GL: In the UK, there is a body called the Judicial Appointments Commission, which selects candidates for judicial appointment. It’s an independent commission set up about 20 years ago. Before that, judges were chosen by the Lord Chancellor, who is the Minister of Justice. The Lord Chancellor made the appointments on the advice of civil servants, who consulted the sitting judges, and he usually would follow their recommendations. But the system was not completely immune from executive interference.
The new system, the Judicial Appointments Commission, is made up of some judges, members of the legal profession and also non-lawyers. You have people who have a background as an accountant or a doctor or a member of some other profession. The idea is that there ought not to be just judges selecting judges. That is thought to be too cosy. The members of the Commission are themselves appointed through an independent process, to make sure there can be no executive interference. It also operates more transparently than the old system.
Appointments to the High Court and above used to be by invitation, but now it is by application for every judicial job. One can apply when they advertise for vacancies. So when I applied to become a High Court judge, I was short-listed and interviewed, and every interview panel consists of five people – three non-lawyers and two judges. You also get asked for referees. Then, when I applied for promotion to the Court of Appeal (an intermediate court between the High Court and the Supreme Court) it was the same process. And then the same for the Supreme Court. Of course, the judges who interview you are appropriate in seniority to the level of the court that you’re applying for. So, when I applied to the Supreme Court, the two judges on the interview panel were the President of the Supreme Court, the equivalent of your Chief Justice, and our Lord Chief Justice, who is the head of all the courts in England apart from the Supreme Court. And then the lay persons were the heads of the Commission from England and Wales, Scotland and Northern Ireland, because all those have separate systems up to our Supreme Court.
Obviously, there are advantages and disadvantages of having non-lawyers involved. The judges are better equipped to judge the legal skills of the candidates. But so far, the system has worked in keeping appointments completely independent of the executive. Every now and again, there are suggestions that the government would like to or might change the system. There was a time a few years ago when the UK left the European Union and our Supreme Court decided Miller’s case holding that the Prime Minister had acted unlawfully in suspending Parliament, which the government didn’t like. After that, they were talking about changing the appointments system. But it hasn’t happened.
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