It’s a bit cheeky of me, having moaned more than once about all the posts on Facebook devoted to the hearings into the suitability of a man for appointment as a USA Supreme Court Judge, to write a piece of my own about political appointments of judges.
I must make it clear immediately that I will be saying nothing about Mr Kavanaugh and his alleged behaviour towards girls when he was a schoolboy. He may or may not be Supreme Court Judge material (I suspect considerations other than adolescent misbehaviour may be more important). It is not for an Englishman to judge. The Americans have adopted this system of having politicians as judges of their highest court. We, in Britain, have no right to tell them they are wrong.
But we certainly have the right to fear that we may end up following the American example.
Our highest court used to be the Appellate Committee of the House of Lords. Actually, technically, it was the House itself (the law lords on the committee reported to the whole House). Tony Blair then suddenly heard about something called the doctrine of the separation of powers and, horrified to discover that the judiciary and legislature had combined, he abolished the judicial functions of the Lords and, imitating America, he created our very own Supreme Court.
Some of the judges approved of this frightfully modern idea. A few of them, I fear, did think that, one day, they could become more important than Parliament, just as the American Supreme Court is more important than the Senate, Congress and the President. I think there were only a few who thought like that. Most just thought it sounded lovely and modern, was probably admired by the intelligentsia of Islington and was therefore a good thing (top judges are very clever but they also suffer from human vanities just like the rest of us), But others were worried. Indeed, Lord Neuberger, who later became President of the new court, at first refused to join it because of his disapproval of it.
Is there a real risk that Parliamentary sovereignty (assuming we recover it from the EU) could be passed to a few unelected judges in our Supreme Court? Could the time come when we have to have sordid select committee hearings into the suitability of men and women to sit in the UK Supreme Court?
There is not, I think, an imminent danger. It is true that a minority (a small one) of the Supreme Court judges has started, very tentatively, laying the foundations for a declaration, quite a way in the future, that the court can overrule Parliament. At the moment, the movement is what one could call a left wing one. It is headed by the President of the Court, Lady Hale. She has said that she can imagine circumstances in which the Supreme Court could overturn an Act of Parliament repealing the Human Rights Act. But we should remember that her judicial brethren did manage to dissuade her from following her extra-judicial assertion that the court could prevent Parliament from approving our withdrawal from the EU. Parliament will not be repealing the Human Rights Act any time soon. But, if, after an election, it does so, my guess would be that Lady Hale’s colleagues (who are very bright) would succeed in explaining to her that her desire for the Supreme Court to usurp the powers of Parliament is one which she should stifle.
Nevertheless, I have no doubt that we should be alert to the danger of the Supreme Court, one day, claiming to be sovereign and superior to Parliament. Some, of course, will say it is not a danger. Clever North London judges, they will say, are much more reliable as law makers than MPs elected by misguided and uneducated working class voters. Our laws will be much more civilised if they have to be approved by the likes of Lady Hale before they can be enforced.
But such thoughts are very foolish. The idea that we will all just accept that this new sovereign Supreme Court should for ever be populated by Blairite judges is barmy. Don’t forget that the present fuss across the pond arose from a Republican President seeking to appoint a Republican judge. Yes, the same sort of nonsense goes on when Democrat presidents seek to appoint Democrat judges. The point is that, once a Supreme Court becomes political, only men and women thought to be supporters of the government will be nominated. And then you will get, in Westminster, exactly the sort of disagreeable hearings which have been boring us from Washington for so long.
We are fortunate to have some of the best judges in the world. We don’t inquire what their politics are, because we know the answer would be irrelevant. Sometimes a few people accuse the judges of all being awful lefty liberals and a few others say they are dreadful Tory stooges. But most of us know that almost all of them apply the law without allowing their own political opinions to play any part in their judgments. It would be very odd if there were no exceptions to that. There are some. But our appeals system usually puts things right. It would be truly awful if the highest court of all became wholly political.
Lady Hale must be gently and politely restrained from trying to turn our top judges into politicians, otherwise she will find an English Kavanaugh joining her on the bench.