Depoliticising the judiciary

Politicians severed from highest judicial selections in UK ... Reinvention of the ultimate court ... Elaborate titles preserved ... Barwick would approve (but for other reasons) ... Procrustes on the case 

Zizek: Okay, why not?I'm not long back from the Old Dart where I was investigating ways of dealing with change. 

I return to discover that fiction pre-figured fact, as a memory of P.G. Wodehouse's The Clicking of Cuthbert revealed itself to anyone watching the Slovenian philosopher Slavoj Zizek in action recently.

Try the following from Slavo on QandA last month:

"Like what's going on? New dangers and so on, and I compared this in my tasteless nature, since we talk about sex, with did you see Francois Truffaut's film Day For Night? Well, it's a sad story. A young boy wants to sleep with a street girl. Finally they are alone and he tells her 'Okay, now we are alone by a lake. Let's do it quickly,' and so on. 'Oh, I am dreaming for years to screw you,' and the girl simply says 'Okay, why not?' and starts to unbutton her trousers and he is in a total panic. Like, how, do you mean just like that or whatever? Aren't we a little bit like that, towards Egypt, I mean? You know why? Because they did what we demanded from them and the result is shock." 

Wodehouse wrote of a Russian novelist ... you get the drift:

"Doubtless with the best motives, Vladimir Brusiloff had permitted his face to become almost entirely concealed behind a dense zareba of hair, but his eyes were visible through the undergrowth, and it seemed to Cuthbert that there was an expression in them not unlike that of a cat in a strange backyard surrounded by small boys ... 

"Introduct me!" thundered the Celebrity.

"Why, certainly, certainly, of course. This is Mr - - -."

She looked appealingly at Cuthbert.

"Banks," prompted Cuthbert.

"Banks!" cried Vladimir Brusiloff. "Not Cootaboot Banks?"

"Is your name Cootaboot?" asked Mrs. Smethurst, faintly.

"Well, it's Cuthbert."

"Yais! Yais! Cootaboot!" There was a rush and swirl, as the effervescent Muscovite burst his way through the throng and rushed to where Cuthbert sat. He stood for a moment eyeing him excitedly, then, stooping swiftly, kissed him on both cheeks before Cuthbert could get his guard up." 

Wooster and Jeeves (by Edgar)The creator of Bertie Wooster, Jeeves and Cuthbert Banks was much on my mind as I looked over the new British Supreme Court, situated across Parliament Square from the Palace of Westminster, in the former Middlesex Sessions Court.

What would the chaps (and apparently one chapess) be called in this soi disant replacement for a Judicial Committee of the House of Lords, which had operated in modern form for over 130 years? 

Lost, I feared in the white hot search for modernity, all those wonderful titles from the past, redolent of A.P. Herbert and P.G. Wodehouse: Lord Sheep of Lower Smattering on the Wissel; Lord Wool of Worsted.

Never underestimate the British gift for continuity. The former Law Lords will continue as, well, Law Lords (and the Law Lady, Baroness Hale of Richmond) at least as to their titles, but they lost their right to sit in the House of Lords as legislature.

The separation of powers had, finally, come home to roost in the land of its birth. 

And the British still can create the most splendid titles.

Stone cum EbonyNew boy in the ranks of the Supreme Court is Lord Clarke of Stone cum Ebony. Not, as you first thought, a black porn star, but named for a fragrant Kentish village that lies between Cradlebridge Sewer and Five Watering Sewer.

What is even more exciting than the ludicrous, if redolent titles, is that since 2006, all British judges, including the ones at the top, have been appointed pursuant to a selection process designed to sever politicians from their previous stranglehold over judicial appointments.

The Supreme Court justices are now "recommended" to Her Majesty for appointment by the Prime Minister, but she or he must accept the selection of a candidate put forward by the Selection Commission.

That panel consists of the President and Deputy President of the Supreme Court together with representatives of the selection bodies for England and Wales, Scotland and Northern Ireland.

They must in turn make enquiry of nominated officials, including the Lord Chancellor (a politician), but subject to approval by the Lord Chancellor, who must give written reasons for rejecting a name proposed, the Selection Commission's choice must prevail, and that Commission contains no politicians.

The Poms have done it, while we merely fiddle with the idea. Here's Sir Garfield Barwick in 1977: 

"In my view, the time has arrived in the development of this community and of its institutions when the privilege of the executive government in this area should at least be curtailed.

One can understand the reluctance of a government to forgo the element of patronage which may inhere in the appointment of a judge. Yet I think that long term considerations in the administration of justice call for some binding restraint of the exercise of this privilege.

I make bold to suggest that, in all the systems of Australia where appointments to judicial office may be made by executive government, there should be what is known in some systems as a judicial commission - but the nomenclature is unimportant - a body saddled with the responsibility of advising the executive government of the names of persons who, by reason of their training, knowledge, experience, character and disposition, are suitable for appointment to a particular office under consideration.

Such a body should have amongst its personnel judges, practising lawyers, academic lawyers and, indeed, laymen likely to be knowledgeable in the achievements of possible appointees.

Such a body is more likely to have an adequate knowledge of the qualities of possible appointees than any minister of state is likely to have." 

Barwick: Made bold to suggest ...Bob Gotterson QC said of this later:

"Why Sir Garfield thought that the time had then arrived may have been because of his widely known hostility to the appointment to the High Court of Lionel Murphy some two years earlier in 1975." 

The fact remains that the Brits have re-invented their ultimate court and housed it in a delightful structure, built on a human scale with courtrooms that do not shrink the participants to insignificance, as is the case with Gar's Mahal in Canberra, the cathedral of the law and monument to a small man's complex. 

The British government has surrendered the patronage and illusion of control involved in judicial appointment. 

Could the Australian judicial appointment process move beyond mere vetting by Sir Gerard Brennan and colleagues, to a government promoting the concept of independence in appointments, and not just urged on by Barwickian political spite?