Confirmation hearings for Supreme Court judges?
James Grant in this month’s Prospect has raised the issue again of the composition of the Supreme Court (new chamber, right), what we know of the judges’ ideological leanings, and whether we should have American-style confirmation hearings on their appointment.
Alexander Horne, in his paper last year on the problems of confirmation hearings for Supreme Court judges (pdf), suggested a joint committee of Commons and Lords to scrutinise appointments.
This seems to me a distraction, an attempt to mitigate the harm already done by the growth of judicial activism. The root problem is that it is the natural inclination of judges to confuse their own social, cultural and ideological assumptions with the “reasonable” interpretation of the law. This tendency is likely to operate as if on a ratchet in a settled legal system that venerates precedent, so that, for example, when one judge decides that he or she has to interpret something like the ECHR in a way that plainly goes beyond the intentions of its drafters (the “living instrument” doctrine), other judges then elaborate this into a new legal principle. Much the same has happened with the growth of judicial review since the 1970s.
To be tackled at source, the Human Rights Act would have to be rewritten explicitly to constrain judges, and Britain would probably have to withdraw from the European Court of Human Rights (whether it would be possible to do so without also repudiating the Convention is a question that has not yet been answered – I discussed that here). In addition, the judge-made doctrine of judicial review could be defined and curtailed in statute.
If the causes of judicial activism were removed in this way, the need for a new superstructure of vetting, confirmation hearings, would diminish.Tagged in: echr, human rights, human rights law
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