Guarding the Guardians? Towards an Independent, Accountable and Diverse Senior Judiciary

At the heart of what Vernon Bogdanor has described as the ‘The New British Constitution’ has been the rise in the political significance of the judiciary. The explosion in judicial review of government decisions, the incorporation of the European Convention on Human Rights into domestic law and the move to a new Supreme Court have all contributed to an extended process of increasing judicial power vis-a-vis the other limbs of state. This emergence of a more powerful judicial branch of government has been essential in providing a restraint on executive power and in the admirable protection of individual and minority rights. However, it also raises significant issues. At the core of Britain’s unwritten constitution lies the concept of legitimacy as an underpinning for the rule of law. It is a basic premise in a mature democracy that those wielding power in the political sphere must – if this power is to be fully legitimate – also be in some way accountable to and representative of those from whom that power is derived and on whose behalf it is held. This raises a pressing question in relation to the necessarily unelected judicial branch of government: ‘who guards the guardians?’ Or perhaps more accurately, how can one ‘guard the guardians’ without undermining the central principle of judicial independence? It also raises the important interconnected question of how the composition of the judiciary – in terms of its relationship to the diverse make-up of the society it serves – impacts on this concept of legitimacy. These are in no way purely legal or technical issues but ones concerning the fundamental distribution and exercise of power in our democracy in which we all have a stake. The crux to resolving them lies in establishing a constitutionally appropriate system by which judges – and particularly the senior judges – are appointed. This paper will argue that the current system for senior judicial appointments is not fit for purpose. It will argue that an appropriate process requires a rebalancing between three guiding constitutional principles for judicial appointments: independence, accountability and diversity. Establishing such a process will enhance not only the democratic legitimacy of the system as a whole but also – importantly – the authority of the judges themselves and the crucial role they perform. Specifically: The paper examines the factors contributing to the expanded constitutional role of the judiciary. It argues that, while of real societal value, the process has led to an increasingly porous boundary between legal and political decision-making and this should not be ignored. Instead, the enhanced judicial role should be placed on a more solid footing, buttressed by a constitutionally appropriate system of senior judicial appointments. The paper then examines the current appointments process. It argues that the dominant extent to which the senior judiciary are involved in the appointment of the senior judiciary is inappropriate. It is of no disrespect to the eminent and high calibre individuals involved to recognise that, in a democracy, no branch of government should be potentially self-perpetuating. Democratic legitimacy requires a degree of involvement of elected officials in the appointment of those adjudicating on the laws passed by elected officials. The significant diversity deficit in the senior judiciary is then examined. The paper argues that diversity in senior judicial appointments is not simply a desirable goal, but a fundamental constitutional principle. At the very heart of the legitimacy of an independent judiciary are its claims to be able to deliver ‘fairness’. A senior judiciary whose composition reflects an apparent lack of fairness runs the real risk of undermining its own authority. Diversity also impacts directly on the substantive delivery of justice. Judicial decisions are unavoidably influenced by judicial background and perspective, particularly in relation to the arguable points of law before the highest courts. The law of the land constitutes the collective moral code of society. A key aspect of the competence of the Supreme Court, as a collective decision-making body, is that it should be imbued with (and be able to relate to) the broad array of perspectives and experiences that contribute to that society. The institutional competence or ‘merit’ of such a court is significantly weakened if this is not the case. The paper looks to draw lessons on senior judicial appointments from an international perspective by identifying mechanisms that have been introduced in other jurisdictions to enhance judicial accountability (while preserving judicial independence) and improve judicial diversity. In particular, it argues that the debate must move on from the reductive tendency to look only as far as the Senate confirmation hearing in the USA. The paper outlines proposals to address the democratic deficit in senior judicial appointments. It recommends a move away from the present system of ad hoc appointing commissions with a predominating judicial influence towards a more enduring, expanded senior judicial appointments commission, with a balanced input from the senior judiciary, cross-party parliamentarians and lay members. This would be designed to enhance legitimacy without allowing any group a disproportionate sway. It will also argue that an appropriately designed system of postappointment parliamentary hearings should be introduced for newly appointed Supreme Court Justices (drawing on the process used in Canada). The purpose of these hearings would not be to alter or impact on the nomination but to facilitate a dialogue between parliament and the senior judiciary and allow the British public the opportunity to learn about those holding real power in their society. The paper then outlines proposals to address the diversity deficit in senior judicial appointments. In particular, it calls for a reconsideration of the approach to the concept of ‘merit’ in relation to appointments to the highest courts. It argues that the prevailing emphasis on (and exaltation of) one relentlessly individualised understanding of merit is inappropriate for appointments to the Supreme Court (as it would be for any collective court or body). Instead, the collective competence of the Court should play a central role in appointments to it, allowing for the correction of any corporate deficiencies such as the absence of particular legal specialisms or an imbalance in the membership of the court in terms of diversity of experience. With this, a candidate will – importantly – only be appointed if they are the best candidate. They will be the best candidate because they best reflect what would be most beneficial to the Court and, as a result, the society it serves

Describing records, people, organizations and functions: the Empowering the User project's flexible archival catalogue

No abstract available

Contextualism and the History of Philosophy

In this paper, I seek to advance the thesis that if we are to come to a better appreciation of the historical rootedness of philosophical thinking, we must strive to encourage the contextualization of philosophical texts and support this goal by developing methods and tools for research that are facilitative of this contextualist goal

Early independent production entrepreneurs in UK television: agents of a neo-liberal intervention

This essay focuses on the operation of the UK independent television production sector in the context of the entrepreneurial aspirations of company owners in the 1990s. The calculative practices used running these small and medium sized companies are examined and the experiences in managing them are mapped as they negotiated an evolving fitness landscape. Analysis is provided of the strategies adopted including the need to develop reputation and relational contracts to secure a constant flow of commissions. Conclusions are drawn about this transitional phase of entrepreneurship in this sector ahead of Government intervention in the market through imposing new terms of trade between independent production companies and broadcasters

Establishing an independent legal aid authority in Hong Kong : lessons from overseas jurisdictions

This report is an interview based comparative study of the independence (institutional, operational and financial) of Legal Aid Authorities (LAA) in a range of advanced jurisdictions. It forms part of a larger report to the Hong Kong Legal Aid Services Council (LASC) who have commissioned the project. This part of the project sought, inter alia, to establish "the exact working relationship between the Government and the legal aid bodies and to determine the actual degree of independence of the latter" in each of the jurisdictions. In so doing the report analyses the independence of legal aid authorities with respect to a range of factors: the legal status of the legal aid authorities and their Boards (if any), accountability, staffing, the independence of the process of granting or refusing legal aid, responsibility for legal aid policy, and budgeting and finance

Weighing the work of love: on Kate Davis's re-visioned iconoclasm

This essay offers a close reading of recent work by Glasgow-based artist Kate Davis to argue that her practice engages iconoclasm in ways importantly modified by her feminist commitments. Often Davis’s source material has significant historical, political or art historical import, as in her works dealing with the Suffragist attack on Velásquez’s Rokeby Venus in 1914. What is at stake in her ‘re-visioning’ of such moments, which often involves labour-intensive drawing as a key method, is a formal commitment to a kind of delicate or caring vandalism, often pursued through labour-intensive drawing (iconoclasm as a means of making images) and a specifically feminist contention with existing hierarchies of value and systems of representation (iconoclasm as contestation). To reckon with these stakes, Jean-Luc Nancy’s account of ‘the pleasure in drawing’ and the feminist concept of the ‘work of love’ are brought into relation with Davis’s work

Points of Departure: exhibition text

This text was published to accompany The Hunterian exhibition 'Still Moving: the films and photographs of Ulrike Ottinger' and served as both an introduction to the artist's work and to set out the rationale for the particular selection of her work included in the exhibition