Procedure for Appointing Judges — [Mr Virendra Sharma in the Chair]

Part of the debate – in Westminster Hall at 2:30 pm on 8th October 2019.

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Photo of Stuart McDonald Stuart McDonald Shadow SNP Spokesperson (Immigration, Asylum and Border Control) 2:30 pm, 8th October 2019

I welcome that intervention, and the hon. Gentleman raises an interesting question. There are a couple of things I would say. First, we will never have a judicial bench that does not have political opinions. Just because we do not necessarily know what those opinions are does not mean that members of the judiciary are not normal human beings who have political views. Secondly, all we can do is to ensure that candidates are assessed, like all others, by an independent judicial appointments board to ensure that appointments are made on the basis of their ability to do the job as independent judges. It may be that certain individuals have expressed views such that that is called into question, but we have independent panels in place that are designed to filter out any suggestion that candidates are making decisions for political reasons, rather than simply on the merits of a particular case.

As Sir David Edward, a former judge in both the European Court of Justice and the Court of Session, put it in a recent Scottish Legal News article:

“Many judicial decisions have political consequences but it is a quite different thing to say judges have made decisions for political reasons.”

He argued that if there is a lesson to be learned from America, it is the

“malign effect of a system dependent on political or doctrinaire allegiance”.

There is nothing new about judges making decisions that have political implications or cause political controversy—although given some of the recent commentary, people might think otherwise.

It is worth noting that one of the key reasons why judges’ decisions frequently have significant political implications is precisely because this Parliament has required that of them. The Human Rights Act 1998, for example, requires judges to look at whether Acts of Parliament are compatible with the European convention on human rights. Acts of the Scottish Parliament can be literally struck down, not just under the Human Rights Act, but if the Scottish Parliament is found to have strayed beyond its competence under the Scotland Act 1998. The acts of Ministers here and in devolved Administrations are subject to judicial scrutiny. European Union law has also been a ground for challenges. That links with the growth in the use of secondary legislation—legislation that in my view is often not scrutinised particularly well here—which at least has the fallback and safeguard of judicial review.

Increasingly, judges have been asked by this Parliament to take decisions that have political ramifications, but they make those decisions on legal grounds alone, and we should not forget that. Ultimately, the key point is that the different branches of government should provide checks and balances against each other. The judiciary provides a key check against Executive overreach. To my mind, the cases of Cherry and Miller are brilliant examples of that, though perfectly reasonable people can disagree. The point is this: what sort of check does the judiciary provide if it is stuffed with Government or political appointees? It is either a check that is ineffectual in reality, or one that is perceived to be ineffectual, and both matter for the rule of law.

I will finish with a quote from the vice-president of the Law Society, Stephanie Boyce. In responding to the recent controversies, she told the Law Society Gazette:

“An independent judiciary is fundamental to our democracy. The notion of vetting judges for their political opinions is at odds with the whole construction of British justice.”

I very much hope that is something we can all agree on.