Supreme Court president refuses to rule out stepping down if Boris Johnson tries to politicise judiciary

Move to US-style confirmation hearings would be 'unacceptable', says Lord Reed

The president of the Supreme Court has declined to rule out resigning if Boris Johnson attempts to politicise the judiciary.

Lord Reed of Allermuir said it would be “unacceptable” for senior judges to be subjected to US-style confirmation hearings featuring interrogation by politicians on their personal views of contentious issues.

Confirmation hearings are one of the reforms likely to be considered by the constitutional review ordered by Mr Johnson in the wake of his election victory.

The Constitution Democracy and Rights Commission has been seen by some observers as an opportunity for the PM to take revenge on the Supreme Court following its humiliating ruling that his suspension of parliament last year was unlawful.

Giving evidence to a parliamentary committee, Lord Reed rejected claims that judges were engaged in a political power grab, and said he saw little need for the commission to recommend substantial changes to the way the courts operate.

Instead, he suggested the review’s focus should be on drawing up written rules on the relations between government and parliament to prevent a repeat of last year’s House of Commons dramas over Brexit.

In his annual appearance before the House of Lords Constitution Committee, Lord Reed was asked directly whether he would resign his post if a prime minister attempted to politicise the judiciary.

He paused for a long time before replying: “I would have to see exactly what is being proposed.”

Pressed on what would force him to resign, he said: “The sort of system they have in the United States would be unacceptable.

“I know some of the justices there who have gone through that process. It is really intolerable.”

Lord Reed said that some reform of the way judges are appointed to the Supreme Court may be beneficial, and voiced his backing for efforts to attract a more diverse range of judges.

But he said: “My concern would be, if this is being looked at and alternatives are being considered, that we maintain the primary principle that appointment is on merit, because that is the key to the prestige of the court and the pre-eminent role it is regarded as having in the common law world, and also that we we avoid party political considerations playing a part.

“The court has to maintain the confidence of the public. It also has to maintain the confidence of the opposition, who may be the government in future. So it is very important that we are perceived as being politically neutral.”

The court’s deputy president, Lord Hodge, told peers: “I have a concern that if we were to go down something that appeared to be a political confirmation and did involve asking about one’s personal views, we would risk having judges who felt they have received some mandate to bring their personal views into the courtroom.”

Former court president Lady Hale delivered the ruling that the suspension of parliament was unlawful (Supreme Court/PA)

He added: “There is a great danger that you damage an institution which has an international reputation if you go down that road.”

Asked whether the government was considering introducing confirmation hearings for judges, Mr Johnson's official spokesman later said: "I'm not aware of any plans in that area. We have said repeatedly we fully respect the independence of the judiciary and have no plans or the political appointments of judges.

Speaking to the committee, Lord Reed played down any suggestion that an overhaul of the courts should take place as part of any constitutional reform.

He said: “I don’t myself see the courts as being the primary area for concern.

“It strikes me that we have just been through a period which put our constitutional arrangements under a great deal of pressure. There was a stress-testing of our constitution.

“While the decision taken by the courts in the prorogation case was obviously not greeted with universal acclaim, I don’t myself feel it revealed an inherent weakness in the courts. If anything the reaction has suggested the opposite.

“It’s a striking feature of our constitution the extent to which it depends on conventions and on a sort of culture of shared assumptions about how people should behave.

“There might be merit in having rather more written down than there currently is.”

Giving the example of the 1994 Nolan report into Westminster sleaze, which led to the establishment of a written set of standards for public life, Lord Reed said: “There is scope for more of that.”

He added: “I think that some of the tensions we saw between the government and parliament might have been alleviated by having clearer standards and better mechanisms for assessing whether they have been complied with.”

Lord Reed said the commission’s review “shouldn’t start from the premise that judges are eager to pronounce on political issues”, adding: “The true position is exactly the opposite.”

Judges were “careful to avoid straying into what are genuinely political matters”, he said.

“Do I see us taking on the role the constitutional courts have in other countries? It is not possible because we don’t have the powers and we don’t want to have the powers.”

And in response to claims that the courts had pushed the boundaries of human rights protections, particularly in immigration cases and allegations of war crimes by UK troops, he said: “We don’t make it up as we go along. It is certainly true that a great many things we look at now wouldn’t have been looked at by judges 100 years ago or even 50 years ago.

“To some extent it’s because government wasn’t doing these things 100 or 50 years ago. But it’s also because parliament has enacted a lot of laws – notably the Human Rights Act and European Communities Act – which have given the courts a duty of enforcing laws which reflect a constitutional culture which is not the traditional British constitutional culture.”

Lord Reed added: “If parliament passes the Human Rights Act and it has executorial effect to apply to British forces in Iraq, we have to give effect to that. It is not a power grab by us, but us giving effect to an approach to the (human rights) convention decided on by the Strasbourg court and parliament.”

He said that proposals to curtail the right to seek judicial review, floated by the prime minister on the grounds that too many are being brought for political reasons, “might conceivably be a matter of concern to us, but it would depend on what they were”.

Lord Reed told the committee he expected the Supreme Court to be consulted on the commission’s work, but this had not yet happened.