He thinks it could improve diversity, lawyers think it’s a naff idea
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:
Elected judges? No thank you. That is all. https://t.co/9Fyek9WsuE
— PJM QC (@pjm1kbw) November 24, 2016
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:
@pjm1kbw because we all know how fantastically diverse our legislature is as a result of elections… 🙄
— Will Merry (@Will_MerryEsq) November 24, 2016
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.