United Kingdom enters the ‘Supreme Court Club’: a lesson for Canada?

As mentioned in TheCourt.ca’s first Amici Curaie, today heralds historic changes to the United Kingdom justice system: installed in their swanky new digs, by the time this article goes to print the Supreme Court of the United Kingdom will have already opened. The new Constitutional Reform Act 2005, 2005 C. 4, (the CRA) goes beyond providing for a new ‘top court’ for the UK, and many learned and qualified commentators across the pond have already opined on the significance of this statute to both the UK justice system and the UK constitution. As TheCourt.ca is devoted primarily to following, discussing, and critiquing the Canadian Supreme Court, it seemed appropriate to briefly examine how the new UK Supreme Court could influence Canada. Specifically, the CRA sets out a new scheme governing the appointment of Supreme Court Justices that that merits consideration (and possible adoption after suitable adaptation) in the Canadian context.

A striking difference between the CRA and the Supreme Court Act, R.S.C. 1985, c. S-26, is how vacancies on the Supreme Courts are filled. The preliminary qualifications are roughly comparable: in Canada, prospective appointees must be (or have been) superior court judges or lawyers of at least 10 years call, while in the UK persons must have held judicial office for at least 2 years or have been a qualifying practitioner for at least 15 years. All Canadian justices are appointed by the Governor in Counsel; similarly, in the UK the Prime Minister recommends candidates which Her Majesty appoints through letters patent. As Canadian readers are likely well aware, all remaining issues involving the selection process and substantive qualifications of prospective judges are matters of political discretion, and accordingly subject to whim of the government of the day. Not so in the UK: the Prime Minister must recommend any person whose name is put forward by the Lord Chancellor and may not recommend any other person. The Lord Chancellor, in turn, is bound to put forward the name recommended by a selection commission. The Lord Chancellor retains only the discretion to send a selection back for reconsideration by the committee, if he or she believes there is insufficient evidence that the person is suitable for the position or if there is evidence the person is not the best candidate on merit.

For Supreme Court vacancies, the selection commission consists of the President and Deputy President of the Court, and one member from each of the three regional judicial selection committees. Similar to Canada, the UK Act displays a concern for regionalism: should the President and/or Deputy President be absent, then the commission shall ensure one each of the most senior judges representing England and Wales, Scotland, and Northern Ireland shall sit on the committee. While the Lord Chancellor technically appoints which three members of the judicial selection committees shall sit on the Supreme Court selection commission, the Lord Chancellor is bound only to appoint persons recommended by the respective committees the members are drawn from. Interestingly, the statute proscribes that at least one member must be non-legally qualified –i.e. have never held judicial office disqualifying him or her from running for Parliament, and have never been a practicing lawyer.

The commission sets its own selection process, bound only to consult the Lord Chancellor and the chief regional politicians, along with the most senior judge of the courts of a region if a member of the judiciary from that region is not on the commission. It seems trite, but the CRAsets out that commission members are ineligible to be selected themselves. The commission must have regard to any guidance given by the Lord Chancellor as to matters to be taken into account in making a selection; the statutory criteria to consider are that the selection “must be on merit” must “ensure that between them the judges will have knowledge of, and experience of practice in, the law of each part of the United Kingdom.”

In many respects, this process is not necessarily any more transparent or accountable than leaving selection in the hands of the executive. This is not a bad thing. A potential jurist’s background, innate biases, and personal value preferences should not be relevant to the appropriateness of their appointment provided that candidate can take up the mantle of neutrality the post requires. Some may argue the public and Parliament should have a right to examine a candidate for high judicial office’s philosophical and legal background before the appointment is confirmed. I submit, however, that exercises of partisan questions and guarded answers reveals little about distinguished candidates that their record (particularly should the candidate already be a justice) does not. All such proceedings do is offer the potential for a dog-and-pony show by politicians looking to score political points by proving the executive is appointing someone who is either ideologically unpalatable or an universal paragon of neutrality, wisdom, and common-sense (depending on which side of the floor said politicians happen to be inhabiting).

As mentioned previously, it would be difficult to take issue with the most recent jurist to join the Supreme Court of Canada, Mr. Justice Cromwell. The differences between his appointment and the process used to vet the previous Court appointee (Mr. Justice Rothstein), however, illustrate the potential vagrancies of the current Canadian appointments process. The CRA removes such partisan politics from the appointments process, and hands the tough job of selecting new top jurists to a panel of neutral legal professionals (and one distinguished outsider). In particular, including sitting members of the Supreme Court in the appointments process enables the commission to consider gifted jurists, lawyers, and academics who possess particular experience in fields the Supreme Court wishes to supplement regardless of that candidate’s political acceptability. The UK has chosen to place the focus of the appointments inquiry into what qualities would best serve the bench as opposed to those that will pass Parliamentary muster. Assessing “merit” is not a straightforward task; to pervert an oft-quoted saying by a member of another Supreme Court, it is perhaps most recognizable when it is generally accepted.  Another parallel can be drawn: when assessing notoriously unquantifiable qualities, it is better to rely on clear, neutral processes than partisan assessments, gut instinct, and personal preference.  The UK legislation seeks to do just that; Canadian law makers would do well to take note.