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Lawyers round on Birmingham City maths lecturer’s suggestion Supreme Court judges should be elected

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He thinks it could improve diversity, lawyers think it’s a naff idea

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A maths and statistics lecturer from Birmingham City University has said Supreme Court justices could be elected by the public in a bid to improve diversity, but the idea has gone down like a lead balloon among lawyers.

In The Guardian this morning, senior lecturer Francis McGonigal — who has taught on topics such as artificial intelligence and computer programming — said of the top appeal court’s marked lack of diversity:

There is a radical solution: judges could be elected in part by the public from among suitably qualified and experienced lawyers. In this way the judiciary would more accurately reflect the public they serve. Judges could in turn then elect the Supreme Court from among their own numbers.

Instinctively the idea seems extreme, but it no doubt taps into a post-referendum public disdain towards judges and their proper constitutional role.

When three judges — the Lord Chief Justice Lord Thomas, Sir Terence Etherton and Lord Justice Sales — ruled against the government in the Miller legal challenge earlier this month, angry tabloid papers were quick to accuse the judiciary of “defying” the will of Brexit voters. As the Miller litigation moves through the appeal system, The Spectator has shone a further spotlight on the issue this morning by asking whether any of the eleven Supreme Court judges “represent” the 17.4 million Brexiteers, to which author Charles Moore concluded:

It would be good to know. That is how it works in America, and how it must work here if we continue down this mistaken route. Otherwise, we have to resort to rumour and reading between the lines.

Some may think judges are unrepresentative of the population and to them this is a legitimate problem, but introducing elected as opposed to appointed judges is — in lawyers’ eyes — not the way to solve it.

Enter family law QC Philip Marshall, who kicked off legal twitterati proceedings this morning when he said:

Within minutes, legal commenters were out in force explaining why they were so resistant to McGonigal’s suggestion.

Solicitor-advocate Julian Young described the introduction of elected judges as “a crazy idea”, while Bristol law graduate Will Merry quipped:

Others joked that democracy should be extended to cover doctors and scientists too; consultant solicitor Julie Twist rather bleakly tweeted “it’s like a Lord Chancellor with no legal experience. Bonkers”.

We got in touch with McGonigal this morning to give him the chance to expand on his Guardian article and to find out how he was coping with the furore. He told Legal Cheek:

My basic argument is that to ensure that the judiciary reflects the public in terms of gender, ethnicity, class and other criteria then the most obvious way to do this is by having some element of public election.

McGonigal, who has an MSc in Robotics, pointed out to us that there is “a precedent of sorts” for this idea, as we now elect Police Commissioners.

As for the social media response to his article, McGonigal wishes to make clear that wisecracks about a lack of diversity in parliament aren’t appropriate criticisms of his article. MPs, he explained, are elected under a first past the post voting system, which the Birmingham City University lecturer doesn’t advocate in the context of judges.

36 Comments

Anonymous

The most ridiculous idea I have heard in years. I wonder who would be voting for them and based on what ‘qualities’ and ‘abilities’ they would be elected.

(8)(1)

Anonymous

Exactly my thoughts. This would lead to a system such as that seen in the USA where a large number of judges are elected, based primarily upon their beliefs (political and other) the Judiciary should not become entwined with the government, I think that there needs to be clear separation of powers, but also that such a separation needs to be visible.

Imagine a country where people treated Judges with the same level of respect, suspicion and contempt that they do politicians!

(9)(0)

Anonymous

It’s not common for judges to be elected in the USA – rather, senior judges are often appointed by an elected executive (and confirmed by the relevant federal / state legislature).

That said, politicisation of judges is bad, whether through direct election or appointment by an elected official. Something like the Independent Judicial Appointments Commission is probably the best kind of system.

(2)(0)

Anonymous

Actually District Judges are elected …..

(1)(0)

Anonymous

But who appoints the JAC?

(0)(0)

Anonymous

The article was not suggesting a US style approach but was much more cautious suggesting some public input.

(0)(0)

Not Amused

Well that settles it. If a Family Lawyer says it can’t be done that must be the end of the matter. The world needs more Family Lawyers in charge of making decisions – just look at how seamlessly that jurisdiction manages to perform.

If the court continues (as it has done for 20 years) to get more and more interventionist and to push itself further and further in to politicisation then something like this becomes an inevitability. If, like me, you don’t want elected judges then you need to campaign against judges getting political in the first place.

(although actually the idea of judges picking their colleagues for selection is not a completely bad idea given how poorly the current ‘objective’ system works … indeed it sounds like the system we used to have, the one that worked.)

(6)(10)

Thank goodness for the British judiciary!

You’re right, not amused. We’d all rather take the word of a seemingly underemployed commercial barrister as being the end of the matter.

Can you assist by pointing me in the direction of one?

(7)(0)

Anonymous

“MPs, he explained, are elected under a first past the post voting system, which the Birmingham City University lecturer doesn’t advocate in the context of judges.”

So what does he suggest? Proportional representation? But then judges would need to be affiliated to some kind of party grouping. Perhaps an election where we get 3 from the ‘Hang-em and Flog-em Group’, 2 from the ‘Liberal Elite Group’ and a token representative from the ‘Who-Needs-Judges-If-You-Can-Have-Robots Susskind Group’?

(8)(1)

Anonymous

Wow. Talk about using your imagination and extending an argument to where it was never intended to go.

(0)(10)

Boh Dear

Yeah, stop that independent thought process right now!

(4)(1)

Anonymous

Some versions of PR such as STV do not require party lists or grouping.

(1)(0)

Anonymous

Part of the selection process SHOULD be down to some public input in a bid to make the judiciary less homogenous.

There is nothing objectionable about the suggestion from the lecturer contained in the first quote of the article – “elected in part by the public” from a pool of “suitably qualified and experienced lawyers” – public selection should be one part of the judicial appointments process.

Sensible.

(2)(9)

Anonymous

no no no no no

no.

(2)(0)

Interloper

Totally agree. Like 1000000000%

(0)(0)

Anonymous

Why on earth would we want a US style system where judges, who are supposed to objectively uphold the law, belong to partisan political parties (or at least ideologies). In what way does that ensure the rule of law? What a joke for justice if that happens here.

Also… the vast majorly of the public would not care to vote.

(1)(0)

lol

“…who has taught on topics such as artificial intelligence and computer programming.”

That says it all.

(3)(1)

Anonymous

An MSc in Robotics – shouldn’t he really stick to playing Robot Wars and leave business to the grown-ups ?

(5)(1)

Anonymous

Those who can’t do teach.

(0)(0)

Interloper

Well he seems to be primarily a lecturer at the business school as opposed to some high falutin researcher at the cutting edge of AI and Robotics but I don’t think it becomes anybody to diss the important job educators do at any level. Clearly the standards of education at this country are not anywhere like as good as they might.

That said, it’s very presumptuous of him to make the statement he did about an area he clearly has considerable ignorance of and has not bothered to do any research into. So, he fully deserves all the brickbats he’s getting.

(0)(0)

Anonymous

Shitehole peasants

(1)(0)

Anonymous

Vote Not Amused.

No. Fcuking. Way.

(0)(0)

Anonymous

Depends what you’re voting for. Judicial office – no. Being made to take a day chillaxing away from Legal Cheek – clear winner!

(1)(0)

LawNOrder

Police Commissioners are a terrible example; their job was already done by elected politicians, serving as a committee.

(2)(0)

Anonymous

Also it is a single post for each area so there cannot be meaningful diversity.
However I would guess it is just an example of direct elections being introduced where there were none before.

(0)(0)

Juan

PCC elections also have very poor turnout and generally reflect local political realities.

In the Brexit case it is hard to see how electing the relevant court would have helped as it would be unlikely any of the judges would in anyway reflect the current political reality, that being that slightly more than half of voters voted for Brexit and slightly less than half of voters did not, but the total voted was roughly half of the country. Brexit is a new schism and one that may endure, but a judge elected even a year ago would be a reasonably unknown quantity wrt to a case like Brexit. We just don’t have these cases very often.

Whereas in say the US, the constitutional issues that are driven by political ideology or party membership are now very well known. The presidential appointment then Senate vetting process, flawed as it may be has some expectation of finding a good ideological fit (i.e. someone who will vote the party ticket most of the time).

Who on the Brexit side really gave a damn about the precise legal points 5 months ago? Who actually understood them? I bet you could read every Lawyers For Britain/Leave EU/Vote Leave document prior to 23/6 and see no mention or concern about it.

So it wouldn’t help a damn thing.

(0)(0)

Gus

Mr Kerr? Is that you?

(0)(0)

Anonymous

Maths teacher offer opinion on law…

Not really a persuasive authority.

If my paralegal offered an opinion on trigonometry I wouldn’t expect it to gain press attention

(5)(0)

Anonymous

Every citizen can have an opinion about the law. We elect MPs who make laws.

(0)(1)

Anonymous

The problem of enduring optimal diversity in a body such as parliament or the judiciary in order to match the overall population is in fact mathematical.

(0)(1)

Anonymous

pipe down, calculator sucker

(0)(0)

HHJ Rawhide

This post has been removed because it breached Legal Cheek’s comments policy.

(0)(0)

Anonymous

U watched blazing saddles, lad?

(1)(0)

Anonymous

Why stop at Supreme Court judges, lets have maths lecturers elected by the public too!

(1)(0)

Interloper

That’s clever. Like it 🙂

(0)(0)

AB

Election campaigns is not for everyone. A great many top legal minds just wouldn’t want the limelight or the cap-in-hand nature of it. In a world where Baronness Hale gets lambasted for summarising the likely arguments in a case, how would the press respond to published manifestos?

(0)(0)

Comments are closed.