The “tragedy” of social media?

1st September 2022

There is a concept, of which many of you will be aware, called “the tragedy of the commons”.

It is a concept about which some people have Very Strong Opinions – and even referring it risks being swamped by “you don’t understand” responses – but it is a useful idea nonetheless.

In a way, it is an articulation of one general reason for why, as a species, we cannot have nice things.

Some people, somewhere – but definitely not you – are going to ruin things for everyone.

*

Something akin – but not identical – is happening with social media platforms.

Just as this blog has recently referred to the 3 Ps – populism, polarisation, and post-truth – what is going badly in social media can be reduced to 3 As.

Abuse, Adverts, and Algorithms.

One response to the clutter, spam and trash one encounters on social media is to blame the platforms.

And the private companies that operate the platforms can and should do more to make using social media less unpleasant.

But.

The unpalatable truth about why social media platforms are often not nice places is because of the “social” part of social media, rather than the “media” part.

In other words: social media has not changed human nature, but made it more visible.

And what is happening on social media is what happens when you give large groups of people the means of instantly communicating with each other.

If this dismal observation is correct then seeking to regulate the “media” part of social media is destined to fail, because the ultimate problem is people, not platforms.

(Of course: other people, not you or me.)

And, if it is ultimately a “social” and not a “media” problem then its resolution will be in changes to social attitudes, not legal changes.

Just like people in large cities ignore each other when in close proximity, people may come to ignore each other in virtual communities.

The person shouting on the internet will be as shunned as the person shouting in the street.

Humans may perhaps adapt, once the novelty of social media wears off.

Or perhaps they will not, and social media will just get worse.

For sometimes it is people, and not regulations, that are to blame.

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Never underestimate archivists and librarians – as Donald Trump is discovering

31st August 2022

Here is a lovely story about libraries and public policy.

The year is 1983.

The library is the British Library, formerly hosted in the reading room at the British Museum and other sites.

Nicolas Barker, then the library’s head of conservation, and Lord Dainton, then the chair of the British Library Board, had a problem.

Public finances were under pressure, and spending cuts were everywhere.

But.

They needed to work out a way to convince the then Prime Minister Margaret Thatcher about the urgent need for the move of the library to a new purpose-built building.

They decided to keep the issue simple: no lengthy paragraphs in a wordy report, still less charts or tables.

And certainly no waffly arguments.

They instead took her half a dozen books, as well as a novel by one of her favourite authors, which were falling apart, regardless of the care being taken to conserve them.

They placed the books on the table in front of Thatcher.

Silence.

She looked with horror at the state of the books.

Silence.

And then they then said:

‘Mrs Thatcher, we need a new building because all our books will fall to pieces if they stay where they are.’

So horrified was the Prime Minister at the potential fate of the national collection that they got the go-ahead for the new building.

*

There are perhaps two morals to this tale (which I have told before here and is recorded in this obituary).

One is that sometimes exhibits are more persuasive than words.

The other is never to underestimate archivists and librarians.

*

That there seems a real prospect of legal jeopardy for former President Donald Trump because of a breach of American archival law.

For many watching this is evocative of Al Capone being nailed on tax evasion charges.

Archival offences seem to Trump’s supporters a convenient pretext for legal action, rather than a substantive wrong.

But.

It is a substantive wrong.

For keeping documents and other information safe both for now and for posterity is a central function of the state.

It is how the government (and legislature and judiciary) of one day speaks to those charged with power in the future.

It is how those with power can be confident that certain information does not go to those who would use that information to cause damage and injury.

Like the integrity of the currency and protecting the realm, preservation of certain information is a core duty of those entrusted with power.

And like the damaged books put in Thatcher, visual evidence can be telling:

(Source.)

Of course, few of us know the facts.

It may well be that this legal exercise comes to nothing, and Trump escapes personal legal liability again.

And Trump is entitled to due process, like you and me.

But the wrongful removal of information from a government is not a trivial thing.

For without properly documented information, modern governments could not function.

That is why laws and policies about document management and retention are so important.

And there would be a wonderful irony if laws and policies about ensuring the integrity of written information were used to check the arch-abuser of political language and post-truth politics.

POSTSCRIPT

The historian Dr Adam Chapman has provided us with this similar story – click through to read more:

 

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Judicially reviewing a political party – and why Tortoise has a point as well as a weak legal case

30th August 2022

Before I became a lawyer, I wanted to be a historian and, in particular, a historian of the concept of the “state”.

The “state” – forgive the quotation marks – is, in one way – something which exists only in the mind, as a label we give certain things around us.

Yet in another way the “state” has a real existence – and some on the left demand “the state should do this” or on the right that “the state should not do that”, both presupposing that something called the “state” exists, and it can be called on to do or not do things.

Some attribute to the “state” the same qualities of omnipotence, omniscience and omnibenevolence that some people even now ascribe to various gods (or “gods”).

But.

I did not do the envisaged postgraduate work on intellectual history, and I fell into being a lawyer instead.

And part of the reason was that with law there were debates and discussions about what the “state” should do and not do, and what were its limits, that seemed more practical, urgent and uncertain in their outcomes than in the academic study of political ideas.

Indeed it was a 1996 article about whether the Jockey Club was amenable to judicial review that first started me thinking seriously about  a career in advising on public law.

*

Judicial review is the term lawyers in England and Wales give to both procedure and the substance of holding public bodies to account in the courts.

Often what constitutes a public body – such as ministers of the crown or statutory corporations – is obvious.

But the test is functional – if you are an entity exercising a public function then you are amenable to judicial review.

And this means you are subject to certain special legal duties and remedies that may not otherwise be the case.

So it matters – practically – whether you fulfil the test of exercising a public function.

(Related areas of law – such a freedom of information – have fixed lists of what are public bodies and do not have a functional test.)

*

The folk at the Tortoise news and commentary site have decided to send a legal letter threatening an application for judicial review against the Conservative Party.

The letter is worth reading in full.

There are two things worth saying about the letter.

First, the application is what a judge would say is “ambitious”.

Each element of the application is arguable (sometimes only just) – but that an element of a case is arguable certainly does not make it strong.

In essence, that a point is arguable is the test for simply getting it before a tribunal – the minimum required.

Perhaps a positive judge on a sunny day and after a hearty breakfast may give the envisaged claim the judicial thumbs up.

Predicting litigation is never an exact science.

But.

It is unlikely that any court will want to bolt political parties onto the state for the purposes of judicial review – especially when political parties have their own special regulatory regime, and it is the Queen who choses who is invited to be Prime Minister.

The case is likely to fail.

Two, Tortoise has a point – despite the weak legal merits.

A membership-based national political party is conducting an exercise that will lead to the successful candidate being – almost certainly – invited to become Prime Minister and we know very little about how that exercise is being conducted.

(The position would be different if only members of parliament were involved.)

Tortoise are asking for disclosure of the following information:

“(1) Anonymised data you hold on the demographic of the Party’s membership: 

(a) Particularly, we invite you to provide, where held, the number of Party members who:

(i) Live abroad;

(ii) Are foreign nationals; and

(iii) Are under voting age.

(b) We also ask you to provide data in respect of:

(i) The age range of members; 

(ii) The geographic distribution of members; and

(iii) The genders of members.

(2) An explanation of whether, and if so how, the Party keeps its membership database up to date, ensuring that it sends ballot papers to correct addresses. 

(3) Anonymised data you hold on variations in member numbers over time, presented quarterly over the past 10 years. The public interest is particularly acute in respect of quarterly membership numbers for the past twelve months.

(4) An explanation of the Party’s system of compliance, including but not limited to the following questions:

(a) How does the Conservative Party check that new members are who they say they are?

(b) Who oversees compliance? i.e. who independently checks whether the Conservative Party is checking? 

(5) What is the number of efforts at infiltration which the Party has thwarted, i.e. how many cases have you discovered of a fictional person, a dead person, a person of non-voting age, a member of another political party or a pet registering as Conservative member?

(6) An explanation of any third party compliance mechanisms in place to ensure that only those eligible to vote do so, that they vote only once each, and that the election is not manipulated.

(7) An explanation of the circumstances by which GCHQ came to offer advice on the distribution of Conservative party ballots.

(8) An explanation of why non-UK citizens who join the party abroad are eligible to vote even if they pay no tax and spend no time in the UK. 

(9) Confirmation of whether Party members under the national voting age can vote in the election of Party leader and Prime Minister.”

On the face of it, this is the sort of information which should be in the public domain – and this would apply equally to the Labour Party or other political party in a similar situation.

The (likely) legal fact that judicial review is not the appropriate way of getting such information does not take away from this being information which should be publicly known.

Indeed, that Tortoise is resorting to judicial review indicates – if not demonstrates – that the special regulatory regime for political parties is deficient.

And it is that special regulatory regime that should change – rather than the ambit of judicial review be extended.

Political parties are not private clubs, where there is a limited public interest in their internal affairs.

Political parties are a central feature of our political system.

They are not part of the “state” as such (though views may differ) but they are part of the oil that enable the engines of state to work.

So one can sympathise with the objective of this legal claim, even if one is doubtful of its legal merits.

That objective should be achieved by changes in legislation, and not by judicial expansion.

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Giving the incoming Prime Minister a clean slate

29th August 2022

We are about to have a new Prime Minister.

The candidate most likely to become the new premier is Elizabeth Truss, about whom many of you will have Very Strong Opinions – though it still may be Rishi Sunak, about whom many of you will also have Very Strong Opinions.

They will replace Boris Johnson, about whom all of you will have Very Strong Opinions Indeed.

Of course, from a liberal and progressive perspective there are reasons to be concerned, if not fearful, about the new Prime Minister.

But.

As hard as it will be, it is I think useful to always give a new Prime Minister a blank slate.

(Even if some of the candidates’ harshest critics will accuse the candidates themselves of being blank slates.)

Here I would make two observations.

First, it is not unusual for a politician obtaining power to say and do things that are calculated so that the politician obtains power.

Such things may – or may not be – reflective of what they do once they have secured the power they seek.

Second, never underestimate any politician who “makes it” – who gets to the top of Disraeli’s greasy pole.

You may – perhaps rightly – regard them as a vacant dimwit.

Yet they are a vacant dimwit who got to be Prime Minister, against hundreds of other ambitious (and ruthless) politicians.

Deriding them for a lack of intelligence or insight does not, by itself, explain how they got to be Prime Minister while hundreds of other politicians did not.

Of course: past performance (or lack of performance) can be a fair guide to future performance.

But the unique nature of the job of Prime Minister is such previous ministerial and non-ministerial roles are not a perfect guide.

For what it is worth, I also adopt this approach to new Lord Chancellors.

Again that is a unique role – where previous jobs may not be a perfect guide.

Sometimes one can be pleasantly surprised: Michael Gove, for example, was shaping up to be a good Lord Chancellor, and not just because he was not Chris Grayling.

While other Lords Chancellors were hopeless, even if one strained to give them the benefit of the doubt.

Ones like, well, Elizabeth Truss.

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Article 16, again – what, if anything, has changed?

26th August 2022

Article 16, again.

Here is this blog in February 2021:

In September 2021:

And in October 2021:

There are many more.

Like many commentators on Brexit, it feels like I have written sixteen articles on Article 16.

There was a time when every weekend had a Sunday newspaper briefed that Article 16 was about to be triggered.

*

And here we go again.

What new can be said?

In some ways, there is not a lot that is new to say.

Triggering Article 16 will not have the dramatic – cathartic  – effect that some breathless political and media supporters of the government believe it will have.

A gun is not fired, just a talking shop established.

And the provision cannot be used to dismantle the Northern Irish Protocol.

If you want to read more along those lines. click on the links to the explainers above.

But.

Some things have changed.

And it may actually be wise for the government to trigger the provision.

This is because the United Kingdom is now in the absurd position of proposing primary legislation on the Northern Irish Protocol under the pretence that it is “necessary” for the United Kingdom government to not perform or comply with its obligations under the protocol.

The government raced to putting forward this draft legislation without going down the Article 16 route that was intended to deal with any problems with the protocol.

By actually setting up a formal talking shop on the protocol then there is the possibility of constructive engagement with the European Union, rather than this silly legislative exercise.

Article 16 should have been triggered ages ago – as it would enable structured talks.

The reason one suspects that the government has not triggered Article 16 is that ministers know – or should know – that it will not have the exhilarating effects set out in the government-supporting media.

But it could have beneficial effects – and any safeguard measures would have to proportionate and time-limited.

Article 16 may therefore offer a way of choreographing a resolution of the perceived issues over the Northern Ireland Protocol.

Of course: this assumes that our government under the incoming Prime Minister wants a solution and is operating in good faith.

Just typing those words makes one realise how unsound such an assumption is.

But.

Structured talks under the Article 16 regime can only be a good thing and the government’s scarce time and resources would be better used in doing this than in pursing the misconceived primary legislation to allow the government to break the law.

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Murphy’s Lawyers – a reply to Richard J. Murphy’s attack on lawyers for those with power

 25 August 2022

The accountancy professor and campaigner Richard J Murphy launched an attack on certain lawyers on Twitter.

It is important that this attack be understood on its own terms, without misrepresentation and distortion, so I have screen-grabbed the thread below:

*

I think Murphy is wrong.

I think – perhaps counter-intuitively – that it is a Good Thing that those who are powerful in society have to have lawyers in place when exercising their power.

The starting point is the simple observation that modern societies – unless there is some happy intervention – tend to be unequal.

This means that in modern societies there tends to be people with more power than others.

These people would tend to have power, regardless of whether they have lawyers or not.

So why do those powerful people need to have lawyers?

It is because of a thing called “the Rule of Law” which means that every exercise of power has to have a lawful basis.

“The Rule of Law” means the powerful cannot do as they wish: instead they have to comply with the law.

That is why powerful people often have lawyers.

Imagine a society where those with power did not need lawyers – that the powerful could exercise their power without worrying about whether they are breaking the law.

That would be an even more brutal and unequal society.

In each of the categories that Murphy posits in his thread, the real significance is that the powerful have to have lawyers – because however mighty those powerful people are, the law is mightier.

What would be more worrying is if the powerful could get their way in each of Murphy’s categories without needing lawyers.

*

The points I make above are not original.

The great Marxist historian E. P. Thompson in Whigs and Hunters (perhaps the best British work of practical legal history), and other books, pointed out that the Rule of Law helped those without power in their dealings with those with power.

I happen to have spent time in City law firms, and I have seen how the need for compliance with the law means that those with power have had to do things that they otherwise would not do.

If Murphy is correct, then those with power would simply exercise that power without legal advice – and without any legal constraint.

This would not have the positive effects that Murphy possibly expects.

The applicable laws may well need improving and reform – there may need to be better balances struck between the interests of those with more power and those with less power.

That is the job for the legislature.

But that those with power need to have legal advice is a Good Thing.

For without the powerful having this need to take legal advice, what could go wrong would go wrong – as another Murphy may have once said.

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The Law and Policy blog mentioned in this year’s MacTaggert lecture

24th August 2022

This blog has been mentioned today by Emily Maitlis in her MacTaggert lecture.

At 23:34.

The post she refers to is here – about how various constitutional ‘gatekeepers’ failed to prevent this government openly proposing to deliberately break international law.

The lecture is about the challenges for journalism in this age of populism.

If you would like to comment on her lecture generally – or her reference to this blog in particular – please do so below.

And thank you for following and in many cases supporting this blog – for without your following and support this blog would never have been in a position to be cited in such a prestigious lecture!

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“[X] is [not X]!” – commentary in the age of populism, polarisation, and post-truth

23rd August 2022

One problem with books like Nineteen Eighty-four is that their sheer familiarity means they lose their impact.

Indeed, phrases like Big Brother and Room 101 have become so detached from their literary mooring that they now have their own existence in popular culture.

George Orwell, if he were still alive and writing, would probably say that we should not use such now-hackneyed images and create fresh ones – and he may well have a point.

He would no doubt urge that we throw away Nineteen Eighty-four and come up with new and vivid turns of phrase.

But it is a pity for there is one passage in particular in his great novel which seems very relevant in these days of populism, polarisation, and post-truth, the 3Ps.

You will know the passage:

“From where Winston stood it was just possible to read, picked out on its white face in elegant lettering, the three slogans of the Party:

WAR IS PEACE

FREEDOM IS SLAVERY

IGNORANCE IS STRENGTH”

 In formal terms:

“[X] is [the opposite of X]

[Y] is [the opposite of Y]

[Z] is [the opposite of Z]”

*

These slogans are extreme.

But they are perfect, in their ways, for they cover and anticipate what may otherwise disprove them.

These are the slogans of politicians who are utterly unafraid of it being pointed out that the opposite is the case to what they are claiming.

*

The slogans of today are similar in effect, if not form, in that they are not capable of being defeated by the opposite being the case in reality.

Yesterday on this blog it was contended (again) that there is not only a discrepancy but a contradiction between the slogan “Law and Order!” and actual law and order.

But there are many more.

For example, think about “Free Trade!” vs free trade.

In the name of “Free Trade!”, we have in Great Britain – with this government’s Brexit policy – cut ourselves off from an immense single market just a few miles away.

Similarly, in the name of “Free Speech!” all supposedly “woke” positions are to be cancelled, especially if taxpayers’ money is involved.

And so on.

There are many more.

*

But none of these contradictions matter, for the slogans can brook no opposition:

“Law and Order!”

“Free Trade!”

“Free Speech!”

Against any practical objection – or empirical disproof – the shouted slogans just get louder, and the nods and cheers – and clicks – continue.

Against this, commentary is often pointless.

It does not matter that anyone is pointing out the differences between what is said and what is done, because these politico-linguistic constructs have lives of their own.

You may as well try to catch ghosts and wisps with a butterfly net.

*

As this blog has averred before, there is still some purpose in commentating, as at least there can be a register at the time that some people saw the mismatches.

And there may be – perhaps – one or two readers who come to a blog like this other than to have their prejudices confirmed.

But generally blogs like this are merely part of the noise that 3P politicians actually want to provoke – the sound of “libs” being “owned”.

Perhaps after the general election there may be politicians in power (even from the current governing party) who want again to connect what they say with what they do.

Perhaps there may even be enough voters who begin to care that they are being lied to.

Perhaps.

But as it stands, a great deal of commentary – including on this blog – is not making things any better, because many politicians know it does not matter if what they say is not true.

If politicians and voters do not mind such contradictions, then pointing out these contradictions has no real purchase.

And until there comes about politicians that want power who can provide leadership – and make voters care about they are being lied to – then there is little point to law and policy commentary.

But we should do it anyway.

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The significance of the Bar strike

22nd August 2022

The criminal Bar has voted to go on strike – that is to not accept any new instructions after 5 September 2022.

Elsewhere on the internet you will find detailed and persuasive accounts of why the criminal Bar has resorted to this – for example here.

The action will cause pain – trials and other hearings that those involved have spent months and years waiting for will now not go ahead.

The added stress for victims and the accused is probably unimaginable for the rest of us.

People’s lives will be ruined further.

Yet.

The barristers’ strike is not really the cause of the problems with the criminal justice system, but more the effect of deeper problems.

This is a criminal justice system that may well have collapsed before now, and it is only by luck it has survived this long.

Like the “good chaps” theory of the constitution, the criminal justice system is in part held together by the goodwill of many of those involved,

For example, self-employed Barristers will take on cases at extreme short notice, and will do work (and travel considerable distances) on life-changing cases and not get paid.

And this goodwill has been exploited.

Legal aid fees are now at a level where it is impossible for junior barristers to survive.

The situation is not sustainable.

*

Politicians and time-poor, copy-hungry news reporters like the easy assertions of “tougher sentences” and “crackdowns” – but that is a mere fictional diversion when there is a functioning criminal justice system.

And if the criminal Bar now just drops hands, then it is difficult to see how the system can continue – indeed, to see whether it still constitutes a “system” at all.

This is what the strike signifies.

The strike signifies that a crucial part of our polity is not functioning – the part that is there to provide justice for both victims and the accused, the part that deals with coercive sanctions and punishments, and so perhaps the most important part of any organised society.

And the government and the media do not care, for as long as they can type and shout “Law and Order!” in return for clicks and cheers it is irrelevant that there is no law being applied, and and no order being imposed.

The political-media construct of “Law and Order!” does not correspond to the mundane, inefficient reality of the criminal justice system.

They are two distinct things, with no direct connection between them.

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One-quarter of the Supreme Court are now Davids – so does the Supreme Court need a different appointment system?

19th August 2022

Because of recent retirements, there was recently just one David left on the Supreme Court of the United Kingdom.

There had been a David on the Supreme Court almost continuously since its creation – David Hope, David Neuberger, and now David Kitchin.

But the forced retirement of David Lloyd Jones meant there was the risk of there one day being none at all.

And then came the great news this week that David Lloyd Jones had been able to be reappointed, and – just to be safe – David Richards was also appointed to the Supreme Court.

That means a full one-quarter of the Supreme Court are now Davids – and this has been achieved without resorting to any quota.

*

More seriously.

Some say there is something unsatisfactory about the appointments this week.

Both the judges who were appointed have outstanding judicial reputations – and it may well be that they were the best lawyers available for the job.

And there have been moves to open up who sits on the Supreme Court since it was founded in 2009 – with appointments from Academia and bodies such as the Law Commission, and also directly from the Bar, to circumvent the usual route from the High Court and Court of Appeal.

Yet some will find it hard to believe that merit means a quarter of the Supreme Court should be Cambridge graduates with the first name David.

*

But.

What – if anything – should be done?

It is one thing to say there is a problem, and it is another one to solve it.

Some people favour quotas – and they make the point that the historic near-uniformity of appointments was (and is) itself a quota system, but in reverse.

Others dislike quotas and positive discrimination on principle, or doubt the efficacy of quotas and positive discrimination in practice.

But before quotas and positive discrimination are even considered, it would perhaps be better for the current system to be opened up as much as possible, to see what happens.

Dinah Rose QC – who would have been a good appointment as a Supreme Court justice directly from the Bar – said the following on Twitter this morning:

And she posted a remarkable excerpt from Lord (David) Hope’s published diaries:

That really is an extraordinary passage, and it does not become any less extraordinary with re-readings.

*

Rose is a persuasive advocate, but before nodding-along with and clapping her well-made points, I wanted to see what the Supreme Court itself said in response.

So I asked them.

Although the Supreme Court (sensibly) does not comment on tweets, in response to my questions a spokesperson said:

“There is a clear and transparent selection procedure which has been set out by Parliament and followed by the selection commission. Judges are in the minority on the selection commission and the lay members are independent, highly skilled, and experienced people. 

“All those appointed to the Court are selected on merit and are people of truly exceptional intellectual and legal ability, with sound judgment and decisiveness and significant legal experience.

“Applications are sought from a wide range of candidates, including those who are not currently full-time judges, and those who will increase the diversity of the Court. 

“Both positions were publicly advertised, as you can see on the ‘Judicial Vacancies’ page of our website, here: https://www.supremecourt.uk/news/judicial-vacancies.html and was also publicised across our social media channels.

“The news story that was published on our website on 11th February 2022 to launch the applications also states that there were two vacancies for these positions: https://www.supremecourt.uk/news/supreme-court-launches-selection-process-for-new-justices.html

“At the bottom of that page, you can read who was on the selection commission for this competition and more about how the commission is convened. For your ease of reference, here are the names:

Lord Reed of Allermuir (Chair) President of the UK Supreme Court
Mrs. Elizabeth Burnley CBE Member of the Judicial Appointments Board for Scotland
Mr. Paul Douglas Member of the Northern Ireland Judicial Appointments Commission
Lord Kakkar Chair of the Judicial Appointments Commission
Sir Geoffrey Vos Master of the Rolls and Head of Civil Justice

“Membership of the commission for any vacancy on the Supreme Court bench is set out in statute, i.e. it is stipulated by Parliament.  As you will see, the commission for the vacancies for Justices of the Supreme Court is chaired by the President of the Supreme Court. Another senior UK judge (not a Supreme Court Justice), and representatives from each of the three independent judicial appointments board/commissions across the UK, form the rest of the panel. By law, at least two of these must be a non-lawyer. 

“You may read more about the selection process on our website: https://www.supremecourt.uk/about/appointments-of-justices.html

“The selection process is rigorous, fair and independent. It follows good recruitment practice and the new justices have been selected under provisions set out in the Constitutional Reform Act 2005. As part of the recruitment exercise, the commission actively encouraged applicants from all backgrounds.

“As outlined above, the Supreme Court does not make the appointments. However, the Court recognises that it has a role to play in increasing the diversity of the judiciary and has a Judicial Diversity and Inclusion Strategy addressing this serious issue with practical measures that will contribute to change.  

“To give you some background: the strategy does not address the appointments process which is governed by statute.  Instead, it looks at the role the Court can play in actively supporting diversity and inclusion in order to create and support initiatives that contribute to creating a more diverse, appointable pool of candidates for judicial office.

“We recognise that diversity brings richness to the judiciary and that more needs to be done to ensure that the judiciary is representative of the society which it serves.”

*

So the positions were advertised, and the selection commission would seem to be a model of diversity.

There are things in what the spokesperson said there which are good to see.

And a read of the relevant detailed and dedicated page shows how the Supreme Court went about the selection process.

There is a question to be asked about whether the current President of the Supreme Court – or any other current sitting justice of the court – should be part of the selection commission.

And the process could be more transparent – with, as Rose avers – published shortlists and criteria.

So the Supreme Court has got something to say for itself, and there is evidence that it is trying to be more diverse in its appointments.

*

But.

In the end, despite the above process, two more Davids were appointed.

Does this mean that the Supreme Court should do more?

Can it – or those who control the process – do anymore?

Or is this a wider problem in the legal system which needs a wider solution?

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