The Once and Future Court

—Erin Delaney, Northwestern University School of Law

I regret to inform you, should you have been interested in applying for one of the three upcoming vacancies on the Supreme Court of the United Kingdom, that the deadline has passed.  Applications were due at 5pm on October 30.   The Selection Commission will hold interviews for leading candidates later this week.

The appointments process, like the Supreme Court itself, is a creation of the Constitutional Reform Act 2005 (Reform Act). In 2003, in the name of judicial independence, the Blair Government decided to remove the country’s highest court from the House of Lords and form a Supreme Court of the United Kingdom.  The Court opened for business in October 2009, taking up residence in its own building on Parliament Square.  But what does it mean to be a “Supreme Court” within a parliamentary system in which parliamentary sovereignty remains the orthodoxy?  What is the Court’s role in the constitutional order?

These questions have been much debated, but I propose approaching them from a slightly different tack.  Let’s reverse-engineer: By looking at the application and hiring process for the Justices of the Supreme Court, can we intuit anything about how the modern British judiciary, and the Supreme Court in particular, are viewed?

First – the application. In a manner not unfamiliar to an American college student, the application requires the submission of: a CV, two references, and a personal statement, describing how the applicant meets the stated criteria for the job.  If the applicant is a serving judge, she also must “submit copies of three judgments only” that she believes “demonstrate [her] judicial qualities” and explain “why these judgments are of interest and importance.”  And all applicants are “asked to complete a diversity and equality questionnaire.”

In addition to statutory prerequisites, the stated criteria for appointment run from the obvious – “knowledge and experience of the law” – to the expected: good writing skills, ability to work under pressure, and collegiality.  The list is rounded out by requirements for:  “social awareness and understanding of the contemporary world”; “a significant capacity for analyzing and exploring a range of legal problems creatively and flexibly”; and “vision, coupled with an appreciation of the role of the Court in contributing to the development of the law.”

At first glance, these criteria seem unremarkable.  After all, Britain’s is a common law system. Explaining the importance of a set of judgments demonstrates the judge’s priorities and concerns; creativity and flexibility may well contribute to the development of the law, which is the common law judge’s role and duty.

But the modern British judiciary is more than a set of common law courts.  It has a significant role in interpreting statutory law and a newly acquired power to enforce human rights standards.  Under the Human Rights Act 1998 (HRA), the Supreme Court may review Acts of Parliament for their compatibility with a set of protected human rights (largely tracking those rights protected in the European Convention on Human Rights).  Even before the enactment of the HRA, the judiciary had expanded its review over executive actions – now judicial review also has human rights in its scope.

Rights review under the HRA has introduced a new legal standard into the British courts: judges must determine when there is a justified governmental intrusion on a protected right by identifying when the restraint is “necessary in a democratic society.”  This proportionality review is far beyond the Wednesbury reasonableness standard typical of traditional English law.  As Lord Pannick pointed out in a session of the House of Lords Constitution Committee in October 2011: “[I]n applying the Human Rights Act, judges now have to [assess] the proportionality of social policy measures.  That is a very real difference from what judges traditionally do, is it not?”

Part of the change lies in the fact that judges are being asked to decide questions that are highly salient to the political realm.  Common law, whether discovered or made, is usually incrementalist in nature, and though its topics (contracts, torts, property) are of tremendous relevance to daily life, they are less often the subject of bitter political controversy.  But “human rights” – such as prisoners’ voting rights or DNA access – can be the divisive issues over which elections are won or lost.  And, in a departure from convention, the Court now gets heat for its decisions and is even openly chided by politicians in Parliament.

The application criteria – first developed in 2008/09 – seem to acknowledge the shifting role of the British judiciary, particularly given the focus on “social awareness and understanding of the contemporary world.”  That criterion suggests a concern or an acceptance that the Supreme Court is entering into politics by creating and defining individual rights.  And what of the Court’s new power, under the HRA, to hold an Act of Parliament incompatible with human rights?  It is true that incompatibility is not invalidation, yet Parliament has shown that it is reluctant to ignore a declaration of incompatibility.  Does Parliament remain supreme in theory and in practice?  And how should the Court proceed, especially given the likelihood of drawing ire from elected politicians?  Exploring an applicant’s “vision” and understanding of “the role of the Court in contributing to the development of the law” might yield an indication of how the prospective justice would understand her constitutional position and the balancing act required; the criterion reinforces the idea that the Court is an institution in constitutional flux.

In contrast to the application, which hints at the Court’s emerging power and political relevance, the selection process presents a more classic vision of an institution limited by Parliament.  For this round of appointments, the Selection Commission is made up of the new President of the Supreme Court, Lord Neuberger (who took office on the 1 October 2012); the Deputy President, Lord Hope; and a representative each from the Judicial Appointments Commissions of Northern Ireland, Scotland, and England and Wales.  One of these representatives must be a layperson.  Under the terms of the Reform Act, the selection committee must consult a number of “senior judges”, as well as the Lord Chancellor, the First Minister in Scotland, the First Minister in Wales and the Chairman of the Northern Ireland Judicial Appointments Commission.  Upon conclusion of its review process, the committee will submit a report putting forward a single candidate for each vacancy to the Lord Chancellor, who, after making further statutorily required consultations of his own, may accept or, under certain conditions, reject or request reconsideration of a candidate.

Even a cursory review of this process demonstrates that political oversight is not a priority:  the Lord Chancellor’s veto is a fairly blunt instrument with which to register his (or the Government’s) opinion, and there is no mechanism of parliamentary scrutiny nor any need for parliamentary approval.  In fact, it is the justices that elect their brethren and successors, maintaining distance from both executive and legislative actors.  The paramount concern is judicial independence rather than democratic accountability.  The selection process reinforces the traditional vision of the Court in the British constitutional system as the apolitical diviner of the common law, always acting against the backdrop of democratic supremacy through parliamentary sovereignty.

The Supreme Court’s place and power in the constitutional system are in contention, as the application and hiring process demonstrate.  Unfortunately, clarity is not on the horizon.  This round of appointments is likely the last to proceed under this system; amendments to the Reform Act have been proposed in the Crime & Courts Bill, which is currently wending its way through Parliament.

The debate over the new bill only highlights the diverging views on the Court’s future role.  The crux of this debate is evident in Hansard and in the materials submitted to the House of Lords Select Committee on the Constitution; contributors are divided between those who fear a powerful executive, desire an independent judiciary, and have faith in parliamentary supremacy, and those who see a new judicial power on the horizon and thus want judges to be rooted in the society they are, in part, creating, and to be held accountable, whether to the executive or to Parliament.   For now, there is no resolution – both visions of the current and future role of the U.K. Supreme Court remain evident in the amended appointments process.