FROM HOUSE OF LORDS TO SUPREME COURT. JUDGES, JURISTS AND THE PROCESS OF JUDGING. Ed by James Lee Oxford: Hart Publishing (www.hartpub.co.uk), 2011. xxxi + 310 pp. ISBN 9781849460811. £50.
| DOI | 10.3366/elr.2012.0089 |
| Published date | 01 January 2012 |
| Date | 01 January 2012 |
| Pages | 127-129 |
| Author | Scott Crichton Styles |
This book is the permanent account of a conference held in November 2009 on the same subject, although inevitably the content looks more to the past contribution of the Judicial Committee of the House of Lords than towards the future contribution of the Supreme Court. This collection consists of twelve essays written from a variety of perspectives, domestic and international, and uniformly the contributions are stimulating and interesting. Regrettably, limitations of space preclude a consideration of all chapters in this collection, which includes a particularly illuminating paper by Alan Paterson on the effectiveness of advocacy before the Lords. In the space available, however, four other contributions will be singled out for particular comment.
In the opening chapter, “A Darwinian Reflection on Judicial Values and Appointments to Final National Courts”, Michael Kirby, a former judge of the Australian High Court, uses the Darwinian notions of evolution and fitness for purpose to analyse the role and appointment of judges. Essentially Kirby argues that the decisions of superior judges are always influenced by their beliefs and backgrounds and so can never be value free. Accordingly, we should appoint as wide a variety (gender, race etc) of judges as possible because just as diversity is the key to success in the natural world, because it maximises the survival chances of a species being fitted to its environment, so we should encourage a diversity of backgrounds for the judges of appeal courts because that will produce a diversity of opinions, and thus maximise the chances of decisions fitted to the needs of modern society. Following on from this view Kirby criticises, rightly in my opinion, the new “selection commission” method of filling vacancies in the Supreme Court as a backward move, because the commission is made up predominantly of serving judges. A system in which existing judges appoint their successors lacks democratic accountability and is unlikely to promote judicial diversity.
With his stress on the importance of the personal views of the judges Kirby's is unashamedly a view which accepts, even welcomes, the policy and political aspects of judicial law making. By contrast, in “From Appellate Committee to UK Supreme Court: Independence, Activism and Transparency”, Aileen Kavanagh, whilst not denying those aspects of the judicial role, argues in the opposite direction to that of Kirby. In a thoughtful and balanced argument Kavanagh contends...
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