling the gloomy prediction of a former attorney general, and becoming a self-appointing oligarchy ? and thus ultimately one that is less able to challenge parliament and defend itself effectively against parliamentary retribution.
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