Procedure for Appointing Judges

Dan Poulter Excerpts

Tuesday 8th October 2019 Westminster Hall

[Stuart C. McDonald]

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.

[Dr Dan Poulter (Central Suffolk and North Ipswich) (Con)]

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?

[Stuart C. McDonald]

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.

Increasingly, judges have been asked by this Parliament to take decisions that have political ramifications, but they make those decisions on legal grounds alone, and we should not forget that. Ultimately, the key point is that the different branches of government should provide checks and balances against each other. The judiciary provides a key check against Executive overreach. To my mind, the cases of Cherry and Miller are brilliant examples of that, though perfectly reasonable people can disagree. The point is this: what sort of check does the judiciary provide if it is stuffed with Government or political appointees? It is either a check that is ineffectual in reality, or one that is perceived to be ineffectual, and both matter for the rule of law.

I will finish with a quote from the vice-president of the Law Society, Stephanie Boyce. In responding to the recent controversies, she told The Law Society Gazette:

“An independent judiciary is fundamental to our democracy. The notion of vetting judges for their political opinions is at odds with the whole construction of British justice.”

I very much hope that is something we can all agree on.

--- Later in debate ---

[Joanna Cherry (Edinburgh South West) (SNP)]

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.

It was also great to hear Lady Hale, the President of the Supreme Court, remind us that it is also part of the English tradition, when she said that

“the courts have exercised a supervisory jurisdiction”

over the lawfulness of acts of the Government “for centuries”. As long ago as 1611, the court held that the King, who was effectively the Government, had

“no prerogative, but that which the law of the land allows him”.

I join others in particularly deprecating not so much the press, of which we have come to expect very little, but Government sources—particularly unnamed Downing Street sources, who seem to be cropping up all over the place at the moment—for the anti-judicial and anti-Scottish sentiment that they tried to stir up.

It was also a matter of some regret that a Government Minister, the right hon. Member for Spelthorne (Kwasi Kwarteng), went on television and said:

“The extent to which lawyers and judges are interfering in politics is something that concerns many people.”

He went on to say that

“many people…are saying that the judges are biased”.

He specifically claimed that

“many leave voters...are beginning to question the partiality of the judges”,

while going on to state that he personally believed that the judges were impartial.

[Dr Poulter]

As I was sitting here, it occurred to me that a former colleague of ours, albeit from before our time in the House, Humfrey Malins, who was the hon. Member for Woking, was, while he was a sitting MP, a practising barrister and, I believe, a recorder. I do not believe that anybody called into question his impartiality when he was overseeing cases in that role, or indeed subsequently when he stood down from the House, even though he is a committed Conservative. I wonder whether the hon. and learned Lady would like to reflect on that, in the context of what she was just saying.

[Joanna Cherry]

I was not aware of that. Certainly my party, the Scottish National party, believes that MPs should devote themselves full time to that job. That is why I have been a non-practising member of the Scottish Bar from the moment that I was elected. I would find it rather curious if a Member of Parliament were, in the modern age, sitting in a judicial capacity. I think that would rather interfere with the separation of powers, whereby legislature, Executive and judiciary should be separate. However, I was not aware of those circumstances, so perhaps I should not say any more about them.

Returning to the comments made on television by the right hon. Member for Spelthorne, although it has been good to hear the Lord Chancellor repeatedly assert the independence of the judiciary, including today at Justice questions, it is reprehensible for Government Ministers to attempt to stir up anti-judicial sentiment as in this situation. I totally believe in freedom of speech, and am on the record as being somebody on the left who is very much in favour of it. Sometimes the champions of freedom of speech are to be found very much on the right, but there are some of us on the left, and I would never question anyone’s right to say that they disagree with a decision. However, if a Government Minister or unnamed sources call into question the independence or impartiality of the judiciary, such comments can serve to normalise a crude scepticism that ignores the legally complex and personally demanding work that judges have to perform. That is why we politicians have to be careful what we say. Many decisions in the past have not pleased me, and I have certainly criticised them, but I have not tried to suggest that they were made because the judges were of a different political persuasion to me.

We can do no better than look at one of England’s most respected jurists, Lord Bingham, who said in the Belmarsh case in 2004 that it is wrong to argue that judges are somehow undemocratic simply because they are unelected, or because they are asked to assess the legality of the Government’s decisions. He said that, on the contrary,

“the function of independent judges charged to interpret and apply the law is universally recognised as a cardinal feature of the modern democratic state, a cornerstone of the rule of law itself.”

I think what Lord Bingham was really saying is that the very concept of a modern democracy envisages an important role for the courts.

It is particularly important to remember that the decision that was made by the Supreme Court justices was not a political decision; as Lady Hale was at pains to underline, it was a decision on the law. In Scotland’s Court of Session, Lord Drummond Young said in relation to the case:

“The courts cannot subject the actings of the executive to political scrutiny, but they can and should ensure that the body charged with performing that task, Parliament, is able to do so.”

That is what the case was about: restoring to Parliament its function of politically scrutinising the Executive. Those on the right of British politics outside this room who do not like what happened in the Supreme Court should ask themselves how they would feel if a left-wing Prime Minister sitting at the apex of a minority Government prorogued Parliament because it was getting in his or her way. It cuts both ways, and that is why this is a principle of law and democracy rather than a political decision.

My hon. Friend the Member for Cumbernauld, Kilsyth and Kirkintilloch East has already quoted some pertinent comments made by Sir David Edward, former judge of the European Court of Justice. I will also quote Lord Hope of Craighead, former Deputy President of the Supreme Court and a former Lord President of the Court of Session, who said that the suggestion—initially made by the Attorney General—that there might need to be some parliamentary scrutiny of judicial appointments was “wholly misguided”. He said:

“The Supreme Court justices were careful to explain in their judgment”

in the Prorogation case

“that they were not pronouncing on political questions. The issues with which they were dealing, as is the case with all the other issues that come before them, were issues of law.”

He went on to say that vetting judges

“would risk politicising the office which they hold, in the minds of the public”

and would be

“contrary to the fact that political opinion plays no part in the work that they do.”

He finished by saying:

“The guiding principle is that they decide cases according to the laws and usages of this country, and not according to such political views, if any that they might happen to hold.”

Very trenchantly, he added:

“We have nothing to learn on this issue from what happens in the United States.”

Somebody pointed out earlier that there will be some judges in position who have, in a previous life, expressed political views. Of course, in Scotland we no longer have a tradition of political appointments for the Law Officers—they are apolitical appointments—but in the past, we did. Frequently, the Lord Advocate in Scotland would go on to sit on the bench, and he—it was always a “he” in those days—would have been from either a Labour or a Conservative background. However, the crucial thing was that when he took his seat, he took the judicial oath of impartiality, and put aside the politics he had had before to enable him to make impartial decisions on the law. I do not think the ability to do that is confined to men. Thankfully, there are at last plenty of women coming through in the judiciary, both north and south of the border. We would all like to see more, but it has been very important to see a female English judge at the apex of the United Kingdom’s Supreme Court. As others have said, there is still much work to be done to ensure that the diversity of all our communities across Scotland and England is represented on the bench.

I will finish with a quote from almost 15 years ago, when Professor Anthony Bradley was advising the House of Lords Constitution Committee. I am pleased to say that Professor Bradley was my tutor when I was an undergraduate at the University of Edinburgh, 30 years ago; he was then, and is now, a very respected authority on constitutional law in the United Kingdom. Back in December 2005, he told that Committee:

“It is more important than ever that the courts should be able to do justice in an even-handed and impartial manner. Ministers and the Government in general should not seek to blame the judges when the courts make decisions that are adverse to the wishes or policies of the Government.”

All of us who are politicians should aspire to follow that advice. His message is just as important now as it was then, given the fallout we have had from the recent, landmark constitutional cases.