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The Highest Court: Selecting the Judges

Published online by Cambridge University Press:  27 June 2003

Sydney Kentridge
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Extract

Great honour as it is, it is nonetheless daunting to deliver the Sir David Williams Lecture in the presence of Sir David himself, and on a subject close to his own interests. The ideal David Williams Lecture would obviously be a lecture given by David Williams. But as that is not to be—at any rate not this evening—my lecture, by definition then not the ideal lecture, will I hope be received as at least a personal tribute to an inspiring constitutional lawyer.

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Articles
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The Cambridge Law Journal , Volume 62 , Issue 1 , 01 March 2003 , pp. 55 - 71
Copyright
Copyright © Cambridge Law Journal and Contributors 2003

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Footnotes

*

This article was given as the second Sir David Williams Lecture, Cambridge, 10 May 2002.

References

1 “Core” members, because retired Lords of Appeal in Ordinary may continue to sit on the Appellate Committee until the age of seventy-five. More rarely, a peer of the realm who has left “high judicial office” may be invited to sit. Lord Cooke of Thorndon, formerly President of the New Zealand Court of Appeal, is a recent and distinguished example.

2 Lord Steyn in his Neill Lecture, given at All Souls College, Oxford, on 1 March 2002. See also Woodhouse, Diana, The Office of the Lord Chancellor, (Oxford 2001)Google Scholar, passim.

3 See, for example, the written evidence presented to the Royal Commission on the Reform of the House of Lords by JUSTICE, May 1999. The Senior Lord of Appeal, Lord Bingham of Cornhill, has spoken publicly in favour of the establishment of such a court.

4 A speech to the Citizenship Foundation, Saddlers’ Hall, London, 8 July 1996.

5 R. v. Secretary of State for Foreign and Commonwealth Affairs, ex parte World Development Movement Limited, [1995] 1 W.L.R. 386.

6 R. v. Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No. 3) [2000] 1 A.C. 147.

7 Dame Brenda Hale (Lady Justice Hale) has written that “judges should be no less representative of the people than the politicians and civil servants who govern us,” but she nonetheless disavows any suggestion that judges should be elected—“Equality and the Judiciary”, [2001] P.L. 489, 503.

8 I once heard the argument for representativeness pressed to its limits. I was in Washington D.C. when Judge Carswell, a Florida judge, was nominated for appointment to the Supreme Court by President Nixon. The American Bar Association, which assesses all candidates for Federal judicial office, had reported that Carswell was “mediocre”. A western senator, riding to his rescue, said to the Committee that there were a great many mediocre people in the United States, and that they too were entitled to their representative on the court. (Carswell was not confirmed.)

9 [2001] P.F. 489, 501. (Since this lecture was given a fourth woman judge has been appointed to the Court of Appeal.)

10 The Constitution of the Republic of South Africa Act, No. 108 of 1996, section 174(2).

11 See Kalanke v. Freie Hansestadt Bremen [1995] E.C.R. 1-3051: [1995] I.R.L.R. 660; Marschall v. Land Nordrhein Westfalen [1997] E.C.R. I 6363: [1998] I.R.L.R. 39.

12 See e.g. A. Le Sueur and R. Comes, The Future of the United Kingdom's Highest Courts (School of Public Policy. UCL, 2001), p. 115.

13 The Supreme Court in the Mirror of Justices, the first Owen J. Roberts Memorial Lecture, given at the University of Pennsylvania Law School, 1957. Justice Frankfurter said that “the correlation between prior judicial experience and fitness for the functions of the Supreme Court is zero”.

14 I shall refer below to the political exceptions.

15 See Hoekstra v. H.M. Advocate (No. 3) [2000] H.R.L.R. 410, in which another Scottish appellate court set aside the decision of the court of which that judge had been a member.

16 “Judges for the New Century”, [2001] P.L. 62, 68.

17 Note 12 above.

18 At p. 113.

19 Published in Studies in Law and Politics, (London 1932).

20 Heuston, R.F.V., Lives of the Lord Chancellors, 1885-1940 (Oxford 1964), p. 603Google Scholar.

21 I have in mind Lord Somervell of Harrow, Lord Donovan and Lord Simon of Glaisdale. There may have been others whom I have overlooked.

22 Quoted in Heuston, op. cit., p. 37.

23 As David Steel J. remarked in a recent (unreported) case, “The tentacles of the Human Rights Act reach into some unexpected places. The Commercial Court, even when exercising its supervisory role as regards arbitration, is not immune.”

24 [2001] P.L. 62, 64.

25 At p. 65.

26 The Guardian, 20 March 2002.

27 I cannot refrain, however, from quoting a news item which I saw last month in an Italian newspaper: “Not enough members of parliament showed up on Thursday afternoon to allow for a binding vote on the appointment of two judges to the Constitutional Court. The vacancies have remained unfilled for almost two years due to political bickering.” (Italy Daily, Milan, 12 April 2002.)

28 One may perhaps apply to nominees to the Supreme Court the current dictum on candidates for the US Presidency—“Presumed innocent until nominated.”

29 The statutory provisions governing the functions of the Commission are to be found in the Constitution of the Republic of South Africa Act, No. 108 of 1996, sections 174 and 178. The Commission has established its own procedures.

30 The possibility of a commission to scrutinise all judicial appointments (which would be an enormous task) raises issues beyond the scope of this lecture. There is already an independent Judicial Appointments Commissioner who has no role in making actual appointments, but has power to scrutinise the processes of the Lord Chancellor's department.