Role for Parliament in Independent Judicial Appointments: Insights from the Comptroller and Auditor General

In the UK, there is a debate as to whether Parliament should have a role in judicial appointments similar to the that of the US Senate. The minority in favour of this position argues that it would enhance the democratic legitimacy of the judiciary – who are currently selected by various independent commissions – and refers to the proposed reform’s coherence with the general practice of pre-appointment hearings in the UK (such as for the Chair of the Equality and Human Rights Commission) and other parliamentary systems. However, the majority against this position argues that meaningful input into judicial appointments, by parliamentarians, would necessarily undermine the impartiality of the judiciary and outweigh the benefits of judicial democratisation. This paper seeks to add to the debate by establishing a detailed proposal for a parliamentary confirmation model for nominations to the UKSC and arguing that it would be both consistent with and enhancing to judicial independence. The research compares the constitutional foundations and historical origins of the Comptroller and Auditor General – an independent office co-nominated by the Government and Opposition, but confirmed by Parliament – and the UKSC, plus the American and Canadian Supreme Courts. This paper fundamentally argues three points: that there is a democratic deficit in the UKSC judicial appointment model; that the Comptroller and Auditor General is sufficiently equivalent to the UKSC so that its appointment model could be translated onto judicial appointments; and that said translation would remedy said democratic deficit, without compromising the non-partisanship of the UKSC.