Lord Gill underlines importance of independent judiciary

He discussed how the independence of the judiciary can be threatened in seemingly innocuous ways such as through political attempts to increase efficiency and, “ironically” transparency.

Lord Gill put forward the argument that the judiciary cannot remain independent if the profession does not and posed the question “what kind of judges do we wish to have?”

He noted that until about 20 years ago the process by which judges were appointed was hidden from the public and had “aspects of mystery”.

However, since then the appointments process has been informed by the Latimer House Principles which require that appointments be made independently; that they are permanent; and that they do not discriminate between men and women.

Lord Gill acknowledged that he was appointed under the old system but noted he did not think this system lacked proper consideration of candidates – merely that it was hidden from the public.

In contrast, he cited the appointments system in the US state of Wisconsin where David Prosser was appointed to that state’s supreme court first by its governor and then re-elected in a campaign involving large amounts of money. He then found a case before him involving a campaign donor and declined to recuse himself.

Highlighting the striking difference in our system compared to the Americans’, he quoted Judge Prosser, who said: “The effect of even large contributions can wear off after a reasonable time has passed, so long as it doesn’t involve a case that was pending at the time the contribution was made.”

On the question of women and minorities’ representation in the judiciary, Lord Gill said: “Most appointing bodies will adopt the principle that their sole criterion is merit, while adding that they are also committed to the creation of a judiciary that fairly reflects the balance of the sexes and is representative of the minority groups in modern society. That is simply an attempt to square the circle. Some academic writers would have it that being a woman or a member of a minority group is itself an aspect of merit. That is surely special pleading. If it is true, then a merit-based appointments system may discriminate against deserving candidates who are not women or members of minority groups.”

He added that while “academic excellence” alone could not be the sole criterion for judicial appointment “no judiciary can survive without a solid substratum of academic excellence among its number.”

Future judges, Lord Gill said, require to have a “profound” understanding of the law.

He added: “We need judges who have the qualities of imagination and inventiveness by which the law develops and without which judges become the hapless captives of precedent. Today’s appointee may in due time ascend to the appellate courts in whose hands, it can truly be said, the future of a legal system lies.”

And, because the judiciary is drawn from the profession, Lord Gill’s proposition becomes clear.

To secure such independence, he says: “It is in the interest of the public that every citizen should have available the services of lawyers who have no ties to any organization and whose duties lie only to the court, to the client and to their own professional body and its exacting standards.”

The lord president went on to say we should consider the appropriateness of the appointments system to appointments of constitutional significance. He said it may be worthwhile seeking to appoint those “secure in their reputations as lawyers of distinction” and quoted Exodus 18:21 and 22:

“Now search for able men among all the people, men who revere God, and are honest, men who despise unfair profits … and let them judge the people at all seasons.”

Lord Gill also discussed judicial education, judicial discipline and the judiciary and the media.

Read the full speech here.