British Judicial Selection

“Searching for Constitutional Meaning in InstitutionalDesign: The Debate Over Judicial Appointments in the United Kingdom,” by Northwestern University Law Professor Erin F. Delaney. 

The abstract:    

The United Kingdom is undergoing a period of dramatic constitutional change. A spate of reforms ushered in by the Blair government at the turn of the twenty-first century challenged conventional notions of British governance and constitutional structure. In the shadow of these changes, one new and bedeviling institutional task is to reconcile an independent judicial branch, growing in power, with a system of parliamentary sovereignty. This article will analyze the debate over judicial appointments in order to shed light on the position of the modern British judiciary, and the new U.K. Supreme Court in particular, within the British constitutional system. Questions of institutional design expose deep divisions over the perceived extent of judicial power, the relationship of the judiciary to Parliament, and the constitutional justifications for diversity on the bench. Although a weak consensus was achieved in the Crime & Courts Act 2013, stability in the appointments regime is likely temporary. The contested nature of the modern British constitutional system will ensure ongoing debate.

In Britain, Delaney writes, "safeguards protecting judges’ impartiality were developed in parallel with the doctrine of parliamentary sovereignty, so that an 'independent judiciary' was understood as
comprising independent individual judges, rather than seen as a separate and independent
branch. (Indeed, the highest judicial body was a committee of the upper house of
parliament, and the Lord Chancellor, empowered to appoint judges, was at once head of the
judiciary, a member of the Prime Minister’s Cabinet, and the presiding officer of the House
of Lords.)"

Delaney writes “the Constitutional Reform Act (2005) [CRA] was heralded as a ‘milestone’ in the separation of powers and a ‘major step forward’ in judicial independence. It included three major changes. First, it created the UK Supreme Court, which, in its own building on Parliament Square, provided a physical demonstration of the new separation between the legislative and judicial branches. To ensure stability, the Lords of Appeal in Ordinary—the Law Lords—were retitled as the initial twelve Supreme Court Justices. Second, the Act dramatically altered the role of the Lord Chancellor, removing his legislative and judicial duties. And, finally, the CRA included various new appointments mechanisms designed to cabin the Executive’s discretion, including the creation of the Judicial Appointments Commission for England and Wales and a selection commission for Supreme Court appointments.”

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