Should Supreme Court judges be selected on grounds of their sex, ethnicity, political opinions or legal acumen?
Before Tony Blair created the Supreme Court, in the days when the appellate committee of the House of Lords was the highest court in the land, no serious observer would have dreamt of suggesting that anything other than legal acumen should be considered. Now, however, all, or most, of those other attributes are considered much more important. That was the inevitable result of creating a sort of imitation of America’s Supreme Court. It was bound to be seen as a political force, an alternative source of law to Parliament. And, if it was to be a law making body, it should, so far as possible, reflect the demographic make up of the United Kingdom. How, the argument runs, can laws made by the Supreme Court be accepted by the public if there is only one woman judge? How can Supreme Court laws be considered legitimate if all the judges are white?
The political opinions of Supreme Court judges are a different matter. The existing judges are convinced that their own political views should remain secret (other than as they are revealed in their judgments). Those being considered for appointment should not be required to say what their political opinions are, so long as they pass the test of saying they favour all “progressive” social policies (judges at all levels have to pass that test).
But why, people are beginning to ask, should the political opinions of top judges be off limits when they, or a few of them, claim to have the right to overrule Parliament?
This has nothing to do with the Brexit case. The Supreme Court behaved entirely correctly in its consideration of that case. All the judges accepted that the court would have no right to overrule Parliament if it chose to permit the government to trigger Article 50. That was understandable. Brexit was obviously not the right battle ground for the judges to use in their desire to put themselves above Parliament: proclaiming that their own opinions should prevail over those of the electorate as revealed in the referendum would not have been good tactics.
But some of the judges have made it plain that they consider they would have the right to declare that Parliament has no right to repeal the Human Rights Act. Lady Hale, in particular, is adamant that any such attempt would be unlawful as being contrary to her political opinions. Even Lord Neuberger, who started off despising the creation of the Supreme Court, has been won round and has said that he thinks it possible, should the question ever arise, that the Supreme Court could declare that Parliament is not sovereign when it comes to human rights legislation.
So, again, the question arises: if Supreme Court judges claim to be entitled to overrule Parliament, why should their political opinions not be considered when they are appointed?
At present, the judges who claim the right to overturn Acts of Parliament are in the minority. While that remains the case I would be very much against grilling potential Supreme Court judges on their politics. It would be appalling, though I fear it may one day come to pass, if we were to go the full hog in imitating America and accept that Supreme Court judges should be chosen on political grounds.
There is a danger, though. If the next tranche of Supreme Court judges (there are three vacancies) are chosen without reference to their abilities as lawyers, but simply on grounds of sex, ethnicity, disability etc., we may well find ourselves with a Supreme Court with a majority which considers itself above Parliament. Should that happen, we will have no alternative but to examine the political opinions of potential judges.
Goodness me, how I hate Tony Blair!