Guarding the guardians: towards an independent, accountable and diverse senior judiciary

Guarding the guardians coverAlan Paterson and Chris Paterson
March 2012

This report argues that senior judicial appointments including those to the Supreme Court are in need of significant reform.

The emergence of a more powerful judicial branch of government provides an important check on executive power.  However, it must be buttressed by a constitutionally appropriate appointments system.

A typical Supreme Court appointments process involves assessment of candidates by up to 26 individuals.  21 of these are themselves judges.  Yet in a democracy, no branch of government should have the potential to be effectively self-perpetuating.

The Supreme Court is currently composed of 11 white men and one white woman.  The 8 new appointments to the Court have all been white men.  The most recent appointment process involved assessment of candidates by 24 white men and one white woman.  As the Chief Justice of Canada puts it, "Psychologists tell us that human beings have a tendency to see merit only in those who exhibit the same qualities that they possess".

Report co-author, Professor Alan Paterson OBE of the Centre for Professional Legal Studies, said:

"It is no reflection on the high calibre individuals appointed under this system to say that it is manifestly untenable as a system.  Democratic legitimacy requires that the appointment process contain a better balance between judges, laypersons and politicians."    

Report co-author Chris Paterson said:

"A strong senior judiciary is essential to the protection of individual rights, but it must be supported by an appropriate appointments system.  Diversity, as a basic component of the Supreme Court’s ability to deliver justice in modern society, must be integral to this."

Download the full report.

Coverage in the Times, Financial Times and Guardian