Moral

Lord Clarke of Stone-Cum-Ebony

HCQR (2009) Vol 5 No 2

SELECTING JUDGES: MERIT, MORAL COURAGE, JUDGMENT & DIVERSITY

LORD CLARKE OF STONE-CUM-EBONY MR

1: Introduction 1. In this paper I examine the selection and appointment of judges (the appointment process). While I do so with particular reference to the system of selection and appointment now operative in England and Wales, I do so by way of an examination of what I take to be broad and universal principles. I should however acknowledge at the outset that in preparing this paper I owe a great debt to John Sorabji, who is both a lawyer and an academic. The good bits in this paper are his, the rest are mine. 2. At the outset it must be stressed that the proper selection and appointment of members of the judiciary is a matter of fundamental importance in any state committed to the rule of law. It is, as Sir Gerard Brennan, the former Chief Justice of Australia, rightly described it ‘a subject of constitutional significance.’1 The selection and appointment of, for instance, judges unable to, or incapable of, properly applying law to true fact, without, in the words of the judicial oath ‘fear or favour, affection or ill will’ would soon undermine the efficacy of any justice system. It would undermine public trust in it, and would ultimately call into question a country’s commitment to the rule of law. A quiescent and timorous judiciary, unable or unwilling to act impartially or independently of the parties before it would lose public confidence. Its decisions would soon lose respect and with that would go respect for law and the rule of law. At its worst, decisions reached under the improper influence of parties, such as the Executive, could provide a false patina of legitimacy to tyranny. As Dworkin put it, ‘Judges . . . can be tyrants too’, or, at the very least they can be the instruments of tyrants if they fail to, or are unable to, act independently and impartially of other state organs.2 3. In order to...